I. THE SPACES OF WHAT IS SECRET IN THE NATIONAL STATE
At present, in the Argentina, the secret is manifested in three principal spaces.
The first is the normative. In the are included all the laws, arrangements of facto, decrees and other procedures, as well as all other documentation originated in the Government that has a reserved or secret character.
The controversy in connection with the existence of the reserved or secret laws remains clearly exposed in the words of the Argentine jurist Nestor P. Sagüés when it says that - " the Argentina has thus the debatable privilege of belonging to the legislative club more curious of the world: that of countries with secret laws. Very few, in truth rigor, are encouraged today to be registered in him " -. Within their/its/your/his vision, Sagüés assumes that - " is evident that the secret laws are a topic to right - fiction. " - and that " - ...para to give you/them some scaffolding and legitimacy appearance, part of the Argentine doctrine has put under way institutes at the same time anomalous and sibilinos, as the secret meetings, the secret promulgations, the secret execution of the law, the exemption of constitutionality review, the book of secret laws,.. a real legal nightmare in definitivä3 .[<A>] The exposed posture is countersigned by the own Sagüés in their/its/your/his work - " The Secret Laws " - and additionally authors and jurists such as Horacio Daniel Piombo who in their/its/your/his book - " General Theory of the Advertising and International Treaties " - says that
- " Emerges as rational and logical, of the own nature of the things, that the submission to the procedures demands information intended for to make possible the knowledge. - " Nothing is more tyrannical and cruel than to punish a man by have disobeyed a law than it has not been able to know " -. From there that the requirement of the divulgatio promulgationis would be seen from ancient as essential for the validity of the mandates of the legislating and included in the definitions of law, as the offerees by Holy Tomás of Aquino - - " ranking of the reason enderazada to the common good and promulgated by who has the care of the community... " -
Michael S. Marienhoff in their/its/your/his treaty to administrative right says with respect to the publication of the laws that with respect to the inhabitants or administered, the publication of the law is a corollary of expressed what is in the constitutional precept with respect to that - " no inhabitant of the Nation will be obligated to make what does not command the law neither private than what she does not forbid " -. However it asserts that a promulgated or approved law is obligatory for the executive branch, though not publish it since procediendo the law of the state activity, the State, creative organ del right, podría allege the ignorance of the law. 4
The Penal Code in their/its/your/his article 157 establishes penalties to the public officials that - " reveal facts, performances or documents that by law have to remain secret " -. Given the constitutional advertising obligation of the procedures, especially of the laws, is not anticipated punishment by the diffusion of the same. As clear remain is punished alone that that by virtue of sent what is by a law has to be maintained hidden.
For example they can be mentioned some secret procedures:
In the parliamentary area remains registered a fact in favor of the advertising of the secret laws. In effect, the report that was accompanying to the commission judgment of a resolution project that was requesting PEN the reference of the secret law dictations between June of 1966 and May of 1973 abounds in the political consideration that such normative generated: - " From 29 of June of 1966 the military government of facto has sanctioned a heap of arrangements called - " laws " - with the character of - " secret " - or - " reserved " -, making an abusive practice of the constitutional principle before stated in the measure of the fact that only some acts of Government can carry such character in attention to the safety of the State or the national defense. The authors of that resolution project, in a shared preoccupation unanimously by the Commission of Constitutional Matters of this Reputable Chamber, propose the sanction of the present tending initiative to uncover the content of this abundant secret legislation in procures of the security, fundamentally, of the constitutional guarantees and of the national sovereignty.... " - 8.
Also it results of interest to know that between December of 1973 and December of 1983 the number of secret and reserved laws was of 35 (thirty and five); corresponds to clarify that in the indicated period, the first law of such characteristic July date of 1976.
Result surprising the draft that the national secret procedures are suffering at present. The National executive branch has issued a Decree 1069/95 secret referred to the remuneration system of the public officials specifically in what is relevant to the viáticos of the same, as if the society did not had right to know how much perceive the public servants or if this committed the safety of the Nation or of the State.
But the constitutional seclusion of the advertising of the procedures does not end there. For Decree 382/95 is modified the Decree 333/95 that establishes the procedures for the elaboration, draft and diligenciamiento of the projects of acts and administrative documentation. Said amendment closes yet more the road of the diffusion of the acts of government since establishes than only they will be able to request, through founded note, copy of the decrees and secret laws the members of the national Cabinet and the presidents of the legislative Chambers, these only by request of some of the parliamentary commissions. The doctrine that would intend to impose the National executive branch, against what the Constitution and the republic order, is that the common citizen does not has right to know the procedures that govern it and the State can maintain secretly all that that prejudices it before the public opinion.
The second space of what is secret is known corrientemente with the name of - " reserved expenses " -. The same encompass the departures that year trás year are incorporated as such into national expense though their/its/your/his detail and destination is not known for the legislators. The already mentioned Law - " S " - N 18.302 gives the normative sustenance to this customary practice.
The third space corresponds to the activities - and structures - that from the State are developed reservadamente or secretly. Here they fit to distinguish fundamentally two groups: carried out them by the organs and intelligence organizations (civil so much as soldier) and of safety, and other of technical character as the nuclear plan, Condor project, etc.
In this work we will analyze fundamentally the second space, that of the reserved expenses, since in the regulation of the same is entrail the possibility of controlling the secret actions.
3. - " The Crisis of the Retirable System and the Reform Proposals " -. Mario Brodersohn - Diego Peluffo. April 1991.
4. - " The Current Situation of the Provincial Finances " -. Jorge Presman. June 1992.
5. - " Taxes Copartnership: of the Fiscal Federalism to the Centralism Menemista. " - Jorge Presman. October 1992.
6. - " Oil Deregulation: A Policy change? " -. María Galician Alicia Rock - Diego Karakachoff. December 1992.
7. - " Notes On the Poverty and the Action of the State to Surpass it " -. Luis A. Beccaria. April 1993.
8. - " Unemployment in Argentina: Magnitude of the Problem and Political Adopted " -. Oscar Cetrángolo and Laura Golbert. April 1995.