The republican system is based on respect for the fundamental guarantees of due rights. Added to this is the foundation of the limits of one over the other, which is precisely that the right of one ends where that of the other begins.
The above It is the basis of the harmony of coexistence in a democratic regime and the duty of each citizen is to respect it, as well as the obligation of the powers, to exercise it and make it practice..
The constitutional framework establishes this and much more in its essence. It presupposes that the rights of one party can never be restricted in the presumption of strengthening those of the other. Its practice is, without a doubt, arbitrary, and if it is committed by the government, it presupposes illegitimate acts with clear signs of unconstitutionality.
The state of emergency that a nation may experience in no way makes it possible to ignore this practice of due respect for the guarantees of citizens. The policies of the governments in power may be different, but they must always be aligned with respect for the Constitution. To deviate from this exercise simply presupposes an action that is irrational and unjust.
In this context, the limitations on imports that the Executive Branch of the Nation has once imposed by distorting a system of mere statistical control, turn out to be acts that contradict the due exercise of respect for the essence mentioned above and In the face of the arrival of a new government, which has a history of this type of conduct, it should recall what the Justice has already determined with constitutional clarity to distance itself from measures of this kind.
Obviously the requirement of a “DJAI (Advance Import Declaration) and/or License and/or Quotas” as a prior condition for the release of merchandise to the market, has an absolutely arbitrary connotation and unconstitutional, considering that it violates basic constitutional rights of the party. Especially when the objective pursued by the rule denotes an exclusively “evaluation”, “monitoring” and “control” purpose.
Justice has already pointed out this issue, when sentencing: “…the regime established by the resolution… is for informational purposes only, in order to evaluate the commercial flow of imported products sufficiently…” (cfr. 10.877/08 “Tuti fruti SRL. – Inc. Extension Med. II c/ EN- Mº Economía Resol 485/05 – DGA/4 containers) s/ knowledge process” 28/10/08- C. NAC. CONT. ADM. FED.- Sala II.).» “… especially taking into account the objective pursued by the regime established by the resolution…, which would be none other than to evaluate the commercial flow of the products included in different tariff items mentioned in Art. 1 of the aforementioned rule…” “… a simple act of knowledge by the administration to monitor the course of the importation of certain merchandise…” (cfr. 3.256/08 “Long Full SRL. – Inc. Med. c/ EN.- SIC PYMES- Import Directorate – Resol 47/07 s/ Amparo law 16.986 – C- NAC. CONT. ADM. FED. Sala IV)».
This shows that this type of statistical mechanism cannot be used as a restrictive action on the entry of goods into the customs territory.. Furthermore, when such goods are not even included in the prohibitions provided for in Section VIII Chapter One of the Customs Code, since it is not clear that the release to the market without the aforementioned statistical certificate could affect a public interest that should be given precedence.
On the contrary, foreign trade is a fundamental source of development for all nations. Clearly, subordinating the entire import operation to the issuance of a certificate that only aims to detect changes in import flows, generates financial losses, not only for the interested parties, but also for the State itself and This, in a global approach as has happened in the past, has put at risk the essence of the constitutional framework and legal security in international trade, with effects on the economic, social, and global credibility.
The Justice system has resolved this and has already accumulated precedents through hundreds of rulings that impose a revaluation of the republican sentiment, which must be protected by each one of those who are part of this country that we knew how to conceive.
Let us hope that under these fundamental premises of constitutional law ratified by the Justice, the new government will not adopt old mechanisms that have restricted imports, to the point of prohibition, to the detriment of the due right of people who hold the guarantees of having, working and exercising lawful international trade.
By: Dr. Guillermo Felipe Coronel, Lawyer specializing in Customs Law
Aduana News is the first Argentine customs newspaper to launch its digital version. With 20 years of experience, its publications and initiatives aim to provide the most relevant knowledge on customs issues in order to contribute to safe trade in the region.
