Is the Dissolution of the Peruvian Congress a Constitutional Measure?

César Landa Arroyo

Pontifical Catholic University of Peru

On 30 September 2019, the parliamentary majority bloc called a vote on the appointment of six new judges to the Constitutional Court (TC) of Peru. Candidates were selected from a list of eleven attorneys who the Special Commission of Unicameral Congress had invited to participate, based on its partisan interests. Just days before, the Prime Minister had asked Congress for a vote of confidence on the urgent need to modify the system for the election of TC candidates. The proposed modifications were made in accordance with Section 134 of the Constitution, the democratic principles of a public merit-based selection process and transparency in the evaluation of judges’ job profiles and citizen oversight. The parliamentary majority bloc attempted to elect the judges despite, and ignoring, the motion for a vote of confidence.

According to the Constitution, and the Procedures of Congress, a motion for a vote of confidence is an urgent matter that must be given priority in addressing it. Nevertheless, the majority bloc in Congress attempted to prevent Premier Del Solar from acting in accordance with these legal provisions, even preventing him from physically entering the Plenary Session of Congress to set forth his arguments for the vote of confidence. Despite this, the Premier was able to enforce his right as Prime Minister to join the debate in the Plenary Session of Congress (Section 129 of the Constitution), using the opportunity to file the motion for a vote of confidence. The Congress held a vote on whether or not to debate the motion, and ultimately refused.

This refusal to deliberate on, and hold, the vote of confidence proposed by Premier del Solar is the parliamentary legal act by virtue of which Congress, in practice, denied the vote of confidence, despite the fact that they had deferred the election of the TC Court judges until after the debate on the vote of confidence. Following this, the attorney Ortiz de Zevallos – the cousin of the President of Congress –obtained the necessary votes to be elected as a judge, unlike the second candidate for the TC. However, the votes received violated the constitutional and legal mandate that establishes that a motion for a vote of confidence shall take priority, a priority that the parliamentary majority bloc attempted to circumvent.

Following these events, the President of the Republic ordered the dissolution of Congress, in accordance with Section 134 of the Constitution, after having been denied a vote of confidence on two ministerial cabinets (the first being the Zavala cabinet in 2017). The majority bloc in Congress then reacted by trying to remove the President of the Republic from office, but was unable to achieve the 87 votes required (two thirds of all members of Congress). In view of this situation, they proposed the suspension of the President of Republic for one year, violating parliamentary due process. Given that this measure is not regulated by law, the opposition decided that it required only a majority vote to push the suspension through, and it obtained the necessary 86 votes in favour. Congress then proceeded to appoint Vice President Mercedes Aráoz as acting president. She was sworn in, but then resigned the next day.

Carrying out acts of government without the proper authority to do so is not just a political declaration, it also constitutes a usurpation of power, which may have criminal law consequences (Section 45 of the Political Constitution). Whatever the case may be, the parliamentary majority bloc suspended the voting for the election of judges to the TC after the second candidate, Sanchez Palacios, failed to obtain the necessary 87 votes, bringing a halt to the failed election of the new judges.

By then, the President had issued a public statement in a Message to the Nation, in which he announced the dissolution of Congress in accordance with Section 134 of the Constitution. This dissolution was officially enacted shortly thereafter by publication of Executive Order (Decreto Supremo) 165-2019-PCM. The order dissolved Congress and called for parliamentary elections in four months from then (Sunday, 26 January 2020). Based on this order, the National Electoral Council (Jurado Nacional de Elecciones) immediately published the electoral calendar.

The Peruvian Armed Forces and National Police Force, for their part, both issued public statements recognizing Martín Vizcarra as the Constitutional President of the Republic and Commander in Chief of the Armed Forces. Nevertheless, the former President of Congress, Pedro Olaechea, sent an official letter to the Palace of Government ordering the suspension of the President from office. Acceptance of this letter was refused, even when sent via a notary public. Thereafter Olaechea sent a letter to the secretary general of the Organization of American States denouncing the dissolution of Congress as a coup d’état. Secretary General Daniel Almagro responded with a communiqué in which he praised the decision to call popular elections and recommended that the matter be escalated to the TC for the settlement of disputes regarding the interpretation of the Peruvian Constitution.

Following the dissolution of Congress, the people took to the streets and squares that same Monday, 30 September 2019, celebrating the closure of parliament. Of all government institutions, Congress had the lowest rate of public approval due to its constant shielding of corruption among members of Congress, other high-ranking officials and persons tried and convicted by the judiciary (in particular the now-deceased former president Alan García and the opposition leader Keiko Fujimori). After the dissolution of Congress was implemented, effective immediately, at least two members of Congress – Viera and García Belaunde – left the country. They left the next morning following an announcement that, in two days’ time, a representative of the Brazilian company Odebrecht would be revealing the names of Peruvian Congress members who had received bribes from this firm.

Not only has the response among citizens to the closure of Congress been highly positive, the stock exchange and the price of the dollar have not reflected any sort of volatility or panic in the markets. This latter possibility had been cited by the parliamentary majority bloc, consisting of the fujimorista party and its lackeys, when President Vizcarra proposed calling general elections for 2020 in order to resolve the impasse between the government and the opposition; elections which were to include a constitutional reform put up for public referendum. This proposal was cunningly rejected by the parliamentary opposition bloc after calling on the Venice Commission to hear its opinion – an unexpected move given the bloc’s hurry to appoint six judges to the TC and thus consolidate its control of the country’s highest authority on the interpretation of the Constitution.

They say that in Peru, everything can happen in a day and then nothing for one hundred years. We now find ourselves at a critical juncture in which the people have regained their sovereign power, and they will undoubtedly know what to do when the time comes to vest this power in new representatives, in the elections scheduled for 26 January 2020. It is a matter of great responsibility to ensure that this power does not fall into the hands of turncoats who are merely seeking a salary or looking to benefit their interest groups. We must trust that, among the Peruvian people, there are young men and women from all walks of life who desire a better Peru, one marked by greater justice and solidarity, just like our liberators and the founders of our Republic wished for.

César Landa Arroyo is a Professor of Law and the former Dean of the Faculty of Law at the Pontifical Catholic University of Peru as well as being a former President of the Constitutional Court of Peru.

Suggested citation: César Landa Arroyo, “Is the Dissolution of the Peruvian Congress a Constitutional Measure?” IACL-AIDC Blog (15 October 2019), https://blog-iacl-aidc.org/2019-posts/2019/10/15/is-the-dissolution-of-peruvian-congress-a-constitutional-measure