In 2007 the Buenos Aires Province Supreme Court decided a case that
shows how far international law has made inroads into federal
nations (de Narváez, link to the decision in Spanish). 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.
Conclusion
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.
