The National Constitution
The right to practice a profession, to own an invention or to enjoy a healthy environment is not granted by a statute: it is in the Constitution, and no statute can override it.
01The supreme law
The Constitución Nacional (National Constitution) is the rule that organizes the State and sets out the rights of the inhabitants. It was enacted in 1853 and amended in 1860, 1866, 1898, 1957 and 1994. The 1994 reform was the most extensive: it added the rights to a healthy environment and of consumers, the amparo action (a fast-track judicial remedy), the Council of the Judiciary (Consejo de la Magistratura) and constitutional rank for a series of human rights treaties.
Its central feature is supremacy (Article 31): the Constitution, the laws of Congress made in pursuance of it, and the treaties are the supreme law of the Nation, and the provinces are bound to respect it even if their own rules say otherwise. Any rule that contradicts it is invalid.
02How it organizes the State
Article 1 adopts the representative, republican and federal form. Each word has consequences:
| Feature | What it means |
|---|---|
| Representative | The people govern through their elected representatives |
| Republican | Separation of powers, fixed terms of office, publicity of government acts, accountability of officials |
| Federal | The provinces retain all the power they did not delegate to the Nation (Article 121), enact their own constitution and elect their own authorities |
The three branches are the Legislative, a two-chamber Congress that makes the laws; the Executive, headed by the president, who carries them out and issues regulations implementing them; and the Judicial, with the Supreme Court at its head, which resolves disputes.
Congress enacts the substantive codes —civil and commercial, criminal, labor— for the whole country (Article 75, clause 12). But the oversight of the practice of professions, the so-called police power, stayed in the hands of the provinces. That is why each province has its own law on the practice of engineering and its own council or association, and an engineer has to register where they work, as explained in the unit on professional practice.
03The rights that affect the profession
| Article | What it guarantees | For an engineer |
|---|---|---|
| 14 | To work and practice any lawful industry, to trade, to associate for useful purposes, to teach and to learn | The freedom to practice the profession and to found a company |
| 14 bis | Dignified working conditions, limited working hours, paid rest and vacations, fair remuneration, protection against arbitrary dismissal, free union organization, collective bargaining agreements | The basis of all labor law |
| 16 | Equality before the law; access to public employment with no requirement other than suitability | Public competitive selection, non-discrimination |
| 17 | Inviolable property; expropriation only for public utility declared by law and previously compensated; every author or inventor is the exclusive owner of their work or invention for the term set by law | Patents, rights over software and designs |
| 18 | Due process, prior trial based on a law that predates the act, the right to a defense in court | Guarantees if there are criminal proceedings over an accident |
| 19 | No one is obliged to do what the law does not command or deprived of what it does not prohibit | The principle of freedom that governs private activity |
| 41 | A healthy environment and the duty to preserve it; whoever damages the environment must restore it | Electronic waste management, environmental impact of a construction project |
| 42 | Protection of consumers and users: health, safety, adequate information | Obligations of those who manufacture or sell equipment |
No right is absolute. Article 14 makes clear that they are exercised “in accordance with the laws that regulate their exercise” (our translation), and Article 28 sets the limit on those laws: they may not alter the rights they regulate. Requiring a degree and a professional license to sign drawings is a reasonable regulation of the right to work; prohibiting a licensed professional from practicing without cause would not be.
04Treaties and judicial review
The 1994 reform gave constitutional rank to a list of human rights treaties (Article 75, clause 22), among them the American Convention on Human Rights and the International Covenant on Economic, Social and Cultural Rights. Other treaties rank above statutes but below the Constitution.
In Argentina judicial review (control de constitucionalidad) is diffuse: any judge, when deciding a specific case, may declare a rule unconstitutional and decline to apply it. The declaration is valid only for that case and does not repeal the rule; but when the Supreme Court does it, the other courts usually follow.
05The guarantees
Rights need tools to defend them. Article 43 establishes three:
- Amparo: a fast action against an act of an authority or of a private party that infringes, in a manifestly arbitrary or unlawful way, a recognized right, when there is no more suitable judicial remedy.
- Habeas data: allows you to find out what personal data appear in records or databases and to demand their correction or deletion. It is the basis of Law 25,326 on personal data protection, which applies to any system that stores data about individuals.
- Habeas corpus: protects physical liberty against unlawful detention.
06Where it shows up in electronics
| Situation | The constitutional rule behind it |
|---|---|
| Patenting a circuit | Article 17: the inventor’s property, regulated by the patent law, Law 24,481 |
| Designing a system that stores customer data | Article 43, habeas data, and Law 25,326 |
| Equipment recycling plan | Article 41, healthy environment |
| Labeling and manual of a product | Article 42, adequate information for the consumer |
| Registering to work in another province | Articles 121 and 14: local power over professions and the right to work |
07Activities
Read Articles 14 to 20 of the Constitution and mark which rights relate to the professional activity of an engineer.
Choose a right from Article 14 and find a law that regulates it. Discuss whether the regulation respects the limit in Article 28.
For a card-based access control system, list what personal data it stores and what rights the registered people have under Law 25,326.
08Common mistakes
- Believing that constitutional rights are absolute. They are exercised in accordance with the laws that regulate them.
- Assuming that a national license is valid across the whole country. Professional practice is regulated by each province.
- Thinking that a judge who declares a law unconstitutional repeals it. The judge merely stops applying it in that case.
- Forgetting habeas data when designing systems. Personal data have constitutional protection.
09Self-assessment
What does Article 31 establish?
The supremacy of the Constitution, the national laws made in pursuance of it, and the treaties over provincial rules.
Which article protects an inventor’s property?
Article 17.
Why does each province have its own law on the practice of engineering?
Because the police power over professions was not delegated to the Nation and is retained by the provinces (Article 121).
Which guarantee allows you to request the correction of personal data in a database?
Habeas data, under Article 43.
10Further reading
- Germán J. Bidart Campos. Manual de la Constitución reformada. Ediar (in Spanish). The classic textbook, written after the 1994 reform, clear for readers who are not lawyers.
- María Angélica Gelli. Constitución de la Nación Argentina comentada y concordada. La Ley (in Spanish). Each article with its interpretation and the Supreme Court rulings that applied it.
- Constitución de la Nación Argentina. Texto de 1994. Official text in InfoLEG (in Spanish). Short and readable: reading all of it takes less than two hours.