The Constitutional Court published the draft judgment on the claim of unconstitutionality presented by the Executive against Law 31018 -issued by parliament- which suspends the collection of tolls on the national road network due to the COVID-19 outbreak, which was prepared by magistrate Augusto Ferrero Costa.
The paper maintains, from the analysis of the contested law, that what it is actually looking for is “grant an economic benefit to transport activities -which have not stopped during the state of emergency-, consisting of exempting them from paying the toll despite the use of the concessioned road network”.
He also remarks that “none of the bill that gives rise to the challenged law (Law 31018), there is some support for how the measure to suspend the collection of tolls will contribute to the mitigation of the COVID-19 pandemic″.
It adds that the collection of tolls during the pandemic represents a “moderate risk of exposure” according to the Ministry of Health (Minsa). This entity indicated that the level of risk (of contagion) for toll collectors is similar to that of supermarket cashiers.
However – adds the Minsa – unlike the cashiers in a supermarket, the driver and the toll collector are in two rooms separated by an open and ventilated space, which to a large extent protects both against the direct exchange of secretions.
It also considers that the toll collectors are workers considered to have a “medium risk of exposure”.
The presentation also adds that Law 31018 violates article 62 of the Constitution. “This law violates the freedom to contract, by suspending the contractual content agreed by the parties regarding the collection of tolls, despite the fact that the vehicles use the concessioned roads, and have done so even in the strictest moments of the state of emergency due to the pandemic of COVID-19″ He maintains.
“To this we must add that the contested law It also violates the Constitution by prohibiting the corresponding compensation to the concessionaire for the damage caused, ignoring the rights, obligations and compensation mechanisms stipulated in the concession contracts”, alleges the draft judgment.
Note that Law 31018 intervenes in concession contracts that are law-contracts, thereby disregarding the mandate of the second paragraph of article 62 of the Constitution, according to which these “nor they can be legislatively modified”.
“Consequently, for this Court, the questioned law violates not only the contractual guarantees of the concessionaires, acting in a manner expressly prohibited by article 62 of the Constitution, but also It would affect the continuity of services linked to the maintenance and development of road infrastructure, to the detriment of service users”.
Before it It is proposed to declare Law 31018 unconstitutional and establish as a constitutional interpretation of mandatory application, that the virtual sessions held by Congress will be in accordance with the Constitution as long as articles 51-A, 27-A and others related to the sessions, deliberations and voting included in the procedures are interpreted parliamentarians of the regulation in the sense of guaranteeing: i) The public, open and transparent nature of virtual debates; and ii) Unrestricted participation; free deliberation; and the personal, direct and public vote of each congressman.
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