The mess caused by the DNU and now by the so-called Omnibus Law is of such magnitude that some in Congress seem to want to reinvent the wheel, who knows due to what kind of commitment they have made.
Constitutionally, the treatment of the DNU by the Bicameral Commission cannot be ignored, since it is a constitutional mandate. Article 99, paragraph 3 of the CN in its last paragraph expressly states: “The head of the cabinet of ministers personally and within ten days will submit the measure to the Permanent Bicameral Commission for consideration, whose composition must respect the proportion of political representation in each Chamber. This committee will submit its report within ten days to the plenary session of each Chamber for express consideration, which will be immediately considered by the Chambers. A special law approved by an absolute majority of all members of each Chamber will regulate the procedure and scope of the intervention of Congress.”
Therefore, the argument that because it has already been dealt with by a Committee it should not be dealt with later by the plenary of the Chambers is absurd. The opinion of the Permanent Bicameral Commission is a technical opinion that is not binding on the rest of the composition of each Chamber, just like the opinions of other Committees on other bills.
In this regard, Article 10 of Law 26122 states: “The Permanent Bicameral Commission must issue a ruling on the validity or invalidity of the decree and submit the opinion to the plenary session of each Chamber for its express treatment. The opinion must expressly address the suitability of the decree to the formal and substantial requirements established by the Constitution for its issuance. In order to issue an opinion, the Permanent Bicameral Commission may consult the competent permanent commissions based on the subject matter.”
That is to say, the Commission can only decide on the validity or not of the DNU. Give its opinion on the matter. In addition, and if there are any doubts regarding interpretation, the legislative procedure for dealing with each type of Decree is regulated in Law 26122, Chapter IV, Title III of the regulatory law, in articles 16 to 26.
Likewise, Congress can only accept or reject the DNU in its entirety. They cannot make additions or amendments, as required by art. 23 of Law 26122. Therefore, it cannot be compared to the presidential veto on a law, which can be total or partial.
However, there is a constitutional problem regarding the silence of one of the Chambers, since it seems that the law opens the door to tacit acceptance if only one Chamber issues a ruling and the other remains silent. In this regard, art. 82 of the CN expressly prohibits tacit acceptance; that is, both Chambers must always issue a ruling expressing their will, and it is not appropriate to attribute legal value to silence. Otherwise, it would be accepting to legislate with only the vote of one Chamber, something prohibited by the Constitution itself, thereby violating the proper function of the Legislative Branch. This is a point that should be questioned about Law 26122 as openly unconstitutional, but apparently it has never been raised.
Due to the latter, since there is no express pronouncement from both Chambers, the DNU should be totally rejected, thus being absolutely null and void. Thus, the provisions of Law 26122 in this regard are unconstitutional. And this approval or rejection would put an end to the process without any possibility of a presidential veto. And remember that “the silence of the chambers has no validating effect.” (Conf. GELLI, María Angélica, “Constitution of the Argentine Nation”, -Commented and Concordant-, La Ley, 2001, p. 613.)
Finally, it should be considered that the fundamental harmonic principle arising from arts. 99 paragraph 3 and 75 of the CN, shows precisely that the intention is to limit the presidential power in terms of “extraordinary remedies”, which in reality is intended to impose a barrier against an excessive advance of powers of the Executive Branch over those corresponding to the Legislative Branch. And I understand that firmly maintaining this criterion is much more important and beneficial for the institutional, political and economic quality of the Nation.
Aduana News is the first Argentine customs newspaper to launch its digital version. With 20 years of experience, its publications and initiatives aim to provide the most relevant knowledge on customs issues in order to contribute to safe trade in the region.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
