Constitution of Argentina

A. THE CONSTITUTION

1.101 Based on its Constitution Argentina is organized as a Federal Republic divided in Provinces, Municipalities and the Autonomous City of Buenos Aires.

1.102 Its original text was sanctioned in 1853 and one of its principal sources was the Constitution of the United States of America. This text was amended in 1860, 1866, 1898, 1949, 1957 (this abrogated the 1949 constitutional amendment) and 1994.

1. Bill of Rights

1.103 In Chapter I of Part I, the Constitution establishes a Bill of Rights and Guarantees for all individuals, argentine or foreign; the inviolability of the right of life, liberty, equality, security and property. The second Chapter included by the amendment of 1994, deals with public ethics, political rights, environmental protection and consumers rights.

1.104 Civil rights are recognized to all inhabitants of the argentine territory in article 14 and in the case of foreigners this is confirmed by article 20. The wide protection that the Constitution assures to foreigners’ civil rights is a consequence of the traditional interest of Argentina, as a country of immigration, in the affluence of foreigners and foreign investments.

1.105 Workers social rights, including: limited labor day, just salary, right of organization, social security benefits, etc., were introduced by the 1957 amendment.

1.106 Inviolability of property is guaranteed by the Constitution by declaring that no one can be deprived of property, except in case of judicial sentence based on previously enacted legislation, or through expropriation for reasons of public utility, dully qualified by law and previously indemnified.

1.107 Article 18 establishes the principle that the person, its judicial defense, its domicile and correspondence are inviolable. The Constitution expressly declares that "No inhabitant of the Nation can be; condemned without a court ruling based on a law sanctioned prior to the fact object of the claim; nor judged by special commissions; nor judged by other judges than those invested with jurisdiction by the law prior to the fact object of the claim."

1.108 Individual freedom is guaranteed by article 19 and private human actions which do not offend public order or morality, or causes damage to third parties, are only reserved to God and exempt of the authority of the magistrates. No inhabitant of the Nation can be obliged to do what is not established in the law, or obliged not to do what the law does not forbid.

1.109 In order to provide an effective protection to individual rights, the 1994 amendment has introduced actions called: "amparo" (injunctions), "hábeas corpus" and "hábeas data". "Amparo" gives the possibility to any person to request that a judge declare the unconstitutionality of an act or ruling on which an action or omission of public authorities or private individuals is based that, in an actual or imminent manner, causes damage or restrains a right recognized by the Constitution, the law or an international treaty. This action requires that no other effective judicial mean be available. "Hábeas corpus" is an action that can be filled to protect the right of physical freedom when it is threatened, limited, modified or injured, or in case of illegitimate aggravation of conditions of detention. "Hábeas data" is an action that can be filled by any individual to take notice of any information referred to him, registered in public or private registers, and to request its suppression, rectification, confidentiality or updating.

1.110 Another innovation introduced by the 1994 amendment is that citizens can introduce bills before the House of Deputies that must be considered by Congress within the next twelve months. We must also mention the recognition of the right of every inhabitant to a healthy environment in article 41 that establishes that "all inhabitants are entitled to the right to a healthy and balanced environment fit for human development in order that productive activities shall meet present needs without endangering those of future generations; and shall have the duty to preserve it. As a first priority, environmental damage shall bring about the obligation to repair it according to law. The authorities shall provide for the protection of this right, the rational use of natural resources, the preservation of the natural and cultural heritage and of the biological diversity, and shall also provide for environmental information and education. The Federal Government shall regulate the minimum protection standard, and the provinces those necessary to reinforce them, without altering their local jurisdictions. The entry into the national territory of present or potential dangerous wastes, and of radioactive ones, is forbidden". From another point of view there are precise provisions referring to: protection of consumers rights, defense of competitions, control of natural or legal monopolies and of public services quality and efficiency.

2. Form of Government

1.111 The Argentine Nation adopted the federal republican representative form of government. Each province has enacted their own constitutions under the republican representative system in accordance with the principles, declarations and guarantees of the Federal Constitution.

2.1. The Federal Government

1.112 The Federal Government has the following divisions:

2.1.1. The Legislative Power

2.1.1. a) Congress

1.113 The Legislative power of the Nation shall be vested in a Congress composed of two Houses, one of Deputies of the Nation and the other of Senators for the provinces and for the City of Buenos Aires.

1.114 Congress has the power to sanction the Civil, Commercial, Criminal, Mining, Labor and Social Security Codes; to regulate national and international commerce; to approve or reject international treaties giving them constitutional status, and to promote human, cultural and material progress.

1.115 It also has wide powers regarding monetary and financial policy as: organization of a Federal Bank authorized to coin money, fixing of the value of national and foreign currency, arranging of payment of the external and internal debt of the Nation, annual approval of the federal administration’s general budget of, and payment of subsidies to the Provinces with funds of the Federal Treasury.

1.116 With respect to tax policy, Congress has different powers depending on the direct or indirect nature of taxation. Direct taxes can only be levied by the Provinces as a general principle, though Congress can levy them in exceptional circumstances and for a limited period. With regards to indirect taxation, Congress, the Provinces and the City of Buenos Aires exercise concurrent power. The distribution of these taxes between the Nation, the Provinces and the city of Buenos Aires must be enacted by Congress and approved by the Provinces and the City of Buenos Aires.

2.1.1. b) General Auditing Office of the Nation

1.117 The General Auditing Office of the Nation is a technical advisory body of Congress with functional autonomy in charge of the control of the legal aspects, management and auditing of all the activities of the centralized and decentralized Civil Service.

2.1.1. c) The Ombudsman

1.118 The Ombudsman is an independent body created within the sphere of the Federal Congress operating with full autonomy without receiving instructions from any authority. The mission of the Ombudsman is the defense and protection of human rights and other rights, guarantees and interests sheltered under this Constitution and the laws, in the face of deeds, acts or omissions of the Administration; as well as the control of public administrative functions.

2.1.2. The Executive Power

1.119 The Executive Power of the Nation shall be vested in a citizen with the title of "President of the Argentine Nation". In case of illness, absence from the Capital City, death, resignation, or removal of the President from office, the Vice-president shall replace him.

1.120 The executive power is formed by the President, the Vice-president, the Chief of Ministers, and the Ministers. The President promulgates or vetoes the laws sanctioned by Congress; regulates the application of laws sanctioning regulatory decrees; issues regulations concerning the activity of the Public Administration; has the direction of international relations and is the commander in chief of the army.

1.121 The President can issue decrees of necessity and urgency when exceptional circumstances impede the compliance of legislative proceeding, and the object of such decrees does not concern criminal, tax, electoral or political parties organization matters. These decrees must be submitted to the consideration of Congress within ten days of the issuance.

1.122 The Chief of the Ministerial Cabinet and the other secretary ministers, whose number and powers shall be determined by a special law, shall be in charge of the business of the Nation and shall countersign and legalize the acts of the President.

2.1.3. The Judicial Power

1.123 The judicial power is vested in a Supreme Court of Justice and in such inferior courts as Congress may establish in the territory of the Nation.

1.124 The justices of the Supreme Court and the judges of the lower courts of the Nation shall hold their offices during good behavior, and shall receive for their services a remuneration to be ascertained by law and which shall not be diminished in any way while holding office.

1.125 The 1994 amendment created the Council of Magistracy, ruled by a special law enacted by the absolute majority of all the members of each House that shall be in charge of the selection of the judges and of the administration of the Judicial Power.

2.1.4. The Public Ministry

1.126 The Public Ministry is an independent body with functional autonomy and financial autarchy, with the function of promoting justice for the defense of legality, of the general interests of society, in coordination with the other authorities of the Republic.

1.127 It is composed of an Attorney General of the Nation and a General Defender of the Nation, and such other members as the law may establish.

1.128 Its members enjoy functional immunities and intangibility of remunerations.

3. Delegation of Powers to the Federal Government - Codes

1.129 Delegation of powers by the Provinces to the Federal Government is a consequence of the federal principle under which Argentina is organized. Among matters delegated, we must point out the enactment of the Civil, Commercial, Criminal, Mining, Labor and Social Security Codes.

4. Precedence of Laws - International Treaties

1.130 The Constitution in article 31 establishes that the Constitution, the laws of the Nation enacted by Congress according to same, and treaties with foreign powers, are the supreme law of the Nation; and the authorities of each province are bound thereby, notwithstanding any provision to the contrary included in the provincial laws or constitutions, except for the province of Buenos Aires regarding the treaties ratified after the Pact of November 11, 1859.

1.131 Article 75 section 22 grants constitutional rank to the following: the American Declaration of Rights and Duties of Man; the Universal Declaration of Human Rights; the American Convention on Human Rights; the International Pact on Economic, Social and Cultural Rights; the International Pact on Civil and Political Rights and its empowering Protocol; the Convention on the Prevention and Punishment of Genocide; the International Convention on the Elimination of all Forms of Racial Discrimination; the Convention on the Elimination of all Forms of discrimination against Woman; the Convention against Torture and other Cruel, Inhuman or Degrading Treatments or Punishments and the Convention on the Rights of the Child. Other treaties and conventions on human rights to attain constitutional rank must be approved by Congress with the vote of two thirds of all the members of each house.

5. Provincial Constitutions

1.132 The provinces have reserved all the powers not delegated to the Federal Government by this Constitution, as well as those powers expressly reserved by special pacts at the time of their incorporation.

1.133 Each province enacts its own Constitution, ensuring municipal autonomy and establishing its scope and content regarding the institutional, political, administrative, economic and financial aspects