Controversy over the constitutionality of Alberto Fernández’s DNU who decreed a national holiday to receive the national team

Prominent law professors debated this Tuesday on the constitutionality of the decree of necessity and urgency 842/22 of President Alberto Fernández who organized a national holiday to facilitate the celebrations for the achievement of the World Cup.

The axis of the debate is whether the victory of the third World Cup is an “exceptional circumstance” for the president to assume a congressional function and decree a national holiday, like a natural disaster. Then the football debate slipped into the discussion of constitutionalists.

For the constitutionalist and former constitutional constitutionalist, Antonio María Hernández, “this DNU It is grossly unconstitutional, centralist and demagogic”.

“The DNU fails the requirements established by article 99 inc. 3 of the Constitution, as there were no exceptional circumstances which make it impossible to follow the ordinary procedures envisaged by the Constitution for the enactment of laws”.

He argued that “the jurisprudence of the Inter-American Court of Human Rights is clear which prevents this matter from being regulated by decrees. For this reason, is the law n. 27,399, sanctioned by Congress in 2017, establishing national holidays in the country”.

It is “another of the more than 130 DNU dictated by the current executive power in the exercise of a hyper-presidentialism that violates our republican and federal democracy. It is essential, as I said, to strengthen the role of Congress, which must fully exercise its powers and overcome this institutional decline, where very few people govern, without deliberative democracy”.

He added that “the DNU is so centralist and antifederal, that it paralyzes a country that has the eighth largest geography in the world, for an event that will in a very small part of the Province of Buenos Aires and CABA”.

In line with Hernández, provinces such as Santa Fe, San Juan, Catamarca, La Rioja, Chaco, Tucumán and Corrientes have not applied it, and in Mendoza there have been complaints but it has been accepted.

For his part, the constitutionalist Félix Lonigro ensured that “establishing a holiday It is the responsibility of Congress. The President can exercise the powers of Congress, through Decrees of Necessity and Urgency, only when there is one exceptional circumstances”.

For the Court, “only those “circumstances”. Are they floods, wars or natural disasters?; However, the president believes that the arrival of the national team is one of those “circumstances” and therefore has issued a DNU decreeing the national holiday, which the provinces cannot ignore”, added Lonigro.

Law 26.122 establishes that “UNDPs must be approved by Congress, but that they apply from their publication. Therefore, when Congress takes care of it, rejecting it will no longer make sense”, concluded Lonigro.

Instead, according to Andrés Gil Domínguez, a constitutional law professor at the University of Buenos Aires (UBA), he argued that governors must abide by President Alberto Fernández’s decision because complies with the magna carta.

“The decree provides for no work activity throughout the national territory, as if it were May 25 or July 9. Provinces do not have the ability not to adhere to a prerogative of the federal state,” he said.

“It can be debated whether the excuse for dictating the holiday is a reasonable one. In my opinion, this victory for the national team It is a sociological, cultural and historical fact for the Republic, A celebration of this magnitude deserves a national holiday for all, if there is no inequality in something that is a cultural and collective good,” Gil Domínguez told La Nación.

“Law 27.399 and the DNU of the public holiday are common law prerogatives of the National Congress pursuant to art. 75 paragraph 12 of the CA. ANDThe DNU has the force of law until Congress ratifies or rejects it”, concluded Gil Domínguez, who differentiated between constitutionalists who practice sport and those who do not. He still plays basketball.

The DNU had already been rejected by the opposition. Former president Mauricio Macri called it “inconsistent and anti-federal”. While Together for Changes deputy Martín Tetaz said: “They already have kirchneriaron … they couldn’t resist for 24 hours. The message had to work,” he said about it.

José Luis Espert, for his part, questioned himself: “Tomorrow is a national holiday for the World Cup won by our team? Total delirium. What’s more, today a session of Deputies has been convened for tomorrow to discuss 21 bills, none of them important for the people. Politics dissociated from reality. Peronia,” he tweeted.

President Alberto Fernández decreed a national holiday on Monday “so that the Argentine people can celebrate and share with the soccer team” that won the World Cup in Qatar.

The DNU, of four articles, states in the first of them that it declares “a national holiday on December 20, 2022 so that the Argentine people can celebrate and share with the Argentine men’s soccer team the title of World Soccer Champions obtained in Qatar 2022 “.

Among the recitals of the standard, it is underlined that “obtaining the title is a well-deserved reward for all members of the Argentine team and its coaching staff for their fighting spirit, commitment, unity, perseverance, teamwork and commitment”.

It also takes into account the fact that the team led by Lionel Messi and Lionel Scaloni, “after an arduous journey, defended the blue and white colors of our flag, in front of a multitude of supporters and supporters who encouraged them from every corner of the Village. “

The text of the decree highlights “the necessary temper” that the players of the selected team had “to overcome difficulties without ever lowering their arms, and they have become an indisputable example for all the Argentine people, demonstrating that with solid ideals, always united and united , the proposed objectives can be achieved”.