CASE N° ARG/20 - RAMON EDUARDO SAADI - ARGENTINA

Resolution adopted without a vote by the Inter-Parliamentary Council
at its 162nd session (Windhoek, 11 April 1998)

The Inter-Parliamentary Council,

Having before it the case of Mr. Ramón Eduardo Saadi, of Argentina, which has been the subject of a study and report of the Committee on the Human Rights of Parliamentarians in accordance with the " Procedure for the examination and treatment by the Inter-Parliamentary Union of communications concerning violations of human rights of parliamentarians ",

Taking note of the report of the Committee on the Human Rights of Parliamentarians (CL/161/11(a)-R.1), which contains a detailed outline of the case,

Considering that by virtue of Article 54 of the Constitution of Argentina, as amended in 1994, each Province is represented in the Senate of the Nation by three Senators of whom two represent the party winning the majority of votes and one the party that obtained the second highest number of votes; that, according to transitory provision N° 4, the candidates are to be proposed by the political parties or political alliances, fulfilment of the legal requirements being certified by the National Electoral Jurisdiction; that Senate members are thus no longer elected, as before, by the Legislative Assembly of each province,

Considering that, according to the President of the Senate Committee on Constitutional Affairs, the senate election procedure is divided into three stages: first, the political parties or electoral alliances - minority and majority - nominate the candidate; secondly, the national electoral court certifies the conformity of the candidature with legal and statutory requirements; lastly, the certification is communicated to the provincial legislature; that determination of the validity of the election lies solely with the competent national electoral judge; that, the election of the third senator by the minority consequently does not require the consent of the majority of the Legislature; simple nomination by the authorised party and certification by the competent judge suffice,

Considering that, in the legislative elections of March 1993 and May 1995, the Justicialist Party obtained the second highest number of votes in Catamarca Province, the alliance of the Civic and Social Front (Frente Cívico y Social) having obtained the majority of the votes; that, consequently, the Justicialist Party had the right to nominate a candidate for the minority seat allotted to Catamarca Province in the national Senate,

Considering that, on 20 August 1995, the party elected Mr. Saadi and Mr. Oscar Garbe as titular and substitute minority Senator for the province; that their election was duly certified and notified to the Legislative Assembly, which, by Senate resolution D.R. 597/95, was informed that it had to nominate senators and their substitutes during a single session,

Considering that, notwithstanding the above constitutional provisions, the Legislative Assembly met first on 10 October 1995 and subsequently on 9 September 1996 in order to elect the titular and substitute Senators for the majority and the minority; that, in the election of 9 September 1996, the candidates of the Justicialist Party were rejected; that, however, it was placed on record that the rejection of the candidates of the Justicialist Party did not mean that the latter had forfeited its right to nominate the minority Senator for Catamarca Province,

Considering that, on several occasions, the Senate Committee on Constitutional Affairs invited the President of the Catamarca Legislative Assembly to submit to it the names of the titular and substitute Senators-elect for the majority and minority parties and recommended that the Senate approve the incorporation of majority and minority Senators for Catamarca Province, most recently in decision O.D. 1136/96; that, however, the Senate, which according to the Constitution is the sole judge of " the validity of the election, rights and capacity of its members ... ", did not take action to that end,

Considering in this connection that, according to the source, the Senate President publicly declared on several occasions, most recently on 3 July 1997, that he would not administer the oath should the Senator-elect concerned be incorporated; that such reluctance to incorporate Senator-elect Saadi seems to be due to the fact that judicial proceedings are pending against him,

Considering that, in his letter of 26 December 1997, the President of the Senate stated that " it is the competence of Catamarca Province to elect the Senators to represent it " and that he had not received any decision of the said Province nominating Mr. Saadi for such a distinction,

Considering that, in the opinion he gave on the question whether there was a body to adjudicate upon institutional conflicts and give a definitive interpretation of constitutional provisions, the President of the Senate Committee on Constitutional Affairs stated that, although the definitive interpretation of the Constitution rested with the Supreme Court, the latter had repeatedly decreed that it was a basic rule of public law that each of the three branches could apply and interpret the Constitution of its own accord, in the exercise of the specific authority conferred on it by the Constitution; that consequently, in accordance with Article 64, which stipulates that " each Chamber is the sole judge of the validity of the election, rights and qualifications of its members ", the Court has established in a vast body of case-law that political questions, such as the one in hand, are not subject to judicial review,

Considering that, according to the Senate Committee President, there was no institutional conflict as the Senate President may not decide on quorums, participate in debates or express his opinion; that consequently " without prejudice to the political importance of the views he defends, his personal opinion can neither nullify nor replace the case-law constituted by the decisions of the Senate taken in the latter's exercise of its constitutional authority ",

Considering that, according to the source, on 10 December 1995 the mandate of part of the Senate of the Nation lapsed, leaving Catamarca Province with just one representative instead of three prescribed in the new Constitution,

Considering finally that the Republic of Argentina is a party to the International Covenant on Civil and Political Rights and to the American Convention on Human Rights, both of which guarantee the right to participate in government (Articles 25 and 23, respectively),

1. Thanks the President of the Senate and the President of the Argentine National Group for their co-operation and for the information they have provided;
2. Notes that the Argentine Constitution makes each Chamber " the sole judge of the validity of the election, rights and qualifications of its members " and that, according to the jurisprudence of the Supreme Court, the latter has no authority to interpret the constitutional provisions relating to the specific authority conferred on each of the three State branches by the Constitution;
3. Notes that the Senate Committee on Constitutional Affairs on several occasions advised the Senate to incorporate Mr. Saadi as titular national Senator and Mr. Garbe as substitute national Senator, considering that the relevant legal requirements had been met;
4. Notes that, in the view of the Senate President, it is the competence of the Catamarca Province to elect the Senators to represent it; that, however, according to the legal opinion supplied by the President of the Committee on Constitutional Affairs, the Senate President may not decide on quorums, participate in debates or express his opinion and consequently his personal opinion " ... can neither nullify nor replace the case-law constituted by the decisions of the Senate taken in the latter's exercise of its constitutional authority ";
5. Expresses therefore its deep concern at the fact that, despite the recommendation given by the competent Senate Committee to incorporate Mr. Saadi as titular member in the Senate, he has been prevented since 1995 from taking his oath and exercising the mandate entrusted to him, thus depriving the electorate of his party of its constitutional right to be represented in the Senate;
6. Fears that this amounts to a violation of the political rights both of Mr. Saadi and of the electorate of his party, and consequently urges the Senate - the sole body able to remedy this situation - to respect the recommendation of its Senate Committee on Constitutional Affairs;
7. Requests the Secretary General to inform the President of the Senate and the President of the National Group of this decision;
8. Requests the Committee on the Human Rights of Parliamentarians to continue examining this case and to report to it at its next session (September 1998), in the hope that it will by then have received notification of Senator-elect Saadi's due incorporation in the Senate.

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