The constitutional complaint presented by the Attorney General, Delia Espinozaagainst 11 congressmen of the Republic for alleged incompatible negotiations, has generated controversy and conflicting positions.
The day before, through the Constitutional Enrichment and Complaints Area, the head of the Public Ministry filed a constitutional complaint against legislators José Williams, Jorge Montoya, Roberto Chiabra, José Cueto, Alfredo Azurín, Hamlet Echevarría, Américo Gonza, Patricia Juárez, Juan Carlos Lizarzaburu, Edwin Martínez and Lucinda Vásquez.
The reason? According to the document sent to Legislativefor “having taken an undue and direct interest in the approval of Law 31473 that allows pensioners of the Armed Forces and the National Police to receive a pension and remuneration simultaneously from the State.” The provision was enacted on May 13, 2022.
According to the Attorney General, however, the law directly favored five of the 11 legislators who are currently pensioners of the armed institutes: Williams, Azurín, Montoya, Chiabra and Cueto by allowing them access “to the receipt of salary and pension simultaneously without any restriction or limit on the total amount due to their dual status as public officials in elected positions and pensioners of the Armed Forces”.
“Law is unconstitutional”
Peru21 consulted with experts about the scope of the complaint. The labor lawyer Ricardo Herrera explained that until before the enactment of this norm, Law 30026, of May 2013, also authorized that a remuneration be received from the State in parallel to the pension, as long as both incomes do not exceed the total equivalent to the six Public Sector Income Units (UISP).
However, he said, the law approved in May 2022 eliminates the limits and even adds that public officials by virtue of a popular election, that is, parliamentarians, are exempt from that limitation.
For Herrera, the norm violates constitutional principles. The first of them establishes that laws cannot be dictated by people but only by the nature of things. “There is a clear and evident conflict of interest between the congressmen who voted to favor themselves, there is a constitutional violation. In addition, the principle of equal treatment in salary and pension matters is also being violated because they would be the only pensioners who would not have limits in this regard,” he indicated.
It should be noted that the UISP currently amounts to 2,600 soles; By establishing a limit of six UISP, it is clearly determined that no more than S/15,600 could be received between remuneration and pension. However, Herrera pointed out that the legislators have a salary of S/15,600 to which an average of S/8,000 would be added in the case of the five congressmen who are pensioners of the Armed Forces. and the PNP.
Due to this, Herrera considered that the constitutional complaint against the parliamentarians is appropriate.
“Complaint makes no sense”
A totally opposite position has the former president of the Constitutional Court Oscar Urviola, who questioned the decision of the National Prosecutor to constitutionally denounce the legislators. “It seems to me that it is excessive activism on the part of the prosecutor to raise a complaint that has no constitutional basis,” he said.
He added that according to a resolution of the TC it was already established that the pension is an earned right, so no crime is being committed in this case.
“There is a very irresponsible ignorance on the part of the Attorney General. Article 93 of the Magna Carta establishes that congressmen are not responsible for the votes they cast in compliance with their functions and when this law is approved it is practically ratifying what the TC has already decided. It is not a law dictated by benefited military or police who exercise their functions, it is a law of Congress that has an opinion that has been seen in committee and that has finally been promulgated,” he added.
Along these lines, Urviola declared to Peru21 that “the complaint makes no head or tail” and that if Espinoza has a presumption of unconstitutionality of the norm, what corresponds is to file an action of unconstitutionality, for which there is a period of six years from the promulgation of the provision , he reported.
“That would be the way. A constitutional complaint against the parliamentarians denotes serious ignorance on the part of the prosecutor,” he added. Thus, what now needs to be done is for the constitutional complaint to be qualified by the Subcommittee on Constitutional Accusations — chaired by María Acuña Peralta — which must determine whether or not it is appropriate.
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