Times of crisis are the ideal breeding ground for justifying restrictions on individual freedoms and constitutional rights and guarantees in general, based on collective needs and safeguards, but even if these needs are true, they tend to further harm the rights and guarantees that are adulterated or directly ignored in their recognition and legitimate execution.
The Congress of the Nation
It is therefore necessary to begin by considering that when certain restrictions are applied out of necessity, they must emanate from the legislative sphere, thus respecting the principle of legality, and taking into account the purpose for which they were established, thereby adjusting the restriction also to the principles of reasonableness and proportionality.
Therefore, the restriction, in addition to emanating from Congress, must also conform to the regulatory framework of the National Constitution, the international Treaties and Conventions to which Argentina is a party, especially those that have been incorporated into the constitutional text in the 1994 reform.
It should also be noted that under the Argentine constitutional framework, the suppression of the enjoyment and exercise of constitutional rights and guarantees is absolutely prohibited, although in a context of public emergency, there may be some degree of suspension of some, while always safeguarding others, even in the emergency itself. (Ex: State of Siege) Therefore, the restrictions have a lower degree of intensity than the suspensions themselves; therefore, the degree of harm that the restrictive measure produces must also be lower than that of the suspension.
In light of this, it is appropriate to analyze, within the scope of the extension of this note, the criteria of necessity and emergency, as elements justifying the restriction.
The Supreme Court of Justice
While we understand that these are permitted, it turns out that in addition to the effective judicial protection that is always available to them, they must also be subject to the existence of a genuine and strict necessity and without exceeding the limits of what is, consequently, strictly necessary. In this regard, the Inter-American Court of Human Rights has said: The suspension of guarantees must be considered illegal, as well as any action by the public authorities that exceeds the limits of what is strictly necessary to deal with the emergency, which must be precisely indicated in the provisions that decree the state of exception. Nor can specific measures that affect the rights or guarantees suspended deviate from these general principles, as would occur if such measures violated the exceptional legality of the emergency, if they were extended beyond their temporal limits, if they were manifestly irrational, unnecessary or disproportionate, or if their adoption would have resulted in a deviation or abuse of power. (IACHR, Advisory Opinion OC 8/87) It is thus clear that, in order to implement a restrictive measure based on emergency and public necessity, the usual arguments of “opportunity, merit and convenience” are not enough, nor is it enough to simply mention that it is useful. And this is so because, in order to achieve the objective that the measure seeks, it must be subject to whatever restricts the right that it seeks to protect to a lesser extent.
Limit of restriction
Accordingly, only the measure that is the least intrusive and oppressive of the rights and guarantees affected by the restriction itself will be legitimate. We also consider that it must be kept in mind that it is not sufficient to consider the result or effectiveness of the restriction measure, since what must be considered is the degree of damage it causes to constitutional rights and guarantees, which are obviously also protected by the right to defense (Art. 18 CN).
Thus, when the Argentine State adopts measures to safeguard the public interest, it must also frame said measures in conjunction with the safeguarding of rights and guarantees in accordance with treaties, pacts and conventions incorporated into the constitutional text (Art. 75 Inc. 22). And as for the specific consideration of international trade, the international standards adopted by the Argentine Republic in its own legislation cannot be ignored. And even more so taking into consideration that some arise from international treaties, which is why the provisions of art. 31 of the CN must be taken into account.
In some cases, the power of delegation of legislative powers is used, as indicated in art. 76 of the CN. However, it should be noted that such delegations must be subject to effective controls, so that the restrictive measure cannot be used to suppress rights and guarantees, or distort their effects. We must bear in mind that such restrictive measures are dictated with the argument of upholding an economic and social order. But such order is based on the CN and therefore, there are limits within which the powers can interfere in its protection. And taking into account the argument of the general interest or the common good, it must be kept in mind that if the norms are not designed based on their recipients, that is, human beings, they cannot be validated under the pretext of a public policy need.
Conclusion
In short, the restrictive measures adopted by the National State through organizations such as Ministries, Secretariats and even by the Central Bank, even based on their own prerogatives, in addition to the due control of the classic effective judicial protection, must also be analyzed as to the degree of harm they cause to constitutional rights and guarantees, such as those of work, trade, exercise any lawful industry and the right to property, among others, based on due proportionality that does not unnecessarily affect and within a reasonable time frame, the rights and guarantees enshrined in our National Constitution, because the state of necessity, economic emergency or government program, must not alter the republican system, nor alter fundamental rights in such a way causing greater harm than that which is supposedly sought to be protected by the restrictive measure.
Guillermo Juan Sueldo is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
