However, the situation changed in August of that year with the sanction of Buenos Aires Law 14,836, which limited the re-elections of mayors and councilors and established that, from now on, they could only be reelected once. The first period to be computed would be between 2015 and 2019.
In the 2019 elections, dozens of local leaders achieved their re-election. There were no major questions until, in November 2020, the president Alberto FernandezDuring a lunch held in Avellaneda with mayors from Peronist extraction, he publicly expressed his disagreement with the norm that prevented the re-election of municipal leaders.
From there, the issue began to climb positions from the basements of Buenos Aires politics and, after the last general elections, in which the communal chiefs played a significant role to shorten the distances of the PASO among the list headed by Victoria Tolosa Paz. and Diego Santilli, The claim of leaders who see the impossibility of running again to run their districts in 2023 ever closer became resounding and came to occupy a central role on the political agenda, putting on the table a discussion that has many edges.
From a political point of view, the numbers in the Chamber of Deputies and the Senate of the Province of Buenos Aires suggest that, in case of wanting to advance with the repeal of the norm, the ruling party referenced in the figure of the governor Axel Kiciloff He could do it, though not without some effort. In the Senate, where there could be a tie scenario between opponents and the Frente de Todos, the decision would be left to Vice Governor Verónica Magario.
However, there are factors that suggest possible breakdowns. On the one hand, massismo, today an ally of the provincial ruling party, was one of the promoters of the limitations on re-election and an untimely change of position could damage its credibility. On the other hand, several mayors from the different sectors that make up Together for Change have aspirations to continue leading their respective local governments. Therefore, they would not look down on a reform and could influence the will of legislators who belong to their electoral sections.
The battle can be defined in the courtroom. From a legal point of view, the presentation of declaratory actions of unconstitutionality or appeals for protection is envisaged to get the challenge of Provincial Law 14,836.
Some issues must be highlighted to understand in depth what the constitutional scenario is. There, the fact that the Province of Buenos Aires is one of the subnational jurisdictions that, after the 1994 reform that enshrined municipal autonomy, did not accept the mandate of the federal constituent in its provincial constitutional text takes on special relevance. In fact, the Buenos Aires constituent convention held in that same year, disregarded the law itself that declared the need for reform and flatly ignored the issue of autonomy of the municipalities that had already been included in the national constitutional order and, previously, in the jurisprudence of the Supreme Court of Justice of the Nation.
Although the Constitution of the Province of Buenos Aires contemplates an otherwise concise and limited regulation of the municipal issue, delegating to the Provincial Legislature the regulation of the bulk of the aspects of the regime applicable to the municipalities, the reality is that, as they have Warned in these days prestigious constitutionalists such as Gustavo Arballo or Domingo Rondina, when the Constitution does not set limits to the citizens who can run for an elective office, the law cannot do so either. In addition, the provincial Constitution does not authorize the municipalities to issue their own Organic Letters, where each district could resolve this issue omitted by the Buenos Aires fundamental law.
Within this framework, since the mayors and councilors are positions created by the maximum law of the Province, the election conditions can only be limited by the Constitution itself. By prohibiting indefinite reelection, the Legislative Power established impediments that the Constitution does not foresee and that is, ultimately, what leaves the doors open for a declaration of unconstitutionality of the legal norm that establishes prohibitions not fixed by the Constituent Power, unlike what happens, for example, with the governor and lieutenant governor, regarding whom the Buenos Aires Constitution is expressly issued limiting re-elections to two consecutive terms.
The delegation made by the provincial Constitution to the Legislature becomes particularly relevant, since, in Article 191, it only empowers the deputies and senators to define the powers and responsibilities of the municipal Executive and Legislative Departments, but does not confer the power to legislate on the conditions and requirements that citizens must meet in order to run for and be elected to hold these public offices.
In a similar sense, the mark of unconstitutionality could find anchor in another not minor aspect, which has been highlighted by the also constitutionalist Pedro Caminos: the interference of the Legislature of the Province in the sphere of autonomy of the municipalities that are, ultimately , which should resolve issues such as the eligibility conditions of their leaders in the absence of a regulatory framework provided by the provincial Constitution.
Nor is it possible for conventional constituents at the municipal level to seek impediments or endorsements to indefinite re-elections, because the constitutional framework of the Province of Buenos Aires does not recognize the autonomy of municipalities in the institutional and political order, and does not allow them to issue their own Letters Organic, legal instruments in which each commune could settle the discussion regarding the possibility of reelection of its local authorities.
Faced with this panorama, and although today there is a broad consensus around the republican value of the limitations to indefinite re-elections to avoid their perpetuation in elective positions, in the framework of a true Republic these types of issues must be established respecting the current constitutional framework. Therefore, understanding that the end does not justify the means and that the laudable purpose of a law is not a sufficient argument, much less valid to violate the Constitution, the path to be followed is that of constitutional reform at the provincial level.
The call for a new constituent convention will not only allow to settle this issue, but will also serve so that the Province of Buenos Aires can move towards a regime that guarantees municipal autonomy, complying with the mandate of Article 123 of the National Constitution and that empowers Buenos Aires municipalities to issue their own Organic Letters, so that local governments can develop fully and better meet the many unmet needs that affect their inhabitants.
Constitutional lawyer and professor of History and Constitutional Law at the Universidad del Salvador. Member of the Argentine Association of Constitutional Law and of the Argentine Association of Constitutional Justice.
Source From: Ambito
