The charge of the presidency of the Republic to José Jerí In his capacity as president of Congress, after the vacancy of Dina Boluarte, he has generated a legal debate regarding whether or not his eventual censure is appropriate, as has been raised in up to six motions presented in Parliament.
Faced with this situation, the president of the Congress in charge, Fernando Rospigliosi, formulated – as he was able to learn Peru21— a legal consultation with lawyer Wilber Medina about the admissibility of a censure against the president.
The answer is contained in an extensive 16-page document in which Medina maintains “categorically and negatively that a possible censure against the President of the Republic is not constitutionally appropriate, even when he has acceded to the position by constitutional succession.”
Even, he says, if Law 27375 is invoked, which – in its interpretation of article 115 of the Constitution – specifies that the fact that the president of the Congress of the Republic assumes the functions of president of the Republic due to the permanent impediment of the latter and the vice presidents, “does not imply the vacancy of his position as president of the Congress or of his status as congressman of the Republic.”
Along these lines, he maintains that since the Political Constitution is “the supreme norm of the order”, constitutional development laws, such as 27375, “have no constituent capacity or power to reform, and therefore cannot create new constitutional categories or introduce control mechanisms not provided for in the constitutional text.”
“Article 115 of the Constitution exclusively regulates presidential succession. Its content is clear and admits no ambiguity: in the event of the permanent impediment of the President of the Republic, the first vice president takes over; in his absence, the second vice president; and, in the absence of both, the president of Congress. The norm does not introduce additional qualifications, it does not distinguish between ‘full’ or ‘limited’ presidencies, nor does it establish an attenuated or provisional head of State in functional terms. On the contrary, the constitutional logic is that whoever assumes the Presidency assumes the position in its entirety, with all the powers, duties and prerogatives that the constitutional text recognizes to the head of State,” he concludes.
He also emphasizes that censorship is an institution “external to the constitutional status of the President of the Republic”, and is rather “a mechanism (…) designed to withdraw political confidence from the management bodies of Congress itself or, in parliamentary systems, from the ministers or the cabinet. (…) Admitting the origin of a presidential censure would imply, in fact, transforming the government regime without constitutional reform, which is legally inadmissible.”
Jerí: Censorship or vacancy?
The legal report also absolves the question of whether censorship is constitutionally viable or not and whether the attribution of misconduct in the exercise of office should be channeled in accordance with article 113, paragraph 2 of the Constitution, which establishes that the presidency of the Republic vacates due to permanent moral or physical incapacity declared by Congress.
“The answer, from constitutional law, is equally unequivocal: censorship is constitutionally unfeasible, and any imputation of misconduct in the exercise of the presidential office must be carried out exclusively through the vacancy procedure due to permanent moral incapacity provided for in article 113, paragraph 2 of the Constitution,” he points out.
“Allowing the application of censure to the President of the Republic would mean creating a cause for dismissal not provided for in the Constitution, violating the principle of constitutional legality and the principle of separation of powers enshrined in article 43 of the Magna Carta. Furthermore, it would imply subjecting the head of State to a mechanism of temporary political control, dependent on circumstantial parliamentary majorities, which frontally contradicts the logic of the presidential regime,” he adds, also emphasizing that the condition of the head of State does not is altered by the fact of having acceded to the position by constitutional succession.
“The president by succession is not a second-class president, nor a president with diminished functions, nor a provisional manager lacking prerogatives. He is, legally, president of the Republic in the full sense, although his mandate has a temporary duration oriented towards the calling of elections. While he holds office, he is subject to all the constitutional guarantees and limits of the presidential statute, including the exclusivity of the vacancy procedure as a dismissal mechanism,” he emphasizes.
This report—which is already in the hands of the President of the Republic—would eventually render unfounded the six motions of censure raised against Jerí for his clandestine meetings with Chinese businessmen.
In that scenario, according to the report, only the vacancy that was already raised by the congressman for Peru Libre, Segundo Montalvo, with multi-party support, would proceed. Its approval in the plenary session, however, requires the support of no less than 87 legislators, a figure that is difficult to achieve in a fragmented Congress and in which groups such as Fuerza Popular, Alianza para el Progreso, Podemos Perú and Somos Perú have already distanced themselves from that possibility.
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