The Judgment of the Constitutional Court of Peru over the motion of confidence proposed on 17 November 2022 is a legal decision of the Constitutional Court of Peru adopted by majority on 30 May 2023, in response to the jurisdictional claim filed by the Congress of Peru against the administration of then-President Pedro Castillo for the motion of confidence raised on 17 November 2022 by its Prime Minister Aníbal Torres to obtain from Congress the approval of Bill 3570/2022-PE that proposed repealing the Law No. 31399, and whose "rejection" had been interpreted by the executive power as a denial of the same, according to the agreement adopted in the meeting of the council of ministers on 24 November 2022.
On 30 May 2023, the Constitutional Court agreed with Congress' claim against Castillo, and consequently declared null and void the Agreement of the Council of Ministers dated 24 November 2022, insofar as it illegally interpreted that the flat rejection of the motion of confidence supposed the denial or refusal of the same. By the contrary, the Court established that in no case is the executive power empowered to make an interpretation contrary to that made on the subject by the Congress, nor is it empowered to assume that there has been a factual denial or refusal of the same, which is contrary to the Constitution, since the denial must always be express and decided by Congress. The judgement overruled a 2019 Constitutional Court decision which had introduced the concept of "factual denial of confidence", which gave the executive branch a broad power of interpretation to decide when a motion of confidence has been rejected or not by the Congress.
After the verdict was made public, reception of the judgement was mixed; some legal experts considered that the judgment was correct by restoring the balance of power between the executive and legislative branch, and that even the former president of the Council of Ministers Aníbal Torres and the ministers who signed the Certificate of the Session of the Council of Ministers on 24 November 2022, could be denounced as it has been established that said act was unconstitutional. On the other hand, some criticized the ruling, considering rather that it upsets the aforementioned balance of power between the executive and legislative branch.
Background
The "vote of confidence" in the Peruvian legal system
The vote of confidence (or motion of confidence) in Peru is a constitutional instrument that the executive branch has, through which the President of the Council of Ministers, on behalf of the cabinet as a whole, or the ministers individually, request the express endorsement of the Congress to the formation of a new cabinet or a policy or management initiative.
The Constitutional Court of Peru, in a 2018 ruling, categorized the vote of confidence into two types: one mandatory and one optional. The first is what is commonly called the investiture vote (every time a new cabinet is appointed) and the second is the one requested by the executive branch in support of certain government measures or actions. In the event of a denial of confidence, the total crisis of the cabinet occurs and the ministers are forced to resign.
The use of this mechanism is of fundamental importance, given that Article 134 of the Constitution of Peru establishes that if Congress denies confidence to two cabinets, the President is empowered to dissolve it and call new parliamentary elections:
2019 dissolution of Congress
On 30 September 2019, the then prime minister Salvador del Solar went to the Legislative Palace and raised a motion fo confidence to request the approval of law to reform the Constitutional Court nomination process. However, the Congress decided to postpone the vote of the amendment and appointed a new member to the Constitutional Court of Peru. Hours later, the Congress granted the motion of confidence.
Notwithstanding the affirmative vote, Vizcarra stated that the appointment of a new member of the Constitutional Court constituted a de facto denial of confidence. He said that it was the second act of no-confidence in his government (since Congress had already passed a denial of confidence against the prime minister and the cabinet on 15 September 2017), granting him the authority to dissolve Congress and call for new legislative elections.
On 14 January 2020, the Constitutional Court ruled that the dissolution of Congress by Vizcarra under the given rationale was legal. In its ruling, the Constitutional Court cited Judgment 0006-2018-PI/TC, agreeing that any attempt by Congress to prevent questions presented by the executive branch regarding a law or political procedure was unconstitutional.
Regarding the "factual denial of confidence" invoked by the executive branch, the ruling stated:
Approval of Law No. 31399 On 30 January 2022, Congress approved Law No. 31399 that modified articles 40 and 44 of Law No. 26300 that regulates the Rights of Citizen Participation and Control, adding a precision according to which they cannot be submitted to referendum the norms that are not processed according to the procedure established in article 206 of the Political Constitution of Peru:
Article 206 of the Political Constitution of Peru establishes that any constitutional reform must be approved by Congress with an absolute majority of the legal number of its members, and ratified by referendum, and that the referendum may be omitted when the agreement of Congress is obtained in two successive ordinary legislatures with a favorable vote, in each case, greater than two-thirds of the legal number of congressmen. Consequently, the Law N° 31399 ratified that to validly call a referendum with the purpose of modifying or reforming the Constitution, it was necessary that said modification or reform be first approved by the Congress.
Vote of confidence proposition On 17 November 2022, the government of President Pedro Castillo, through his Prime Minister Aníbal Torres, requested a vote of confidence over the proposition of approving the Bill of Law 3570/2022-PE intended to repeal the Law N° 31399, which in his opinion limited the rights of participation and control of the citizenry, through referendum, in constitutional reforms. Torres said that the government project "restores the political participation of the people" by eliminating the limits to the referendum established by Law N° 31399 and, for this reason, requested a "vote of confidence on behalf of the Council of Ministers". On 24 November 2022, the Congressionally-appointed Constitutional Court of Peru declared unfounded a lawsuit by the executive branch that questioned the constitutionality of this law, establishing that the norm was fully valid and in accordance with the Constitution.
Congress rejects the request for a vote of confidence On 24 November 2022, Congress rejected the request for a vote of confidence raised by the President of the Council of Ministers, indicating that Bill 3570 to repeal Law N° 31399 refers to two exclusive powers of the Legislative Branch on which the Executive Power cannot make a motion of confidence, so the government's intention collides with article 206 of the Constitution of Peru. The President of Congress pointed out in this regard that the request for a vote of confidence raised does not refer to a general government policy, therefore it violates the powers of the Congress, threatens the principle of separation of powers and conditions the decision of the Legislative Branch, and that any attempt by the President of the Council of Ministers to interpret the meaning of the decision of the Legislative Branch exceeds the constitutional and legal framework, because it affects the separation of powers. The operative part of Agreement No. 061-2022-2023/MESA-CR of the Congress indicates:
The executive branch interprets that the confidence has been denied The executive branch, by means of an agreement adopted in a meeting of the Council of Ministers held on 24 November 2022, interpreted that the confidence had been denied:
Ruling process
Presentation of the lawsuit and request for precautionary measure
On 29 November 2022, the Congress filed a jurisdictional claim before the Constitutional Court regarding how to interpret its decision to reject the request for a vote of confidence raised by the Executive. In the petition for his claim, Congress requested the Constitutional Court the following:
That it be declared that the Executive Power lacks the competence to interpret and conclude, of its own accord, that the Congress of the Republic has denied it or not the vote of confidence that it saw fit to raise in the plenary session of Congress on 17 November 2022. Consequently, that be annulled the motion of confidence raised by the President of the Council of Ministers in the plenary session of Congress held on 17 November 2022, for the approval of Bill 3570/2022-PE, presented through Official Letter No. 359-2022-PR, in such a way that the Constitutional Court, when resolving the conflict of powers for impairment of powers in the strict sense, guarantees the exercise of the powers that the Constitution, the Regulations of the Congress and the Law Nº 31355 (both organic laws) grant it to the Congress, preventing the vote of confidence from being used arbitrarily or improperly by the Executive Power, as a threat or sanction mechanism to unconstitutionally dissolve Congress and declare a parliamentary term ended early. That the agreement adopted at the Council of Ministers session held on 24 November 2022 be declared null and void, regarding the interpretation of the meaning of the Agreement of the Board of Directors (Agreement No. 061-2022-2023/MESA- CR) that flatly rejected the question of confidence and regarding the decision on the question of confidence raised by the Executive Power.
Together with the lawsuit, Congress submitted a request for a precautionary measure so that the Executive Power refrains from considering as denied the vote of confidence that the then President of the Council of Ministers filed in the plenary session of Congress on 17 November 2022; and, consequently, that in the event that Congress does not grant confidence to future Councils of Ministers, it should not proceed to dissolve the Congress of the Republic until the Constitutional Court, as the supreme interpreter of the Constitution, has handed down a firm and definitive sentence in the present jurisdictional process.
Decision of the Court on the admissibility of the application and precautionary measure
On 1 December 2022, the plenary session of the Constitutional Court voted unanimously to admit for processing the jurisdictional claim filed by Congress against the executive branch, as well as to grant the requested precautionary measure. In the Order by which the Court grants the precautionary measure, it states the following:
Pedro Castillo tries to dissolve the congress
On December 7, 2022, President Pedro Castillo addressed the country on televised national chain, in which he announced his decision to dissolve Congress, intervene in autonomous institutions such as the Judiciary, the Public Ministry, the National Board of Justice and the Constitutional Court, in addition to calling for the election of a Constituent Assembly. Castillo argued that Congress served oligopolic businesses and that it had allied itself with the Constitutional Court to destroy the executive branch in an effort to create a "dictatorship of Congress". The coup attempt failed as it lacked general support and Castillo was arrested near the Mexican embassy.
Judgment
Court's ruling decision