ARGENTINA

CASE N° ARG/20 - Ramón Eduardo Saadi
CASE N° ARG/21 - Carlos Angel Pavicich
CASE N° ARG/22 - Ms. Olinda Montenegro
CASE N° ARG/23 - Carlos Lorenzo Tomasella
CASE N° ARG/24 - Nicolás Alfredo Garay

Resolution adopted without a vote by the Inter-Parliamentary Council
at its 165th session (Berlin, 16 October 1999)

The Inter-Parliamentary Council,

Referring to the outline of the case of Mr. Ramón Eduardo Saadi, of Argentina, as contained in the report of the Committee on the Human Rights of Parliamentarians (CL/165/12(b)-R.1), and to the relevant resolution adopted at its 163rd session (September 1998),

Having before it the case of Mr. Carlos Angel Pavicich and Ms. Olinda Montenegro in addition to that of Mr. Carlos Lorenzo Tomasella and Mr. Nicolás Alfredo Garay, of Argentina, which has been studied by 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", and which the Committee has decided to study jointly with the previous one,

Taking note of the report of the Committee on the Human Rights of Parliamentarians (CL/165/12(b)-R.1), which contains a detailed outline of the case taking account of written and oral comments and observations supplied by the President pro tempore of the Senate and the President of the Justicialist parliamentary group in the Senate, and of written and oral comments and observations supplied by the sources,

Noting that, according to Article 54 of the Constitution of Argentina, amended in 1994, each province is represented in the Senate of the Nation by three members "of which two seats are allocated to the political party obtaining the highest number of votes and the third to the political party receiving the next highest number of votes"; noting further that, for the period from 1995 to 2001, Transition Clause 4 provides for a regime of indirect elections, its paragraphs 2, 3 and 6 stipulating inter alia that:

• "Two of the seats shall be held by the political party or electoral alliance having the highest number of members in the assembly, and the remaining seat shall be held by the party or alliance holding the next highest number of seats. In the event of the votes being equally divided, precedence shall go to the political party or electoral alliance having received the highest number of votes at the immediately preceding legislative elections",
• "The political party or alliance having the highest number of members in the assembly at the time of the election of the Senators shall be entitled to election of its candidate on condition that this shall not result in the election of three Senators from the same party or alliance",
• "In all cases, candidates for Senator are to be nominated by political parties or electoral alliances. The fulfilment of legal and statutory requirements to be proclaimed candidate shall be certified by the Electoral Court and reported to the Legislature.",

Considering that Article 64 of the Constitution, which stipulates that "each Chamber is the judge of the validity of the election and of the rights and qualifications of its members ...", has given rise to different interpretations, the source affirming that this provision authorises the Senate only to verify whether the election and the accreditation of a provincial Senator elect are in accordance with the terms of the Federal Constitution and not to act as elector, the Senate majority affirming on the contrary that it confers upon the Senate "responsibility for the safeguard of its proper and full composition, which implies the quantitative safeguard - all the members - and the qualitative safeguard - representation of the majorities and minorities of each province",

Considering also Law N° 24.444 adopted on 23 December 1994 to regulate the application of Transition Clause 4, in particular its Section 166, paragraph 1, which stipulates that "for the purpose of the application of Transition Clause 4 contained in the National Constitution, with respect to the election of Senators for the provinces on the occasion of the partial triennial renewal of 1995, the legislatures of each province shall elect a senator in conformity with the constitutional provisions ... and finally paragraph 4 of that Section, which states that "the provisions of this section ..., when mentioning alliances or political parties, refer to parties or alliances having participated in the most recent provincial election in order to renew legislative posts, not counting the 1995 electoral process.",

Noting that, with respect to the application of this provision in the cases before it, the following emerges from the file:

(i) On 20 August 1995, Mr. Ramón Eduardo Saadi was elected by his party, the Justicialist Party, as its candidate to occupy the minority seat of Catamarca in the Senate of the Nation. This decision was duly certified and notified to the Legislative Assembly, which, by Senate resolution D.R. 597/95, was informed that it had to elect a senator for the majority and for the minority, together with their substitutes, during a single sitting. On 9 September 1996 the Legislative Assembly elected the titular and substitute candidates of the majority party, Mr. Aníbal Castillo and Mr. A.D. Quintar, and rejected the candidature of Mr. Ramón Saadi and his substitute for the minority. On 19 September 1996, by decision of its majority (Dictamen de Mayoría, O.D. 1136/96), the Senate Constitutional Affairs Committee recommended the incorporation in the Senate of Mr. Castillo and Mr. Saadi without, however, the Senate acting upon those recommendations. On 19 March 1997, the Committee requested that the Catamarca Legislative Assembly reconvene to nominate its Senators, arguing that the vote of 9 September 1996 was invalid. On 16 July 1997, the Legislative Assembly informed the Senate of its resolution of 10 July 1997, in which it stated its will to confirm the results of its 9 September 1996 sitting. On 11 June 1998 (O.D. 469), a majority of the Senate Constitutional Affairs Committee recommended the incorporation in the Senate solely of Mr. Saadi and his substitute, but not of Mr. Castillo, while a minority of the Committee recommended the incorporation of Mr. Castillo and the rejection of Mr. Saadi's credentials. The opinions of both the majority and the minority of the Constitutional Affairs Committee having failed to win a majority in the Senate, neither Mr. Saadi nor Mr. Castillo has to date been incorporated in the Senate.

(ii) The candidatures of Mr. Carlos Angel Pavicich and Ms. Olinda Montenegro for election as titular and substitute Senators, respectively, for the majority in Chaco Province were put forward by the Alianza Frente de Todos, an electoral alliance made up of several parties including the Unión Cívica Radical (UCR) and recognised as such by the electoral authorities at both provincial and national levels for the 1997 elections. The Alliance contested and won the provincial elections of 1997, cumulating a total of 16 of the 32 seats of the Provincial Assembly as against 13 for the Justicialist Party. The candidatures of Mr. Pavicich and Ms. Montenegro were duly certified by the Electoral Court and forwarded to the Chamber of Deputies of Chaco, which, on 25 September 1998, by a majority of 17 votes out of 30, elected Mr. Pavicich and Ms. Montenegro as titular and substitute Senators, respectively, for the majority. On 2 October 1998, the Justicialist Party in Chaco Province objected to the incorporation of Mr. Pavicich and Ms. Montenegro in the national Senate, arguing that it held a majority in the Chaco Assembly with its 13 seats. By resolution DR?1083/98 of 21 October 1998 (Dictamen de Mayoría), the Senate decided (i) to accept the objection lodged by the Justicialist Party and reject the credentials of Mr. Pavicich and Ms. Montenegro, and (ii) to incorporate instead as titular and substitute Senators for Chaco Province for the period 1998-2001 Mr. Hugo Abel Sager and Ms. Lidia Beatriz Ayala, both of the Justicialist Party. Chaco Province appealed to the Supreme Court of Justice to declare Senate resolution DR?1083/98 unconstitutional and called for a "non-innovation measure" to prevent the swearing-in of Mr. Sager and Ms. Ayala. On 24 November 1998, the Supreme Court decided to reject the appeal on the grounds that "the Senate of the Nation had acted within its exclusive powers ... ". Mr. Sager and Ms. Ayala took the oath on 25 November 1998.

(iii) The Pacto Autonomista Liberal - Democracia Progresista Alliance, which held the majority in Corrientes Province at the time of the election, designated Mr. Carlos Lorenzo Tomasella and Mr. Nicolás Alfredo Garay as their titular and substitute candidates, respectively, to fill the seat of one of the two majority senators, the minority seat of the Province being held by a member of the Justicialist Party. Both candidatures were duly certified by the federal electoral judge, who nevertheless also certified the candidates proposed by the Justicialist Party and the Partido Nuevo. On 6 October 1998, the President of the Legislative Assembly of Corrientes convened the Assembly for the purpose of the election. However, the sitting could not be held for want of a quorum due to the absence of the members belonging to the Justicialist Party and the Partido Nuevo. The President subsequently refused to reconvene the Assembly, arguing that there would be no quorum since the members of those parties had expressed in writing their decision not to attend such a sitting. On 2 November 1998, the National Electoral Chamber revoked and annulled the certifications granted by the federal electoral judge to the candidates of the Partido Nuevo and the Justicialist Party, Mr. Pruyás and Mr. Sanabría, titular and substitute respectively. However, on 5 November 1998, the Senate of the Nation, acting upon a resolution of its majority (Dictamen de Mayoría), chose the candidates proposed by the Justicialist Party as national senators for Corrientes Province, arguing that the Justicialist Party held a majority of seats in the Legislature and that the decision of the Electoral Court could be disregarded since (a) an appeal against it had been lodged and (b) it was politically motivated, the court being "a slave of the Radical Party". Mr. Tomasella appealed to the Supreme Court of Justice to annul the Senate resolution of 5 November 1998. On 24 November 1998 the Court decided to disallow the appeal, advancing the same arguments as in the case of Chaco Province and, on 25 November 1998, Mr. Pruyás was sworn in,

Noting that, when counting the seats falling to the Justicialist Party in Chaco Province, the Senate authorities took into consideration the results of the 1995 provincial election, in which that party obtained 8 seats, and that of the 1997 elections in which it obtained 5 seats, the corresponding numbers for the UCR being 5 seats in the 1995 elections and 8 in 1997; that, however, when counting the seats belonging to the Alliance, they argue that the 1995 election had to be left out of account under Section 166 paragraph 4 of Law N° 24.444,

Considering that in the "Statement of facts" conveyed by the President of the Justicialist Parliamentary Group in the Senate of the Nation on the occasion of the 101st Conference in April 1999, the Committee on the Human Rights of Parliamentarians was informed that "the Argentine Senate has founded the exercise of its powers ... on Article 64 of the National Constitution and on its responsibility for the safeguard of its proper and full composition, which implies the quantitative safeguard - all the members - and the qualitative safeguard - representation of the majorities and minorities of each province",

Bearing in mind that, in its ruling in case 10956 of 7 October 1993, the Inter-American Commission on Human Rights held that "It is appropriate also to recall ... when analysing the scope of Article 23 of the Convention that, in order to be fully legitimate, elections must be genuine, universal, staged on a regular basis and effected by means of a secret ballot or other method safeguarding the free expression of the voter's will. Legal regulations consequently do not suffice, but what is required is a positive attitude with respect to their implementation, in accordance with those generally accepted principles which must prevail in a representative democracy. What is furthermore asked of the IACHR is to examine whether the citizens who took part in a political process did so under equal conditions, whether such processes guaranteed the free and authentic expression of the voters, and hence whether or not there occurred a violation of political rights.",

Noting finally that the case of Mr. Pavicich and Ms. Montenegro has been brought before the Inter-American Commission on Human Rights, which decided to address it,

1. Notes that conflicting interpretations have been advanced regarding the powers and procedures of the Senate and the provincial assemblies with respect to the implementation of Constitutional Transition Clause 4;
2. Notes that:

   (i) in the case of Mr. Pavicich and Ms. Montenegro, the Senate set aside the election results of the provincial assembly and chose, for the purpose of representing the province in the Senate, persons not elected by the assembly, arguing that the electoral alliance that put up these candidates lacked a majority of seats in the provincial assembly;

   (ii) in the case of Mr. Tomasella and Mr. Garay, the Senate assumed the role of the provincial assembly, which had not convened, and co-opted candidates whose electoral certification had been rejected by the competent electoral court;

   (iii) in the case of Mr. Saadi, the Senate took no action although Mr. Saadi's incorporation in it had been recommended by its Constitutional Affairs Committee, whose recommendations it had followed in the other cases; yet it ignored the uncontested election of Mr. Castillo as Senator for the majority in the province, thus depriving that province's electorate of a duly elected representative in the Senate;

3. Notes with concern that, in the above cases, the Senate did not apply consistent criteria when exercising its powers under Article 64 of the Constitution;
4. Notes further with concern that, regarding Chaco Province, the Senate does not seem to have applied the same criteria when counting the seats belonging to the Justicialist Party and those belonging to the Alliance since it took the 1995 elections into account in one case and not in the other;
5. Recalls that both under the International Covenant on Civil and Political Rights and under the Inter-American Convention on Human Rights, to both of which Argentina is a party, States have an obligation to implement the rights set forth in those instruments, including the rights guaranteed under Article 25 and Article 23, respectively, and to guarantee that these rights are applied even-handedly to ensure that the State always acts predictably;
6. Requests the Committee on the Human Rights of Parliamentarians to invite the President of the Senate Committee on Constitutional Affairs to a hearing at its next session, in keeping with his stated desire, in order to exchange views with him on the case in question;
7. Requests the Secretary General to convey this decision to the President of the Senate and to the President of the Argentine National Group, President pro tempore of the Senate, and to the sources;
8. Requests the Committee on the Human Rights of Parliamentarians to continue examining this case and report to it at its next session (April-May 2000).

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