Andrés Gil Domínguez: ‘Eliminating the PASO primaries would strip opposition of tool to unify’

The possible elimination or suspension of the PASO primaries in Argentina re-opens the debate over the electoral system, institutional engineering and political competition in a context of reforming the rules of democracy.

In an interview with Modo Fontevecchia for Net TV and Radio Perfil (AM 1190), Andrés Gil Domínguez warned that “eliminating the PASO primaries strips the opposition of a tool to unify.” He also warns about the political impact of a possible repeal on the organisation of opposition parties and the formation of electoral alliances.

A lawyer with a doctorate in Argentine constitutional law, Gil Domínguez is a constitutional law professor at the University of Buenos Aires (UBA) among others, as well as a researcher and consultant on political issues. A director of the AGD Consultora consultancy firm, he has participated in commissions and public debates linked to judicial reforms, the Constitution and the functioning of Argentina's judicial branch.

A senator recently said that she saw no possibility of electoral reform as a whole being approved, but she did with a suspension of the PASO primaries and in that latter case, would they simply need a simple majority?

If the PASO are optional, they cease being the PASO but are transformed into open party primaries, losing the judicial and political nature for which they were created.

It seems to me that whether for suspension or elimination, the Constitution is clear – an overall majority of the totality of the members of each chamber is needed because even a suspension implies an amendment, even if temporary, of the current electoral régime.

It further seems that for a discussion over the elimination and/or suspension of the PASO, you have to evaluate if this instance of participation produced benefits or drawbacks for the democratic system, without taking into account the political needs of the government in office.

From this viewpoint, the PASO, as an instance of democratic participation, gives all political parties an equal possibility, if they so desire, of sorting out their primaries by permitting society to express itself before their candidacies are defined. From a democratic viewpoint, it has been a very enriching contribution. So it seems to me that the argument for repealing or suspending them for the general and presidential elections on the economic grounds of ‘Well, we’re spending so much’ or the arguments that this participation is harmful because we are voting so often are not reasonable.

Until now, the PASO primaries have permitted participation and the formation of electoral alternatives for winning the Presidency and that any instance of participation is welcome within strengthening the democratic system.

Do you find any difference between suspending PASO for the midterms and for the presidential elections – in other words, does the latter carry another dimension?

An elimination or suspension for the midterms would be more justified, it seems to me, than elimination or suspending the PASO for a presidential election, where the future and the leadership of the country for the next four years is at stake and where the construction of Congress and the Senate is directly attached to the election of President and Vice-President.

From that viewpoint, it might perhaps be more reasonable to eliminate PASO for the midterms but I don’t see any reasonable justification from what the results of PASO for presidential elections have been.

You recently marked the difference between simple and absolute majorities, with simple being of all members present and absolute of the total. When the PASO were suspended for midterms, this criterion of the totality of all members was adopted, 

Yes, a majority of the total members because whether a reform or suspension – there is at least a temporary reform. The Constitution requires a two-thirds majority because electoral issues are sensitive.

Indeed that is one area where presidential emergency decrees are prohibited. Firstly, it is a very sensitive subject, requiring a two-thirds majority, and then there is an unwritten principle, but very much present, that such reforms cannot be presented in electoral years. Such reforms should be approved previously in years which are not electoral because if not, it affects legal security in terms of the electoral ground rules.

They are indeed out to do it this year. What you argue seems to be correct, that it should not be for this year. It does not matter whether it is a year or two beforehand but for a year other than when the government making the amendment has to compete.

Yes, that would be more reasonable from a constitutional viewpoint. You don’t change the ground rules to benefit or hurt the contenders in the next electoral process but instead think within a more reasonable and lasting field of electoral constitutional engineering for another process.

The problem in Argentina is that there has been plenty of manipulation with this issue of the electoral rules, often thinking in the short term – ‘What do I do to win this election?’ – and thinking of changing, amending or restructuring the electoral system. This is harmful for the functioning of the democratic system because the greater the stability of a system, the more the functioning of the democratic system is strengthened.

In a previous interview, we were talking to (Radical ex-senator) Ernesto Sanz, whom we asked if the Cabinet chief is not in reality the Interior minister, since his task is to convince the governors to vote for certain laws and within two days of taking office, his main concern was to convince the governors that there be no PASO. Sanz said that he thinks that, in reality, for the government eliminating PASO is to administer governance because the biggest problem facing the government today is the discussion about its sustainability after next year. In the final analysis, the Cabinet chief does the job of the Interior minister because at this moment it is a fundamental condition of governance. I would like your reflection on the first aim of the new Cabinet chief being the elimination of PASO and why that role of a Cabinet chief, instead of busying himself with improving government administration, is more concerned with next year’s electoral system.

Firstly, I think that Diego Santilli has a profile which fits in much more with an Interior minister than a Cabinet chief, because throughout his entire career he has developed policies of agreements and negotiations more than administration.

And it seems to me that the elimination of PASO is fundamental for this government in terms of preventing an opposition conglomerate from counting on an electoral instrument which enables it to sort out its differences via society to consolidate a powerful alternative to the presidential candidacy of (Javier) Milei. Hence the bid to eliminate it because it would strip the opposition of an instrument to assemble a sort of firewall against the Milei government, which otherwise would not have it.

It would be very difficult for the differences within an opposition front to be sorted out with alternative mechanisms to those proposed by PASO, which is the most suitable mechanism. It seems to me that they would count on a diverse but united opposition behind a candidacy.

The attributes demonstrated by Santilli throughout his political career are based on consensus, not administrative. That somehow indicates the President’s aim: the choice of a person in that direction who is placing re-election as the government’s concern,  modifying the present possibility of whether to have PASO or not.

Yes. All the same, the appointment of Santilli is not a planned decision. It is not as if the  President and Karina Milei appointed him because he formed part of an elaborate design seeking the best piece to make it work.

This is a need in the face of the mess caused by the performance of [Manuel] Adorni as Cabinet chief and all the penal problems and the political costs he was having. It was thus perhaps more a cyclical decision within a global strategy where Santilli was called upon to be the conductor of this strategy.

Interesting. But note that at the same time the Interior minister becoming Cabinet chief is being repeated – Guillermo Francos substituting the first Cabinet chief. The new spokesperson argues that with Diego Santilli they hope to be less confrontational and able to have a friendlier relationship with those who think differently. It would seem that again they are looking for what the President lacks to complement him with that capacity for consensus and being friendlier towards those who think differently.

Yes but it is impossible when a system so oriented around the President does not have those qualities of negotiating, of understanding the democratic dignity of respecting others for those holding posts depending on the presidential decision to be able to implement them. They might have intentions, they might enter into certain negotiations but at the time of sealing consensus, the presidential wrath will always prevail. It’s a question of his nature and that is very difficult.

The interesting thing is to see how a man of consensus like Santilli handles the disruptive outbursts of rage which the President is likely to have. That will be a fine test to observe.

Very interesting and very astute your vision, in the sense of looking for something which you lack but in the end what you don’t have is irreplaceable, don’t you think? That is the paradox we face here, the same thing which happened to the previous Cabinet chief of consensus.