On 14 June 2024, the House of Representatives approved in the fourth and final debate Law No. 293 of 2023, which establishes the new Social Security System for old age, disability and death of common origin, better known as the Pension Reform.
After a heated debate, in which only six articles of the bill had been approved, the Representatives, with time running out, agreed, by majority, to accept a last-minute proposition in which they accepted the final text debated and approved by the Senate of the Republic. This means that the congressmen did not review or debate the rest of the articles in due form.
This proposal was rejected by opposition representatives, who claimed that they did not have the guarantees to proceed with the debate, as they were unable to balance the current government's proposals. However, this was not enough to prevent the approval of the law.
In this regard, several opinions have emerged in which it is claimed that the Constitutional Court, following a constitutional action against the law, may declare it unconstitutional, due to the fact that it contains procedural flaws, as the principle of publicity has been disregarded. This principle requires adequate deliberation and voting on a law which, when it is infringed, affects the entire text.
In the same line, the Constitutional Court has indicated, in sentence C-074 of 2021, that "not knowing sufficiently what is approved, or denying the possibility of proposing, debating or adjusting, constitutes an abdication of the responsibilities entrusted to that body by the constitution".
In this sense, it is clear that the hasty decision of the representatives, by accepting the proposal to approve a text that has not been debated, not only goes against the requirement of publicity established by the Rules of Procedure of Congress, but also by the jurisprudence of the Constitutional Court. It should be noted that this is not an extraordinary situation on the part of Congress, since in recent days and as a precedent, the Constitutional Court ordered the President of the Senate to submit the National Development Plan, Law 2294 of 2023, to a vote in order to rectify the procedural flaw caused by the failure to publish the conciliation report in a timely manner, thus affecting the guarantees of parliamentary debate and political participation.
Although a pension reform is necessary to combat the inequalities existing in the current system, this cannot be contrary to the principles that legitimize the actions of the Congress of the Republic, since a block vote would prevent the debate of the text, the taking of correct decisions and both procedural and constitutional guarantees.
As the legislative process has been completed, it is expected that, in the next few days, the pension reform will be submitted to the President of the Republic for his approval, promulgation and, finally, its entry into force. After that, it may be the subject of lawsuits before the Constitutional Court, which will be responsible not only for reviewing and deciding on procedural flaws, but also on substantive aspects of the regulatory text.
Once the future of the text of the pension reform is known, depending on the path taken by the Constitutional Court, we will be reporting on the effects that the law will have on pensions when it comes into force on 1 July 2025.
