Does the President Have the Power to Call a Constitutional Referendum in Peru?

— Maria Bertel, Elise-Richter-Fellow (FWF), University of Innsbruck; Postdoctoral Research Fellow, Central European University[*]

On July 28, Peru celebrated 197 years of independence. On the occasion of this national holiday, the President of Perú, Martin Vizcarra, delivered the President’s Annual Address to the Nation. This was the first time the former Vice-President has given this address since he took power from the elected president Pedro Pablo Kuczynski (PPK), who stepped aside because of his involvement in the “Odebrecht case,”[1] a corruption scandal hitting the whole continent.

President Vizcarra proposed reforms of the judicial and legislative branches. His speech came after several marches of protest against the biggest corruption scandal in Peru in 18 years, which has already led to the resignation of the President of the Supreme Court as well as other officials.[2] President Vizcarra pointed out the crucial role of the citizens in these reforms and announced that they would be submitted to a referendum. The announced referendum would not only encompass the reform of the judiciary (Articles 155 and 156 of the Peruvian Constitution), but also the question whether a one term limit should be placed on members of Congress, whether a second parliamentary chamber should be introduced, and how private financing of parties should be regulated.[3] The reforms of the judiciary consist mainly in a new appointment procedure of the National Council of Judges and new criteria for the members of the National Council of Judges. In the future, a so-called Special Commission, consisting of the President of the Supreme Court, the Attorney General, the President of the Constitutional Court, the National Ombudsman and the Comptroller General shall be responsible for the appointment of the Members of the National Council of Judges. This appointment procedure shall be preceded by a merit-based competition.[4] The new criteria for the members of the Council are amongst others more than 30 years of work experience as a lawyer and not having a criminal or judicial record.[5] The emphasis of all proposed reforms is put on combatting corruption: Rules for the private financing of parties aim at more transparency and are more restrictive[6], the (re-)introduction of the second chamber is meant to help improve the quality of laws,[7] and the one term limit for members of Congress to impede cronyism[8].

President Vizcarra’s speech started an important debate about whether the President of the Republic could call the referendum at all.[9] This is of special interest in a comparative Latin-American perspective, since referenda have been often used by presidents in the region to increase their own powers and carry out important constitutional changes.

The question needs a caveat, because it is ambiguous: Seen from a positivist perspective, the President might not have the power to call a referendum. However, the President could always try to bypass the legislature, as the French[10] and Argentinian examples show.[11]

The Referendum as a Political Right

The Peruvian Constitution refers to the referendum in several different contexts. First, Article 2 of the Constitution enshrines the referendum as a right of every person. Similarly, Article 31 declares that it is the right of the citizens to participate in public affairs via referendum. Article 31 does not however explain whether “participate” encompasses a citizen initiative or whether citizens may depend upon another player to initiate the referendum.

Content of a Referendum

When it comes to the content of a referendum, Article 32 of the Constitution comes into play. A referendum is obligatory for the complete or partial reform of the Constitution (clause 1). However, the need for a referendum can be avoided if two positive congressional votes with a qualified majority of a two-thirds majority in Congress in two consecutive legislative periods are obtained. For laws (clause 2) and municipal ordinances (clause 3), a referendum is optional. Moreover, topics linked to the decentralization process can undergo a referendum (clause 4). Matters excluded from the referendum process are the suspension or reduction of the fundamental rights of people, tax and budgetary laws as well as international treaties in force.

Initiating a Referendum

Reading the Constitution alone, it is not clear that Peruvian citizens have the right to initiate a referendum. This only derives from the relevant provisions laid down in a separate law, the Law on Participation and Citizens Control.[12] Citizens can solicit a referendum when they have initiated a law and Congress modifies or rejects it. Moreover, they can solicit a referendum on laws and municipal ordinances.[13] In the two latter cases, the signatures of 10 percent of the electoral population are necessary to initiate the referendum.[14] If citizens call for a constitutional reform, however, the support of 0.3 percent of the electoral population is sufficient.[15] In that case, citizens do not call directly for the referendum, but initiate the process of constitutional reform in Congress, which then usually leads to a referendum.

Apart from guaranteeing citizens the right of direct political participation, the referendum also plays the function of securing popular backing of constitutional reforms. According to the Constitution, the initiative for a constitutional reform lies with the President of the Republic with approval of the Council of Ministers, with the Members of Congress,[16] or (as already mentioned) with 0.3 percent of the electoral population. As laid down above, the reform has to either be submitted to referendum or Congress must give two positive votes with a two-thirds majority in two consecutive legislative periods.

Can the President Initiate a Referendum?

Hence, in spite of the political announcement of President Vizcarra, the President of the Republic cannot formally call a referendum without congressional approval, according to the Constitution. Moreover, Fuerza Popular, the party led by Keiko Fujimori, President Vizcarra’s chief political opponent, holds 73 of the 130 seats in Congress. The government, which is led by the President does not therefore have the support of a majority of Congress.

While President Vizcarra announced the referendum in his Annual Address, it has become clear that he could not and did not formally call for an immediate referendum, but instead sought to put political pressure on the majority of Congress to make use of its right to do so. President Vizcarra however managed to secure for himself the lead in setting the topics for the constitutional reform in public.

It does not come as a surprise that President Vizcarra announced that his government is not excluding the possibility of a vote of confidence, in case Congress will block the referendum. In case of the denial of confidence, Vizcarra could call for new elections.[17]

Currently only 16 percent of Peruvians are satisfied with democracy,[18] and society is deeply divided, a legacy of Alberto Fujimori.[19] The corruption scandal and the proposed constitutional referendum cannot answer the crucial question that has preoccupied many Peruvians during the last twenty years and will remain pressing: “Can Peru´s Democracy survive…?”[20]

Suggested citation: Maria Bertel, Does the President have the Power to Call a Constitutional Referendum in Peru, Int’l J. Const. L. Blog, Sept. 6, 2018, at: http://www.iconnectblog.com/2018/09/does-the-president-have-the-power-to-call-a-constitutional-referendum-in-peru

[*] The research in this blogpost was financed by Central European University Foundation, Budapest (CEUBPF). The theses explained herein represent the ideas of the author and do not necessarily reflect the opinion of CEUBPF.

[1] https://www.nytimes.com/2018/03/21/world/americas/peru-kuczynski-resigns.html (30.8.2018).

[2] See, e.g., https://latinamericanpost.com/index.php/politics-latam/22428-peru-this-is-what-you-need-to-know-about-the-referendum-that-was-announced-by-martin-vizcarra (30.8.2018).

[3] Mensaje a la Nación, 28 de Julio de 2018, p. 11 – 12 and the bills proposed by the president (see, Proyecto de Ley No 03159/2018-PE, Proyecto Ley No 3185/2018-PE, Proyecto Ley No 3186/2018-PE, Proyecto Ley No 3187/2018-PE).

[4] Up until now the members of the Council of Judges are elected by the full chamber of the Supreme Court (one member), the Association of Prosecutors (one member), the Bar Associations (one member), the other Professional Associations (two members), the Rectors of the National Universities (one member) and the Rectors of the Private Universities (one member), see Article 155 Constitution.

[5] See, Proyecto de Ley No 03159/2018-PE.

[6] See, Proyecto Ley No 3186/2018-PE, p. 4 – 6.

[7] Proyecto Ley No 3185/2018-PE, p. 16.

[8] Proyecto Ley No 3187/2018-PE, p. 7.

[9] https://larepublica.pe/politica/1287271-referendum-politicos-pronuncian-reeleccion-congresistas (30.8.2018).

[10] Conseil Constitutionnel, Décision n° 62-20 DC du 6 novembre 1962.

[11] Sagüés, An Introduction and Commentary to the Reform of the Argentine National Constitution, 28 University of Miami Inter-American Law Review 41 (1996) 41 (44-45), Available at: http://repository.law.miami.edu/umialr/vol28/iss1/4 (30.8.2018).

[12] Ley de los Derechos de Participación y Control Ciudadanos, LEY Nº  26300 (amended).

[13] Art 41 Ley de los Derechos de Participación y Control Ciudadanos.

[14] Art 38, Art 41 Ley de los Derechos de Participación y Control Ciudadanos.

[15] Art 206 Constitution.

[16] The Constitution is silent on the question of how many members of Congress have to support such a proposal. The regulation of Congress does not distinguish between initiatives that aim at changing or introducing a regular law and a constitutional reform (Art 72 of the regulation of Congress). Hence, Art 74 applies, which foresees that at least 5 Congressmen support such an initiative.

[17] Art 134 Constitution, https://larepublica.pe/politica/1305210-referendum-martin-vizcarra-plantear-cuestion-confianza-cerrar-congreso-rechaza-proyectos-reforma (30.8.2018).

[18] https://gestion.pe/peru/latinobarometro-2017-16-peruanos-satisfecho-democracia-222989 (30.8.2018).

[19] https://www.bbc.com/mundo/noticias-america-latina-39494792 (30.8.2018).

[20] https://www.nytimes.com/2018/03/25/opinion/peru-democracy-corruption.html (30.8.2018) and http://www.americasquarterly.org/content/why-perus-presidents-are-setup-fail (30.8.2018).