The constitutional pandemic: the undermining of democracy in Argentina in the Covid-19 era
Image: Felipe Restrepo Acosta via Wikimedia Commons (CC BY-SA 4.0)

An increasingly fine line divides the legality or illegality of a government in the twenty-first century, especially in Latin American nations. In the twentieth century the line was clearly drawn, as de facto regimes seemed to fall into almost a mathematical formula for political extremism and militarism overwhelmingly took over the region. Today, however, the rule of law too often seems to succumb to populist charms, making the division evermore blurred.

From Lopez Obrador’s Mexico to Bolsonaro’s Brazil and Trump’s United States, the Americas are flooded by political leaders whose governments would arguably not be classed as “pure” in Aristotelian terms. That is, those in power look not to ensure the well-being of the people, but rather to further advance their own interests.

But in 2019, it looked like this could all change, as many regions in the southern hemisphere seemed doomed  in a path towards revolution. Most notably Chile, Ecuador and Bolivia experienced periods of turbulence followed by massive protests—the consequence of decades of inconsistent economic legislation as governments from distinct ideologies juggled with conflicting public policies. 

Then came 2020 and the outbreak of Covid-19. In the short term the pandemic seemed to stabilise the political atmosphere in the region, as leaders saw their approval ratings abruptly ascend. But as the year draws to a close, one can only wonder whether the pandemic merely delayed social unrest, as many political leaders remain obstinate in their hunger for power, even in the face of such rampant and widespread peril. 

Enter Alberto Fernández

This is the context within which we must examine Argentina’s president, Alberto Fernández. He rose to power at the end of 2019, seeing off Mauricio Macri’s attempt at re-election. At his side was Cristina Fernández de Kirchner, former president and the face of “kirchnerismo”, the latest version of Peronist populism. When he took office last December, Fernández faced the challenges of dealing with the poverty experienced by over 40% of Argentines, increasing foreign debt, devaluation of the national currency and a fiscal deficit. 

By 27th March, polls revealed that Fernández was becoming increasingly popular, achieving an approval rating of at least 67.8%. This is an unmeasurably impressive achievement in an acutely polarised country, and a direct consequence of his rapid and decisive response to Covid-19. He declared a national quarantine period via a form of  executive order permitted by the constitution in times of urgent need (which historically has been used excessively and in most cases inappropriately by former presidents and Fernández himself).

“Argentina is now among the countries most hit by the pandemic”

But just a couple of weeks later, public opinion started plummeting as his administration began to show signs that tainted old ways were returning to the country’s highest public office and Fernández’s methods began to drift away from republican values. Many came to believe that the president was not-so-covertly undermining the constitution by skipping institutional steps under the pretext of “social justice” and under the cover of the raging pandemic. 

Meanwhile, Vice-President Cristina Fernández de Kirchner kept the Senate, over which she presides, out of action for several months. When she finally authorised it to resume functioning via Zoom, she made efforts to silence the opposition as she pleased. The same vice-president is under prosecution in at least six corruption cases and in September she attempted to remove three of the judges who are leading criminal investigations against her, a move the Supreme Court later deemed unconstitutional under procedural law.  

As for the judicial system, tribunals stopped working altogether (with rare exceptions) for the first few months of national confinement. The country’s federal structure was also in jeopardy. Decisions over quarantine were made exclusively by the national government, leaving  local authorities relegated to the side-lines and commencing a process of political centralisation. The latter had already been established by Buenos Aires’ status as the argentine capital, the epicentre of national politics from where a supposedly federal country has been almost unilaterally run for the past 200 years, but is now distinctly reinforced by the Fernández-Fernández formula of personality-driven leadership. This arguably marks the beginning of the decay of democracy under his time in office.

The fact that one man has the fate of the country solely in his hands is also particularly treacherous given the region’s long tradition of autocratic-leaning leaders and authoritarian regimes. This all too recent history combined with Fernández’s early popularity means that he is less likely to face backlash for the way in which he carries out his policies, however illegal that may be, as long as their content is popular. But even if all 45 million Argentines support what the president’s actions, it does not erase the fact that breaking the law is condemnable in itself, regardless of any favourable effects.

The populist problem

This concentration of power and presidential overreach is even more alarming when considered in the light of Alberto Fernández’s populist appeal. He was elected under the mythical premise of returning prosperity and general well-being to a society with a long background of political and economic crises. These promises paired with bombastic rhetoric garnered him much popular support, especially from lower-income voters. The fanaticism his eloquence inspires is what allows him to carry out his continued attacks on constitutional rule of law without repercussions. 

“The president’s populist popularity … gives him the freedom to use and abuse the institutions of democracy”

Although his is a more intellectual brand of celebrity, Alberto Fernández’s populist discursive style and strategies serve to systematically polarize the country just as his current vice-president, Cristina Fernández, did during her eight-year presidency. The pair have worked to create what locals refer to as as the “grieta” (fissure)—a chasm between “us” and “them”—us being the virtuous people, the true “pueblo” (people) embodied in the leader and them being the enemy, the oligarchy, the “antipatria” (anti-homeland). 

The president’s populist popularity, upheld by this antithesis, gives him the freedom to use and abuse the institutions of democracy whilst maintaining the guise of a somewhat legitimate leader, in spite of the fact that almost half of the population voted against him in a close election held merely a year ago. This way of ruling is notoriously dangerous given that unrestricted application of the majority principle necessarily leads to the corruption of representative democracy. The  majority cannot and should not be mistaken for the entirety of the people. In other words, should an administration with a majority be given absolute political power, democracy would be denied in itself, because its raison d’être is to reflect the plurality of the people’s will.

An uncertain future

We are living in unprecedented times. The coronavirus—the worst catastrophe in decades  and the catalyst of an economic crisis comparable to the 1928 Wall Street crash—has understandably destabilised the whole world. Only time will tell if political normalcy will return after the pandemic. The question for Argentina is specific: without Covid-19 will Fernández cease overstepping the legal order, or will he find another excuse to avoid abiding by the rules? 

“The future of democratic institutions and constitutional values depend on direct action from citizens”

But one thing is certain: even as we wait for a pandemic-free future, it is the right and duty of citizens to hold accountable those responsible for the abuse of the law.  Not even COVID-19 is reason enough to discard and dismantle decades of institutional advancements. 

Every democracy has its vices and so it is only natural for figures like Fernández to emerge in any such country. Whether such populists are successful in their attempt to torch democracy and undermine its institutions depends upon the constitution’s formalist normative structure, meaning the existence of a secure legal foundation and framework. But perhaps more  important still is the country’s social reality: the beliefs and values shared by the people; their willingness to participate in government; their culture of legality and their inclination to abide by the law. 

It is clear that the future of democratic institutions and constitutional values depend on direct action from citizens. As jurists say, it is the people, in possession of their inalienable and fundamental rights, who establish a government limited by the law; but in the scenario that the former were to exceed that limit, then it is only right for the people to exert their right of resistance to oppression. 

 To quote historian Yuval Noah Harrari: “The coronavirus epidemic is … a major test of citizenship”. It falls to Argentines to determine whether the cycle of democracy remains unbroken. If the will of the people is stronger than the president’s ambition, the constitution shall prevail.

Read more stories from the Americas here.