The Rule of Law in Argentina: A Pending Issue
![handle is hein.journals/ibl23 and id is 371 raw text is: The Rule of Law in Argentina:
Mximo Bomchil
M & MlBomchi4 Buenos Aires
Argentina has undergone an economic
revolution in the last six years. But is
this rooted in a strong rule of law?
Maximo Bomchil looks at both sides of
the argument.
Two concepts are broadly used in Argentina to refer
to the Anglo-American term 'the rule of law'. The
'rule of law' in a strict sense is construed as meaning
a constitutional order arising from popular consent
which establishes the separation of powers and in
particular the independence of the judiciary, and
which assures the respect for and the obedience of
the law by both government officials and the general
citizenry. Complementing this term, the concept of
'seguridad juridica' or legal security, is used to refer
to the stability, certainty and predictability which the
laws and court judgments should have, particularly of
the courts following their own precedents and the
government not suddenly altering legislation.
Finally, also within the concept of 'seguridad
juridica' is the efficiency and effectiveness of the
judicial system and of the administration to ensure
effective obedience of the law.
Does the rule of law prevail?
Does the rule of law prevail in Argentina? Does
Argentina have 'seguridad juridica'? Unfortunately
there is no one answer to these extremely important
and highly sensitive questions. In recent years strong
allegations have been made by scholars, journalists,
bar associations and even from a foreign ambassador
appointed to Argentina that the legal institutions of
the country have failed to assure legal security. In
1992 the Argentine Banks Association granted its
annual prize to an essay with the title, 'La Seguridad
Juridica y el Progreso Econ6mico' ('Legal Security
and Economic Progress'), written by a young and
successful lawyer named Gustavo A Kaufman who
maintained that there is no legal security in
Argentina basically due to the failure of the Supreme
Court to defend the liberal principles of the
constitution. On the other hand, just a few weeks
ago, a book entitled 'Seguridad Juridica and the
Supreme Court of Argentina', written by William D
Rogers, former Undersecretary of State for Economic
Affairs of the US State Department and now partner
of an important Washington law firm actively
International Business Lawyer September 1995
A Pending Issue?
involved in Argentina, was published in our country;
The book reaches completely different conclusions
from Kaufman's essay, maintaining that'... the
jurisprudence of the Argentine [Supreme] Court...
reflects independence, jurisprudential integrity,
concern for rights as well as a recognition of
economic needs, continuity and respect for justice
administration and legal status'.
Ecotiomic revolution, high expectations
Where does the truth lie? Probably, as usual,
somewhere in the middle. The economic revolution
launched in 1989 by President Menem and his
Economic Minister Domingo Cavallo transformed
the country in six years. Menem pushed through
Congress economic legislation which curtailed
government subsidies, privatised the airlines,
telephone companies, gas and electric utilities, oil
enterprises and water supply companies, road
maintenance and construction of new ones, railroads,
subways and maritime companies, as well as radios
and television networks.
The privatisation process was followed by
relaxation of foreign investment laws, deregulation
of trade and commerce and of economic relations as
a whole, and of a monetary reform which made the
local currency convertible to the US dollar.
Inevitably, many private and public interests were
affected by these reforms, some by formal legislation
enacted by Congress and some by Executive decrees
of necessity and urgency - certain prerogative rights
of the Executive. The Supreme Court of Argentina as
a whole upheld the right of Congress and of the
Executive to suspend, limit and regulate individual
rights when this was necessary to protect the public
from significant economic disaster. In doing so - this
has to be recognised - the Court relied on precedents
established in the last 50 years, during similar
although perhaps not so serious economic crisis.
Now that the worst of the crisis is over, the
Argentine citizenry has high expectations about the
rule of law and legal security The mere fact that the
matter is openly discussed in academic, professional
and political forums is the best evidence that society
as a whole is not ready to accept violations of the
rule of law and, even more important, that a new
conviction exists that the rule of law and the
'seguridad juridica' are essential to economic
development and to allow the country to continue
down the road of economic progress and stability
which it started to pursue six years ago. However,
there is still a pending issue which also forms part of
the 'seguridad juridica'; the need radically to reform
the judiciary and the administration in order to
assure the effective obedience of the law.](ViewImageLocal?handle=hein.journals/ibl23&div=101&collection=journals&method=preview&ext=.png&size=3)
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The Rule of Law in Argentina: A Pending Issue
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