Let us imagine that the Ministry of Health of the Nation informs high-risk patients that only those who desist from precautionary measures will receive emergency treatment and medication, considering that they have “abused such measures.” Now let us do the same imaginative exercise with respect to those people who live in areas affected by an environmental disaster and resort to the Judiciary with precautionary actions to request that the effects of tax collection be temporarily suspended due to the factual impossibility of complying with them, due to unforeseen circumstances and force majeure. Perhaps from the State itself, possibly the Ministry of Economy or the AFIP, they could let the victims know that they will not attend to requests from those who have “abused injunctions and precautionary measures.” Obviously, it would be an enormous abuse of authority, an impediment to enforcing constitutional rights and, in addition, a clear violation of the practice of law, taking away clients from lawyers and preventing them from freely practicing their profession.
Despite the absurdity of the examples used, we find a similar situation in the field of international trade, since since the so-called SIRA system (replacement of the SIMI system) has been in force, a system has been shamelessly implemented by the State itself, which warns applicants that their requests will not be attended to because it considers that they “abused precautionary measures.”
If there really was an avalanche of precautionary measures, it is because there was previously a clear and forceful violation of constitutional rights.
On previous occasions and through this same medium, the manifest irregularities of the systematic violations of international and constitutional norms by the National State have been detailed, in the application of measures on import licenses; fundamentally, the non-automatic ones.
But the same State has advanced a step further in the violation of our constitutional system, abusing its power of control and regulation, by arbitrarily and manifestly abusively applying to an importer the failure to attend to his import request in the SIRA system, considering that having gone to the Judiciary was “abusive”; which is clearly also an application of a sanction, without a prior process to determine it.
Furthermore, this seriously affects the free exercise of the legal profession, as it forces importers to withdraw pending actions (preliminary actions and their respective subsequent claims) in order to continue their procedures in the SIRA system.
Importers are thus deprived of effective judicial protection and lawyers are deprived of the right to practice their profession. And affecting the practice of law is not something that concerns only those of us who practice the profession, but also the very rule of law on which the order of the Nation is based.
Culturally, we still have a long way to go as a society organized within the rule of law, because this kind of “reverential fear” towards the civil servant, whether administrative or judicial, is common. But the civil servant is a servant, who provides his services subject to the law; and of course, first to the National Constitution. He is not someone before whom the citizen should kneel, because the people are sovereign and democracy is of the people and for the people, not for the abusive exercise of a power of the State.
Article 1 of our National Constitution refers to our republican system, which implies the obligation of the State to comply with 5 basic pillars of the republican system of government, such as: 1) the division of powers, 2) the periodicity of mandates, 3) the publicity of government acts, 4) the responsibility of the public official and 5) accountability.
The application of non-automatic licenses through the SIRA system is blatantly unconstitutional. And the labeling of importers as “abusers of precautionary measures” is a blatant intimidation typical of totalitarian states, which severely affects the security of citizens.
Given the public and well-known situation, I understand that the intervention of the Public Bar Association, the Argentine Federation of Bar Associations and other entities with active legitimacy in the defense of the legal order and the practice of law is necessary.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
