Constitution as CatharsisPart 3 – Argentina

Last updated 17 Oct 11

Latin American Law

Me gustan los estudiantes …

Mercedes Sosa

Constitution as political deal

Argentina (4th oldest constitution) seems more stable, less corrupt, more democratic, and stronger economically than rest of Latin America. In fact, I tend to think of Argentina as being a European country ….

  Argentina USA Norway

Human development index value 0.863 (ranks 36)

0.948 (ranks 8)

0.965 (ranks 1)

Adult literacy rate 97.20% 99% 99%

Life expectancy at birth 74.6 77.5 79.6

GDP per capita 13,298 39,676 38, 454

Combined gross enrolment ratio for primary, secondary and tertiary schools

89% 93% 100%

Unemployment (% of labor force) 11.60% 5.10% 4.60%

Public expenditure on education (% of GDP) 3.50% 5.90% 7.70%

Share of income – 20% richest 56.80% 45.80% 37.20%

Share of income – 20% poorest 3.20% 5.40% 9.60%

Public health expenditure (% of GDP) 4.30% 6.80% 8.60%

Year women could vote 1947 1920 1913

Human development index 1975 0.787 0.868 0.868

Human development index 1995 0.835 0.93 0.936

US Constitution(1791)

What events preceded the Argentina Constitution of 1994?

Puerto Rico(1952)

Cuba(1976)

Costa Rica(1949)

Venezuela(1999)Colombia

(1991)Ecuador(1998)

Peru(1993)

Bolivia(1967)

Paraguay(1992)

Chile(1980)

Uruguay(1967)

Argentina(1994)

Brazil(1988)

Dominican Republic(2002)

Nicaragua(1987)

Panama(1972)

El Salvador(1983)

Mexico(1917)

Honduras(1982)

Juan Peron

(1946-55, 1973-74)

(wife – Isabel)

Raul Alfonsin

(1983-1989)

Falklands War

(1982)

Carlos Menem

(1989-1999)

Military junta (1975-1983)

Generals Videla, Vidola, Gartieri

Fernando de la Rua

(1999-2001)

Nestor/Cristina Kirchner

(2003-present)

Saa, Camaño, Duhalde

(2001-2003)

“Dirty War”

(1976-83) Hyper-presidentialism?

Argentina Constitution

1853(Constituent Congress)

Law 24:309 (1993)(1) Core stipulations(2) Proposed reforms

1860(National Convention)

1994(Constitutional Convention)

1866, 1898, 1957(Reforms)

Olivos Agreement (1993)(Menem – Alfonsin)

(1) Presidential re-election(2) Powers to minister

Keith Orgel

Why did Argentina (not to mention almost every other LatAm country)

reject parliamentary systems in favor of republican/executive political structures?

Red - constitutional monarchies with authority vested in parliamentOrange - parliamentary republics with parliaments supreme over head of state [prior year]

Constitutional balance of power …

Jouet, Mugambi. The failed invigoration of Argentina's Constitution: presidential omnipotence, repression, instability, and lawlessness in Argentine history. 39 U. Miami Inter-Am. L. Rev. 409-462 (2008). [L][W]

Juvenal

“Who will guard the guards”

Legislature• Senate• Chamber of Deputies

Executive• President• Chief of Ministers

Judiciary• Supreme Court• Lower courts

Permanent Bicameral

Commission OmbudsmanAuditorGeneral

Judicial Council• Nominates judges• Governs judiciary• Impeachment jury

Object of structure?Reason for structure?

Comparison to US?

Keith Orgel

Public Ministry• Attorney General• General Defender

Tom Ridge(security czar)

Gen Douglas Lute(war czar)

VP AL Gore (energy czar)

Barry McCaffrey (drug czar)

Henry Paulson (finance czar)

From “Toward Democratic Consolidation?”

Argentina Supreme Court (2003)

Constitution or reform …

Argentina Constitution (1994)

FIRST PART • Ch 1: DECLARATIONS, RIGHTS AND GUARANTEES• Ch 2: NEW RIGHTS AND GUARANTEES SECOND PART: AUTHORITIES OF THE NATION

TITLE I: FEDERAL GOVERNMENT – FIRST DIVISION: LEGISLATIVE POWER

• CH I: The House of Deputies • CH II: The Senate • CH III: Provisions applicable to both Houses • CH lV: Powers of Congress • CH V: Making and enactment of laws • CH VI: General Auditing Office of the Nation • CH VII: The Ombudsman

– SECOND DIVISION: EXECUTIVE POWER • CH I: Its nature and duration • CH II: Procedure and time of the election of

President and Vice-President of the Nation • CH III: Powers of the Executive Branch • CH IV: The Chief of the Ministerial Cabinet and

other Ministers of the Executive Power – THIRD DIVISION: The Judicial Power

• CH I: Its nature and duration • CH II:Powers of the Judiciary

– FOURTH DIVISION: The Public Ministry TITLE II: Provincial Governments

US Constitution (1791)

Preamble ["We the people...."] Art I [The Legislative Branch]

..Sec 1. [Legislative Power Vested]

..Sec 2. [House of Representatives]

..Sec 3. [Senate]

..Sec 4. [Elections of Senators, Representatives]

..Sec 5. [Rules of House and Senate]

..Sec 6. [Compensation and Privileges of Members]

..Sec 7. [Passage of Bills]

..Sec 8. [Scope of Legislative Power]

..Sec 9. [Limits on Legislative Power]

..Sec 10. [Limits on States] Art II [The Presidency]

..Sec 1. [Election, Installation, Removal]

..Sec 2. [Presidential Power]

..Sec 3. [State of the Union, Receive Ambassadors, Laws Faithfully Executed, Commission Officers]

..Sec 4. [Impeachment] Art III [The Judiciary]

..Sec 1. [Judicial Power Vested]

..Sec 2. [Scope of Judicial Power]

..Sec 3. [Treason] Art IV [The States]

..Sec 1. [Full Faith and Credit]

..Sec 2. [Privileges and Immunities, Extradiction, Fugitive Slaves]

..Sec 3. [Admission of States]

..Sec 4. [Guarantees to States] Art V [The Amendment Process] Art VI [Legal Status of the Constitution] Art VII [Ratification]

Amendments (27 in 216 years – 1.3/decade)

Political Compromise

Argentina Constitution (1994)

FIRST PART • Ch 1: DECLARATIONS, RIGHTS AND GUARANTEES• Ch 2: NEW RIGHTS AND GUARANTEES SECOND PART: AUTHORITIES OF THE NATION

TITLE I: FEDERAL GOVERNMENT – FIRST DIVISION: LEGISLATIVE POWER

• CH I: The House of Deputies • CH II: The Senate • CH III: Provisions applicable to both Houses • CH lV: Powers of Congress • CH V: Making and enactment of laws • CH VI: General Auditing Office of the Nation • CH VII: The Ombudsman

– SECOND DIVISION: EXECUTIVE POWER • CH I: Its nature and duration • CH II: Procedure and time of the election of

President and Vice-President of the Nation • CH III: Powers of the Executive Branch • CH IV: The Chief of the Ministerial Cabinet and

other Ministers of the Executive Power – THIRD DIVISION: The Judicial Power

• CH I: Its nature and duration • CH II:Powers of the Judiciary

– FOURTH DIVISION: The Public Ministry TITLE II: Provincial Governments

US Constitution (1791)

Preamble ["We the people...."] Art I [The Legislative Branch]

..Sec 1. [Legislative Power Vested]

..Sec 2. [House of Representatives]

..Sec 3. [Senate]

..Sec 4. [Elections of Senators, Representatives]

..Sec 5. [Rules of House and Senate]

..Sec 6. [Compensation and Privileges of Members]

..Sec 7. [Passage of Bills]

..Sec 8. [Scope of Legislative Power]

..Sec 9. [Limits on Legislative Power]

..Sec 10. [Limits on States] Art II [The Presidency]

..Sec 1. [Election, Installation, Removal]

..Sec 2. [Presidential Power]

..Sec 3. [State of the Union, Receive Ambassadors, Laws Faithfully Executed, Commission Officers]

..Sec 4. [Impeachment] Art III [The Judiciary]

..Sec 1. [Judicial Power Vested]

..Sec 2. [Scope of Judicial Power]

..Sec 3. [Treason] Art IV [The States]

..Sec 1. [Full Faith and Credit]

..Sec 2. [Privileges and Immunities, Extradiction, Fugitive Slaves]

..Sec 3. [Admission of States]

..Sec 4. [Guarantees to States] Art V [The Amendment Process] Art VI [Legal Status of the Constitution] Art VII [Ratification]

Amendments (27 in 216 years – 1.3/decade)

Political Compromise

• right to resist oppression• equality between men and women• right to form political parties• freedom of expression • popular initiatives on social matters• ecological rights to healthy environment• consumer rights• equality rights• workers rights• indigenous rights• educational rights• intellectual property rights • international rights.

Argentina Constitution (1994)

FIRST PART • Ch 1: DECLARATIONS, RIGHTS AND GUARANTEES• Ch 2: NEW RIGHTS AND GUARANTEES SECOND PART: AUTHORITIES OF THE NATION

TITLE I: FEDERAL GOVERNMENT – FIRST DIVISION: LEGISLATIVE POWER

• CH I: The House of Deputies • CH II: The Senate • CH III: Provisions applicable to both Houses • CH lV: Powers of Congress • CH V: Making and enactment of laws • CH VI: General Auditing Office of the Nation • CH VII: The Ombudsman

– SECOND DIVISION: EXECUTIVE POWER • CH I: Its nature and duration • CH II: Procedure and time of the election of

President and Vice-President of the Nation • CH III: Powers of the Executive Branch • CH IV: The Chief of the Ministerial Cabinet and

other Ministers of the Executive Power – THIRD DIVISION: The Judicial Power

• CH I: Its nature and duration • CH II:Powers of the Judiciary

– FOURTH DIVISION: The Public Ministry TITLE II: Provincial Governments

• right to resist oppression• equality between men and women• right to form political parties• freedom of expression • popular initiatives on social matters• ecological rights to healthy environment• consumer rights• equality rights• workers rights• indigenous rights• educational rights• intellectual property rights • international rights.

US Constitution

Article V

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress;

provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

Has the text of US Constitution been amended?

What is effect of –

Julia Di VitoTaylor Noland

• Compulsory voting ?• Direct vs indirect election of president?• Quota for women on electoral slates?• Government support for political parties?

End

Supremacy of treaties …

Article 75 allows Congress to approve treaties, which achieve same level of validity as Constitution, complementing constitutional civil rights.

Argentina is party to all 8 major human rights treaties, each of equal importance with the Constitution itself.

Biancha Hudson

What are second and third generation rights?