Necessity and Urgency Decree

A Necessity and Urgency Decree^[1] (Spanish: Decreto de necesidad y urgencia, also known as DNU) is a special kind of order issued by the President of Argentina. Unlike regular decrees, which are used in Argentina for rulemaking, a DNU has the force of law. Once the President promulgates a DNU, the National Congress must examine it to determine if it keeps enforced or not.^[2]

Features

The Argentine National Congress must evaluate every Necessity and Urgency Decree.

The possibility to promulgate DNU's is established in the article 99 of the Constitution of Argentina since 1994. As its name indicates, a Necessity and Urgency Decree should be used only under exceptional situations, when it is not possible to follow the normal procedure to create laws in the Congress. In addition, the President cannot sanction DNU's legislating about criminal, tributary or electoral matters.^[2]

As it happens with regular decrees, Necessity and Urgency Decrees are promulgated by the President, but in General Agreement of Ministers (Spanish: Acuerdo general de ministros). It means that all Ministers and the Chief of Staff must take part of the DNU's creation.^[2]

Once the Necessity and Urgency Decree is sanctioned, the Chief of Staff must go and send the DNU to the Permanent Bicameral Committee of the Congress in no more than ten days. Then, the Bicameral Committee delivers its report to the Chamber of Deputies and the Senate. The Committee has also ten days to elaborate the report. It is worth mentioning that, during all this process, the DNU is completely in force.^[2][3]

Each legislative chamber must deliver a resolution expressing its approval or rejection of the Necessity or Urgency Decree. If both chambers reject the DNU, it loses validity permanently. However, the rights acquired by people affected by the decree will not disappear.^[3]

Background

In military governments

All legislation issued by military dictatorships in Argentina was made by the executive. These kinds of orders were known as decree-law (Spanish: decreto ley). Under the self-called Argentine Revolution and the National Reorganization Process (the two latest military governments), the decree-laws were just known as laws.

Because they were de facto governments, there was a legal controversy about the validity of decree-laws. In 1945, the Supreme Court of Argentina accepted them only if they were needed to fulfill the aim of the government. When the military government finished, the decree-laws were no longer valid, unless the Congress ratified them.^[4]

Two years later, in 1946, a new judgment by the Supreme Court established that decree-laws would keep valid after the end of the de facto government that promulgated them, and they could be abolished or modified with other laws.^[4]

In constitutional governments

Although DNU's were introduced in the National Constitution in 1994, previous constitutional Presidents have used this type of decrees. One example is the Austral Plan, which changed the national currency from the peso argentino to the Austral. This was sanctioned by the President Raúl Alfonsín in 1985, using the decree 1096/85.^[5] Currently, Argentina uses the peso as its national currency.

In December 1990, the Supreme Court approved the sanction of Necessity and Urgency Decree in the so-called Peralta Case, in which Luis Peralta requested to declare unconstitutional the decree 36/90, that President Alfonsín promulgated in 1990. The judges of the Court eventually confirmed the validity of the DNU.^[6][7]

Irregularities

Despite the fact that the Constitution says the Congress must create a special law to analyze Necessity and Urgency Decrees, this law was created in 2006, twelve years after the 1994 amendment of the Argentine Constitution, when the DNU were introduced. It means that all Presidents who ruled in this period (Carlos Menem, Fernando de la Rúa, Adolfo Rodríguez Saá, Eduardo Duhalde and Néstor Kirchner) could issue DNU's with no legislative control.^[8]

In addition, they are DNU's which were created with no real need or urgency, such as the decrees that modify the Ministries Law to create new executive departments.^[9] The abuse of DNU's was also criticized.^[10][11]

Former President Néstor Kirchner has the highest average of DNU per year. Her wife, President Cristina Fernández, has the lowest average.

Statistics since 1994

Eduardo Duhalde, interim President between 2002 and 2003, was the President who signed more DNU's per year since the 1983 return to civilian rule. He promulgated 158 DNU's in one year.^[12] Those decrees were neither checked by the Congress.

Néstor Kirchner (2003–2007) promulgated 270 Necessity and Urgency Decrees in four years and a half. His DNU's released until 2006 were not controlled by the Congress.^[13] His average is 60 Necessity and Urgency Decrees per year.

During the presidency of Carlos Menem (1989–1999), he signed 545 DNU's in ten years, or 54.5 per year.^[13] None of his Necessity and Urgency Decrees were analyzed by the legislative.

In Fernando de la Rúa's two-years presidency (1999–2001), 73 special decrees were released. His average is 36.5 DNU's per year.^[13] The decrees signed by De la Rúa were not analyzed by the Bicameral Committee.

Cristina Fernández de Kirchner, current President since 2007, signed five Necessity and Urgency Decrees until March 2009.^[14] Since then, she issued three DNU's creating new ministries,^[15][9][16] another one creating a welfare plan,^[17] a decree to remove Martín Redrado as president of the Central Bank,^[18] and other three Necessity and Urgency Decrees related to the payment of public debt^[18] The total number is 13 DNU's in three years of presidency, 4 Necessity and Urgency Decrees per year.

See also

• Executive Order (United States)
• Order in Council
• Law
• Decree

References

1. ^ The National News agency of Argentina, Télam translates decreto de necesidad y urgencia as Necessity and Urgency Decree: [1]
2. ^ ^{a b c d} http://www.senado.gov.ar/web/interes/constitucion/ejecutivo.php (Spanish)
3. ^ ^{a b} http://infoleg.mecon.gov.ar/infolegInternet/anexos/115000-119999/118261/norma.htm (Spanish)
4. ^ ^{a b} http://www.salvador.edu.ar/juri/reih/2da/I05.pdf (Spanish)
5. ^ http://www.politicargentina.com/analisis-politico/632-la-necesidad-de-decretar-la-urgencia (Spanish)
6. ^ http://www.todoiure.com.ar/monografias/mono/civil/caso_peralta.htm (Spanish)
7. ^ http://www1.hcdn.gov.ar/dependencias/ari/Informes/informe_decretos.pdf (Spanish)
8. ^ http://www.clarin.com/diario/2006/06/26/elpais/p-01010.htm (Spanish)
9. ^ ^{a b} http://infoleg.mecon.gov.ar/infolegInternet/anexos/155000-159999/158299/texact.htm (Spanish)
10. ^ http://www.deliaferreira.com.ar/pdf/at-gobierno/DNUsKirchner-La%20Nacion-3-7-06.pdf (Spanish)
11. ^ http://www.deliaferreira.com.ar/pdf/at-gobierno/Decretos-La%20Nacion14-6-06.pdf (Spanish)
12. ^ http://redaccionrosario.com/noticias/?q=node/7386 (Spanish)
13. ^ ^{a b c} http://www.lanacion.com.ar/nota.asp?nota_id=1003971 (Spanish)
14. ^ http://www.nuevamayoria.com/index.php?option=com_content&task=view&id=1304&Itemid=30 (Spanish)
15. ^ http://infoleg.mecon.gov.ar/infolegInternet/anexos/155000-159999/158636/norma.htm (Spanish)
16. ^ http://infoleg.mecon.gov.ar/infolegInternet/anexos/155000-159999/158643/norma.htm (Spanish)
17. ^ http://infoleg.mecon.gov.ar/infolegInternet/anexos/155000-159999/159466/norma.htm (Spanish)
18. ^ ^{a b} http://infoleg.mecon.gov.ar/infolegInternet/anexos/160000-164999/162676/norma.htm (Spanish)