César Landa Arroyo

Democracy is the bedrock of the constitutional state under the rule of law, a state whose purpose is to protect fundamental rights and maintain checks on power. At present, however, the government model of a semi-presidential democracy established by the Peruvian Constitution is marked by significant tension between the opposing parties in parliament and the President of the Republic. This antagonism explains—but does not justify—the declaration of impeachment and removal from office of President Martín Vizcarra on November 9, on the grounds of alleged moral unfitness due to the investigations being conducted by the Attorney General’s Office. This declaration is being willfully misused to circumvent the Constitution, which prohibits the impeachment and removal of the President of the Republic from office during his mandate except for four reasons[1], and has succeeded due to President Vizcarra’s lack of a parliamentary majority to support him.

Peru’s twentieth-century military and civil-military coups d’état have now taken the form of parliamentary coups perpetrated by the opportunistic unification of a conservative and populist parliamentary bloc against the liberal forces of the executive branch. As proof, we need look no further than the attempted impeachment of former President Pedro Kuczynski, who was elected for the 2016-2021 period, due to the alleged illegal financing of Odebrecht. President Kuczynski was nevertheless able to survive the first impeachment attempt in December 2017, after placating the parliamentary faction led by Keiko Fujimori by granting a presidential pardon to her father, former President Alberto Fujimori. However, a second impeachment attempt was launched in March 2018, following the revelation of secretly recorded conversations in which the president could be heard trying to dissuade members of Congress from voting en bloc with the Fujimorista party. Kuczynski was given an ultimatum: resign or be removed from office. In the end, he opted to resign.

Following Kuczynski’s departure, Vice President Martín Vizcarra took office as President of the Republic. He quickly moved to distance himself from the parliamentary forces that had catapulted him into the position, and launched a fight against political and judicial corruption. This soon led to an intense revival in the use of checks and balances against the opposing branches of government by Congress—interpellations, censure, motions of no confidence, and the search for reasons to impeach the president, among other things—and by the executive branch—the call for the establishment of an extraordinary legislature, petitions to conduct a vote of confidence, and the constitutional referendum on the fight against corruption. After Congress attempted to appoint six out of seven Constitutional Court judges, the executive branch proposed a vote of confidence on the reform of the election system for that court’s judges. This proposal was rejected by the parliamentary opposition bloc, thus giving the president grounds—due to the second vote of no confidence—to dissolve Congress on September 30, 2019.

Congress challenged this measure by bringing a suit for conflict of powers before the Constitutional Court, but the case was thrown out based on the conclusion that the dissolution of Congress was unconstitutional. New congressional elections were held on January 26, 2020, with 130 new members taking office in the unicameral Congress with a plurality of political parties, including antisystem forces and others on the periphery of the system. Due to the severe public health, economic, and social crisis brought on by the Covid-19 pandemic, the tension between Congress and the executive branch was rekindled and exponentially heightened, especially after the president called a general presidential and parliamentary election for April 11, 2021, and the National Electoral Board declared that current members of Congress could not be reelected by virtue of the constitutional reform approved by referendum.

That was the catalyst for the flood of accusations and parliamentary investigations initiated against Vizcarra for allegedly hiring a close associate, Richard Swing, for a position in a government ministry. Congress then revealed a series of audio recordings of conversations between the president and his administrative staff on how to respond to questions from the Attorney General’s Office. The revelation of these conversations produced denunciations for everything from obstruction of justice to falsification of information. The motion for impeachment was admitted for a vote on September 18, 2020, but the 87 votes required for impeachment according to parliamentary regulations were not met, with just 32 votes in favor, 78 against, and 15 members of Congress abstaining.

The public, well aware of the news stories about the audio recordings of the president’s conversations, was in favor of an independent investigation, although the possibility of impeachment was unpopular. Instead, public opinion held that the president should be held fully accountable in accordance with law after concluding his mandate on July 28, 2021. Despite this, the antisystem, conservative, religious, and center-right forces in the parliamentary opposition bloc joined together to move forward with a second, fraudulent petition for the impeachment of the president, this time based on a journalistic exposé of President Vizcarra’s time as governor of the Moquegua region. Primarily, Vizcarra was accused of accepting bribes in 2015 from contractors looking to be awarded the Pasto Grande hospital project. This matter is currently under investigation by the Attorney General’s Office, just like all the other denunciations against him.

As on the previous occasion, President Vizcarra appeared before Congress to answer questions. This time, his highly convincing defense arguments included the fact that, in addition to himself, there were sixty-eight congressmembers under investigation by the Attorney General’s Office—including Edgar Alarcón, one of the leaders of the impeachment bid, who was facing a criminal complaint with a potential sentence of up to twelve years in prison. Nevertheless, Congress had not opened constitutional proceedings for removal from office against any of them, as they had with President Vizcarra.

The parliamentary deliberations were marked by clear efforts by members from different parties to protect their own interests, leading to a rushed vote to remove the president from office, with 105 votes in favor, 19 against, 4 abstentions, and 2 absent. The President of Congress, Manuel Merino, declared the removal of President Vizcarra from office. As a result, it was the President of Congress himself who acceded to the office of interim President of the Republic, a move that was decried by the public, who took to the streets in protest all across the country. Despite President Vizcarra’s declaration, in his final public statements, that he would not challenge Congress’s arbitrary decision in the courts after he left the Palace of Government, the Peruvian public and the country’s institutions have condemned the usurpation of power.

The people of Peru, and especially the country’s youth, have taken to the streets daily to protest the arbitrary decision of the congressional majority bloc and defend the rule of law. The protests were met with repression from the Merino administration, leaving two dead, over one hundred injured, and two disappeared. In response, both President Merino and the President of Congress have resigned from their positions. After an attempt at a first parliamentary session was frustrated, a second session was called, resulting in the appointment of Francisco Sagastegui, a member of the democratic minority bloc, as President of Congress. In accordance with the Constitution, Sagastegui will be sworn in as President of the Republic and serve until July 28, 2021.

The Constitutional Court has yet to rule on a jurisdictional proceeding filed by the executive branch against Congress for the abuse of its power to remove the president from office on grounds of moral unfitness. Thus far, it has denied a preliminary injunction to halt the first attempt at removal from office, given that the necessary number of votes was not obtained. However, now that Vizcarra has been successfully removed from office, Merino’s resignation has been accepted, and Sagástegui’s appointment as President has been confirmed, the Constitutional Court is expected to legitimate these changes, upholding the political solution to the constitutional crisis in view of its public popularity. Regardless of the foregoing, the court also has the duty to declare the unconstitutionality of Vizcarra’s removal from office.

Lima, November 17, 2020

 

About the Author:

César Landa Arroyo is a Peruvian lawyer, Professor & Coordinator of Constitutional Law at the Faculty of Law of the “Pontificia Universidad Católica del Perú”, and Trustee of the World Law Foundation.

 

[1]  Section 117: The President of the Republic may only be indicted, during the course of his administration, for treason to the Fatherland; for obstructing presidential, parliamentary, regional, or municipal elections; for dissolving Congress, except in those cases provided for in Section 134 of the Constitution; and for obstructing the assembly or functioning of Congress, the National Electoral Board, and other bodies of the electoral system.