De facto government doctrine
Encyclopedia
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.
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.
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.
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
related to the validity of the actions of de facto
De facto
De facto is a Latin expression that means "concerning fact." In law, it often means "in practice but not necessarily ordained by law" or "in practice or actuality, but not officially established." It is commonly used in contrast to de jure when referring to matters of law, governance, or...
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 MitreBartolomé Mitre
Bartolomé Mitre Martínez was an Argentine statesman, military figure, and author. He was the President of Argentina from 1862 to 1868.-Life and times:...
declared himself president of Argentina
President of Argentina
The President of the Argentine Nation , usually known as the President of Argentina, is the head of state of Argentina. Under the national Constitution, the President is also the chief executive of the federal government and Commander-in-Chief of the armed forces.Through Argentine history, the...
after the victory at the Battle of Pavón
Battle of Pavón
The Battle of Pavón was a key battle of the Argentine civil wars fought in Pavón, in Santa Fé Province, Argentina, on September 17, 1861, between the Army of Buenos Aires, commanded by Bartolomé Mitre, and the National Army, commanded by Justo José de Urquiza...
, under supervision of the Argentine National Congress
Argentine National Congress
The Congress of the Argentine Nation is the legislative branch of the government of Argentina. Its composition is bicameral, constituted by a 72-seat Senate and a 257-seat Chamber of Deputies....
. 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 UriburuJosé Félix Uriburu
General José Félix Benito Uriburu y Uriburu was the first de facto President of Argentina, achieved through a military coup, from September 6, 1930 to February 20, 1932.-Biography:...
against Hipólito Yrigoyen
Hipólito Yrigoyen
Juan Hipólito del Sagrado Corazón de Jesús Irigoyen Alem was twice President of Argentina . His activism became the prime impetus behind the obtainment of universal suffrage in Argentina in 1912...
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
Revolution of '43
The 1943 Argentine coup d'état was a Coup d'état on June 4, 1943 which ended the government of Ramón Castillo, who had been fraudulently elected to office, as part of the period known as the Infamous Decade...
, 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
Revolución Libertadora
The Revolución Libertadora was a military uprising that ended the second presidential term of Juan Perón in Argentina, on September 16, 1955.-History:...
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
Arturo Frondizi
Arturo Frondizi Ercoli was the President of Argentina between May 1, 1958, and March 29, 1962, for the Intransigent Radical Civic Union.-Early life:Frondizi was born in Paso de los Libres, Corrientes Province...
was ousted from office in 1962, but before the military could take the government the president of the chamber of senators, José María Guido
José María Guido
José María Guido was an interim President of Argentina from 30 March 1962 to 12 October 1963.Guido was elected to the Argentine Senate for Río Negro Province in 1958, representing the Intransigent Radical Civic Union...
, 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.