Undersecretary of Fisheries and Aquaculture of the Nation, Dr. Nestor Miguel Bustamante, has sent FIS.com his response to the article published in this website on 6 November, entitled "Filmus, Bustamante, The Falklands and if only there were many others in Argentina like Benegas”.
The following is his letter:
Mr. Andres Loubet-Jambert
Co-Founder & Publisher
Fish Info & Services Co. Ltd
I read your article, which was sent to me by Mr. Juan Benegas, and after rereading it several times, I felt astonished at the inaccuracies and falsehoods that show you are totally unaware of the pending files and the right applicable in the matter, which is not proper for the publication of a journal having international readership.
In the four years of my term in office in the Undersecretary of Fisheries of Argentina I have received much criticism, as it is usual in these cases, much of which has led to solutions for the sector, that is to say, they have been constructive, and I always believe that everybody must be heard even though we may sometimes not like their message.
However, your article contains a list of mistakes showing lack of knowledge and content, which has forced me for the first time in four years -- I say it once more – to publicly respond to an article in order to clarify the situation and duly inform readers about an issue having extreme sensitivity for Argentina.
First of all, THERE IS NO REQUEST FROM YOU, or from anyone representing you or the information website you belong to, to come into direct knowledge of the two (2) files being processed, about which you write, which as a whole, have totalled more than 1000 pages so far, which is why, it seems to me, it is a big lack of responsibility from you to express your views on proceedings that you have not even consulted.
On several occasions, in these four years, the information website you have co-founded has made several consultations on topics of varied entity by various means, and you have always had satisfactory response.
It is striking that if what is sought is to report on a topic with implications for The Falklands you have not done so this time.
I understand that a competent journalist first should be duly informed in order to inform their readers, which is what I think, and what I've done in my 27 years as a lawyer, I did not mention a file if I was not informed about it.
Secondly, and it IS something you could have done online by visiting www.minagri.gob.ar or www.cfp.gob.ar or www.infoleg.gob.ar, you should have read the Federal Fisheries Act N° 24.922, as it is evident you have not read it, NOT EVEN ONCE, otherwise you would have noted that the Undersecretary Of Fisheries and Aquaculture DOES NOT HAVE THE LEAGL POWER TO ISSUE A RESOLUTION, so his SIGNATURE HAS NO LEGAL RELEVANCE, and that is the legal reason preventing me from taking a decision.
The COMPETENT AUTHORITY to solve the issue is the Secretary of Agriculture, Livestock and Fisheries of the Nation, SO SAYS THE LAW, which you will be able to consult on these three (3) sites that I have indicated (strictly speaking, you should have done so before writing your article), a position that currently Dr. GABRIEL DELGADO holds.
The undersigned, apart from substantiating the files, what has been done in the procedural periods established by law, THERE IS NOTHING THAT I CAN DO TO SOLVE THE CONFLICTS WHEN THE LAW ITSELF DOES NOT AUTHORIZE TO DO SO.
On the contrary, because the law empowers me to do so, during my term in office after the seizure of five (5) boats that were fishing illegally in the national exclusive economic zone, the relevant summaries were processed, the relevant legal sanctions were imposed, which were signed by the undersigned, and the penalties for nearly three million dollars were received. The procedures, in all the cases, did not exceed the seven (7) months of processing, the ships were released once they had met all the imposed sanctions.
Thirdly, you should know (when you personally consult the records you will check it) that both have completed their investigation stage, and it has been made clear by the Ruling of LEGAL area, issued by Dr. Pederiva, on 2/11/ 2015.
1. In the first record, which originated in the complaint made by Mr. Juan BENEGAS, where the violation to article 27a of Law 24,922 is being investigated, in this framework and with the gathered evidence, the firm PESANTAR SA, who appeared in due time and form to make its Defense, was notified.
Following that, the company NISSUI was called, and also in due time and form, it made a presentation, whose scope will have to be valued when taking the decision to end the administrative file.
This file has completed its entire administrative procedure, all the evidence has been collected, the firms involved have been heard, respecting the right of defense and due process, both of constitutional stature.
The presentation of the firm NISSUI will only be solved when taking the decision to end the summary, which must be perfectly clear.
2. In the second file, the behavior and the facts developed by the ship UNION SUR are investigated, reason for Mr. Benegas’ complaint, for the allegedly infringing activity of Art.27a of the Federal Fisheries Act, a ship that, according to the statements of the first file would belong to the Chilean firm EMDEPES.
This file was processed at the Naval Prefecture Argentina, due to the nature of the evidence that was necessary to produce, and due to the power that the Agency has, and also, so has been noted in the Legal Opinion dated 02/11/2015, it is completed.
This means that it has been proved that the Ship UNION SUR effectively operated in the area of The Falklands at a Speed that is compatible with fishing activities.
Under Argentine law NOBODY CAN BE CONDEMNED WITHOUT BEING HEARD IN A PROCESS THAT GUARANTEES THEIR RIGHTS OF DEFENSE, since the French Revolution ownwards, that is to say, from 1789 to 2015, no one doubts the validity of such a principle recognized in the supreme law of the Nation, which is why EMDEPES should be called and heard before solving the two files, whose evidence steps – I repeat -- are completed, which has been ratified by Dr. Pederiva’s legal opinion.
To be clearly understood, EMDEPES should be notified and given 10 days to make use of its right to make its defense, once it has occurred or after this period, the two files would ready to be solved, ESTABLISHING THE PENALTIES THAT APPLY TO WHOM IT MAY CONCERN.
This procedure is common to all the files that are proceeded at the Undersecretariat under my charge, and from a minor offense for omitting the minutes on fishing gear up to a red-handed seizure in the Exclusive Economic Zone and/or fishing activities in closed areas, which are considered serious by the law, are implemented.
In short, it is not possible, under any circumstances, and beyond the whims or interpretations, to twist the text of the law, IT IS IMPOSSIBLE TO ENFORCE THE LAW BY BREACHING IT.
This is a summary of the proceedings, under full legal terms in both files, and that can be consulted by all the people and all serious and professional journalists who want to study, analyze and comment on the subject.
Whoever has to solve the issue will do so with all the evidence collected, and the international fishing community can rest assured that once the applicable legal process has finished in the case of EMDEPES -- notification, defence or during the 10-day period --, as it was ruled by the Legal area of the Ministry of Agriculture, Livestock and Fisheries of the Nation, the sanctions will be held legally due.
Secretary of Agriculture, Livestock and Fisheries, Dr. Gabriel Delgado, who is the authority that must solve the issue, has ratified all the procedures and will adjust his decisions -- as it must be done – to the ruling produced by the Legal area, and so is what he has transmitted to me.
After having made all the corresponding clarifications about all the technical and legal issues as it has been done ut supra, I have had the need for myself, my family and the people who have carried out these procedures, to express my response – you have granted that benefit to me, for which I am grateful, as to the personal or functional adjectives addressed to me.
First of all, I must say, you have no obligation to know it, I am 54 years old, when I was 4 years old I lost my parents and sister in an accident, from which I survived but with countless psychological damage. I have worked and studied since I was very young and I finished school and college with excellent marks. I was a university lecturer for over 10 years, earning positions via contest, and I worked in the legal profession for 25 years. I DO NOT NEED THAT SCIOLI OR ANY OTHER PERSON REWARDS ME WITH A POSITION IN OFFICE THAT IS NOT NECESSARY OR THAT I DO NOT NEED IN MY LIFE.
I have just taken and fulfilled the responsibility of being the Undersecretary of Fisheries of Argentina these four years because I felt I had the professional skills to do so, and on 10 December, 2015 I am going to return to my home with my wife and children, my lifelong friends and I am going to resume my duties in the same normal way as I have lived until now.
Secondly, I HAVE NOT BEEN UNDER PRESSURE OF ANY KIND or received orders to act in any way, I repeat it, first of all, BECAUSE I AM NOT THE ONE WHO SOLVES THE ISSUE, and besides, BECAUSE I HAVE ALWAYS DECIDED IN LIFE ACCORDING TO MY CONVICTIONS AND WHEN ONE IS CONVINCED OF SOMETHING, PRESSURES DO NOT EXIST, Mr. Loubet - Jambert.
Thirdly, I understand that my competence for the position that I had has been and will be evaluated by workers, entrepreneurs in the sector, my colleagues in these four years, and by agencies like FAO, who have recognized the importance and effectiveness of the implemented policies, and finally, the coming years will be the best judges to assess the fruits of the measures we have taken these years.
Furthermore, you must understand that The Falkland Islands case has no unique owner. It belongs to all the inhabitants of Argentina, so you must have no doubt that after the end of my management, I will personally follow the cause I have instructed, in which all the evidence has been collected to substantiate the complaint made by Mr Benegas so that the process comes to an end and sanctions are implemented.
Finally, you state that I should resign, indeed, after reading your article and the list of inaccuracies, rather, the lack of knowledge on legal norms and of the pending files, the lack of seriousness in dealing with such an issue that is so important for our country, given the lack of respect you showed to me, I humbly refrain from voicing my opinion.
However, to sum up, I offer a certainty and an agreement.
First, you said: "I may be misinformed, in which case this whole situation I describe could very easily be replaced by another kind of information that only these officials could offer." (sic), you’re right, Mr. Loubet-Jambert, you should have said that you WERE NOT properly informed, but that you are not embarrassed to express an without knowing about it although it must be noted that you have certain intellectual honesty by at least warning your readers of your lack of effort in investigating such an important issue.
As for the agreement, the only one I have with you is that it is true that it is necessary for Argentina to have others like Juan Benegas, but if this Undersecretariat had not promoted and carried out the amendment to Article 15 of the former Resolution 514/2009, by Resolution SAGYP 39/2014, published in the Official Bulletin on 12 March, 2014, Mr. Benegas’ complaint would have had no legal grounds, and behaviors as these would continue unpunished in Argentina.
This Resolution can also be consulted in the sites I have indicated.
Since you have unintentionally given me the opportunity to show everything that has been done in relation to this complaint, I will publicity release it in all national and international media on the subject.
Having nothing further to add, this is all for the moment. With the highest consideration, I expect this letter is published in your information website, as you promised in your article, which will make it possible to clarify the situation properly.
Dr. Néstor Miguel Bustamante
Undersecretary of Fisheries and Aquaculture of the Nation