Understanding the Argentine Constitution: Rights, Duties, and Guarantees

Posted on Sep 14, 2024 in Law & Jurisprudence

Duties and Rights

The Soul of the Constitution

The first part of our charter, often called the soul of the Constitution, comprises two chapters:

  • The first chapter encompasses the initial 35 articles, forming the foundation of the 1853/60 Constitution. These articles have remained unchanged, reflecting their enduring significance.
  • The 1994 Constitutional Convention introduced a second chapter, “New Rights and Guarantees” (Articles 36-43), incorporating human rights and building upon existing ones.

The Constitution and the Inherent Nature of Human Rights

Constitutions don’t explicitly list every human right. Modern legislative practice recognizes that while the written expression of human rights tends to be nationalized through constitutional statements, these rights are inherently endowed to all individuals. Their inscription in legal documents serves as an acknowledgment and a safeguard against potential infringement by governing bodies.

In essence, the Constitution doesn’t grant us rights; we possess them by virtue of our humanity. Explicit recognition reinforces the obligation of authorities to uphold these rights.

Residents and Citizens

In contemporary societies, individuals bear rights and corresponding duties based on their status:

  • Inhabitants: All individuals residing in a country, regardless of nationality or duration of stay, enjoy civil rights and shoulder corresponding duties.
  • Citizens: Nationals (men and women) aged 18 years or older, officially registered with authorities, possess civil rights and enjoy political rights, along with their respective duties.

Duties

Fulfilling obligations forms the bedrock of social order. Civic education, starting at home and continuing in schools, aims to cultivate responsible citizens committed to their duties.

Duties of All Inhabitants (Nationals and Foreigners):

  • Respect national symbols
  • Respect legitimate authorities
  • Abide by laws and regulations
  • Fulfill public burdens

Additional Duties of Citizens:

  • Vote in scheduled elections
  • Bear arms to defend the Fatherland and the Constitution, as stipulated in Article 21

Civil Rights

Civil rights are universal and apply to all inhabitants, regardless of nationality. They stem from the fundamental quality of being human. Articles 14 to 20 of our Constitution emphasize key civil rights, including freedom of action, equality, personal security, and private property, outlining the rules governing their exercise.

Right to Self-Activity

Article 14, a cornerstone of our democracy, safeguards liberty—a fundamental human right—and protects against all forms of slavery. It acknowledges the freedoms essential for human development. This article underscores two crucial points:

  • These rights are universal, belonging to all inhabitants.
  • These rights are not absolute and must be exercised within the framework of laws and regulations.

Article 14 enumerates the following rights related to human activities:

  • The right to work and engage in lawful industries
  • The right to shipping and trade
  • The right to petition authorities
  • The right to free entry, movement, and residence within the country
  • Freedom of the press
  • The right to free use of private property
  • Freedom of association
  • Freedom of worship
  • Freedom of teaching and learning

Foreigners and the Right to Self-Activity

Article 20 reinforces the principle of free human activity for foreigners, granting them similar rights to those enjoyed by all inhabitants. It also acknowledges specific rights they hold due to their different nationalities.

Right to Personal Safety

The government, judiciary, police, and criminal laws collectively safeguard human rights. However, excessive actions by officials can threaten collective security. To prevent such situations, the Constitution (Article 18) outlines safeguards for personal rights against potential abuse of authority.

These guarantees address various situations:

Procedural Guarantees:

  • Right to a fair trial
  • Protection from ex post facto laws
  • Prohibition of special commissions
  • Right to be judged by legally appointed judges
  • Protection from arbitrary detention
  • Right to legal defense

Private Life Guarantees:

  • Inviolability of domicile
  • Privacy of correspondence
  • Judicial oversight of intrusions into privacy

Other Guarantees:

  • Abolition of the death penalty for political offenses
  • Prohibition of torture and whipping
  • Humane treatment of prisoners, ensuring prisons are safe and sanitary, not instruments of punishment

Property Law

Article 17 safeguards private property, recognizing it as an extension of an individual’s right to ownership. However, this right is not absolute. Laws define limits on its exercise and penalize abuse.

Key aspects of property rights include:

  • Inviolability of Property: Deprivation of property is permissible only through legal due process.
  • Expropriation: Expropriation for public use requires legal authorization and prior compensation.
  • Taxation: Only Congress holds the power to levy taxes.
  • Intellectual Property: Protection for intellectual property and the rights of authors and inventors.
  • Prohibition of Confiscation and Requisitions: Confiscation of property is strictly prohibited, and armed forces are forbidden from making requisitions or demanding assistance.

Right to Privacy

Article 19 upholds the right to privacy, shielding an individual’s way of life and thoughts from undue interference. This principle, also known as the principle of reservation, limits the authority of judges in matters pertaining to private actions, reserving them for God and individual conscience.

However, actions that:

  • Disrupt public order
  • Offend public morals
  • Harm others

fall under the purview of the judiciary.

The article emphasizes that individuals cannot be compelled to act or refrain from acting unless explicitly mandated or prohibited by law.

Social Rights

Social rights pertain to individuals as members of various social groups. Recognizing their significance, particularly in labor relations and family matters, these rights were incorporated into the Constitution during the 1957 reform as Article 14 bis.

Article 14 bis: Social Rights

Worker’s Rights:

  • Right to dignified and equitable working conditions
  • Limited working hours
  • Rest and paid vacation
  • Fair wage
  • Adjustable minimum wage
  • Equal pay for equal work
  • Participation in corporate earnings
  • Control of production and collaboration in management
  • Protection against arbitrary dismissal
  • Stability of public employment
  • Free and democratic trade union organization

Social Security:

  • Comprehensive and indispensable social security benefits
  • Compulsory social insurance
  • Retirement and pensions
  • Full family protection
  • Defense of homestead
  • Family allowances
  • Access to decent housing

Political Rights

Political rights are exclusive to Argentine citizens, either by birth or naturalization. They empower citizens to participate directly in public affairs and governance. While not explicitly listed in the Constitution, these rights are implied within the framework that establishes the conditions for accessing public office.

Key aspects of political rights include:

  • Right to vote in elections
  • Right to be elected to public office (subject to age, residency, and other legal requirements)

Implied Rights

The Constitution acknowledges that the enumeration of rights is not exhaustive. Beyond those explicitly listed, other rights stem from the principles of popular sovereignty and the republican form of government. These implied rights are equally recognized and protected. Examples include the right to life, honor, family, self-defense, political association, assembly, and others.

New Rights and Guarantees

Introduced through recent reforms, the second chapter of Part I of the Constitution incorporates eight crucial provisions, elevating existing legislation to constitutional status.

These provisions encompass:

  • Regulation of political parties
  • Direct citizen participation in lawmaking through initiatives and referendums
  • Right and duty to defend democracy
  • Right to a healthy environment conducive to human development
  • Protection of consumer and user rights
  • Amparo Appeal: Protection against arbitrary actions that infringe upon rights and guarantees
  • Habeas Data: Right to access and rectify personal information held in official or private records
  • Habeas Corpus: Safeguarding individual liberty and physical integrity

Article 14

All inhabitants of the Nation enjoy the following rights, subject to the laws that regulate their exercise: to work and engage in any lawful industry; to navigate and trade; to petition the authorities; to enter, remain in, travel and leave the Argentine territory; to publish their ideas through the press without prior censorship; to use and dispose of their property; to associate for useful purposes; to profess freely their religion; to teach and learn.

Article 14 bis

Work in its various forms shall enjoy the protection of the laws, which shall ensure to workers: dignified and equitable working conditions; limited working hours; rest and paid vacations; fair remuneration; an adjustable minimum wage; equal pay for equal work; participation in the profits of enterprises, with control of production and collaboration in management; protection against arbitrary dismissal; stability of public employment; the right to free and democratic trade union organization, recognized by the mere fact of registration with a special registry.

The State shall grant the benefits of social security, which shall be comprehensive and compulsory. In particular, the laws shall establish: compulsory social insurance, administered by national or provincial entities with financial and economic autonomy, managed by the interested parties with the participation of the State, without overlapping of contributions; retirement and pensions; comprehensive family protection; protection of the family home; family allowances; and access to decent housing.

Article 15

There shall be no slaves in the Argentine Nation. Those few that now exist are free from the moment this Constitution is sworn in, and a special law shall regulate any compensation that may be due in consequence of this declaration. Any contract for the purchase or sale of persons is a crime, for which the contracting parties, as well as the notary or official who authorizes it, shall be liable. And slaves who enter the country by any means whatsoever shall be free by the mere fact of setting foot on the territory of the Republic.

Article 16

The Argentine Nation admits no prerogatives of blood or birth: there are no personal privileges or titles of nobility. All its inhabitants are equal before the law, and admissible to employment without any other requirement than their ability. Equality is the basis of taxation and public burdens.

Article 17

Property is inviolable, and no inhabitant of the Nation can be deprived of it except by virtue of a judgment based on law. Expropriation for reasons of public utility must be authorized by law and previously compensated. Only Congress imposes the taxes mentioned in Article 4. No personal service can be required except by virtue of law or a judgment based on law. Every author or inventor is the exclusive owner of his work, invention, or discovery for the term granted by law. The confiscation of property is hereby abolished forever from the Argentine Penal Code. No armed body may make requisitions or demand assistance of any kind.

Article 18

No inhabitant of the Nation can be punished without prior trial based on a pre-existing law, nor tried by special commissions, nor removed from the judges designated by law before the commencement of the suit. No one may be compelled to testify against himself, nor be arrested except by virtue of a written order from a competent authority. The defendant has the right to defense in court. The domicile is inviolable, as is the correspondence and private papers; and a law shall determine in what cases and with what justification their search and seizure shall be allowed. The death penalty for political offenses, all kinds of torture, and whipping are forever abolished. The prisons of the Nation shall be healthy and clean, for the security and not for the punishment of the prisoners confined therein; and any measure that, under the pretext of precaution, may tend to mortify them beyond what is necessary for their security, shall render the judge who authorizes it liable.

Article 19

The private actions of men that in no way offend public order or morality, or harm a third party, are reserved only to God, and are beyond the jurisdiction of judges. No inhabitant of the Nation shall be obliged to do what the law does not require, nor be prevented from doing what it does not prohibit.

Article 20

Foreigners enjoy within the territory of the Nation all the civil rights of citizens; they may exercise their industry, trade, or profession; own real estate, buy and sell it; navigate the rivers and coasts; freely exercise their religion; make wills and marry under the laws. They are not obliged to become citizens or to pay forced extraordinary taxes. They may obtain naturalization papers after residing two uninterrupted years in the Nation; but the authorities may shorten this term in favor of those who so request it, alleging and proving services rendered to the Republic.

Article 21

Every Argentine citizen is obliged to bear arms in defense of the fatherland and of this Constitution, in accordance with the laws enacted by Congress and the decrees of the National Executive Power. Citizens by naturalization are exempt from this obligation for a period of ten years, reckoned from the date on which they obtain their naturalization papers.

Article 22

The people do not deliberate or govern except through their representatives and authorities created by this Constitution. Any armed force or assembly of persons assuming the rights of the people and petitioning in their name commits the crime of sedition.

Article 23

In case of internal commotion or foreign attack that endangers the exercise of this Constitution and the authorities created by it, the President of the Republic shall declare a state of siege in the province or territory where the disturbance of order exists, the constitutional guarantees being suspended there for the duration of the state of siege. But during the suspension, the President may not condemn by himself, or apply penalties. His power, in this case, with respect to persons, is limited to arresting them or transferring them from one point of the Nation to another, if they do not prefer to leave Argentine territory.