By Guillermo Háskel and Jorge San Pedro
Herald staff

With Congress resuming ordinary sessions tomorrow after a politically heated summer holiday and with two court rulings rejecting presidential emergency decrees (DNU) as a tool for the Executive to bypass the Legislative branch, the room for manoeuvre for beleaguered President Cristina Fernández de Kirchner to continue resorting to this exceptional tool is seen vanishing.
Mrs. Kirchner in early February sacked Central Bank governor Martín Redrado on charges that he refused to use reserves to pay debts, with the support of Vice-President Julio Cobos and Kirchnerite Deputy Gustavo Marconato, three members of a five-lawmaker bicameral committee entitled to “advise” the President whether there are reasons to fire a head of the Central Bank.
A month earlier, Fernández de Kirchner had attempted to remove Redrado by decree bypassing the congressional committee but Judge María José Sarmiento reinstated him and ruled that the President cannot tap Central Bank reserves. Only Congress is entitled to do that, she stressed.
The judge banned her from transferring 6.57 billion dollars to the so-called Bicentennial Fund account she created to use reserves to serve debt, again bypassing Congress, which is the body in charge of handling debt issues according to Article 75 of the Constitution.
Mrs. Kirchner had issued the decrees only four days after ordinary sessions had ended on December 10. She alleged that the reason for ruling by “necessity and urgency” decrees was that Congress was not in session, although she could have called an extraordinary session, something that she steadfastly refused to do despite the insistent demands from the opposition.
Economy Minister Amado Boudou and the head of the ruling Victory Front caucus in the Senate, Miguel Angel Pichetto, adamantly defended the President’s right to resort to DNUs arguing that the words “necessity and urgency” actually referred to the “institutional relevance” of the issues at stake.
The President in December lost control over both houses of Congress after legislators elected in June — when she and her husband, Peronist Party leader Néstor Kirchner suffered a blunt defeat — took office.
Still, between June and December the Kirchners managed to pass a barrage of legislation that the opposition claims is part of a clock-work to pave the way for the reelection of Néstor Kirchner, who ruled the country between 2003 and late 2007, when his wife took office, after being handpicked by him behind closed doors. Recently, the Executive rushed through its vanished congressional majority a bill to impose compulsory and simultaneous primaries to “improve” institutional standards and get rid of small and “rubber-stamp” parties.
The bill was passed with the help of several small parties who had been promised to have an active participation in the political life of the nation. However, after the law was approved Mrs. Kirchner, once again by decree, vetoed two articles and, according to small parties, pushed them to the brink of disappearance.
But the days of the decrees now seem to be coming to an end or at least will face severe limitations.
Patricia Bullrich, one of the leaders of the opposition Civic Coalition, told the Herald: “It seems that the possibility that the President again resorts to DNUs is diminishing because once the two houses of Congress resume sessions there would be no excuse to rule by decree.”
“With Congress functioning there are 10 days to send any decree for Congress consideration and hence there would no longer be any reason to resort to the courts,” she added.
Bullrich is one of the several opposition deputies who challenged in court the decree that ordered the creation of the Bicentennial Fund and obtained an injunction by Judge Sarmiento to put it on hold, which was confirmed by an appeals court and that must still be considered by the Supreme Court, after the government was granted an appeal.
But it is clear that the Supreme Court will put it on the back burner until Congress has its word. The justices believe this is an “essentially” political matter that does not belong in the courts and must be settled between Congress and the Executive.
Justice Carlos Fayt has recently gone as far as to recommend a reporter to read Article 99 of the Constitution, which states that “the Executive shall in no event issue provisions of a legislative nature, in which case they shall be absolutely and irreparably null and void.”
“Only when due to exceptional circumstances the ordinary procedures foreseen by this Constitution for the enactment of laws are impossible to be followed, and when rules do not refer to penal issues, taxation, electoral matters, or the system of political parties, he shall issue decrees on grounds of necessity and urgency, which shall be decided by a general agreement of ministers who shall countersign them together with the Chief of the Ministerial Cabinet,” it adds.
Judge Sarmiento and the appeals court that upheld her ruling mentioned as possible “exceptional circumstances” a “state or war or natural disaster.”
Lawyer and anti-corruption crusader Ricardo Monner Sans told the Herald that before the 1994 reform of the Constitution DNUs had no constitutional rank and that although the reform incorporated them it envisages them only in a very restrictive way.
He added that the 1994 Constitutional reform opened the way to the “doctrine of urgent and exceptional circumstances” in the understanding that the government would not resort to decrees as a tool to legislate. “Regrettably, history has proven me right as Menem, Néstor Kirchner and Fernández de Kirchner, the latter having for a long time boasted of not having resorted to DNUs, have over the recent past issued decrees as a machine-gun,” Monner Sans said.
Bullrich said, however, that in case Congress fails to work properly and the government again resorts to decrees, the opposition may consider going back to the courts.
The opposition is mainly formed by two large poles, each undergoing tough infighting — the dissident Peronists opposed to the Peronist Party led by Kirchner, and the Social and Civic Accord formed by the Radicals, the Civic Coalition, the Socialists, Deputy Margarita Stolbizer’s GEN and the ConFe Party of Vice-President Julio Cobos.
The infighting between the Radicals and the Civic Coalition over the role of Cobos is so tough that the future of the Accord seems to be in jeopardy.
Carrió flatly rejected any deal with Cobos and despite her venomous attacks on the Kirchners adopted a line of reasoning against the Vice-President that mirrored that of Cabinet-Chief Aníbal Fernández. But she went as far as lambasting his Radical partners.
She seems to have backpedalled on Saturday. Carrió said that Cobos will have a role in a “broader” Accord. It may not be enough to seal the wounds, political analysts believe, who also wonder how broad the broad Accord can become.
Meanwhile, Radical Deputy Ricardo Alfonsín has been saying with staccato over the last three days that two parties who share common values, like the Radical and the Socialist cannot compete because there are almost the same. The son of the late president Raúl Alfonsín have spent two days in joint events with the Socialists, which included sharing time with Santa Fe Socialist Governor Hermes Binner.
The Radical Party and the Socialist Party are both full members of the International Socialist, which comprises Socialist, Social Democratic and Labour parties. They are also the only two Argentine parties that belong to this “progressive” international club.
Meanwhile, Radical Deputy Silvana Giudici told the Herald that the Kirchners will still seek to bypass Congress on leading issues, adding however that those efforts, in her view, “will go up in thin smoke.”
“It is crystal clear that we will continue to have the control and we will strive to legislate with common sense, something that will make a possible resort to DNUs even more difficult,” she added.
But despite her words, the balance of forces in the Upper House is quite even and last week the absence of La Rioja dissident Peronist Senator Carlos Menem allowed the Victory Front to abort a session as the opposition was one vote short of quorum.
Menem said that he failed to attend the debate because his fellow opposition legislators engaged in talks with the government on the distribution of Senate committees, completely ignoring him. His absence was a warning that he holds one key to the Senate. He’s willing to use it — Menem promised to be in his seat next Wednesday and help the non-Kirchnerites to gain control of the committees.
He does not need to vote against the government. If he contributes to have quorum, the opposition is in a position to win the vote 37-35 or 36-35 if the former president abstains — provided the two swinger votes of La Pampa senators Carlos Verna and María Higenot do not change their minds.
Bullrich said that if, as Menem alleges, the opposition failed to consult him, “it was a mistake. When you are seeking to build a majority you have to take into consideration each and every one, regardless where he/she comes from. If what Menem sought was to launch a warning, he succeeded.”
Giudici said that legislators are not entitled to fail to attend sessions just because of having failed to be consulted on political issues and that they have to request leaves of absence.
She added that the government may seek to take advantage of ideological or pragmatic reasons to seek to drive a wedge within the opposition, with the goal of blocking congressional debates.

Dissident Peronist Deputy Felipe Solá — a former governor of Buenos Aires province — who a year ago broke away from the Kirchners and is now one of the leaders of the dissident Peronists, said that the government “is ready to bypass Congress” and that, as a consequence, the key issue to debate is how to hold together the opposition to prevent the Kirchners from pushing Congress into a stand-still.
“We have had a single session (in December) since we were voted (in June) and it was to choose (Lower House) authorities. People consider Congress to be paralyzed,” said Solá, the chieftain of the Lower House’s Federal Peronism caucus that groups about 30 deputies.
Solá is one of the several dissident Peronists challenging the Kirchners and seeking to run in the 2011 presidential elections. Some of the others are former caretaker president Eduardo Duhalde, Chubut Governor Mario das Neves and Buenos Aires province Deputy Francisco de Narváez.
Santa Fe Senator Carlos Reutemann, as former British Prime Minister Winston Churchill said referring to the former Soviet Union, “is a riddle wrapped in a mystery inside an enigma.” But people close to him say he will run and De Narváez seems eager to team-up with him.
In the face of the government’s plans, Solá said, opposition leaders must have enough “openness of mind to consider what kind of unity we need to ensure our own quorum. This is not a simple task. We must be prepared because in each situation in which the ruling coalition considers that it may lose a vote — and there will be many such occasions — Congress will be paralyzed.”
“If opposition caucuses don’t stick together we will always be in trouble, we will make no progress. We will always be short of quorum,” he added after the controversial absence of Menem in the Senate session on Wednesday.
Separately, Solá said that the opposition must attend tomorrow the inauguration by Mrs. Kirchner of the ordinary sessions of Congress.
Civic Coalition leader Elisa Carrió said that to express her solidarity with Civic Coalition Senator María Eugenia Estenssoro after the Senate debate was interrupted due to the absence of Menem, she will not attend Mrs. Kirchner’s inauguration of ordinary sessions.
Carrió, who often appears in joint press conferences with Solá and with leaders of other opposition forces, failed to muster support for a boycott of the President’s speech. A sector of the Radical Party called her decision “outrageous.”
The government has accused the opposition, including Vice-President Cobos, and several other sectors, of plotting to topple the government and warned that if the opposition “insists in seeking to place obstacles,” Mrs. Kirchner could be forced into resorting to decrees and vetoes.
As things stand now, Fernández de Kirchner should think twice before issuing an emergency decree. As regard vetoes, Congress can overrul them with two-thirds of the votes, which may not be easy to muster. Beans must be counted almost by the minute, but even if she gets away with it the political cost will have to be paid someday, even, or ominously, on election day in 2011.