On June 2, 2020, a decision was announced that would lead to a long debate in the following months: The Governor of Mendoza, Rodolfo Suarez, proposed the Day of Maria Theresa (at the time Coordinator of the Public Prosecutor’s Office) as an alternative to Jorge Nanclares, President of the Regional Supreme Court.
Day’s nomination sparked a wave of criticism and uproar in the political and judicial arena. The main question is that this measure violates subsection 3 of Article 152 of the Mendoza Constitution, which states that “in order to be a member of the Supreme Court and its attorney, it is necessary (…) 3- to be a lawyer at a national university degree with 10 years of practice The profession or 8 of the judiciary. “
Finally, the Provincial Corps Corps passed in this regard, in a split vote (4 votes in favor and 3 against) that determined that Maria Theresa’s day fulfills the requirements of being a minister.
Priority should be given to legislative discussion in a session that deals with a candidate’s specification, relying on the participation that the legislature is guaranteed through the public hearing.
The Supreme Court of Justice ruled that the phrase “to be a lawyer with a national university degree and 10 years of practicing the profession” should be interpreted as a condition of being a member of the Supreme Court of Justice, to include the practice of the profession, freely and in a dependent relationship, private or public.
In the latter case, provided that the appointment to the position and / or assignment of duties requiring the title of attorney is made under constitutional, legal or regulatory provisions.
This provision was made clear in the Reform Agreement of 1965, in Article 143, Paragraph Three, insofar as it now states that “the professional seniority required by Articles 152 to 155 of this Constitution, to be judges or employees of the judiciary, except in the case of provincial citizens, They must refer to law practice or services provided in the local judiciary.
The majority vote was for Ministers Dalmero Garay, José Valerio, Pedro Llorente, and the servants of the First Civic Chamber of the First Circuit, Alejandra Orbeli, who replaced Teresa Day who exempted herself from giving an opinion. The minority vote was for ministers Omar Palermo, Mario Adaro and Julio Gomez.
Among the arguments in favor of the appointment of Theresa Day, majority justices expressed that “priority should be given to legislative debate in the session dealing with the characteristics of the candidate, with confidence in the participation guaranteed by the legislature through the public heard”; Pointing out that “moving forward otherwise means diminishing the work of the legislative authority, assuming that it cannot present a correct and reasonable agreement in the session regarding a questionable issue, and that this Supreme Court should assume a paternal role over the rest of the public authorities.”
In the context of negative votes, it was considered that “years of“ professional practice or judicial ”constitute the only fitness condition required by our constitution to be a member of the court. For this reason, it must be interpreted in a restricted manner. In addition, if different explanations are possible, the one that is most appropriate must be chosen to ensure suitability for the job you are applying for.
In the final conclusions, the minority vote states that “the opinion of the majority which believes that it is sufficient for a regulatory ruling to stipulate the title of attorney for the exercise of public office is questionable. This interpretation is difficult to accept in terms of democratic legitimacy.