05 November 2003
Judicial Reform in Argentina Is Shaped by the Country's History
Backgrounder: A nation without illusions
(Following is a backgrounder providing context for a series of articles highlighting the U.S. Department of State's democracy assistance programs, part of a wider U.S. effort to assist in the consolidation of democracy around the world by enhancing corporate social responsibility and increasing citizen activism and volunteerism.
In order to provide an in-depth look, the articles focus on only one country, Argentina, and primarily on one initiative -- "Justice Undergoing Change: Civil Society, Lawyers and Judges; A Project in Administration of Justice" -- that originated in December 2000. From that meeting, Justice Undergoing Change, as the program is called, became a collaborative effort of the U.S. Department of State; the Argentine Ministry of Justice, Security and Human Rights; the Argentine Council of Magistrates; and major Argentinian nongovernmental organizations (NGOs) led by Libra Fundacion and the umbrella group, ARGENJUS.
So far, the judicial reform effort -- the hallmark of which is its collaborative and consensual nature and the strong involvement of civil society -- has involved 20 U.S. experts who have visited Argentina, speaking on topics as varied as victims' rights and alternative dispute resolution. They are part of the Department of State's U.S. Speaker and Specialist Program, which sends U.S. experts from many academic disciplines worldwide. In addition, three teams of Argentine legal professionals traveled to the United States to take their own close-up look at various aspects of the U.S. judiciary. Their visits took place under the auspices of the Department of State's U.S. International Visitors Program. Although this series is only about Argentina, the U.S. effort to help build and consolidate democracy spans the globe.)
Buenos Aires -- The political and economic outlook in Argentina, as well as the legacy of the country's history, are key factors shaping efforts at judicial reform here, according to legal experts interviewed for a series of articles on the issue. Among the judicial reform efforts ongoing in the country is an initiative co-sponsored by the U.S. Department of State that sends American judicial experts to Argentina and invites Argentine legal professionals to visit the United States. It is called "Justice Undergoing Change" and was launched two-and-a-half years ago.
All the experts interviewed -- as well as people on the street here -- speak of the gravity of the crisis the country has endured, particularly over the last two years, following the devaluation of its currency. According to official government data, fully one-half of the population -- over 18 million people -- now live in poverty. The ranks of the middle class have shrunk. The unemployment rate -- officially estimated at 20 percent -- has approached levels that other countries like the United States have not seen since the Great Depression of the 1930s. The United Nations Development Program (UNDP), in its 2003 report on Argentina, confirms the gloomy statistics, but insists that the situation can be overcome. UNDP calls on Argentina to "revitalize democratic politics as a foundation for reform."
"I think the economic and political situation complicates the effort at judicial reform to some degree, especially for the immediate future," said Dr. Virginia Simari, an Argentine magistrate who represents the Council of Magistrates on the Justice Undergoing Change initiative. "The economic situation resulted in a huge increase in litigation with no increase in funds for the judicial system to deal with it," she added. But Simari also said that the serious economic and political situation has made judicial reform "more important than ever. We must seek out ways to make the system more efficient as well as fair."
Dr. Fabian Perechodnik, director of communications for Conciencia, a leading nongovernmental organization, agreed. "The economic and political crisis in our country led to a huge disconnect between the people and the political system," he remarked -- "and not just the political system, but really all major institutions, including the judiciary. These ties need to be rebuilt, and making the judiciary more efficient and responsive -- through initiatives like Justice Undergoing Change -- are ways to do that." Perechodnik, who also is coordinator of a program receiving U.S. assistance titled "New Leadership for a Democratic Society" -- aimed at fostering a more democratic, participatory culture in Argentina -- said that despite still-severe economic challenges, better days finally may be ahead for the country.
There are some indications that this is the case. In early September, Argentina reached a debt rescheduling agreement with the International Monetary Fund (IMF), somewhat surprising those around the world who hold about $90 billion of Argentine debt. The deal rolled over $12.5 billion owed to the IMF over the next three years. In a 25-minute congratulatory call to Argentine President Nestor Kirchner, President Bush called the agreement "very important," and a "first step" toward the country's recovery. Bush also reportedly expressed a wish to visit Argentina, especially Kirchner's home province of Santa Cruz in Patagonia. The front-page headline in the capital's English-language newspaper, the Buenos Aires Herald, the oldest English-language newspaper in Latin America, published since 1876, read "Bush Congratulates Kirchner." U.S. Treasury Secretary John Snow also commented on the agreement, saying in a statement that the deal "laid the basis for sustained growth and rising living standards" in Argentina. In late September, the IMF approved a $12.5 billion line of credit for Argentina under a three-year program that extended the time frame for repayment of the country's debts to the Fund.
According to economists here -- and the country's economics minister, Roberto Lavagna -- the economic problems remain daunting, however, including unemployment, servicing the country's debt, restoring domestic bank credit, and rebuilding investor confidence. On the other hand, the country's central bank president predicted that economic growth in 2003 will be between 6 and 6.5 percent -- 1 percent above what most independent analysts are forecasting. The inflation rate also is down to 5 or 6 percent compared to over 40 percent in 2002. At an October 29 Western Hemispheric conference in Miami, Argentine Vice President Daniel Scioli said that by 2004 the country would have a 3-percent primary budget surplus. Many Argentines seem cautiously optimistic that, economically at least, the worst may be over.
Politically and socially, the situation appears more stable as well. Kirchner, who took office in May with only 22 percent voting support, has achieved a popularity rating of 75 percent in opinion polls after just five months in office. His political hand was strengthened in September by the re-election of the mayor of Buenos Aires, Anibal Ibarra, and the win of Buenos Aires provincial Governor Felipe Sola. Kirchner backed both candidates in the elections. Commentators here cited Kirchner's popularity, as well as an apparent working majority in the Argentine Congress, as an indication that his government has the political clout to move boldly in solving the country's problems.
On the policy front, Kirchner announced public works programs to ease unemployment and to ensure minimum income support for destitute families while taking steps, such as the agreements with the IMF, to stabilize the economy. In September, his government announced that during the first half of 2003, crime rates, which had been surging in the federal capital and the greater Buenos Aires area, had gone down by 5.3 and 6 percent, respectively, in comparison to the same period last year. If crime continues to fall and the economy advances, the outlook for a rise in public confidence in the nation's institutions may improve, including the judiciary.
But it will be difficult, said Gladys Alvarez, a judge with the National Court of Appeals for Civil Matters in Buenos Aires. "People look at the broad picture -- they look at high profile examples of inefficiency and corruption" in the judiciary, she said. Public opinion data illustrate her point. In one recent poll, 75 percent of the respondents said they did not believe the judiciary was either efficient or independent, despite the fact that the current government has indicated its support for an independent judiciary and judicial reform. Public opinion data like this underline the need for real, meaningful reform, Alvarez said.
Alvarez, who also is president of the advisory council of Libra Fundacion, the leading NGO involved in the Justice Undergoing Change initiative, recently led an Argentine legal team on a trip to the United States to look at judicial reforms. The initiative facilitates the visit of Argentine experts to examine the U.S. judicial system as well as the visit of U.S. experts to Argentina. Alvarez hopes that some of the judicial reforms she saw functioning well in the United States can be adapted for use in Argentina. She also stressed the importance of doing a better job of increasing awareness about the judiciary's role among the Argentine people.
The experts interviewed for this series agreed that both tasks -- reform and educating the public -- are important. They also agreed that judicial reform is an imperative for the country, whatever the immediate economic and political outlook may be -- not only because of the very real problems confronting the state and federal judiciary, but also because of the public skepticism that has built up over decades, bred of the country's turbulent history. A key ingredient of that skepticism is the feeling on the part of many Argentines that they don't have here what they call "judicial protection" -- that all citizens are equal before the law and protected by it.
"In everything you do here, you must be aware of the history of the country and past experiments with reform, both successful and unsuccessful," said Dr. German Garavano, the coordinator of the judicial reform program at the Ministry of Justice, Security and Human Rights. His job includes representing the agency in the Justice Undergoing Change initiative. That history includes memories of the period of dictatorship between 1976 and 1983 -- with its so-called "Dirty War" -- during which the independence of the judiciary was compromised.
There is continuing controversy among Argentines over the extent to which crimes committed during the "Dirty War" should be prosecuted. Human rights groups allege that tens of thousands of people were killed in the crackdown. The official figure given here is 9,000. Some of the people killed were terrorists, but many were leftist political opponents of the military regime. Each week, "the mothers of the disappeared" still gather in the Plaza de Mayo two decades after the generals relinquished control -- a powerful symbol of pain that cannot forget -- a unique form of protest against an all too common kind of cruelty.
Recently, the Argentine Congress annulled the immunity laws that shielded military officers from prosecution for human rights abuses committed during the conflict. However, the Supreme Court has not yet issued a definitive decision on the constitutionality of the repeal of the immunity laws. Whether, and in what form, the country will fully deal with this chapter in its past remains to be seen. As of September, however, it appeared there would be more trials. On September 16, former Navy officer Alfredo Astiz, known in Argentina as the "blond angel of death" -- and 12 other former Navy officers -- were arrested on the orders of a judge investigating human rights violations. One of the two arrest warrants for Astiz was linked to a possible extradition to France for the alleged murder of two French nuns during the "Dirty War." Sweden also is interested in Astiz because of the disappearance of a Swedish teenager during the conflict. Judge Sergio Torres said he is planning to send the suspects to trial as soon as possible. They are accused of tortures and murders committed at the ESMA Navy mechanics school. A case also is moving forward against Army officers.
In July, President Kirchner annulled a decree preventing the extradition of Argentines suspected of committing human rights crimes. Kirchner has pledged to end what he calls a "culture of impunity" in the country. Argentines, both those in favor and those against the prosecutions, will be watching to see if the trials move forward with fairness and integrity. Following the dictatorship, many high-ranking military officers were tried and convicted on charges of abduction, torture and execution of suspected terrorists and opponents of the regime. They were imprisoned in 1985, but pardoned in 1990 by then-President Carlos Menem.
"Every administration -- whether military or civilian, Conservative, Radical or Peronist -- had exhibited symptoms of political corruption. Impunity had always been the handmaiden of corruption, as the judiciary historically lacked the power and independence to bring corrupt ministers and legislators to justice," writes Jonathan Brown, a history professor at the University of Texas in his book, History of Argentina. But in the opinion of many here, it was the mismanagement of the economy after the return to democracy in 1983 above all that most soured public attitudes toward all the country's major institutions, including the judiciary -- an economic record the responsibility for which must be widely shared since the country has experienced a number of administrations under different political parties in the 20 years since the dictatorship ended.
The situation in the country began to deteriorate most seriously in 1999. Industrial production dropped, the trade deficit mounted, the country's debt ballooned and unemployment surged. By late 2001, the situation had reached critical mass, symbolized by the "night of the saucepans," a huge anti-government rally mostly staged by destitute members of the middle class who took to the streets banging saucepans in protest against what they saw as economic mismanagement and corruption on a grand scale. Some demonstrators carried placards saying "down with the Supreme Court," an indication that the judiciary, as well as the executive branch and legislature, was reaping the whirlwind for Argentina's tragedy.
But the worst was yet to come. There followed a chaotic period during which the legislature selected three presidents in just two weeks. In January 2002, the fourth president, Edward Duhalde, slapped a freeze on the bank accounts of millions of citizens so that capital flight would no longer weaken the wounded peso, the country's currency. Depositors then lost up to 40 percent or more of their savings after the link between the peso and the dollar (which had been one to one) was severed. Some bank accounts were totally frozen for a while, leading to an avalanche of lawsuits. The devaluation, which impoverished many middle class citizens virtually overnight, together with the world's largest ever sovereign debt default, was the most dramatic manifestation of the economic debacle. In his book, University of Texas history professor Brown, who is quoted in the press here, calls the events of this period "perhaps the greatest national crisis since the War of Independence against Spain almost two centuries ago."
For most Argentines, it has been a difficult two years to be sure. But like the United States, Argentina is a resilient nation. The two countries share much in common. Both were born in revolution against a colonial power. Both are rich in resources and were built in large part through massive immigration, initially from Europe. In 1914, fully one-third of Argentina's residents were born elsewhere. Both countries also -- for a significant time in their history -- were slave societies that also exploited their indigenous populations, the legacy of which confronts them today. By the early years of the last century, both societies were among the wealthiest in the world, hosting well-educated, literate populations.
Both countries also faltered economically during the 1930s. However, whereas the United States recovered to achieve unparalleled prosperity and political stability in the second half of the 20th century, Argentines suffered through periods of political chaos and economic decline -- one reason perhaps that they now look back so fondly to "La Belle Époque" (the beautiful era), the golden age of prosperity in the late 19th and early 20th centuries. As the new century unfolds, this generation of Argentines hopes for a new La Belle Époque.
If an enduring, prosperous, stable democracy is achieved in Argentina, a fair, efficient and independent judiciary must be a component. That is one reason people involved in the judicial reform movement here exhibit such enthusiasm for the task. They hope that their efforts will provide a model of how to organize judicial reform movements in other countries facing a similar imperative. The history of every country is unique and judicial reforms that might have application in Argentina may not be appropriate -- or even necessary -- elsewhere in the world. Reform in its essential aspects must always be country specific.
But many countries -- in Latin America and in other parts of the world -- are, just like Argentina, dealing with a legacy that has included periods of authoritarian rule and times during which the judiciary has been neither independent nor fair. The result often as not is a legacy of public distrust that hampers the growth of civil society. In addition, many countries also are facing economic and political constraints that limit the resources that can be allocated to the judiciary. The need for innovation and reform in such cases is self-apparent -- all reasons why Argentina's experiment with judicial reform may interest those outside the country's borders as well as those within.
(The Washington File is a product of the Bureau of International Information Programs, U.S. Department of State. Web site: http://usinfo.state.gov)
