This week the Economic Commission of the Congress of the Republic approved an opinion that states that members of the National Pension System (SNP), that is, those who contribute to the Office of Pension Normalization (ONP), can withdraw money from this entity as part of their contributions made to enjoy a pension.
The approved opinion contemplates the return of 100% of the contributors over 55 who did not meet the minimum 20 years of contributions required to receive a pension. In addition, it also contemplates a withdrawal of S / 4,300 for those who currently contribute. This is a figure similar to the one made with the AFPs. However, while there may be good intentions, there is a substantial difference.
And, as they have already warned from the Ministry of Economy and Finance, withdrawing money from the ONP is unfeasible. Unlike the AFP, which has an individual capitalization system; The ONP works with a pay-as-you-go system, in which contributors’ money is used to pay the pensions of those who are now retired. Therefore, any possibility of withdrawal of funds – non-existent – would be detrimental to retirees. An argument that Congress did not understand and insisted with its opinion that will now be discussed in plenary.
But what will happen if Congress passes the rule? Is it possible that it can run? Does the Political Constitution of Peru allow an embezzlement of such size? Gestión.pe talked to César Gonzáles Hunt, partner in the Labor Area of the Philippi Prietocarrizosa Ferrero DU & Uría study and expert in pension issues, who warned of three articles of the Constitution that they would be being violated with a rule of this type.
What the Constitution says about pensions
Gonzáles Hunt warns that what would correspond if the rule is approved is that it be observed by the Executive. In this sense, he stresses that there are three articles of the Magna Carta that regulate this aspect. First, the expert in pension issues refers to the article 12, which indicates that “the funds and reserves of social security are intangible. The resources are applied in the manner and under the responsibility established by law. ”
“That means that the funds that are created must be used exclusively for the granting of pensions. They can only be used for that directly or indirectly. If you are in the National Pension System, which is a pay-as-you-go system and there is a common fund, the money that is collected is for the purpose of pension benefits. That money has to be destined solely and exclusively to realize pension benefits. Not for other types of purposes, ”says the PPU partner.
A second violated article, says Gonzáles Hunt, is the first supplementary provision of the Political Constitution of Peru. Said article indicates that “the modifications that are introduced in the current pension systems, as well as the new pension systems that are established in the future, must be governed by the criteria of financial sustainability and not leveling ”
“That article established that any reform of the SNP must be carried out with criteria of financial sustainability. This would be a reform of the system and should take into account that there are benefits that are made to the common fund in line with a pension benefit for retirees. If this law is approved, financial sustainability would be absolutely compromised if third parties or persons who had belonged to the system were allowed to withdraw money. Those funds are used to pay the pension benefits of those who have already retired, ”says the lawyer.
Finally, the labor lawyer mentions the second supplementary provision of the Political Constitution of Peru. This article refers that “the State guarantees the timely payment and periodic readjustment of the pensions it administers, in accordance with the budgetary provisions that it designates for such purposes, and the possibilities of the national economy.”
“This possibility of withdrawing pension contributions from those who could not achieve the contribution years violates the second final provision of the Constitution, which states that pensions are paid according to budget forecasts and according to the national economy. Therefore, you are going against the budget forecasts that project the money that was destined for pension payments. Then, the first final provision is violated because it would be a reform of the system and the second final provision because there are budget provisions that would be violated with that rule, “he maintains.
Will it reach the Constitutional Court?
One possibility is that, if approved in plenary, the Executive observes it and Congress backslides. But what happens if Congress insists and enacts the rule? For César Gonzáles Hunt the legal route is the unconstitutional action before the Constitutional Court, where this rule
“The Constitutional Court has had the opportunity to point out what is the essential content of the right to pensions and one of those elements is the possibility that one can access a minimum pension benefit under that regime. So if this law is approved, the SNP regime itself would be compromised and would go against the essential content of the law. It would lead to the pensions that are granted in the scheme not being recognizable as pensions. Remember that the social purpose of a pension is to replace the income you have as a worker. If Congress complied with approving this aberration, my legal assessment is that the Constitutional Court would declare the law unconstitutional if it were promulgated by insistence. I imagine that with the impact it would have on the national economy, it is highly foreseeable that the Executive will observe it and would have to return for a new discussion, ”the lawyer concluded.
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