In early January 2018, five prominent Argentinian officials were arrested on corruption charges, including Amado Boudou, Argentina’s former vice president. These arrests come on the heels of President Mauricio Macri’s landslide victory on a “Cambiemos,” or “Let’s Change,” platform—a promise to root out public corruption. Late last year, Argentina’s Congress passed a new anticorruption law, which punishes companies for corruption by blacklisting them from public contracts and levying fines of up to five times the amount companies have obtained by illegal means. The new law also requires corporate compliance programs for the first time. But, while these reforms are welcome, the Argentinian judiciary remains an obstacle to genuine progress in eradicating the rot of corruption.
While the Macri government should be praised for making steps in the right direction, its efforts will fall short unless something is done about Argentina’s judicial system. More specifically, Argentina’s judicial institutions suffer from three problems that impede effective anticorruption efforts:
- First, the judicial process is too slow, and judges have no accountability to hear cases in a timely manner. Judges can accept or deny any case without oversight, nor is there any oversight over how quickly judges must hear the cases they accept. The average judicial proceeding in Argentina takes 4,161 days (that is, over 11 years). A 2016 OECD audit found that most corruption cases had been ongoing for more than a decade; another OECD study found that only 15% of corruption cases reached trial, and only 11% resulted in convictions. Moreover, where those accused of corruption do not believe they will ever be convicted, they are less likely to settle. According to experts and government officials, most defendants do not feel pressure to plead out in Argentina because they consider the possibility of being held accountable through Argentina’s slow judicial system too remote. This level of judicial inefficiency is a problem for any kind of case, but it may be especially damaging to corruption prosecutions, both because a lengthy waiting period is especially likely to result in deterioration of evidence, and also because lengthy delays erode public confidence that corrupt officials and their cronies will be held to account. When people lose faith in anticorruption efforts, they may be less likely to report corruption; they may also lose faith in democratic institutions and become discouraged from exercising their civil and political rights to try to replace a corrupt government leader with one that is not corrupt.
- Second, corruption and cronyism afflict the judiciary itself. Argentina ranks 133 of 144 in a Transparency International score for judicial independence. Companies frequently pay bribes in exchange for favorable judicial decisions. Many of Argentina’s judges are cronies of Congress. And Argentina is rife with political interference with the courts, especially in provincial courts. In 2013, a new law changed how judges run for election, providing a significant advantage when the judge runs on the ticket of the ruling party. In effect, this makes the judiciary subservient to the ruling party. Moreover, judicial vacancies are a huge problem in Argentina—statistics from February 2017 indicated that 6% of judicial positions were vacant—and to fill these gaps, Argentina uses surrogate judges, who are appointed by the executive branch without congressional approval, which may give the executive branch more power, as one judge puts it, to “influence justice.”
- Third, even if the judiciary were genuinely independent and willing to convict defendants in corruption cases in a timely fashion, the courts’ hands are tied by immunity protections enjoyed by Senators and Members of Congress. Consider Carlos Menem, President of Argentina from 1989 to 1999: Menem is now 85 years old and retains a congressional seat, which immunizes him from indictments for weapons smuggling and embezzlement. And while congressional immunity can be stripped away by two-thirds vote in the Senate, that is highly unlikely (though immunity stripping does happen occasionally, for example last October, when the Senate voted to lift the protection afforded to Fernandez’s former planning minister who was charged with fraud and corruption). Congressional immunity is not unusual, particularly in Latin America, but Argentina should join the growing number of countries stripping immunity in the face of corruption charges. (In Guatemala, for example, a vote 132-0 stripped President Molina of his immunity in response to a corruption investigation. Admittedly, this is different than the situation in Argentina, in part because the immunity covers the President, not a member of Congress.)
Because Argentina’s ineffective judiciary may choke an otherwise promising anticorruption campaign, if Argentina’s new government is serious about wanting to change, the government’s anticorruption efforts must be coupled with an equally strong commitment to fundamental judicial reform.