While visiting Argentina a few years ago, just as president Néstor Kirchner was defending the biggest default in history, I saw a televised government message that concluded with the phrase, “Argentina . . . A serious country” ( “Un país en serio”). At the time, I dismissed the ad as more farcical than Orwellian, thinking that a government more obsessed with its image than with reality is its own worst enemy. Unfortunately, such a regime finds enemies elsewhere — starting with any independent journalist or media outlet that refuses to toe the party line.
The Kirchner-controlled congress propagated a media law in 2009 aimed at silencing such critics. President Cristina Fernández de Kirchner (successor and, now, widow of Néstor) claimed that the measure served the public interest by breaking up powerful monopolies in the communications sector. By requiring the Clarín media conglomerate and others to divest themselves of lucrative cable television licenses, the government will achieve its real objective of muzzling independent newspaper, television and radio outlets.
Of course, it is all too predictable that these divested media licenses will fall in to the hands of compliant Kirchner cronies. This transparent tactic is lifted from the playbook of leftist caudillos in Venezuela, Ecuador, Bolivia and elsewhere.
The internationally respected Committee to Protect Journalists (CPJ) has vigorously criticized this media law as part of the government’s campaign to silence the independent media, attack individual journalists, and favor its supporters. The CPJ also has denounced the Kirchner administration’s practice of steering valuable government advertising contracts away from independent publishers — such as Perfíl, La Nación, and Clarín — to sympathetic media outlets. In March 2011, Argentina’s Supreme Court saw through this scheme and ordered the executive branch to strike a “reasonable balance” in allocating state advertising contracts. The CPJ has documented the complaints of local media that the Kirchner team is openly defying the court by continuing to reward friendly publishers.
Clearly, Kirchner and the courts are on a collision course over the fundamental issue of media freedom. In another ruling in April 2013, the Civil and Commercial Appeals Court struck down four provisions of the 2009 media law, including the key article requiring divestiture of media holdings. The matter is now pending before the Supreme Court, which will study and decide on the constitutionality of these controversial provisions.
For the Kirchner administration to succeed in silencing the independent media, it will have to force the judiciary to do it’s bidding — just as it has coopted and corrupted other instruments of the state since the election of Néstor Kirchner a decade ago.
However, Kirchnerismo appears to be running out of steam. The drubbing of the president’s slate of congressional candidates in the August primaries — in which her faction received a mere 26 percent of the votes cast — has many observers writing her political obituary going in to the October 27 mid-term elections.
According to reputable published reports, Cristina Kirchner and her cronies have concluded that a victory in the Supreme Court against the media giants will cheer her political allies and remind foes of the high costs of defying the Kirchner machine. A number of articles in independent newspapers have offered details of a campaign to bully Supreme Court justices to rush to uphold the constitutionality of the dubious media law before voters go the polls this weekend (October 27) to elect a new congress.
According to court insiders, the justices are coming under immense pressure — including personal calls from President Kirchner and ministers. Journalists report that the seven justices are divided on the constitutionality of the key articles of the law, with the court’s president, Ricardo Lorenzetti, and Justice Enrique Santiago Petracchi representing the swing votes.
Lorenzetti was appointed to the court in 2004 by the first president Kirchner; he has won accolades for leading a remarkably independent court that has defied the presidency on several key issues. Petracchi, 78, has served with distinction through tumultuous times since democracy was restored 30 years ago; he has resisted pressure by Kirchner loyalists urging his retirement.
Of course, the court need not rush its decision on this extraordinarily complicated and fundamental issue — least of all to satisfy the selfish and desperate demands of a politician. Many Argentines are satisfied that this matter is in the steady hands of Justices Lorenzetti and Petracchi, who must know that the fate of the free press, the reputation of the independent judiciary, and their professional legacies rest on this single decision.
Roger F. Noriega is a visiting scholar at the American Enterprise Institute. He is a former assistant secretary of State for Western Hemisphere Affairs and ambassador to the Organization of American States,