It is almost a constant in our institutional life that we once again debate issues that seem to have already been resolved, where everything seems to be limited to regarding democracy as completely divorced from its institutional quality; That is, the Republic, without taking into account that the popular will, which is very respectable by the way, should not eliminate republican virtue, because when that happens, democracy itself deteriorates and ends in tyranny and even dictatorships with a democratic formality.
Taking into account the controversy over the competency of an elected national senator who is being questioned for his involvement in a drug trafficking trial, it is appropriate to state the following, from a constitutional standpoint.
In this regard, two opinions dominate. One is known as the formal and the other as the essential. Let’s take a quick look at both.
Authoritarians don’t like this
The practice of professional and critical journalism is an essential pillar of democracy. This is why it bothers those who believe they are the bearers of the truth.
In the first, only the formal requirements for election to office are observed, and this is then expressed in Art. 64 of the Criminal Code, where each chamber judges the titles of its members. Age of applicants, rules related to parties or electoral alliances, etc.
In the second view, to this formal control is added a sense of republican propriety, as arising from Article 16 of the National Code as well as Articles 29 and 36, for example.
In this regard, the well-known “Al-Busi” case can be taken as an example, which reached the Supreme Court. In that case, there were two positions within the court. In one of them, exemplified by Lorenzetti, Zavaroni, Argibaye, and Veit, the so-called formalist position was taken; This means that only the formal requirements established by the National Council are sufficient to attain office based on the expression of the popular will. In another position were Justices Hayton, Petracci and Makeda, who adhered to the substantive view, stating that suitability could be considered as physical, technical and moral as well; This means that we are faced with broader guidelines for evaluation than the simple formalism applied to any public office, because maintaining only formal consideration would make the interpretation constrained in the face of responsibility for what the republican exercise of government entails, even if the person is elected by popular decision. In this sense, I add that this is how it should be as long as democracy is not separated from the concept of the republic, which means that popular decision is also subject to public order.
On the other hand, if the National Assembly demonstrated that the Chambers had the power to punish and even expel its members for moral impotence, this would mean that it could prevent the swearing-in of anyone who had prior knowledge of such moral impotence. So that the chambers have formal and substantial control over their members. There is no ban as long as its alternative also guarantees the will of the people and the same list of candidates.
The author is a lawyer and professor of constitutional and customs law.