In Argentina several laws are sanctioned which later are proved to be unconstitutional. Yet, until someone appeals the law, that law is applied unconstitutionally to a lot of people with the harm it makes to them. Many times you know that a law they are about to approve is wrong, it's approved by legislators not for the sake of people but to profit their own interests, and that the law is going to harm many people. My question is: Can such legislators be sued?
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2 Answers
Short answer, no.
Articles 68-70 of Argentina's constitution effectively provide for legislative immunity while in office.
There are two issues with your plans to sue: 68 protects the legislature for opinions and speeches (such as approval of an unconstitutional law).68 appears particularly troublesome to your lawsuit, as it covers conduct that occurred during their office holding tenure, and seems to continue after their tenure. Note: I have not read this in Spanish, and instead I am reliant on the below translation.
Now, if your accusations are true, you could make a case for this to be considered fraud or treason (or some other crime). If that legislator is currently in office, then their respective House would have to suspend them before any investigation could continue (which is unlikely). Also, regardless of during or after their term, you'd have to convince a prosecutor to press these charges, as these would be criminal charges, and those are (generally) the state's sole prerogative to prosecute.
http://www.biblioteca.jus.gov.ar/argentina-constitution.pdf
Section 68.- No member of Congress shall be accused, judicially examined, or disturbed for opinions expressed or speeches delivered by him while holding office as legislator.
Section 69.- No senator or deputy shall be arrested as from the day of his election until the expiration of his term, except when flagrantly surprised committing a crime deserving capital punishment or other infamous or serious punishment, in which case a summary report of the facts shall be submitted to the corresponding House.
Section 70.- When a written complaint is filed before the ordinary courts against any senator or deputy, once examined if there is enough evidence in a public trial, each House may, with the concurrence of two-thirds of the votes, suspend the accused party from his office and place him under the jurisdiction of the competent court to be judged.
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thanks, what you are refering to it's "fueros" (it's what protect them from being arrested when they are senators or deputies or presidents). But they indeed can be judged because we currently have an ex-president and vice president and a current deputy former minister being judged for what they did in their terms, and we had another ex-president in jail for corruption in most cases. I dont understand very well how it works. Perhaps they can be judged after they end their terms?– PabloCommented Dec 17, 2016 at 15:36
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Anyway those cases are cases of corruption (they got rich by making business with the state in executive positions) and my question is about legislators who doesnt necessarily make money directly but position themselves politically by voting laws which in the end are proven to disfavor people and violates the constitution. The problem is you can't assure a law violates the constitution until someone punished by that law appeals and it reachs the supreme court, and that court rules its un.constitucionality– PabloCommented Dec 17, 2016 at 15:36
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here I found something more, in 2000 for a scandal of corruption in legislators, they sanctioned a law which limits fueros , a legislator cant be in jail during his term, but in can be in trial during his term. Anyway, those are for case of corruption, (recibing brives to vote a law) not for voting an unconstitucional law and I still dont know how it is for this case of unconstitutionality I'm asking chequeado.com/el-explicador/…– PabloCommented Dec 17, 2016 at 15:38
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@Pablo: I assume (both from what I found and how you phrased that) that they either were judged after their terms. Besides, as you say that is for the crime of corruption. This is not what you originally asked about. The purpose of the Section (like it's equivalents in many countries) is to allow legislators to hold and express unpopular opinions, without fear of legal repercussion. You are also assuming that the making of an unconstitutional law is illegal. It generally isn't; instead the law is declared 'void', and unenforceable.– sharurCommented Dec 19, 2016 at 17:56
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@Pablo "But they indeed can be judged because we currently have an ex-president and vice president and a current deputy former minister being judged for what they did in their terms": in the US, immunity for executive officers is somewhat different from legislators' immunity, and I expect that this is similar everywhere. But even legislative immunity is not absolute; a legislator can be prosecuted for bribery, for example, but not simply for promoting a faulty law or voting in favor of one.– phoogCommented Mar 17 at 13:23
Every nation has the government it deserves.
-- Joseph de Maistre (1 April 1753 - 26 February 1821)
In democratic societies, the accepted remedy for unconstitutional laws is to test them in court, and where the court finds the law to be unconstitutional and so orders, to nullify some of the official acts carried out under that law.
The accepted remedy for legislators who make unconstitutional laws is to vote them out of office.
