The Argentinian response to COVID-19 has concentrated power in the hands of the Executive, restricted fundamental constitutional rights, and militarized public space.
In December 2019, just after the election of President Alberto Fernández, a serious economic crisis, and impending sovereign debt default, the Congress of the Argentine Nation passed Law 27.541, which transferred a series of time-limited powers to the Executive to address a public emergency in a broad range of economic and fiscal matters, including health and social protection.
On March 12th, 2020 President Fernández declared a “sanitary emergency” pursuant to Law 27.541, which would extend for one year due to the COVID-19 pandemic. A week later, on March 19th, he ordered mandatory confinement for all the inhabitants of the country, pursuant to emergency decree n. 297/2020.
On June 4th, the government announced that due to spikes in cases, the quarantine in the City and province of Buenos Aires will be extended at least until the 28th of June — a longer period of confinement than even that of Wuhan.
Beginning in early March, the government used emergency decrees to close national borders and suspend in-person classes in both public and private schools across the country; international flights have been suspended until September, one of the most stringent measures to restrict international travel in the world.
Other emergency decrees were directed at mitigating effects on economic and social rights, stemming from restrictions on freedom of movement as well as the expected strain on the health system. These included: emergency economic measures to sustain the production of essential goods; construction of 12 emergency hospitals; establishment of price ceilings for food and other essential goods; enactment of emergency family income; credits to small companies for the payment of salaries; prohibition on dismissals/suspensions from employment for a period of 60 days; an emergency financial program for provinces; and establishment of maximum prices for essential medical supplies (thermometers; alcohol; etc.).
For its part, the Supreme Court declared a continuation of the annual judicial leave period that usually ends in March, restricting access to justice.
Measures restricting freedom of movement and assembly (social distancing and mandatory confinement) have been strictly enforced, which have worked in terms of public health. As of June 8th, Argentina (44.5 million inhabitants) registers 22,749 cases and 664 deaths.
Nonetheless, the use of emergency powers has arguably exceeded what is constitutionally permissible, establishing de facto what the Constitution terms a “state of siege.” This “state of siege” can be recognized by: i) the concentration of powers in the hands of the Executive; ii) the severe limitation of fundamental constitutional rights; and iii) the militarization of the public space (the main streets and avenues show a remarkable presence of the coercive forces of the state, and a moderate, although now growing circulation of the civilian population).
Under Articles 75.29 and 99 of Argentina’s Constitution, Congress is charged with declaring a “state of siege.” In Article 14, the Constitution also establishes that the regulation/limitation of rights corresponds solely to Congress. And in Article 99.3 the Constitution determines that the President’s emergency powers do not allow him/her to intervene in areas related to the criminal law (which the executive has done, e.g., ordering detention of vehicle drivers for violation of quarantine). All of these constitutional requirements have been violated, although much of the political class ignores or dismisses the significance of this for the rule of law in Argentina.
The decision to avoid declaring a “state of siege” must be seen in light of the trauma created by the most recent declaration of a “state of siege,” during the government of President De la Rúa in December 2001. That 2001 declaration precipitated the most dramatic recent political crisis in the country, including a long period of instability and police repression.
In the context of Argentina’s profound social and economic inequalities there are practical consequences to making sweeping decisions without considering the possibilities for compliance, let alone deliberating the measures.
For example, in Argentina 8 million people have no access to clean water to wash their hands. Social distancing is impossible for the more than 1.4 million Argentines in urban slums. When there were predictable spikes in a poor neighborhood in Buenos Aires in late May, the government imposed a cordon sanitaire, but did not offer follow-up testing, tracing, isolation, and other support, which further stigmatized the poor without protecting their health. For women at risk of domestic abuse, especially poor women, the long lockdown has proven lethal.
Abuses and corruption were foreseeable based on the broad discretion granted to a few individuals and diminished oversight. We have also seen numerous cases of abuses carried out by the police under the extended formal and informal powers that were recently granted to the security forces. Perhaps even more significantly, the Ministry of Security has begun “cyber-patrolling” social media and the internet, which is explicitly prohibited by a recent Law regulating “National Intelligence” (Law 25.520, Articles 4.2, 4.3).
In short, even in the context of a lethal virus, we should not forget that Argentina has a long and tragic history of political abuses, military coups, and the abuse of emergency powers. The current response to COVID-19 should stir profound collective concern.
Roberto Gargarella is Professor at the University of Buenos Aires and the University Torcuato di Tella and Senior Researcher at the National Research Council, CONICET.