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The impeachment proceeding, regulated by article 89 of the rules of procedure of
Congress, is initiated by a complaint by any person who has been wronged or any
member of Congress against senior officials of the Republic, and these include
members of the Constitutional Court. Then, a Special Evaluation Committee is
appointed to evaluate the admissibility of the complaint.
If this Committee
considers the complaint admissible, it prepares a report for the Congressional
Permanent Commission. Once the possibility is admitted that there could be an
impeachment proceeding against any senior official, the Permanent Commission
appoints an Investigation Sub-Committee to make the corresponding investigation
and prepare a final report. Although the Sub-Committee should be composed of
three members, in the instant case, one member resigned and was not replaced.
Subsequently, the Permanent Committee considers the matter and takes a decision
on the possibility of initiating an impeachment proceeding before the full Congress.
According to article 99 of the Constitution, an impeachment proceeding may be
initiated for two reasons, violation of the Constitution and a crime in the exercise of
official functions. In the instant case, the clarification of the judgment by the three
justices “did not constitute either a crime or a violation of the Constitution.” If the
Permanent Committee decides to proceed with the impeachment, as it did in this
case, an Impeachment Sub-Committee is appointed who takes the matter to the full
Congress, where a discussion is held, with the participation of the officials who are
accused and their respective defense counsel. Finally, a decision is taken, which
may consist, as in this case, of removing the impeached justices, pursuant to article
100 of the Constitution.
During his term as a member of Congress, he intervened directly in the discussion of
this impeachment and stated that, since the election of members of the
Constitutional Court required the favorable vote of two-thirds of the members of
Congress and based on the application of the principle that establishes that “in law,
matters are undone in the same way as they are done”, the same number of votes
would be required to remove the justices of the Constitutional Court, a two-thirds
majority, which was not obtained in this case. Moreover, in his opinion, the decision
of Congress to remove the justices was not revisable.
The application for amparo is not admissible against legal norms or judicial decisions
arising from regular proceedings. Should the legislative decision that removed the
justices be considered a legal norm, the application for amparo was not in order.
However, when it adopted this decision, Congress acted with the rank and
characteristics of a jurisdictional organ by conducting a proceeding and applying a
punishment. In that case, the application for amparo would have been in order if
there had been a violation of due process, which is what certainly happened in this
case. Nevertheless, owing to the political situation in Peru at that time, if any of the
members of the Constitutional Court who were removed had filed an application for
amparo, it would clearly have been rejected.
b.
Expert report of Mario Pasco Cosmópolis, lawyer, professor at
the Catholic University of Peru, former Deputy Minister of Justice, member
of the Peruvian Law Academy and member of the Ethics Tribunal of the
Peruvian Press Council, on the irregularities in the proceeding to remove
the justices of the Constitutional Court
The procedure for removing senior officials is regulated in articles 99 and 100 of the
Constitution and in the rules of procedure of Congress. The latter establishes two