Constitution of the Argentine Nation

The Constitution of the Argentine Nation, which currently governs the Argentine Republic, was approved by a constituent assembly made up of representatives of thirteen provinces, held in the city of Santa Fe in the year 1853. The purpose of the 1853 Constitution was to end the cycle of civil wars and lay the foundations for "national union" through a republican and federal regime. Before this Constitution there were two constituent attempts in 1819 and 1826, which did not prosper for lack of consensus among the provinces. Subsequently, another ten provinces and one city joined the federation.

The text has been reformed several times, and the wording resulting from the 1994 reform is still in force. On several occasions the constitutional order was left without effect by coups d'état, the last of which imposed a dictatorship that was maintained in the power until December 10, 1983.

The Constitution consists of a preamble and two normative parts:

• Part one: chapter one (Declarations, Rights and Guarantees; arts. 1-35) and chapter two (New Rights and Guarantees; arts. 36-43)
• Part Two: National Authorities (arts. 44-129).

They also have constitutional rank by virtue of art. 75 paragraph 22, the following international instruments on Human Rights —treaties and declarations—:

• American Declaration of the Rights and Duties of Man.
• Universal Declaration of Human Rights.
• American Convention on Human Rights (Pacto de San José de Costa Rica).
• International Covenant on Economic, Social and Cultural Rights.
• International Covenant on Civil and Political Rights
• Optional Protocol to the International Covenant on Civil and Political Rights.
• Convention on the Prevention and Punishment of the Crime of Genocide.
• International Convention on the Elimination of All Forms of Racial Discrimination.
• Convention on the Elimination of All Forms of Discrimination against Women.
• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
• Convention on the Rights of the Child.
• Inter-American Convention on Enforced Disappearance of Persons (Sariff in 1997).
• Convention on the Imprescriptibility of War Crimes and Crimes against Humanity (Sariff in 2003).
• International Convention on the Rights of Persons with Disabilities (closed in 2014).

Preamble

«We Representatives of the People of the Argentine Confederation...»

Currently, the preamble of the Argentine Constitution is as follows:

We are the representatives of the people of the Argentine Nation, gathered at the Constituent General Congress by the will and election of the provinces that make up it, in compliance with pre-existing covenants, in order to constitute the national union, to strengthen justice, to consolidate the inner peace, to provide the common defense, to promote the general well-being, and to assure the benefits of freedom, for us, for our posterity, and for all the men of the world that want to live in the order.

Constitution of 1853

Exemplar of the Constitution exhibited at the Bicentennial Museum.

On May 31, 1852, almost four months after the Battle of Caseros, the Agreement of San Nicolás was signed, calling for a Constituent Congress, to organize the country under the federal system and designating the winner of Caseros, Justo José de Urquiza, as provisional director of the Confederation and head of all the troops present in the national territory. The fourteen provinces signed or adhered to the San Nicolás Agreement, but on September 11, following the leadership of Bartolomé Mitre, the Province of Buenos Aires decided not to ratify it and separated from the Confederation.

The Constitution was approved on May 1, 1853 in the City of Santa Fe, capital of the Province of Santa Fe, under the government of Urquiza, governing the thirteen provinces that approved it (Catamarca, Córdoba, Corrientes, Entre Rivers, Jujuy, La Rioja, Mendoza, Salta, San Juan, San Luis, Santa Fe, Santiago del Estero and Tucumán). In 1859 and after the triumph of the Confederation, in the Battle of Cepeda, Buenos Aires and the Confederation would reunify and for this purpose the constitutional reform of 1860 was carried out.

The 1853 constituents worked on the basis of four main sources:

• The San Nicolás Agreement that ordered the establishment of a federal regime, without internal customs
• The United States Constitution
• Previous constitutions
• The book Bases and starting points for the political organization of the Argentine Republic of Juan Bautista Alberdi.

The Constitution had a preamble and two large parts, the first dedicated to rights and guarantees and the second dedicated to the organization of the government. The text was written in 107 articles.

The preamble, without normative value, adopted the initial formula of the famous "we, the people" of the US Constitution but modified as "we, the representatives of the people" to underline the exclusively representative nature of the adopted system. It also declares that the constitution is "for all men in the world who want to live on Argentine soil."

The first part (rights and guarantees) was written in 31 articles. Being a liberal constitution, it contains the first generation human rights: (principle of legality, principle of equality before the law, right to property, inviolability of the home, freedom of expression without prior censorship, freedom of movement, etc.). Additionally, it contains specific regulations such as the abolition of slavery (art. 15), free primary education (art. 5), equal civil rights for citizens and foreigners (art. 20), the promotion of European immigration (art. 25), the prohibition of all forms of direct democracy (art. 22), etc.

The second part (government) regulates the organization of the three federal powers (executive, legislative and judicial) and the provincial governments, according to the representative, republican and federal form (attenuated federalism). He organized a strong executive power (presidentialism), with powers to intervene in the provinces, declare a state of siege, appoint judges, etc. The legislative power is bicameral with powers to sanction the main codes. The judiciary is organized on the basis of trial by jury, but it was never fulfilled. The Constitution did not establish secret or universal suffrage, since it did not guarantee women's suffrage, nor the vote for citizens residing in the national territories.

Reformation of 1860

The Argentine constitutional reform of 1860 was a reform of the 1853 Constitution made after the Battle of Cepeda and before the Battle of Pavón, in the context of the war between the Argentine Confederation and the State of Buenos Aires, which It had as a consequence the adherence of the latter to the constitutional text of 1853 and its legal integration into the Argentine Republic. Peace between both parties was sealed in the Pact of San José de Flores, in which the Province of Buenos Aires (which then included the current Autonomous City of Buenos Aires) declared itself part of the Argentine Confederation and established that said province could propose reforms to the National Constitution of 1853, which established the form of federal government, to be evaluated by an Ad Hoc Constituent Convention. The reform was made without respecting the prohibition to reform the Constitution before the tenth anniversary of its sanction, a requirement established in article 30 of the constitutional text of 1853.

The Province of Buenos Aires elected a Provincial Review Convention that proposed several reforms to the 1853 text, most of which were later accepted by the National Constituent Convention of 1860. The main modifications were the elimination of the article that established that the The Federal Capital would be the city of Buenos Aires, the obligation for import duties to be uniform throughout the country (in order to prevent certain regions or ports from being promoted), the elimination of export duties for five years, the reduction of powers of the national government to intervene in provinces, decree a state of siege, subject national governors, deputies and senators to impeachment, or revise provincial constitutions. The reform also prohibited the National Congress from issuing laws that "restrict the freedom of the press or establish federal jurisdiction over it", the recognition of the implicit rights and guarantees derived from the republican principle and the sovereignty of the people, and the recognition of the principle of "natural citizenship" (jus soli). It also abolished the powers of the Supreme Court of the Nation in conflicts between public powers of the same province, or between a province and its neighbors.

Reformation of 1866

The constitutional reform of 1866 was a brief but crucial modification related to the income of the national State, promoted by President Bartolomé Miter for the sole purpose of restoring export taxes, also called withholdings or export rights, which had been abolished by the constitutional reform of 1860, to enter into force as of January 1, 1866. The reform modified two articles, article 4, to eliminate the expiration of 1866, and article 67, first paragraph, to restore the power National Congress to impose them. The Congressional declaration of the need for reform passed with a vote of more than two-thirds of the members present, but less than two-thirds of the total membership.

Reformation of 1898

Towards the end of the XIX century, due to the economic and social development that Argentina was experiencing, Argentine politicians believed require an increase in the size of the State, which was limited by the old Constitution. In 1897 the National Congress declared the need for constitutional reform, establishing the matters and articles to be reformed, the representation assigned to each province (citizens of the national territories did not have the right to elect or be elected) and other requirements to conform the Convention:

Article 1.- Partial reform of the Constitution is necessary, with regard to the number of inhabitants that Article 37 establishes as the basis for the election of deputies to the National Congress; in the provision of Article 87, concerning the number of Ministers of the Executive Branch; and in Article 67, paragraph 1, it does not permit the installation of free customs in the territories of the south of the Republic.

The Convention was installed in the City of Buenos Aires on February 24, 1898, operating until March 15, dealing with the three points that Congress considered necessary to reform and approving reforms in two:

• Change of the base of election of deputies. The 1853 constitution indicated that a deputy would be elected every 20 000 inhabitants. Population growth demonstrated the need for change. The article was reformed to indicate that a deputy would be elected every 33,000 inhabitants, and that Congress could raise the base of election of deputies in order to maintain its number in a reasonable amount (if not, according to the data of the Census of Argentina of 2010 the Chamber should be made up of 2004 members).
• Increased ministries. The Constitution set the number of ministries in five and set aside their branches (Foreign Relations, Interior, Justice and Public Instruction, Finance, War and Marina). With the reform, its number increased to eight and its delinde was left to the legislation.
• Free Customs. The Convention rejected this possibility of reform.

1949 reform

Exemplar of the '49 Constitution exhibited at the Bicentennial Museum.

The need to incorporate new social rights and the new functions of the State, following the guidelines of social constitutionalism, were the basic arguments that motivated this reform. It was promoted by the government of Juan Domingo Perón. The amendment incorporated second generation rights (labour and social) into its articles, recognized the legal equality of men and women, incorporated the social function of property, established university autonomy, the rights of children and old age, the habeas corpus, powers of State intervention in the economy, indefinite presidential re-election and the election of representatives by direct vote, among other regulations.

During the government of Perón and Eduardo Lonardi, the Supreme Court of Justice, the highest constitutionality control body, accepted the legitimacy of this reform and applied its norms in various rulings. the reform of 1949.

It was abolished by means of a military proclamation by the dictator Pedro Eugenio Aramburu, through a proclamation of April 27, 1956. The arguments invoked by the dictatorship maintained that all the acts of the government overthrown in 1955 had been imposed by through violence and that the constitutional reform was not the result of a "free discussion".

1956 Military Proclamation

On April 27, 1956, the dictatorship called itself the "Liberating Revolution", with the signature of the de facto president, Lieutenant General Pedro Eugenio Aramburu, the de facto vice-president and the ministers, issued a proclamation of a constitutional nature, declaring "in force the National Constitution sanctioned in 1853, with the reforms of 1860, 1866 and 1898, and exclusion of that of 1949", which in turn should be subordinated "for the purposes of the Revolution enunciated in the Basic Directives of December 7, 1955, and the needs of the organization and conservation of the Provisional Government".

Among the constitutional rights and norms that were rendered null and void by said proclamation, are the rights of workers, the equal rights of men and women and shared parental authority, the rights of children, the rights of elderly, university autonomy, direct vote, indefinite re-election of the president, the social purpose of private property, state management of public services and foreign trade, etc.

Some jurists disqualified the abolition for failing to comply with any of the steps necessary to exercise constituent power, arguing that only a democratically elected constituent convention without proscriptions could decide on the constitutional text. Dissatisfied with the act, Supreme Court judge Jorge Vera Vallejo, appointed by the dictatorship the previous year, resigned. Other jurists justified the abolition by arguing that the constitutional convention of 1949 modified several articles that were not included in the declaration of the need for reform by the National Congress, among them the immediate re-election of the president and vice president.

1957 reform

The 1957 constitutional reform was carried out during the dictatorship of General Aramburu. It was carried out without complying with article 30 of the current Constitution, which requires as a step prior to a reform, that the National Congress declare the need for said reform, by a majority of two thirds of its members. In his place, Aramburu issued Decree 3838, declaring the need to reform the Constitution and called for elections of conventional constituents to validate the repeal of the 1949 reforms and finally carry out new constitutional reforms.

The military government prohibited Peronist candidates from running in the constituent convention elections, but their sympathizers responded by voting massively blank and obtaining a majority, a fact that strongly affected the legitimacy of the Constituent Convention. For its part, the Radical Civic Union fragmented into two parties, UCRI (Frondizistas) and UCRP (Balbinistas), the first opposed to the Convention called by the military government and the second in favor of it.

On the eve of the 1957 elections, the figures for arbitrary exclusions from the electoral roll ranged between 250,000 and 700,000 people. Frondizi admitted that "at least 480,000 excluded were Peronists." Regarding the blank vote, it was pointed out: they themselves (in the newspaper Democracia of July 30) committed the 'lapse' of slipping the figure of more than 2,300,000 in favor of the blank vote. The Editorial Secretary was automatically removed from his position as a result of this leak. Finally, the Constituent Convention was elected in unfree elections, rejected by a blank vote of a broad sector of the citizenry, and its legitimacy questioned by various sectors., dissolving due to lack of quorum without having completed its work schedule. Their work was limited to validating the decision of the military government to annul all the constitutional norms included in 1949, among them norms of great importance, such as the legal equality of men and women, university autonomy, family rights, rights of the elderly, direct voting, etc. Immediately afterwards the conventionalists began to withdraw without discussing other reforms. While the representatives withdrew, one party managed to sanction article 14 bis, referring to some labor rights. After that it was no longer possible to achieve a new session with quorum.

Statute of the Argentine Revolution of 1966

On June 28, 1966, through a coup, a military junta that called itself the Argentine Revolution assumed power and issued a Statute of the Argentine Revolution made up of 10 articles that took precedence over the National Constitution of 1853, with the reforms of 1860, 1866, 1898 and 1957, which remained in force, although without the character of supreme norm. The Statute of the Argentine Revolution was in fact without effect on May 25, 1973, when the democratic authorities assumed the presidency of Héctor José Cámpora.

Temporary Fundamental Statute of 1972

On August 24, 1972, the Junta de Comandantes that governed the dictatorship that called itself Revolución Argentina issued a “Fundamental Statute” of five articles, explicitly stating that it was done in the “exercise of constituent power”, which included a series of recitals and reformed fifteen articles of the Constitution (text according to the 1957 reform), at the same time that it declared four other articles inapplicable.

Among other constitutional reforms, the following were established:

• in the presidential election the winning formula must obtain the absolute majority of the valid votes cast. The Statute does not establish what should be done in the event that no formula will reach that minimum, resulting in the decision to a law. Law No. 19,862 sanctioned by dictator Alejandro Agustín Lanusse regulated the presidential election and senators, establishing the balotage.
• reducing the term of office of the president, vice president and senators to four years;
• re-election of the President for once;
• indefinite re-election of deputies and senators;
• direct election of president, vice president, deputies and senators;
• the creation of the position of third senator by the minority;
• the simultaneous elections for national positions;
• the reduction of the quorum for session;
• a mechanism for automatic adoption of draft laws submitted by the Executive if not treated within a specified time frame;
• a mechanism for the adoption of laws directly by the internal commissions of the Chambers;
• a special body to conduct the political trial of judges, composed of members of the judiciary, the legislature and the lawyers.

In the elections held in September of the same year, Juan Domingo Perón obtained the absolute majority of the votes, surpassing 62% of the votes, which is why the supplementary ballotage rule was not activated.

The Statute governed the elections of March and September 1973. The political institutionality between 1973 and 1976 was governed by the constitutional framework established by the Statute: unification of all mandates in four years without biennial renewal of deputies, and three senators by province.

Article 4 of the Statute established an expiration scheme for the reforms introduced by it:

Article 4.- This Statute shall govern until 24 May 1977. If a Constituent Convention does not decide on the final incorporation of the constitutional text, or its total or partial repeal, by 25 August 1976, its validity shall be extended until 24 May 1981.

No Constituent Convention met before August 25, 1976. Argentine constitutional doctrine and historiography discusses the exact validity of the Fundamental Statute of 1972, without doubt that it could not govern beyond of May 24, 1981. Notwithstanding this, most of its norms were incorporated into the Constitution by the constitutional reform of 1994.

Second round of elections

On October 3, 1972, the dictator Alejandro Agustín Lanusse sanctioned Law No. 19,862 establishing the national electoral system and two ballot systems depending on whether it was the presidential or senator elections.

For the election of the president and vice president, Law No. 19,862 established that, in the event that no candidate reached the absolute majority of the valid votes, a second electoral round should proceed with the following characteristics:

• If the two most voted formulas had added together the two thirds (66.66%) of the valid votes, the second round should be between the two formulas, without another condition;
• If the two most voted formulas had not added together the two thirds (66.66%) of the valid votes, the system admitted that the two most voted coalitions could change the candidate to vice president, to include in their place any of the candidates for president or vice president of the third forces who had drawn more than 15%;
• The regime also allowed the two most voted parties to combine their presidential formulas with the candidate for president of one and the candidate for president or vice president of the other. In this case, the balotage should be carried out with the third force that had reached 15%, which in turn could also integrate its formula with candidates presented by other forces that exceeded 15%.

For the election of senators, a ballot system was established, in the event that no candidate obtained an absolute majority, between the two most voted lists.

The presidential ballot system was in force in the elections of March and September of 1973. In the March elections Héctor J. Cámpora was the candidate with the most votes, reaching 49.56%, but he did not reach the absolute majority that he imposed the dictatorship. The second most voted candidate for Ricardo Balbín (21.29%). The sum of the votes of both candidates was 70.85%, thus exceeding the two-thirds that the law contemplated. A second round had to be held then to opt for Cámpora-Solano Lima, or Balbín-Gamond, with no possibility that both forces could combine their formulas. But Balbín gave up running in the second round and the government consecrated Cámpora as president of the Nation.

• Wikisource contains original works of or about Basic Temporary Statute of 1972.

Constitutional Instruments of the National Reorganization Process of 1976

On March 24, 1976, through a coup, a military dictatorship that called itself the National Reorganization Process assumed power. "In the exercise of the constituent power" the Board of Commanders imposed a series of "liminary principles", "basic objectives", acts and statutes "for the National Reorganization", to which all other laws should be submitted, including the current Constitution, as far as that might still apply. Four were the established supra-constitutional norms:

The military junta issued a series of constitutional normative instruments, namely:

• Act for the National Reorganization of 24 March 1976;
• Act establishing the Basic Purpose and Objectives of the National Reorganization Process of 24 March 1976;
• Statute for the National Reorganization, consisting of 14 articles, published on 29 March 1976;
• Regulations for the operation of the Military Board, Executive Branch and Legislative Advisory Commission, approved by the so-called "law" 21.256, held on 24-03-1976 and published on 26 March of the same year.

The Constitution of 1853, with the reforms of 1860, 1866, 1898, 1957 and the temporary statute of 1972, remained formally in force, but subordinated to those four supralegal instruments. Of all these instruments, the military power itself considered that "the basic objectives of the Process" had supreme hierarchy (art. 14, Statute of the National Reorganization Process).

The constitutional instruments of the National Reorganization Process were in fact without effect on December 10, 1983, when the democratic authorities assumed the presidency of Raúl Alfonsín.

1994 reform

The reform of the Constitution of the Argentine Nation of 1994 is an important modification made to the constitutional text. It defined the same, on whose full legitimacy there was no consensus and granted constitutional status to the main human rights treaties.

The reform materialized from a pact between Peronists and Radicals (Pacto de Olivos), which at that time were the two majority parties in the country, in which both parties agreed on a "Core of Basic Coincidences" to include in the Constitution, which should have been voted "en bloc" by the Convention, without being able to add or subtract.

Among other changes, it introduced third and fourth generation rights, rules for the defense of democracy and constitutionality, the characteristics of government bodies, and new control bodies. The Constituent Convention was held in the cities of Santa Fe (traditional seat of the constituent conventions) and Paraná (first capital of the Confederation).

This constitutional reform covers 44 articles and has 17 transitory provisions, establishing among other norms: the recognition of the rights of environmental protection, of the consumer, to information, the constitutional action of simple and collective amparo, crimes against the constitution and democracy, the preeminence of international treaties, direct vote and presidential re-election for one time and shortening of the mandate from 6 to 4 years, the regulation of decrees for reasons of necessity and urgency, the third senator for the minority, the Council of the Magistracy, the possibility of transferring the Capital of the Republic, autonomy to the City of Buenos Aires, etc. It also established the ballotage system, a second electoral round in the presidential election in the event that no candidate obtained more than 45% of the valid votes cast or, obtaining a minimum of 40%, surpassed the second by more of 10%. Among the transitory provisions, the first stands out, which ratifies the legitimate and imprescriptible Argentine sovereignty over the Malvinas, South Georgia and South Sandwich Islands and the corresponding maritime and insular spaces.

Treaties with constitutional hierarchy

The constitutional reform of 1994 established (art. 75 paragraph 22) that eleven international standards (treaties and declarations) had constitutional status from then on:

• American Declaration of the Rights and Duties of Man.
• Universal Declaration of Human Rights.
• American Convention on Human Rights (Pacto de San José de Costa Rica).
• International Covenant on Economic, Social and Cultural Rights.
• International Covenant on Civil and Political Rights
• Optional Protocol to the International Covenant on Civil and Political Rights.
• Convention on the Prevention and Punishment of the Crime of Genocide.
• International Convention on the Elimination of All Forms of Racial Discrimination.
• Convention on the Elimination of All Forms of Discrimination against Women.
• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
• Convention on the Rights of the Child.

The 1994 reform also established that the National Congress could grant constitutional hierarchy to other treaties and conventions on human rights, if they were approved by the vote of two thirds of the totality of the members of each House. By virtue of this power, new treaties acquired constitutional status:

• In 1997, the Inter-American Convention on Enforced Disappearance of Persons.
• In 2003, the Convention on the Imprescriptibility of War Crimes and Crimes against Humanity.
• In 2014, the International Convention on the Rights of Persons with Disabilities.

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