The argument of public interest is repeatedly used to defend the arbitrary actions of state agencies in matters of international trade, with various restrictive provisions and abusive interference in matters of imports and exports. According to the various state agencies (Customs or the Central Bank, for example) they issue administrative resolutions that, when challenged by judicial means, put forward an argument of an alleged compromised public interest to support such resolutions.
It should be noted that, when claiming higher interests of a general nature for the enactment of some norms, the prevailing normative hierarchy must be considered and, in such context, the Supreme Court has said that the constitution must be analyzed as a harmonious whole within which each of its provisions must be interpreted in accordance with the content of the others or, in other words, Constitutional norms should not be interpreted in isolation or disconnectedly, but rather as parts of a systematic structure considered in its entirety. (Failures: 167:121; 190:571; 194:371; 240:311; 296:432).
Thus, administrative bodies cannot act at their discretion, deviating from the legal precepts applicable in all procedures, and their decisions must always be reasonable within the legal limits. Remembering that the principle of legality is enshrined in the National Constitution, which implies that in the face of administrative acts that are far from the applicable legal precepts, they must always be reviewed in conjunction with the universe of constitutional legal norms and principles in order to avoid causing harm, not only to the citizen, but also to the legal security that must prevail and also affects the general interest. Even though the law is a consequence of what the rule of law frames, it cannot be implemented in such a way that it annuls rights and guarantees of the Supreme Law of the Nation. The declarations, rights and guarantees of our National Constitution are unchangeable by means of a simple law. And the State is guarantor of this, not being able to incur in abuses or arbitrariness, under the pretext of regulating a specific public good. Therefore, the argument of general interest or compromised public interest is not enough when there is a manifest violation of constitutional rights and guarantees.
In other words, constitutional prevalence is not a legal-normative power, but rather a duty of the State and particularly of the Judiciary to safeguard it. Therefore, in the event of a conflict of norms, the superior one must be preferred and the inferior one marginalized. In other words, the one that overrides the Constitution must be rejected, and its application denied, precisely in order to serve the general interest, even when dealing with a supposed public interest involved in reference to the application of an economic need. It is enough to remember what Juan Bautista Alberdi himself stated in “The Economic and Rent System of the Argentine Confederation according to its Constitution of 1853”, where he expressly states: “Any law that regulates economic interests and has other objectives than those intended by the Constitution is a false law and betrays the purposes of the fundamental law. The law should not have other aims than those of the Constitution. The Constitution designates the end; the law constructs the means. The Constitution says: Let this be done; and the law says: here is the means of doing that."That is to say, the Constitution sets the objective and the law that is enacted as a result of it, becomes the means to that end; therefore, the law that distorts or deviates from the end when enacted, becomes clearly unconstitutional. Even more so, those norms that are hierarchically inferior to the laws, in addition to representing a falsehood to the economic purposes that the Constitution itself determines, being the norm of highest hierarchy in our legal system.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
