Dissolving Congress to Combat Corruption: Why a Short-Term Anticorruption Victory in Peru Isn’t Worth the Long-Term Cost

The “Car Wash” corruption scandal that started in Brazil has extended into surrounding Latin American countries, including Peru. All of Peru’s living presidents have been implicated in the scandal, with two currently awaiting trial on corruption charges, one in California fighting extradition, and one who ended his own life just as police entered his home to arrest him. The corruption scandal has also implicated members of Congress, including the head of Peru’s largest opposition party, Keiko Fujimori (daughter of the infamous former president Alberto Fujimori). To make matters worse, investigators have also uncovered an unrelated bribes-for-verdicts corruption scandal in the judiciary.

Peru’s current president, former Vice President Martin Vizcarra, assumed the presidency after his predecessor resigned over corruption allegations. Backed by overwhelming popular support in a national anticorruption referendum, President Vizcarra spent most of 2019 pushing an ambitious anticorruption agenda. His proposed reforms included a new law that bars members of Congress from seeking immediate reelection after one five-year term, transferring the power to lift a Member of Congress’s legislative immunity from Congress to the Supreme Court, and changing the system for appointing judges and prosecutors. On all of these proposals, Congress (controlled by an opposition party) has dragged its feet, likely for self-serving reasons. While Congress eventually passed some of these reforms, including the ban on re-election, the judicial anticorruption bill stalled. After several attempts to pass the bill, on September 30, 2019, Vizcarra took the drastic step of dissolving Congress—a move supported by 84% of Peruvians. Vizcarra issued a decree for a snap legislative election, which took place on January 26, 2020, and in which Peruvians elected a new Congress to finish the current constitutional term ending in 2021. Given the ongoing pandemic, this new Congress has, understandably, yet to fully address Vizcarra’s remaining anticorruption agenda.

It is often said that fighting entrenched corruption involves disrupting the political status quo. President Vizcarra’s decision to dissolve Congress was certainly disruptive—but not in a way that anticorruption advocates should celebrate. Whatever its short-term payoffs, this decision threatens to undermine Peru’s institutional checks and balances, leaving the country more vulnerable to corrupt actors in the long term.

Vizcarra drew upon a constitutional provision last invoked by Alberto Fujimori that allows the President to dissolve Congress after Congress passes two “votes of no confidence” in the President’s administration. In Peru, a President has the option to go “all-in” on a bill by labeling it as a vote of confidence in the administration. If Congress rejects the bill, the President must replace the entire cabinet. If this happens twice, the President can dissolve Congress and call for a snap election within four months, during which time the President governs by emergency decree.

Vizcarra’s decision to dissolve Congress rested on a new theory of this no-confidence process. Vizcarra argued that Congress’s vote of no confidence in the previous president counted as the first vote of no confidence, since Vizcarra was part of the previous administration. Vizcarra then labeled his judicial anticorruption bill as a vote of confidence. If Congress rejected this bill, this rejection would be a second vote of no confidence and Vizcarra could dissolve Congress. In an attempt at self-preservation, Congress avoided taking a vote on the judicial anticorruption bill. But after Congress appointed a new judge to the Constitutional Court using the existing appointment procedures, Vizcarra declared that Congress’s decision to appoint a new judge before holding a vote on the proposed bill on judicial appointments was tantamount to a rejection of that bill, thus qualifying (on Vizcarra’s theory) as a second no-confidence vote and allowing him to dissolve Congress.

Congress responded by actually passing the judicial anticorruption bill and immediately attempting to impeach Vizcarra for exceeding his constitutional authority. After a constitutional battle, the courts held that Vizcarra’s dissolution of Congress was constitutional, rendering Congress’s subsequent approval of the judicial anticorruption bill and the impeachment of Vizcarra invalid.

Though the goal of all this was the passage of anticorruption legislation that many activists and reformers support, the anticorruption community should hold its applause. Vizcarra’s drastic decision to dissolve Congress under these circumstances portends a dangerous concentration of power in the executive, to the detriment of the longer term struggle against corruption in Peru.

  • First, Vizcarra’s main legal theory—that Congress’s failure to vote on his judicial reform bill before appointing a new judge was equivalent to a no confidence vote—opens the door to future Presidents dissolving Congress when Congress refuses to vote on any item on the President’s legislative agenda. In this case, the President used his expanded dissolution power to push through legislation that anticorruption advocates might support. But what’s to stop a future president from using the same technique to eliminate any legislative check on the President’s ability to enact legislation that anticorruption advocates would oppose (e.g., calling it a no-confidence vote when Congress passes an infrastructure bill without kickbacks rather than the President’s preferred infrastructure bill filled with kickbacks)? Furthermore, a president could use this technique to shut down any congressional investigation into his or her administration’s corruption, by declaring that the President would treat the continuation of the investigation as a vote of no confidence, essentially forcing Congress to either end the investigation or vote itself into a snap election. One might think that democratic accountability could serve to check this dissolution power, but Peruvian Presidents are banned from running for immediate reelection. In this case, Vizcarra happened to have overwhelming popular support for his decision to dissolve Congress and for his judicial reform policy. But he did not need it, and future Presidents will not need it either. In short, even if Peruvians trust the integrity of President Vizcarra and his administration, President Vizcarra’s aggressive circumvention of checks and balances has set a precedent that will make it easier for his successors to dissolve Congress in order to support their own corrupt acts.
  • Second, the President’s expanded power to dissolve Congress is even more dangerous when considered together with the newly-enacted ban on Members of Congress from seeking immediate reelection. The ban on reelection means that no member of Congress can serve for two consecutive constitutional terms of five years. Before this reelection ban, even if the President dissolved Congress, all of the incumbent Members could run to keep their current seats with the possibility of later running for reelection. In contrast, a decision by the National Elections Board established that under the new reelection ban, anyone (incumbent or newcomer) running in the January 2020 snap election was running to fill the Congressional seat for the last year of the current constitutional term and therefore could not run for a seat in the next constitutional term in 2021. Essentially, candidates in the snap election were running to be members of Congress for one year. That is likely why only 16 members of Congress chose to run to keep their seats in that election. In other words, Vizcarra gave himself a brand new Congress.

Alberto Fujimori was the last Peruvian President to dissolve Congress, which he justified as a response to a national terrorism emergency. One could say that today Peru is in the midst of a national corruption emergency. But, just as Fujimori’s aggressive executive power grab came to be seen as dangerously authoritarian, and the dissolution of Congress the beginning of the country’s slide into dictatorship, Vizcarra’s decision to dissolve Congress, however well-intentioned, may pose a similar threat to Peru’s political institutions. Even if anticorruption advocates favor President Vizcarra’s anticorruption agenda, his lasting legacy may well be the concentration of power in one person and one branch of government—a recipe for much worse corruption in the future. The laudable goal of fighting corruption in Peru today is not worth the risk of weakening the institutional checks that could restrain corrupt governments tomorrow.

2 thoughts on “Dissolving Congress to Combat Corruption: Why a Short-Term Anticorruption Victory in Peru Isn’t Worth the Long-Term Cost

  1. I learn of what is happening in Peru, through this article, with apprehension. In Brazil, President Bolsonaro keeps participating, also during the pandemic, of public demonstrations that demand to dissolve Congress and portrait even the Supreme Court as a nemesis. Bolsonaro pleads he is fighting against the “old way” of doing politics, which is based on quid pro quo and, although his government only has 30% of approval, I see a risk of a similar movement here because he keeps naming military officials to his Ministries and inciting his followers against the Congress and the Supreme Court.

  2. Hi Cristina. Thank you very much for this very interesting post. Apparently, the Peruvian President exceeded his powers by dissolving the Congress on the basis of an over-extensive interpretation of the applicable constitutional rules. However, as you emphasized, the Peruvian courts upheld the constitutionality of this measure.

    Some civil-law countries are strongly influenced by the German law in relation to constitutional interpretation. One of the principles of constitutional interpretation imported by these countries from Germany is the “principle of functional conformity (or consistency, or accordance, or compliance)”, according to which the constitutional rules related to the separation and inter-dependence of powers must be strictly (or even restrictively) construed, so that the organization of state functions originally established by the constitution is not disturbed or subverted. Such principle seems to have been disregarded in this situation in Peru.

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