In my previous Telesur column I explained that, despite his public image, Mauricio Macri is far from being a law-abiding servant of the Republic, as his record as mayor of Buenos Aires shows many abuses of authority and acts of corruption. Unfortunately, my wildest predictions in this regard fell short. In his first three weeks as Argentina’s new President Macri has promoted a number of blatantly illegal measures that have harmed the core of the republican system, the division of powers. The extent to which Argentina’s government has fallen into illegality has surprised both Macri’s allies and opponents.
The first hint came hours before he took office. In the past few days he and Cristina Fernandez had embarked in a rather childish disagreement over the precise details of the ceremony of inauguration. Argentina’s law requires that the oath of office must be taken at the Congress, but says nothing on where the attributes of power (the presidential baton and sash) must be handed over. She wanted that to also happen in Congress, where she had herself received them, but Macri wanted it to take place in the Presidential palace, as was customary in the 20th century. As both maintained an inflexible disposition, the ceremony was planned as Fernandez indicated – she was probably wrong in not doing it the way the elected president wanted, but she had the legal authority to decide. But then, hours before the ceremony, Macri presented a petition before a friendly court to have Fernandez’s term expire at midnight, before the inauguration.
A sympathetic judge with no jurisdiction on that matter whatsoever agreed on that extravagant principle, which meant that the country would have no president for 12 hours. To fill the power void, the judge ordered that the vice President of the Senate (a member of Macri’s party, of course) was made provisional president for just few hours, so he could have legal authority over the ceremony. Having no actual time to appeal, Fernandez did not bother and instead announced that she would not attend the ceremony at all. The absurdity of that ruling was so obvious, that even furiously anti-Kirchner jurists referred to it as mad and unconstitutional. Most people in Argentina felt too embarrassed about this whole issue to realize the breach in the principle of the division of powers that had taken place. A simple judge has actually ordered to replace a president elected by the people by someone else. Nothing less.
We were still shocked by that, when a new blow arrived. Four days after he took office, the newspapers informed that Macri had appointed two new justices for the Supreme Court by a simple decree. Like in the U.S., the composition method for that body in Argentina is by presidential nomination and Senate confirmation. In addition, the nomination procedure requires that civil society is given time to present arguments for or against candidates. Instead, Macri totally bypassed the Congress and civil society. He found a legal excuse for that in a forgotten clause of the Constitution that gives the president the right to provisionally appoint certain “employees” that normally require congressional approval if the Congress is in recess and is urgently needed. Of course, that clause applies to “employees” of the executive, like military officials, but not to the heads of another power. In addition, the Constitution’s clause – which had never been used before for this purpose – makes it clear that the president can only use it if the vacancy appears when the Congress is in recess, something that does not even apply in this case. Incidentally, one of the vacancies happened one year ago, but Macri’s coalition decided to impede any new appointment during Fernandez’s term, another anti-republican attitude. The second one, a 97-year-old justice who had been barely attending the court for the past years, deliberately postponed his resignation until the day Macri took office, so as to give him the chance to nominate his successor. The president could have waited for the reopening of Congress for these non-urgent matters, or summoned extraordinary sessions. But he deliberately chose not to do so, as he does not have a majority of his own. His decree is not due to urgency, but to the will to control the Supreme Court. Again in this case, Macri’s decision was universally considered an anti-republican move, even by jurists of his own coalition. The two justices that he appointed have not taken office yet, as a local judge has interposed a stay against it, but Macri has refused to withdraw his decree.
Another blatantly illegal move followed few days after that, when Macri decreed the intervention and closure of the AFSCA, the body in charge of the regulation of radio and TV media affairs, together with other changes in the anti-monopoly media law approved by the Congress in 2009 with a large multi-party majority. According to that law, AFSCA is meant to have autonomy. Its authorities –which are representative of diverse political parties and civil society organizations– are elected every four years, and the law mandates that the elections must be held two years after the presidential ones, so as to maintain its political independence. But Macri decided to break the law, under the excuse that the head of AFSCA is pro-Kirchner. Behind this decision, however, is the will to please the owners of Clarín, Argentina’s main media corporation, who fiercely resist the anti-monopoly regulations. Dozens of well-respected voices set to criticize Macri’s illegal move, including the Organization of American States and one of one of Clarín’s most famous TV presenters, who is known for his anti-Kirchner orientation. But again, in this case Macri found another friendly judge with no jurisdiction over these affairs, who ordered the police to evict the AFSCA’s former authorities, something they did without notice. Fortunately, another judge has just interposed a stay impeding further measures against the media law.
Anti-republican or plainly illegal measures accumulate day after day. As with the Supreme Court, the Council of Magistrates of the Nation is also being unduly manipulated to ensure a pro-Macri majority. And the government keeps demanding the resignation of Attorney General Alejandra Gils Carbó who, like the Supreme Court judges, is an independent officer appointed by the Congress with life tenure. It is not certain if a decree will also go against her – it seems that they cannot find the way to circumvent the law in this case – but they have already cut her funds and attributions by means of other decrees of dubious legality.
Macri won the elections promising dialogue with oppositional forces and more respect for formal procedures and republican institutions. So far, his government strikes as totally opposite to those promises. Even global media like the BBC are starting to raise alarm over Macri’s authoritarian orientation.
In two weeks of office, his violations of legality, his intrusion in autonomous bodies and his attacks on the independence of the judiciary are already worse than anything civilian governments have attempted in Argentina since the times of Perón.