De facto government doctrine

The de facto government doctrine is an Argentine case law related to the validity of the actions of de facto governments. It allowed the government actions taken during those times to stay valid after the de facto government had ended. It was ruled by the Supreme Court in 1930, and stayed active as law until the 1994 amendment of the Argentine Constitution.

Antecedents

A similar ruling was enacted in 1865, just a few years after the 1853 Constitution. Bartolomé Mitre declared himself president of Argentina after the victory at the Battle of Pavón, under supervision of the Argentine National Congress. The Supreme Court had to rule whenever his rulings were valid, and did so. It considered that he emerged triumphant from a revolution, that the peoples supported his rule, and that he got the duty of following the National Constitution and restore order. Mitre stayed in government this way for just a few months.

The doctrine

The de facto government doctrine was ruled after the coup of José Félix Uriburu against Hipólito Yrigoyen in 1930, the first coup in Argentina since the times of the civil war. Uriburu took the government, closed the Congress, intervened the provinces and manifested to the Supreme Court their will to become a provisional government. The Court legitimized the new government by stating that "...the provisional government just constituted in the country is, then, a de facto government whose title can not be successfully discussed by people as long as it executes the administrative and political function derived from its possession of the force as guarantee of order and social security". The Court took in consideration that the new government compromised itself to observe and obey the Constitution and laws, and saved for itself the right to watch for the enforcement of it if the government did not follow it, as it would have done with a de jure government.

The Supreme Court accepted thus the existence of the provisional government and its legitimacy as such. However, the decrees-laws were accepted only in cases of necessity and urgency, and not in topics of penal right. The Congress ratified the decrees made during this period wen it started working again.

There was a new coup in 1943, and the Supreme Court made a similar ruling, but expanding the potential justifications for decrees. Besides necessity and urgency, a decree could also be made for topics related with the purpose of the revolution. The court changed members, and gave even more freedom of action to the military government. It stated that laws stayed active as a law even after the end of the de facto government without needing to be ratified, and left the existence of necessity and urgency to be decided by the government, beyond judicial scope.

The 1955 Revolución libertadora closed the Congress, replaced the members of the Supreme Court, intervened the provinces and repealed the 1949 amendment of the National Constitution, restoring the 1853 one. The court did not rule anything on this last action, but in fact accepted it by using the 1853 Constitution in other rulings. The laws were ratified after it, and the Supreme Court rejected the former jurisprudence about the expiry of the decrees. It reasoned that the 1930 coup intended only to replace the executive power, while the 1955 intended to replace both the executive and legislative, and thus the laws should stay active after the coup. Under this concept, the limits to the power of a de facto government would be determined just by the de facto government own intentions.

Arturo Frondizi was ousted from office in 1962, but before the military could take the government the president of the chamber of senators, José María Guido, took the presidency following the leaderless law. The Court judged that he was a legitimate president, and that it shouldn't rule about the actions that led to the leaderless state.

References

• Groisman, Enrique. "Los gobiernos de facto en el derecho argentino [De facto governments in Argentine law]" (in Spanish) (PDF). Centro de estudios políticos y constitucionales. http://www.cepc.es/rap/Publicaciones/Revistas/15/RCEC_04_033.pdf. Retrieved November 7, 2010.