Asymmetries in South America’s Federalism: the Argentinian Case after the 1994 Constitution*

Gonzalo Gabriel Carranza
Researcher and Teacher Assistant in Constitutional Law at Universidad Autónoma de Madrid

Introduction
The aim of this paper is to introduce Argentina’s federal system and the principal asymmetries that this South America’s country lives after the 1994 Constitution.

1. A brief approach to the constitutional design
The fathers of the Argentinian Constitution were inspired by the United States Constitution. Its structure, principles and rules show the influence that the North American system had onto the Argentinian layout.
Juan Bautista Alberdi, who was one of the principal thinkers of the legal design for the country, read with passion the first Federal Constitution and tried to reproduce it in Argentina, even though he desired to adapt it to the local particularities. As a result of this process, Argentina got its first Constitution in 1853, but a number of challenges, due to the arrogance of the Province of Buenos Aires, generated a period of constitutional debate which lasted for seven years, resulting in the final version of the Constitution of 1860.
The first article of the Constitution tries to introduce the form of government and of State that this country assumes: on the one hand, the republican and representative system, and on the other hand, the federal system. Through its 129 articles, it is possible to see three separate parts:

• The preamble, one of the most inspired parts in North America’s Constitutions, which also begins with the words “we, the people”;
• The first part, where the rights, duties and warranties can be found; and
• The second part, in which we can find the institutional and territorial separation of powers. When describing the rules of the institutional powers, the Constitution firstly sets up the design of the Parliament, then the presidential system and, finally, the judicial system. In the last articles, and without a specific title – just with the name “federalism”–, the Argentinian Constitution builds up the territorial design, with some specific rules about the relations between the different orders of government.

This Constitution, theoretically, is in tune with the different relations within this South American country, but actually it is necessary to know the local customs in order to understand the configuration of the real system itself.

1. A - Federal structure until the 1994 Constitution
Since 1853-1860 to 1994, Argentina’s federal structure was simple, because Argentina had only two governance levels:

• On the one hand, the Federal level, under the head of the President, the Congress (Chamber of Deputies and Senate) and the Supreme Court, totally inspired by the US Constitution; and
• On the other hand, the Provincial level, a kind of local mirror, under the head of the Governor, the Province Legislature (in some Provinces with just one Legislature and in others with a Representatives Chamber and a Senate), and the federal Supreme Court.

It is necessary to highlight that Provinces were and are autonomous, according to Articles 5 and 123, which grant them the right to have their own Constitution, under the representative and republican system, with only three conditions to maintain that autonomy:

• To have their own judicial system;
• To maintain the municipal respect; and
• To sustain the primary education.

During this long period, the Argentinian Constitution had no specific rules about the municipality’s autonomy, so the Supreme Court tried to define it in its jurisprudence, as in the case “Rivademar vs. Rosario City”.
in the case “Rivademar vs. Rosario City”. According to the Constitution, Buenos Aires City, the Capital of the country, had no legal particularities, only that it was under the federal government and that the chief of the city was appointed by the President of Argentina.
Finally, there was no mention of the regions, which means the possibility for different Provinces to get together and form a structure which would allow them to share economic or social guidelines.

1. B - The Constitution’s Federal structure after 1994 and the mitigation of the hyper presidential system
In 1994, after an agreement named “Pacto de Olivos” (because it was signed in the presidential house situated in the city of Olivos, in the Province of Buenos Aires) was reached between Carlos Saúl Menem, the President of Argentina and leader of the Peronist Party, and Raúl Ricardo Alfonsín, the previous President and leader of the Radical Party, a new Constitutional design was born, providing the pieces of a new puzzle in order to establish a new federal system.
The modifications that the Constitutional Convention provided to the supreme law were significant, and the objective of those changes was to adapt rules to practice, approaching its design to the Argentinian reality.
The new division of territorial powers was structured into four subjective levels and one adjective level. The first four levels were:

• Federal, which has the competences that the Provinces granted it, according to Article 126 of the Constitution;
• Provinces, which maintain the competences that they did not provide to the Federal level, according to Article 121;
• The Autonomous City of Buenos Aires, which obtained a long list of new rights and duties, that remain even when it ceases to be the capital city. Buenos Aires became a sui generis structure, because it has not the same rights and duties of a Province and, also, has not the complete rights and duties of a Municipality. It’s like a mix between a Province and a Municipality, but it is not a Province or a Municipality. The regulation of this particular city is in Article 129; and
• Finally, the Municipalities, which had an autonomy in accordance with Article 123, where the Constitutional Convention expressly regulates this character.

The last level, which is called adjective, is the regional level, according to Article 124, which gives the possibility to create new regions into the federal system in order to promote social and economic development.
The 1994 Constitution had also the objective to mitigate the hyper presidential system. That objective needed a number of factors that were introduced in order to limit the excessive power that the President had. For example, the Convention members introduced the figure of the Chief of Cabinet, who is now the head of the public administration, and who is the head of the Ministers. In practice, this does not work, because of Argentinian customs and the necessity for the President to have all the power himself.

2. Latent problems in Argentina’s federal system
According to the Constitution, Argentina has a completely federal design and, with some peculiarities, a strong aim to maintain the federal relations between the different orders of government.
In practice, there are various asymmetries, as a result of the real problems that this South American country has. In order to explain it, it is necessary to understand the structural asymmetries, that can be separated into four different groups:

A. Regional Asymmetries
Giving a look at the map of Argentina, it is possible to identify a long and wide country, with an area of 2.780.400 square kilometers, almost 1500 kilometers wide and 3800 kilometers long.
Across it, Argentina has 23 Provinces and the Autonomous City of Buenos Aires, and it is possible to see different geographical regions:

• Big North: with the Provinces of Catamarca, Tucumán, Salta, Jujuy, Formosa, Misiones, Santiago del Estero, Corrientes and Chaco;
• Center: with the Provinces of Córdoba, Santa Fe and Entre Ríos;
• Cuyo: with the Provinces of La Rioja, San Luis, San Juan and Mendoza;
• Patagonia: with the Provinces of La Pampa, Neuquén, Rio Negro, Santa Cruz, Chubut and Tierra del Fuego, Antártida Argentina and Islas del Atlántico Sur; and finally
• Buenos Aires, which is a region by itself.

These regional divisions show the asymmetries that Argentina has, because of the different economic and social development levels and the distance from the capital city.
The Provinces situated in the North of the country have the highest poverty rates and they are quite isolated from the rest of Argentina, not only in a geographic sense, but also in a political one. There is not a big population and, therefore, they do not provide many votes to the federal level. They are discriminated Provinces in the country.
The Provinces of South have many natural resources, like oil or gas, but have not a big population either, and the relative and absolute distances from Buenos Aires are, one more time, a reason to discriminate them.
In the center of Argentina, from Mendoza to Buenos Aires, the highest levels of population and social and economic development can be found. In this part of the map, it is possible to find the principal densely populated districts, like the Autonomous City of Buenos Aires, Córdoba, Rosario (a city of the Santa Fe Province) or Mendoza. They contribute votes and GDP to the country, and Argentina’s principal policies are destined to this geographical strip.
These regional asymmetries have been producing several development problems inside the country, because we can divide them into rich and poor Provinces, with different degrees.

B. Political Asymmetries
As a result of the hyper presidential system, the political asymmetries appear as the principal problem of the federal system, so that if Argentina will be able to fix them, other asymmetries too can disappear.
The country has always had the particularity of willing to have a bipartisan system. The reason is historical, because it is the answer of the civil war (centralists vs. federals), and the different periods of the political party system.
During the last years of the 20^th century, the fight for power was between the Peronist party and the Radical party, and, in the first years of the 21st century, that battle showed a new variant: the mutation of the Peronist party into a populist party under the leadership of both Nestor and Cristina Kirchner and, recently, the alliance of different opposition parties trying to change the government in a coalition with Mauricio Macri at their head.
In Argentina, devotion to the President and the color of his/her party is like a kind of religion that the Provincial Governors need to follow in order to obtain public policies, contributions to the treasury and laws which stimulate the development of the territories under their leadership. If Governors have not a good relationship with the President, they cannot govern the Provinces with legal peace, and their territories go down economically and socially.
This necessary friendship between President and Governors brings as a result that many provincial leaders change party affiliation going to the President’s party and generating defections inside the opposition, with several politicians being identified with a final “ists”, like “kirchnerists”, “macrists”, etc.
Also, another phenomenon emerged, because Municipality Mayors who are in opposition to their head of Province try to jump the problem, in case their own Province is against the President, and obtain a direct line with the President to solve their local problems.

C. Fiscal Asymmetries
In order to try to promote an equal development of each Province, the new Constitution designed a federal tax-revenuesharing law, which sets up the fiscal relations between Provinces and Federal Government. That directive needed a general agreement from the Senate (the chamber which functions as a house of representatives of each federal unit), between the federal, provincial and autonomous city of Buenos Aires levels. It had the peculiarity of some procedural rules, like that the agreement needed to pass no later than December 1996. Today, after more than twenty years since the entry into force of the 1994 Constitution, Argentina has no federal tax-revenue-sharing law.
The problem of not having this law is that the federal level has more possibilities to decide how to allocate the income-tax money, and how to share it among the Provinces, in particular the ones that have a good relationship with it. It is complicated to have a full agreement on passing the law, and the reason may be found in the lengthy procedure designed by the Constitution. Some constitutional experts say that if Argentina wants to have a federal tax-revenue-sharing law, it needs to reach consensus on two things: first, to definitely agree about the necessity to have this law, and second, to solve the procedural problems.

D. Legal Asymmetries
Even when the Constitution has the global approach of a federal system and, at first glance, it gives answers to most issues of competences, the reality shows the necessity to have a proactive Supreme Court, which should try to fix particularly the asymmetry problems.
The legal asymmetries or even the gaps into the Constitution’s federal design may be fixed using different principles that need to be the banners of the relationships inside the system, like:

• Subordination, which expresses the federal supremacy. It is not a principle which means that the Provinces are under the Federal government, but that the federal law is above the provincial law;
• Participation, which consists in the collaboration between the different subjective levels in order to build laws, policies, etc.;
• Coordination between all the subjective levels, which means the respect and contribution to obey the competences distribution.

The federal system in Argentina was constructed with a view to federal consultation, but not to federal loyalty, which involves a non-written constitutional principle that models the relations between the different orders, and puts a self-stop button when one of the state parties wants to go beyond what it can do. These legal asymmetries need the work of justice to settle conflicts before the Supreme Court. This task is not only about solving particular problems, but also about setting up a legal frame of relations abiding by several principles, like federal loyalty.

3. Challenges of the Argentinian federal system
After the analysis of the asymmetries, it is time to present the principal challenges that Argentina has to tackle in order to create a new federal system.

A. Reduction of political and regional asymmetries
The reduction of political and regional asymmetries goes around a change of mind in the political leadership, understanding the peculiarities of each part of the puzzle and setting aside the color of the party, highlighting instead good faith in relations and the necessities of each Province.
A change of mind presupposes a change of the executive federal system, trying to erect a collaborative federal system, with a change of political behaviors.

B. Intra-governmental relationships
The relations between different government levels imply to improve the vertical level, limiting hyper presidential interventions and establishing a new kind of vertical relations, and the horizontal level, putting over the table the neighborhood and discussing the principal pros and cons that each level has.
pros and cons that each level has. A new structure has to appear, like the conference of governors in the vertical level, a meeting point where to understand, at the same time in the vertical direction (PresidentGovernor) and the horizontal one (GovernorGovernor), the problems that each part of the country has, and the contributions that each one can give as part of the federation.

C. Fiscal Balances
It is necessary to pass a new tax-revenuesharing law and, to obtain that, a series of meetings must be held between the offices of the President, the Provinces and the Senate, trying to find a solution and, at last, pass a law. The problem is, if Argentina will not pass that law, there will be a growing inequality between the disadvantaged and the richest Provinces, and the continuation of the typical policies of differentiation between the Provinces that are friend of the President and the others that are not.

4. Conclusions
The constitutional design of Argentina after the Constitution of 1994 was good de jure, but not de facto. The problems of the federal design, which generate differences between different parts of the country, have been built in the heart of the political system, resulting in the hyper presidential system, and are a heritage of the history and the leadership of the Argentinian people.
A new age of federalism is a requirement in this moment of political changes, and should result in a particular change of mind in the top of the executive power and in changes inside the Parliament and the Supreme Court. Only with principles (that have no necessity to be written into the Constitution) that modulate the relations between the units of Argentina, will it be possible to change, definitely, the real problems that this South American country has.

* This paper is a short version of the Conference that the author gave in the Center for Constitutional Studies at Illia State University, Tbilisi, Georgia, in July, 2016. In memory of Karlo Godoladze.