Train crash: what the constitution says

16 September 2018

As institutional frictions between the executive power (led by President Martín Vizcarra) and the legislature (dominated by the Fujimorista Fuerza Popular) become weekly more bitter, it might be worthwhile to remind ourselves of what the constitution says.

Written in the wake of Alberto Fujimori’s self coup (autogolpe) of April 1992, and ratified in 1993, the constitution tended to strengthen the powers of the presidency vis-a-vis Congress. The autogolpe resulted in the closure of the Congress elected in 1990 under rules prescribed by the previous 1979 constitution.

But the 1993 constitution created mechanisms by which either power (in certain circumstances) could get rid of the other. Debate in Peru today has involved increased discussion as to which, in the event of a head-on train crash, could prevail: the forcible ejection of the president or the closure of Congress and new elections.

Article 134 of the constitution states that the President of the Republic has the power to dissolve Congress if the latter has passed a motion of censure or denied a vote of confidence to two Councils of Ministers. The decree of dissolution contains the convening of elections to a new Congress. Such elections take place within four months of the date of dissolution, without the pre-existing electoral system being altered.

This opens the possibility of President of the Council of Ministers (César Villanueva) demanding a vote of confidence in the present cabinet and thus triggering a dissolution if this is denied by the Congress. A vote of no-confidence was passed previously in 2017. Though the president has changed since then, it is the same administration in office.

The constitution also sets out the grounds under which a president can be removed from office. Article 113 specifies (our translation) that “The Presidency of the Republic is declared vacant with: (i) the death of the President of the Republic, (ii) his [or her] permanent physical or moral incapacity, as declared by Congress, (iii) acceptance of his [or her] resignation by congress, (iv) his [or her] leaving the national territory without the permission of Congress or his non-return within a specified lapse of time, and (v) his [or her] destitution having been sanctioned for one of the infractions mentioned in Article 117 of the Constitution”. These infractions include treason, the prevention of elections being held, the dissolution of Congress in instances not prescribed by Article 134, or the preventing of the workings of electoral institutions.

It is “moral incapacity” which provides the most propitious route for vacancy. It was the threat of this being applied that forced Pedro Pablo Kuczynski’s resignation last March. The Congress needs to vote by a two-thirds majority to remove a president.


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