The website of the National Senate states that on November 19, the Committee on Constitutional Affairs analyzed the certificates of the 24 elected senators who should take their seats on December 10. It is also stated there that “(at) the end of the exchange, an opinion was issued for signature endorsing all the testimony of the senators-elect except that of Lorena Villaverde.” Finally, the statement adds, “(The final definition) will be in the hands of the plenary session of the Senate, which will address all specifications at the November 28 session.”
If the entire Senate of the Nation decides to maintain the position of the Committee on Constitutional Affairs and refuse to allow the Senator elected by Rio Negro to take her seat, it will be engaging in patently unconstitutional conduct, which not only ignores the historical and current meaning of Section 64 of our statute, but also ignores the jurisprudence of the Supreme Court on the limited review powers of the two legislatures with respect to which members join.
An attempt to rely on the provision of Article 64 insofar as it states in its first part that “(e)ach House is the judge of the elections, rights and titles of its members as to their validity” to arrogate to itself the power of extensive scrutiny of representatives arising from an election involving both objective conditions (age, residence, etc.) and subjective conditions (moral ability), would involve a procedure inconsistent with the “original” meaning of the Council. The aforementioned constitutional principle.
In fact, the purpose of the above rule was to give the corresponding assemblies the opportunity of final review of the elections of representatives and senators conducted under the supervision of the provinces and away from the protection of the federal government under formation. In view of the well-known historical frictions between the federal states and the regional states which generated mutual distrust, the assemblies reserved, by constitutional text, the possibility to “judge” their elected members only on three very specific issues: a) the regular (or irregular) development of “elections” and the validity of their results, b) the “rights” and “titles” of those elected in accordance with the objective conditions of age and residence stipulated in the National Constitution, c) the final validity of titles issued by the competent electoral body.
The “original” concept has lost its strength as the Argentine electoral system has gained greater transparency, mainly due to the displacement of political authorities in control of electoral action towards independent and impartial judges guided by national electoral law. In other words, the historical meaning of the above-mentioned standard became inapplicable with the passage of legislation on electoral matters and the establishment of a specialized judicial body to apply it.
It is worth noting that in 1853, the task of “adjudicating” elections and the rights and titles of legislators (under Section 64) was assigned to the two chambers of Congress themselves, because the federal justice system did not yet exist. In fact, with the exception of the Supreme Court, Congress later created the entire judiciary of the state, exercising the power of Section 75, paragraph 20.
The establishment of federal courts in the provinces and in the city of Buenos Aires has been a slow process, and the distinction between specialized jurisdictions has become a more recent phenomenon. This context explains why Article 64 gave the chambers at that time a clear judicial function. However, today there is no longer a reason to keep this power unchanged, given that since 1962, the national justice system has functioned with specific efficiency to regulate and monitor electoral processes.
The only criterion that should guide the Senate’s decision at the November 28 session is the one unambiguously established by the National Electoral Code: only a well-established judicial conviction can prevent a person from standing for election (Articles 60 and 61). This situation does not occur in the case of the Senator-elect of Rio Negro, Lorena Villaverde. Unless there is a res judicata conviction, the principle of innocence must prevail.
Having made this brief interpretation of the relevant part of Article 64 of the National Constitution, it must be emphasized that the possible decision of the Full Senate, which is consistent with the illegal overthrow of the opinion of its Constitutional Affairs Committee on 19 November, will also come face to face with the consolidated case law of the Federal Supreme Court in the cases “Bosi” (Judgments: 330:3160) and “Patti” (Judgments: 331:549).
In short, our Supreme Court has indicated in two precedents that parliamentary chambers can only examine the legality and validity of testimony provided by the legislator. Consequently, they lack the ability to evaluate the moral propriety of elected authority. This ban on the Chamber expanding the scope of its powers comes in response to the lack of a rule that enables it to exercise arbitration on the ethical conditions of elected candidates.
It is clear from the aforementioned provisions that those who judge the suitability of the electoral position are the people of the nation at the time of casting the vote, after the authorization of the electoral justice system. Along these lines, the Supreme Court emphasized that “the fundamental importance of respecting the meaning of popular elections, while at the same time preventing the imposition of retrospective ‘requirements’ not provided for in any regulation” is consistent with the ruling that Article 16 of the National Constitution “does not establish a new condition to be a representative of the nation, but is the only reason why the law may restrict access.”
To the above is added a well-reasoned argument: the most serious acts that can be attributed to an elected legislator must inevitably be “causes of judicial proceedings, because all citizens enjoy the guarantee of due process. There is no loss of legal capacity for persons who have had a specific historical performance, because the bar necessarily arises from judicial conviction for a crime.”
The Senate of the Nation knows exactly what its conduct should be. Not only is he obligated to properly apply the Constitution, but he also has clear precedents – the Busi and Patti cases – that show how the judiciary can intervene if any potential impediment to Senator-elect Villaverde to take her seat is prosecuted.
The distinguished Senate cannot ignore the matter. It must avoid unnecessary waste of judicial power, especially where there is well-established Supreme Court jurisprudence. If in the future it is proven, through a final ruling, that Senator-elect Villaverde committed a crime, it is always possible to promote a corresponding violation of immunity.
Finally, we must not ignore that the decision of the Senate plenary session aimed at preventing Senator-elect Villaverde from assuming the seat obtained by ballot means modifying the election result, changing the normal state of democracy. This circumstance would offend the most basic democratic ethics if a handful of legislators were to overturn what has been decided by the will of thousands of individuals, replacing the value judgment they have made about which candidate is regularly chosen in a free election.
In short, if the Senate of the Nation attempts to use the attribution provided for in Article 64 of the Standard of Excellence to “judge” the “moral capacity” of an elected legislator, it will cause a clear distortion of its powers, which is contrary to the original and current interpretation of the above-mentioned constitutional provision and the judicial principle of the Supreme Court, leading, most seriously, to an illegitimate opposition to the taste of the few over the will. This is a fact that contradicts the basic principle of people’s sovereignty expressed in Article 33 of our Basic Charter.