Appointment and Removal Process for Judges in Argentina: The Role of Judicial Councils and Impeachment Juries in Promoting Judicial Independence, The

Latin American Politics and Society, Summer 2007 by Chávez, Rebecca Bill

THE ROLE OF THE JUDICIAL COUNCIL EV PROMOTING JUDICIAL INDEPENDENCE

One goal of the 1994 Constitution was to improve Argentina's appointment process. Before the 1994 constitutional reform, the Senate confirmed the president's Supreme Court appointees by a majority vote. In compliance with the Olivos Pact, the 1994 Constitution raised the Senate approval requirement for Supreme Court justices from a majority to twothirds. The 1994 reform also created a judicial council to participate in the selection of lower court judges. For each vacancy, the council would propose a terna, a three-person, rank-order list, from which the president would select one member with Senate approval. Monolithic party control, however, prevented the council from reaching its potential as a control organ until an opposition party, the Alianza para el Trabajo, Ia Justicia y la Educación (Alianza), defeated the PJ in the 1997 Chamber of Deputies elections.10 The new Chamber membership passed the legislation that created the council, and the final council member was chosen in November 1998.

The disciplined PJ majority in Congress was able to prevent the inauguration of the Judicial Council until 1998. The 1994 Constitution dictated the council's general guidelines but left it to Congress to determine how the new body would function. Article 114 stipulates that the composition of the council must reflect a balance among four groups: representatives of the elected branches of government, federal judges, attorneys, and academics. The legislature had the important task of determining the precise meaning of balanced membership. Due to intense debate over composition, Congress did not sanction a judicial council law until December 1997, and the council did not function until November 1998.

In its attempt to control the Judicial Council, the PJ-dominated Senate proposed legislation for a 23-member council subordinate to Menem. The Senate bill called for a council composed of eight legislators, two executive representatives, two Supreme Court justices, three academics, four attorneys, and four federal judges. At the time, the PJ majority in both houses of Congress meant that a majority of the eight legislators would be members of Menem's party. Menem could handpick the two executive representatives. Furthermore, due to Menem's subordination of the court, the two justices would most likely answer to the president. The Senate bill even gave the PJ discretion over the selection of the three academics; they would be chosen by the PJ-dominated Constitutional Affairs Committee. Only the lawyers had any real potential to be autonomous of the executive. Menem's justice minister acknowledged that the PJ proposal was "unbalanced" (Granillo Ocampo 1998). The opposition declared it unacceptable (Cruchaga 1996).

The emergence of divided government in 1997 permitted the defeat of the Senate proposal and the creation of a Judicial Council capable of checking the president's appointment power. After the PJ loss in the 1997 legislative elections, Congress passed Law 24,937, which called for a 20-member council composed of four senators, four deputies, one executive representative, the chief justice of the Supreme Court, two academics, four attorneys, and four federal judges. As table 1 illustrates, the 1997 law called for a much more balanced council than did the initial PJ proposal. In contrast to the PJ proposal, the 1997 legislation stipulated that the academics be selected by their colleagues. The law also dictated that of the four Senate representatives, two would be from the majority party, one from the minority party, and one from the second minority party. The same rule applied to the four deputies. Even under unified government, only four of the eight legislators would represent the president's party. Council member Humberto Quiroga Lavie reported that the six factions checked one another. For instance, the lawyers often clashed with the judges, who tended to be more conservative (Quiroga Lavie 2003; Ventura 2003). Moreover, the law requires that two-thirds of the council members support a recommendation before the council passes it on to the president. This high majority requirement further impedes the executive from pushing through its preferred candidates.