The Drive to Reform Peru’s Judicial and Political System: Opportunistic and Incompatible?

Peru’s new President Martin Vizcarra has taken advantage of a judicial scandal to push forward constitutional reforms that could upend Peruvian politics. Nevertheless, they are perceived as opportunistic and face resistance from the opposition force that controls Congress. While institutional reform is needed and popular, there have been little deliberation and public consultation and its success is uncertain – writes Professor Tanaka.

Introduction

In July 2018, President Martin Vizcarra of Peru, who became president in March 2018 following the forced resignation of former President Pedro Pablo Kuczynski, announced a constitutional amendment proposal that could lead to fundamental reforms and called for a referendum to approve the reforms. While the reform agenda was initially triggered by a judicial scandal, the proposals, which include a shift from a unicameral to a bicameral legislature, seek broader changes that could affect the functioning of Peru’s political process.

Peru has historically witnessed a serious problem of political representation. At the beginning of the 1990s, the fragile party system collapsed and was replaced by the fujimorismo, a competitive authoritarian regime. After its fall, since 2000, Peru faced the challenge of rebuilding its political representation system. Despite some efforts, political competition is still marked by instability, electoral volatility, fragmentation, personalization, and extremely low levels of legitimacy of the political system. Accordingly, the need to implement an ambitious political reform has been on the political agenda, with different proposals unable to generate the necessary consensus.

The current constitution was adopted in 1993 during the authoritarian regime of Alberto Fujimori.

The reform agenda has received a new impetus following revelations of notorious corruption scandals involving the judiciary. In response, President Vizcarra has launched a judicial and political reform agenda, some of which would require constitutional amendments. The proposed reforms would need approval by Congress and possibly ratification in a referendum. In addition to judicial reforms, the proposals seek to ban the immediate reelection of members of Congress, establish a new senate, and regulate private funding for political parties. Despite the need for reforms, Vizcarra may be using the scandals to launch a political reform drive that seems more oriented to gain short-term popularity and weaken the belligerent fujimorista opposition, which nearly holds a majority in Congress, than to build a more representative political system. It may be another lost opportunity for an important political and institutional reform.

Background: A recurring agenda of political reform

Peru entered the ‘third wave of democratization’ in 1980, after twelve years of military rule. The 1979 Constitution established a bicameral Congress, with a lower house of 180 deputies, elected from 26 multimember electoral constituencies, and a 60-member Senate, elected from a single national constituency. An inchoate political party system, consisting of three blocks aligned along a right–left ideological dimension, emerged. The ‘lost decade’ of the 1980s saw severe economic crisis, that reached hyperinflationary levels, accompanied by a bloody internal armed conflict. Despite the democratic transition, two insurgent forces, the Shining Path (Sendero Luminoso - SL) and the Túpac Amaru Revolutionary Movement (Movimiento Revolucionario Túpac Amaru – MRTA) initiated armed insurgencies that relied heavily on terrorist tactics. In response, the police and armed forces resorted to indiscriminate repression and human rights violations. All this created a representation crisis that allowed an outsider, Alberto Fujimori, to win the presidency in the 1990 elections.

Fujimori used an anti-party and anti-system discourse, which was legitimized as his government was able to control hyperinflation and economic crisis through drastic adjustment measures, and an authoritarian discourse that stressed the need for results and efficacy, going beyond and surpassing democratic procedures. This rhetoric led to a self-coup d’état in April 1992, when Fujimori disbanded Congress, and declared the reorganization of the judiciary and subnational regional governments. Under international condemnation and pressure, Fujimori organized elections for a ‘Democratic Constitutional Congress’ (CCD) in November 1992 that functioned both as a Constitutional Assembly and a national Congress. The CCD proposed a new constitution, which was approved in a referendum in October 1993.

Despite the popularity of institutional reforms, efforts to replace the 1993 constitution have failed.

The 1993 Constitution, which is still in force, established a one-chamber Congress with 120 members, elected in a single national electoral district. The 1990s were years of the fujimorista political hegemony, under a political regime that could be characterized as competitive authoritarianism. Fujimori enjoyed significant popular support at the time, which allowed him to win the 1992 CCD elections, and then the 1995 presidential election, alongside a wide majority in Congress. Fujimori’s popular support and the control of Congress allowed him to dominate most state institutions, with a political scheme that combined clientelism, complex corruption, and the use of intelligence services to harass the opposition.  

Following the revelation of corruption scandals involving his main political advisor, and chief of the intelligence services, Vladimiro Montesinos, Fujimori was forced to resign soon after his second reelection in 2000. A transitional government was established, and new elections were organized in 2001, where Alejandro Toledo, leader of the opposition against Fujimori, became president. Under the new conditions,  Peruvian political regime became more competitive and democratic, without implementing major changes to the 1993 Constitution.

The current Congress had considered but ultimately discarded a proposal to replace the constitution, due to executive-legislative conflict.

Toledo’s government agenda focused on the need to rebuild democratic institutions and fight corruption. Nevertheless, his administration was a big disappointment and a failure, which was more a reflection of the weakness of the political system, rather than the social energies that orchestrated the fall of the Fujimori government. In particular, an initiative towards a comprehensive reform of the 1993 Constitution failed. Nevertheless, some institutional reforms were adopted, including the substitution of the single national constituency for Congress with 26 multi-member constituencies, reinstating the electoral system under the 1979 Constitution. A new law regulating political parties was also approved, but did not have the effects that its promoters expected, which was the strengthening of national political parties.

In the next decade, consensus within the academia and political analysts emerged on the need for systematic institutional and political reform, but the 2006-2011 Congress did not develop any significant reform initiative. The 2011-2016 Congress was not enthusiastic or particularly active on those matters, but was forced to change some articles of the election laws after some notorious corruption scandals involving regional governors. However, the reforms were partial, badly implemented, did not address the main issues, and caused significant problems in the 2016 presidential election, including the questionable exclusion of two presidential candidates, with important electoral support, based on administrative considerations.

In response to a judicial scandal, Vizcarra established a commission to propose reforms to the judiciary and used the momentum to push through other political reforms.

All this put again in the center of the agenda the need for a political and institutional reform. The 2016-2021 Congress began discussing reforms, and some initiatives were approved, but the idea of a comprehensive constitutional change was ultimately discarded. One problem that affected the possibility of reform was the political conflict between the executive and the legislative branch. The results of the 2016 election created a government with a small Congressional representation, and a Congress with a single opposition force with absolute majority. The elected president’s party had only 18 of the 130 (since 2011) seats in Congress; while Fuerza Popular, led by Keiko Fujimori, who won the first round of the 2016 presidential elections but lost the second-round presidential election by a narrow margin, obtained 73 seats. The political conflict between the executive and the legislative made the discussion on the reform difficult. The conflict ultimately led to the resignation of president Kuczynski, in the middle of corruption scandals associated with the lava jato corruption scandal originating in Brazil. Vice-president Martín Vizcarra, who run on the same ticket as Kuczynski, assumed office. 

An unexpected judicial scandal renews impetus for political reforms

President Vizcarra assumed office from an extremely weak position. In the Kuczynski administration, he held the position of Minister of Public Transportation, and was forced to resign facing the possibility of removal by Congress. He was then assigned to serve as Ambassador in Canada. Kuczynski’s resignation occurred in the middle of accusations of corruption and conflict of interest within the government, and ended with a clear success of opposition forces. The representation of Kuczynski’s party in Congress shrunk further to only 12 members. In his last days, Kuczynski pardoned former president Fujimori, who was imprisoned for human rights violations and other felonies in 2009, in a desperate maneuver to win support from some Fuerza Popular members. The cost was that some members of his party resigned in protest.

Unexpectedly, by the first week of July 2018, the press began the release of audio recordings that proved the existence of a corruption network involving judges from the Superior Court of Justice in the Callao district, and members of the National Council of the Magistrature, the institution responsible of appointing and sanctioning judges. Vizcarra established a Commission to propose a comprehensive reform of the judiciary. Subsequently, on July 28, Vizcarra proposed not only a judicial reform, but also a political reform. He announced that those reforms require constitutional amendments that would need to be approved by Congress and in a national referendum.

Proposed reforms: Little public consultation and short on details

The proposed constitutional reforms have four elements. The first one is directly connected to the judicial scandal and concerns changes to the composition and manner of selection of the members of the National Magistrature Council. The other three relate to broader political agendas. The first involves the regulation of the finances of political parties, including the prohibition of anonymous contributions, which is already part of the elections law. The second proposal seeks to bar the immediate reelection of members of Congress, as is the case in relation to the president. This second proposal is popular in Peru, where politicians have extremely low levels of citizen support. The third reform proposes to establish a two-chamber Congress, without increasing the total number of parliamentarians.

Overall, the political reforms primarily seek to reconfigure the legislative branch, which happens to be dominated by the main opposition party.

The challenge with the political reform proposals is that they appeared as a surprise, with no public discussion or consultation, as a companion of the judicial reforms. Second, it seems to be more oriented to weaken the belligerent Fuerza Popular opposition in Congress (particularly with the proposal against reelection) than to strengthen political representation. Thirdly, the motivation for returning to a two-chamber Congress is unclear. Currently, Peru has a one–chamber Congress with 130 members, elected from 26 multi-member electoral districts. The proposal is to have a 100-member lower house, elected in roughly 50 two-member electoral constituencies, and a 30-member Senate elected in ‘macro-regions’. The constituencies have not been defined. In a recent interview, vice minister of Territorial Governance of the Presidency Council of Ministers, Raúl Molina, indicated that the senate would have six five-member electoral districts, and that they are considering to build the electoral districts on territorial, not demographic basis, which may weaken, rather than strengthen, representation and generate a serious problem of malapportionment. Furthermore, considering that Peruvian parties are extremely weak, and do not have proper national basis, there is a considerable risk that the shrinking of the size of the electoral constituencies could empower local elites, at the expense of national parties.

The reforms would also fundamentally enhance gender representation in the legislature.

The proposals also include equal gender representation for candidates in the lower house; and in the Senate, the lists would be closed (with gender alternance), thus allowing parties to gain more control and partly alleviate the extreme personalization of Peruvian politics. Also, the division of Congress to two chambers may potentially produce more stability to a volatile and unstable political process.

Uncertain scenarios

The fate of president Vizcarra’s constitutional reform initiative is unclear. He wishes to submit the proposals to a referendum in conjunction with planned regional elections in December. The Congress has approved the proposal for reforming the National Magistrature Council, but it is still debating the other proposals. The government wants all the four proposals approved by 4 October. Under the Constitution, reforms must be approved by the absolute majority of members of Congress and in a referendum. A referendum is not mandatory if Congress approves the reforms in two successive regular legislative periods of sessions.

Even if the reforms succeed, it is not clear if they would usher a new era of political cooperation.

If Congress fails to approve the president’s all four proposals, the president will be defeated by the opposition, but both will suffer a major popular disapproval. President Vizcarra may retaliate by asking Congress a ‘pedido de confianza’ for his proposed reforms, and if they are denied, he may dissolve Congress and call for new elections, following a procedure established under the Constitution. At the same time, Congress may try to impeach Vizcarra, as it tried to do with Kuczynski, forcing his resignation. The optimistic scenario is one where the four reforms are approved in Congress and then approved by the citizenry in a referendum. The question here is whether or not this may lead to a new phase of cooperation, or if new hostilities may reappear in the future. In any case, it seems that instability in Peruvian politics will continue, affecting the possibilities of a much needed consensual political and institutional reform.

Martín Tanaka is senior researcher at the Institute of Peruvian Studies, and full professor the Pontifical Catholic University of Peru.