In 2007 the Buenos Aires Province Supreme Court decided a case that shows how far international law has made inroads into federal nations. At least in theory, Argentina is a federal country with member states (provinces) that have their own constitutions and local laws. Nevertheless, for more than a century the three branches of the federal government have greatly enlarged their powers at the expense of local authorities, usually without much resistance from them. Public opinion has remained indifferent to the process. In my last article I made general remarks about the issue. Now I want to illustrate it with a case in which a provincial Supreme Court invalidated a rule in the provincial constitution about the election for the post of governor, as being contrary to international law.
A clause in Buenos Aires Province Constitution (Art. 121 inc. 1) states that governors must have been born in Argentina, or -if born abroad- be the sons of Argentine parents (this latter provision contemplates the situation, not uncommon in our history, of political expatriates). The federal Constitution has the same rule for the post of President (Art. 89).
In 2007 the Colombian-born businessman Francisco De Narváez Steuer announced his postulation to the post of governor for one of the many branches of the Peronist party. Two small parties objected on the grounds of the previously mentioned rule. The issue reached the provincial Supreme Court which decided to invalidate the constitutional rule as being contrary to international law. Evidently, it means that international conventions are superior to state's constitutions. And as the Argentine federal constitution has the same rule for the post of president, one may wonder whether international law might prevail against it too.
As it is usual with cases that are decisive to the life of the nation, Argentine academics and jurists have payed no attention to that ruling. No review, no comment, for or against. The notion that there is no point in examining the legal arguments of a decision that is “final” -i.e. that there is no appeal from it- has been adopted by most Argentine law scholars, at least when the decision has deep economic or political consequences. Perhaps that comes from a misconceived "realism", and possibly also from an overcautious aversion to issues that might not be wholly advantageous from an academic point of view.
In a previous article I have made a summary of three federal Supreme Court's rulings of such kind (link). The legal arguments that supported those decisions received very little attention, not only from journalists, but also from law scholars. I think that such lack of interest is not prudent. Nevertheless, as I work in a humble position for the above mentioned local Supreme Court I cannot give an independent opinion concerning the case of the candidate for the post of governor. Still, I think it necessary to fill the gap in the information provided to the public, and at least point out the momentous relevance of the case -whether one agrees with the judgment or not.
The Buenos Aires Province Supreme Court invalidated the rule in the provincial constitution as being against Article 25.2 of the International Convention on Civil and Political Rights which states that
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions...(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.
In turn, Article 2 states that
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
It must be added that in 1994 the Argentine Federal Constitution was amended, and that along with many other innovations, a new Article 75.22 enumerates a number of international treaties and conventions from which Argentina cannot quit unless it is so decided by the vote of 2/3rds of the federal Congress' members. Among these hard-to-abandon treaties is the above cited International Convention on Civil and Political Rights.
Evidently, no law can alter the rights recognized in those treaties, unless of course it is voted by 2/3rds of the Congress' members. Although it is not exactly the same, one might also deduce that laws passed before these treaties where so elevated, must be considered automatically altered by the treaties. So has been generally understood by the courts. However, the federal Constitution doesn't answer the question whether those treaties and conventions are above the state's constitutions.
The judges give their arguments
Judge de Lázzari was the first to give his opinion, from which all the other judges dissented. He was the only one who said that there was no legal basis for invalidating the requisites that the provincial Constitution establishes for the post of governor. He pointed out that the Federal Constitution itself requires that candidates for the post of President be citizens born in Argentina, or if born abroad, be the sons of Argentine parents. Thus he reasoned that state's constitutions cannot be said to violate the federal constitution -not even indirectly- when they require exactly the same for the post of governor.
The judge added that the prohibition against discrimination in Article 25.2 of the International Convention on Civil and Political Rights is somewhat softened by the caveat that distinctions must be reasonable, and the dissenting judge found that the requisite in both the local and federal Constitution was reasonable.
Nevertheless, the majority of the Court followed judge Hitters vote, who reasoned thus: it is indisputable that local constitutions cannot contradict the Federal Constitution. The Federal Constitution elevates these treaties and conventions above normal statutes, so in a way they are incorporated into the federal Constitution. Therefore, if a state's constitution contradicts any of the rules in the treaties, it is as if it were against the Federal Constitution itself. He didn't answer his colleague argument -i.e. that the federal Constitution establishes the same requisite. This is customary in Argentine higher courts, where judges seldom mention the arguments they don't share. As a matter of courtesy, their votes run in parallel but never touch each other.
Judge Pettigiani joined the majority's answer but provided a different argument for it. He wrote that as Buenos Aires Province constitution forbids discrimination in very general terms, it must be understood that it forbids a form of discrimination that results from one of its own clauses. Therefore, the rule against governors born abroad must be considered as if forbidden by the same provincial constitution that establishes it.
The strategy of using one article to invalidate another article in the same constitution might seem odd to those not acquainted with modern methods of interpretation, but it has been used by renowned authors. Ronald Dworkin, much admired in Argentina and cited in this sentence, has argued that as the US federal Constitution forbids “cruel and unusual punishments” it may be concluded that it forbids states from imposing the capital punishment. To the objection that the US federal Constitution itself establishes that no one shall be deprived of life without the due process of law -a provision that would be contradictory if that punishment were forbidden by the same constitution-, Dworkin answers that the founding fathers might not have been aware that capital punishment is indeed cruel. They might not have realized that after banning cruel punishments, there was no need to provide procedural guarantees for the trial of capital crimes. Dworkin declares that at the very least the question is “open” which in his parlance means that it is closed to the states and must be finally decided by the federal Supreme Court (Taking Rights Seriously p. 135, also in Freedom's Law p. 291).
But we must return to our case. Judge Negri joined the majority although he based his answer on his own arguments. He declared that it wasn't unreasonable to interpret the prohibition against governors born abroad as if it didn't actually forbid it. And he stressed that Colombia, where the would-be candidate was born, was part of Latin-America, which the judge considered only a part of an unfortunately dismembered nation.
At the time the case was decided there were two vacant seats in the Court. Two judges from a lower court filled the empty places and they too jointed the majority's opinion. To the argument provided by Judge Hitters, Judge Domínguez added that according to the federal Constitution, only the federal government is authorized to pass laws establishing the the rights that pertain to citizenship. He didn't address the objection pointed out by judge de Lázzari: federal legislation -the federal Constitution itself-, establishes the same restriction. As said, that is the custom in our higher courts.
As a consequence of this decision, one must understand that international conventions -at least those that cannot be abandoned but by 2/3rds of votes in the federal Congress- are above local (state) constitutions. And as this case shows, that applies not only to traditional human rights issues, but to matters that influence the member state's elections and institutions.
Which international convention prevails?
Now we know that conventions prevail over state constitutions, at least according to this decision. But it must be said that the sentence also means that the International Covenant on Civil and Political Rights prevails over and renders ineffective a rule in another international convention listed in the Argentine federal Constitution. The American Convention of Human Rights (Pact of San José, Costa Rica) forbids discrimination but admits that the right to participate in government may be restricted “on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings” (Article 23). Although the issue was not discussed explicitly in their sentence, it is evident that on this point the judges in the majority assumed that the International Covenant prevails over the American Convention. Implicitly, the majority must have applied the principle known as “pro homine” which means that rules in human rights conventions shouldn't be interpreted as restricting others in other conventions or in local statutes that provide a more extensive protection to human rights.
So in order to allow provinces to enact a restriction not admitted in the Covenant, it is not enough to sign a Convention that admits it. The Covenant would have to be abandoned by 2/3rds of the members of the federal Congress.
There is an interpretation that might have made the Covenant, the Convention, and our constitutions compatible, but which to my knowledge has never been explored. As we know, there are multinational states. The former Yugoslavia is the most cited example, but there are many others. One might think that the prohibition against discrimination based on nationality for the post of high governing offices refers to nationals within a multinational state. So in the former Yugoslavia, Serbs, Croats, etc, should have had the same right to govern the country where they were born. Today, for example, Russians should not prevent Tatars born in the Russian Federation from reaching the highest public offices, etc. Nevertheless it might be argued that denying the post of president or governor to people born in a different country is not a violation of a basic human right. I am not sure whether this construction is possible. As I said, it was not explored in the case.
Though these issues remain indifferent to most of the public, one cannot discard that future generations might consider important to inform themselves about them -perhaps even to consider the legal arguments both of the majority and of the minority. Unfortunately, the task is not simple. As it happens with most judicial rulings, the sentence is very long and it is difficult for those untrained to separate the ratio decidendi from the obiter dicta. These two Latin expressions point out to a very important distinction. The former are the real basis for the decision, the latter are general remarks, opinions of the judges concerning issues not at stake in the case, etc. I have tried to sum-up the key arguments in a short space and have avoided legal jargon as far as possible. Certainly the sentence touches many more matters apart from question about the requisite for the post of governor that was controverted in the case. Judge Negri expressed his brotherly love to the Latin portion of the Americas, Judge Domínguez justly protested against the discriminatory fees that must be paid by foreigners who want to visit our national parks, and of course the sentence contains innumerable references to the decisions of federal and international courts. The public, which is the sovereign in democracies, should be able to distinguish what is relevant and what is not. They should be able to ascertain the consequences of judicial decisions. I see some hints that the public is starting to feel that not only prudence compels them to do it, but also the honest pride of living in a free nation.