As I have been arguing, when President Javier Milei issued the Decree of Necessity and Urgency (DNU) 70, on 20/12/2023, he seriously violated institutional good faith maliciously, in a true illegal deviation of power and carried out a null and void act of absolute and insanable nullity.

By Miguel Rodríguez Villafañe

The aforementioned arises from the provisions of art. 99, section 3 of the National Constitution, which establishes: “The executive branch may not in any case, under penalty of absolute and irreversible nullity, issue legislative provisions”. The article goes on to clarify that, “Only when exceptional circumstances make it impossible to follow the ordinary procedures established by this Constitution for the enactment of laws, and not in the case of norms regulating criminal, tax or electoral matters or the regime of political parties, may it issue decrees for reasons of necessity and urgency…”.

DNU of absolute and irrevocable nullity

In the strict circumstances in which a decree of necessity and urgency (DNU) can be issued, as the Supreme Court of Justice of the Nation has also stated (Judgments: 322:1726; 331: 2406 and 333:633), it must be demonstrated that there are concrete reasons of necessity and urgency, which DNU 70 has not fully demonstrated, in each of the laws that it repeals or reforms, given that Congress must approve or reject it in a closed package. In addition, it regulates criminal (Law No. 22.415 Customs Code) and tax (Law No. 21.608 Industrial Promotion) matters strictly forbidden to be regulated by the president. The DNU clearly shows that it does not respect the reasons for its authorisation and is insanely null and void.

In addition, there is no impossibility for the Congress of the Nation to function due to circumstances of force majeure, to the point that, by DNU 76 of 22/12/2023, after DNU 70, the President called for extraordinary sessions of Congress, from 26 December of this year until 31 January 2024.

No supposed emergency allows the Executive Power to arrogate to itself new powers, ignoring the constitutional law in force.

It should also be noted that this is a DNU of 366 articles that seeks to erase or reform, en masse, more than seventy laws, in a clear attempt to bypass the Legislative Branch, the absolute nullity of the DNU 70 is given in its own right and occurs at the very birth of the act because it goes against the National Constitution.

The immense package of repeals and reforms contemplated in DNU 70 does not comply with the requirements indicated by the CSJN following article 99, paragraph 3 and violates articles 4, 9, 14, 14 bis, 17, 18, 19, 21, 33, 36, 37, 41, 75, paragraphs 18, 19 and 22 and 76, among others, of the National Constitution. All of this has implied, in turn, the exercise of extraordinary powers, assimilable to a self-granting by the President of the sum of public power, seriously conditioning the actions of the National Congress, an attitude that leaves him incriminated in “the responsibility and punishment of the infamous traitors to the homeland”, as established in art. 29 of the National Constitution.

Afterwards, Milei, on 27/12/23, presented to Congress, the Bill, pompously called “Law of Bases and Points of Departure for the Freedom of the Argentines”, known as “Omnibus Law” and, in art. 654, it establishes that DNU 70 must be dealt with by Congress, to ratify it. The Executive Branch itself wants to cover itself from the obvious nullity of DNU 70, although as the latter is not subject to appeal, there is no room for ratification by Congress either.

Tricky validity of the DNU

The Legal and Technical Secretariat of the Presidency, headed by Javier Herrera Bravo, announced that DNU 70 will come into force on 29 December 2023. The decree will be null and void, under the protection of the provisions of Law 26.122, which regulates the processing of the DNU, which leaves “the rights acquired during its validity” (art. 24), until DNU 70 is revoked by Congress.

DNU 70 has no legal effect.

When it is a null and void act of absolute and insanable nullity, that is to say, of impossible confirmation, as is the case of DNU 70, which seriously affects the division of powers contrary to the provisions of the National Constitution, it has no legal effect whatsoever, it is a non-existent act. The courts can even declare it null and void ex officio.

Among the many aspects referred to in DNU 70, it is worth mentioning that, due to its absolute nullity, for example, the labour reform it carries out, modifying Law 20.744 on Employment Contracts, is invalid. Thus, there is no reason to reduce the amounts for calculating compensation for length of service or dismissal or the creation of new grounds for cause for dismissal. Fines for poor registration also remain in force. The reform does not apply to restrictions on the right to strike and attacks on trade union activity. The automatic extension of collective bargaining agreements continues.

Similarly, Law 20.657/74, “Regime for the commercial activity of supermarkets”, which regulates the hours for commercial activity (opening, closing, legal working day, English Saturday, Sunday rest, work of women and minors), and provides that excess hours will be paid double, should not be considered as repealed.

Furthermore, Law 25.065 on credit cards should be considered in force, without modifications. Consumers should not be left, as allowed by the DNU, at the mercy of credit or debit card issuers, in terms of amounts to be paid for commissions or interest, when payment is not made in due time and form; nor should businesses be allowed to be harmed by higher commissions than those currently in force.

Nor can the rental market be considered deregulated.

Likewise, Land Law 26.737 has not been repealed and is still in force, and as a result, it will not be possible, among other things, to sell large tracts of land in our country’s security zones to foreigners.

In short, none of the provisions of DNU 70 are in force.

Joint and several liability of the DNU signatories

DNU 70, in all its scope, is insanely null and void, it does not apply, and this circumstance must be made known, so as not to affect due legal security and certainty of law, which are constitutional guarantees for citizens.

Every one of the signatories of DNU 70 will also have to answer for all of this, not only for criminal and political responsibility but also, jointly and severally, for the damages they caused.

(*) Dr. Miguel Julio Rodríguez Villafañe, Cordovan constitutional lawyer and opinion journalist.