Peru: UPP promotes referendum and Constituent Assembly to modify the Constitution

While specialists agree that the project is unconstitutional, the bench seeks a citizen consultation on the same day as the second round of the 2021 elections. The Union for Peru (UPP) bench presented a new bill to hold a referendum and convene a Constituent Assembly through a popular consultation, which could be held on the same day as the second round of the general elections of the 2021 .

It was Congressman Javier Mendoza Marquina who proposed to the Congress of the Republic , through Bill 6642-2020 / CR , a constitutional reform for the Peruvian population to decide whether or not to agree to a new Constitution through the mechanism of the Constituent Assembly.

This UPP initiative maintains that although the current Political Constitution of 1993 does not contain a clause for its total reform, it does have it in its partial form, an argument prescribed in Article 32 of the same and which would be a reason to carry out a referendum. The proposal specifies that the Peruvian people, as the sole holder of the constituent power, can "decide when and through what mechanisms to issue a political letter. It also seeks to collect the perception of the population on the legitimacy or representativeness of the current Constitution to avoid further polarization between the various sectors.

UPP bill seeks to hold a referendum and convene a Constituent Assembly to modify the Constitution. Photo: capture / Congress website

However, for the constitutionalist José Tello, this UPP project is not viable, since article 32 speaks of a citizen referendum and not a call for a Constituent Assembly.

He said, here they want to be consulted to find out if the people want a new Constitution, and that comes with a bill voted by Parliament or submitted, in this case, to popular consultation.

Union for Peru for its part considers that the tool to reach a transparent, objective, inclusive, and priority” consensus is the Constituent Assembly .

In effect, the group led by Antauro Humala seeks to submit the following question to a popular consultation. Do you approve the call for the election of a Constituent Assembly with the purpose of preparing and promulgating a New Political Constitution of Peru?.

In this regard, Tello explained that the referendum for this consultation can be presented in two ways: as an agreement of the citizenship or as part of a constitutional reform presented before the Plenary of Congress that, after being rejected or modified, could pass to a citizen referendum .

He pointed out that this would be very different from the confirmatory referendum, such as the one held in December 2018 with the four constitutional reforms promoted by the Government of Martín Vizcarra .

He said, a confirmatory referendum is completely legal, but in this proposal (of the UPP ) there is nowhere to send a referendum and we do not know what type it is. Nor is your question viable because a new Parliament will be constituted from the following year.

On the other hand, Carlos Caro assures that integrating a referendum in the elections process in 2021 is not constitutional, since they are completely different issues. The lawyer pointed out to this newspaper that, if this type of referendum were approved, it would have to go through its own path with an electoral totalitarian.

In addition, he affirmed that this mechanism can no longer be included in next year's elections because there is already a calendar approved by the National Jury of Elections (JNE).

The lawyer said, the possibility of a constitutional reform is always open. Another thing is that it is appropriate or that the request is reasonable.In particular, I think that this project is not suitable. These issues only alter the democratic and economic order.

Carlos Mesía said, the 1993 Constitution does not establish going to a Constituent Assembly.

For Carlos Mesía former president of the Constitutional Court this proposal for a Union for Peru is unconstitutional, since the Magna Carta does not attribute the plebiscite mechanism to make decisions or consult the public.

The Fujimori congressman said to this medium, what is established in the Constitution is the referendum, which is used to pass laws. What they are proposing is a plebiscite, which is to make a consultation . They would have to create a project of total reform of the Constitution, expose it to the Plenary and that it be debated. If the 87 votes are not reached, then ask that it be submitted to a referendum.

The UPP's objective is to consult Peruvians via a referendum whether or not they agree to a new Constitution through the mechanism of the Constituent Assembly.

However, Mesía, who is also part of the Constitutional Commission of Congress asserted that this procedure, stipulated in Article 206, must be supported with half plus one of the legal number of parliamentarians to avoid reaching a referendum.

He stated that the convocation of a Constituent Assembly cannot be approved because first the current Constitution would have to be modified.

He indicated, the 1993 Constitution does not establish going to a Constituent Assembly as a method to change the Constitution. This does not contemplate that mechanism. The only total reform to the Constitution is by way of the referendum, but the referendum is to admit or repeal laws.

UPP confirms that its project has no defects of unconstitutionality or legality since, according to it, the people can exercise their constituent power as well as seek constitutional order and decide whether or not to continue with the current Constitution.

Finally, the former head of the TC pointed out that a referendum cannot be proposed in the next elections because a Constituent Assembly can be used as a trap by some congressmen to be reelected.

He said, they want to have a Constituent Assembly to continue having power. In addition, a Constituent Assembly means that Parliament would disappear and, then, what commands is the Constituent Power, which would be the one that is going to legislate and, at the same time, the one that is going to launch a Constitution.