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This Tuesday, he entered the Federal Court of Walter Bento defending the candidacy of Rodolfo Suárez as the first deputy of the national senator. He had been challenged by the front Go Mendoza and in a long letter the prosecutor of list A of Cambia Mendoza, Juan Pablo Cebrelli, tried to reject the arguments put forward in this space and asked to confirm the candidacy of Suárez.
More specifically, they reject the challenge and support the position that Article 115 of the Constitution provincial is in disuse and goes against the National constitution, which establishes the conditions required to be a senator of the nation.
“The principle of constitutional supremacy is expressly enshrined in Article 31 of the National Constitution, insofar as it provides that: Constitution, the laws of Nation which consequently are dictated by the Congress and treaties with foreign powers are the supreme law of Nation; and the authorities of each province are bound to comply with it, notwithstanding any contrary provision contained in the laws or provincial constitutions … ”, begins the brief which was presented to the Electoral secretariat.
But on top of that, he argues that the historical context from 196 to date has varied considerably and that this situation can be described as one of many “constitutional shifts”. As he explains, it is these non-formal changes that operate throughout the history of a Constitution, without altering the formal declaration or changing the letter of the text. “According to traditional doctrine, this occurs by the force of the modification of traditions, of social and political adaptation, of customs, of empirical and sociological alteration, by the interpretation or by the ordering of the statutes which affect the organic structure of the state, ”he said.
More precisely, it refers to the fact that, according to Constitution of Mendoza In 1916, the National Senators were elected by the Provincial Legislature, which changed after the enactment of the reform of the National constitution in 1994 which determined his election by popular vote.
“Now, if it is claimed that Article 115, which prohibits the Governor from being a Senator, is still in effect, then Article 105, Article 4, which empowers the Legislative Assembly to elect national senators. , is also still in force? is in force and the other is not, ”argues the defense of Suárez.
“Consequently, to give precedence to article 115 of the provincial constitution would be an illegitimate mutation of the national constitution by modifying the mode of election of the senators of the nation or their conditions of eligibility”, he adheres and specifies that in his opinion, the only conclusion which justice can reach is that it must consider “inapplicable the prohibition made to the governors contained in article 115 of the Constitution of Mendoza“.
Finally, it also rejects the argument that the article has not yet been declared unconstitutional or that it would have been necessary to initiate an action declaring certainty or direct unconstitutionality before the prohibition of the norm.
“That today and praetorian it is admitted to channel direct proposals by the action of certainty, does not prevent the proposal from being introduced by the traditional way which is defensive. In this way, who wants to impose or enforce an unconstitutional standard, it can be defended by alleging its inapplicability and its unconstitutionality, as has been done in this presentation, without it being necessary that there have been prior declarations. in this regard nor that this absence implies the automatic application of flawed standards ”, states the brief of counsel for Change Mendoza.
“To claim that an unconstitutional rule should apply automatically in the absence of previous proposals, the only proof of a disregard of the law in force, in addition to a clear underestimation of the judicial function”, he concludes .
A delicate situation
The situation of electoral justice in Mendoza is colored by the criminal investigation which has Judge Walter Bento as accused. The magistrate is accused of having led an illicit association which allegedly collected bribes for the benefit of the defendants, but despite the force and seriousness of the investigation which concerns him, he has not withdrawn and continues to ” fully perform its functions.
Both as a criminal judge at the Federal Court 1 and as a judge with electoral competence in the province of Mendoza. For this reason, it ends up resolving situations such as the contestation of the candidacy of Rodolfo Suarez or the legality of the “collectors” presented by the Justicialista Party in various municipalities.
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