César Abanto Revilla, an expert lawyer in Social Security Law, said that recent bills promoted in the Congress of the Republic, which seek to enable an eighth withdrawal of funds from pension fund managers (AFP), are unconstitutional. The warning is based on precedents of the Constitutional Court (TC), as well as constitutional principles linked to the right to pension and the intangibility of pension funds.
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“Article 12 of the Constitution establishes that the pension funds are intangible and can only be used to pay pensions. In that sense, any legislative measure that enables withdrawals without exceptional support against constitutional order,” said Abanto.
The specialist recalled that in the Judgment of file No. 00020-2021-PI/TCthe court established precise limits to Congress regarding its ability to dispose of the funds of the pension system. In that case, although the lawsuit against the Law No. 31192it was pointed out that the approval of the retirement was justified by an exceptional context: the health emergency by the COVID-19, which formally culminated through the DSN ° 130-2022-PCMon October 27, 2022.
“The context of exceptionality no longer exists. Therefore, any new withdrawal lacks constitutional justification. Even the withdrawal authorized in 2023 was unconstitutional. If a claim had been filed, the TC would have had to declare it founded,” he said.
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Retreats affect pension coverage
Abanto also warned that the funds accumulated in individual capitalization accounts are not only destined for the retirement pension, but also constitute support before pension risks as disability, death or survival.
“Mass withdrawals leave the affiliates exposed. If a young affiliate suffers an accident or dies, the absence of funds prevents access to a disability or survival pension for their relatives.”he said.
In addition, he indicated that these legislative projects directly undermine the right to pensionby emptying individual accounts and eliminating future access to the benefit, in obvious affectation to the principle of sustainability of the system.
Social Security and Sustainability
The lawyer remarked that the Private pension system (SPP) is part of the system of social securityrecognized as such by the Constitutional Court itself. Therefore, its financial sustainability is constitutionally protected.
Finally, Abanto – member of the Peruvian Society of Labor Law and Social Security – urged Congress and the Executive to leave the populist narrative of retreats and focus on urgent structural reformsas:
- The Reduction of labor informalitywhich exceeds 70 %;
- The fight against pension delinquencyboth in the AFP regime and in the ONP;
- And the evaluation of mechanisms of effective pension financing before the increase in longevity in the Peruvian population.
