Why is it dangerous for Congress to want a fourth term to reform the Constitution in just one month?  |  Analysis
Why is it dangerous for Congress to want a fourth term to reform the Constitution in just one month?  |  Analysis

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Last Tuesday, the plenary session of Congress of the republic approved – with 75 votes in favor – the creation of a fourth session, thus fracturing the current legislature in two. As reported by El Comercio in a previous note, the decision is not unconstitutional, but it does provide room for questioning.

Is fourth term, what will run from June 13 to July 16, will allow Parliament to vote and make reforms to the Constitution in little more than a month. Here it should be remembered that Article 206 of the Magna Carta requires that any change to its content be approved by the plenary session in two consecutive ordinary legislatures.

READ ALSO: Plenary of Congress approves proposal to establish a fourth legislature

The first constitutional reform project that is on the Congress agenda is the one concerning the return to bicamerality, which already has a favorable opinion from the Constitutional Commission. Another pending amendment proposes adjustments to the trust issue.

Reforms against time

In dialogue with this newspaper, the former president of the TC, Oscar Urviola HaniHe pointed out that “no one denies that these reforms may or may not be good.” However, he warned that the context in which they will be discussed lacks guarantees of reflection.

“I think these are partial modifications and, in a way, they are almost patches to the Constitution. When something as delicate as the Constitution is changed in this way, quickly and in isolation, there are always risks of disorder in the normative system. I believe that you have to think in terms of the entire system and that requires meditation. The TC itself has already suggested it like this “Urviola pointed out.

The former magistrate warns that, although Congress has no impediments to split its legislatures, “It does not resist a criterion of reasonableness to limit such transcendent decisions to a period that does not guarantee adequacy or reflection”.

READ ALSO: The Ombudsman asks Congress not to approve a fourth legislature: “It would be constitutionally questionable”

The constitutionalist Gabriela Oporto Patroni indicated that it is valid to think about a danger of faulty modifications “To the extent that things are done in a hurry”.

“The intention of the constituent —when drafting the 1993 Constitution and establishing that the reforms to the Constitution should be debated in two consecutive legislatures— was precisely that there be space, time, to debate proposals of that level. It is not just any paper and that implies that its changes are widely discussed with technical opinions of various positions within constitutional law “, said Porto.

José Naupari Wong, an expert in constitutional law and parliamentary law, agrees on this point. “The reason for being two ordinary legislatures, even though the Constitution does not specify its extension, is that there is a minimum period of deliberation. Now, surely some congressmen will argue that the reforms in question have already been debated in the Constitutional Commission. But 15 days are not a guarantee of reflection, depth, study, feedback and contributions “Naupari estimated.

For the also specialist in constitutional law, Elena Alvites Alvites, the two successive ordinary legislatures as a requirement to reform the Constitution keep the logic of “Ensure that the decision is made with sufficient public and democratic deliberation, incorporating a sufficient period of time, between the first and second legislatures for the exchange of arguments and reflection”.

Alvites adds that Congress would have made an “unconstitutional interpretation” of Article 206 by allowing a period of one and a half months as sufficient for an extraordinary legislature. “This contravenes the constitutional rigidity, creating – in practice – a reform procedure not contemplated or wanted by the Constitutional Text,” he said.

READ ALSO: Virtual bench of Peru Libre rejects approval of the fourth legislature of the Congress of the Republic

The eventual return of the Senate

The last replacement text of the opinion of the reform law to restore bicamerality in Congress was presented on April 22, by the president of the Constitutional Commission, Luis Valdez (Alliance for Progress).

In addition to focusing on the return of the structure of Parliament in the Chamber of Deputies and the Chamber of Senators, the electoral process to elect the upper chamber is established to be linked to the municipal and regional elections of 2022.

In that sense, 60 new senators would be elected for the period 2023-2026. It would also be established that the 130 congressmen already elected in April of this year end their term in 2026 as lower house deputies.

As the text stands, congressmen from the current legislature would be allowed to run for the Senate, in a kind of re-election. However, the congressman Luis Valdez reject that questioning and ensures that, in a new replacement text, the adjustment that prevents this scenario will be included.

READ ALSO: Experts and institutions criticize the creation of the fourth legislature

“In my capacity as president of the Constitutional Commission, I am the only one at this stage who could modify the text of the reform. The replacement text is submitted by me and no one else. I will present [un texto] before the debate [en el pleno]. First, I will listen to the experts in the discussion of the Constitutional Court [evento académico previsto el 4 y 10 de junio]”stated Valdez in communication with Trade.

The congressman specified that the vote for the bicamerality will not yet be given in plenary, despite the fact that it is on the agenda for this Wednesday, June 2. “Not yet. First, the talks with civil society and with experts in constitutional law. There, I am sure, there will be some contributions that I will make in the last replacement text that I will present “Valdez said.

The president of the Constitution and Regulation Commission, Luis Valdez Farías (APP), maintains that it will include the impediment of the nomination of current congressmen to a possible Senate.  Valdez is the author of the reform initiative on the question of trust, which also has an opinion approved by his working group.
The president of the Constitution and Regulation Commission, Luis Valdez Farías (APP), maintains that it will include the impediment of the nomination of current congressmen to a possible Senate. Valdez is the author of the reform initiative on the question of trust, which also has an opinion approved by his working group.

For the former president of the TC, Oscar Urviola, “It will be necessary to see” if it really gets to place the announcement of Valdez regarding the prohibition of current parliamentarians from running. He said that the suspicion that the reform and its haste respond to a certain political interest is valid.

“It’s a posibility. That is to say, in the long run, not only for this Congress, but for the following ones, there would be the option of a kind of reelection, taking into account that the immediate reelection of congressmen in the unicameral Parliament is expressly prohibited. It is a suspicion that this is the motivation, obviously, but I insist that you cannot have enough reflection, in just one month, for such a change “, Urviola expressed.

READ ALSO: Congress approved modifying the Law on Political Organizations to standardize the requirement of time for membership to participate in elections

It should be noted that the text of the proposal suggests the addition of article “90-A” to the Constitution. This is written like this: “The deputies and senators cannot be re-elected for a new period, immediately, in the same position.

The constitutionalist Gabriela Porto qualifies as “dissonant” that Congress seeks to approve, “With two express legislatures”, topics on which the citizens already ruled in the 2018 national referendum. As it is recalled, in this, it was voted to prohibit the immediate reelection of congressmen and the return to bicamerality was rejected.

The constitutionalist Elena Alvites he agrees with this questioning and contrasts it with the demand for a sustained discussion in two successive ordinary legislatures. “This demand is even more intense in the case of the establishment of the parliamentary bicamerality, since Congress intends to make a reform that was voted on and rejected in a referendum by the population”, Explain.

For the specialist José Naupari, the likely ban on 2020-2021 congressmen from 2023-2026 as senators would have a fleeting containment effect on criticism of reelection.

“That does not control that the senators elected in 2022 for the period 2023-2026 do not run as deputies for the following period. Actually, it is a makeup. We would have to wait for this replacement text because there are also observations on other points of the opinion. For example, it is specified that each chamber would have its own regulations, but it is not understood where the bicameral conditions of the assembled Parliament would be established “Naupari commented.

READ ALSO: Popular Force and the Purple Party will not support the proposal to establish a fourth legislature

A matter of trust: “The most urgent”, according to Valdez

The project on the regulation of the use of the question of trust it also has an opinion from the Constitution Commission and is awaiting its first vote in plenary.

According to its content, it is proposed to eliminate the investiture vote of each new ministerial cabinet, although it would remain the obligation to appear before the plenary session to present the general policy of the government. What’s more, the option of the Executive to raise a question of confidence “on procedures and functions of exclusive competence of Congress” is eliminated; that is, on bills or initiatives specific to their functions.

Asked about the eventual approval in plenary session, Congressman Luis Valdez, who is the author of the original project and presented it on May 4, said that he would vote on it. “It is more urgent than the same bicamerality”.

As an element of his urgency, Valdez added that the Constitutional Court has already expressed, in the judgment of the competence lawsuit for the dissolution of the last Congress, that “the constant use of the question of trust” can generate “a palpable scenario of ungovernability.”

“The same TC says it, which validated the closing of the Congress. So that they notice the sense of urgency “Valdez remarked.

The former magistrate Oscar Urviola explain what “It is true that the question of trust needs adjustments because it has been misused, as well as the vacancy due to permanent moral disability”. However, he repeated that time and care are required to ensure a system of “true balance of powers.”

For his part, the expert in constitutional and parliamentary law, José Naupari, indicated that the reform on the question of trust also requires deliberation methodology, since a conflict with the balance of powers model that exists in Peru must be avoided.

“As a general idea, we are a presidential regime with parliamentary features. It is a historical condition. From a critical point of view, the reform of the question of trust, without the thoughtful adjustments, could end up taking us a little more to a parliamentarism that is not necessarily pure, but it does attenuate the regime that we should have. This may affect the principle of separation of powers, which is not a minor issue “Naupari explained.

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