The political crisis in Peru: is there a constitutional solution?

Peru is experiencing a complex political crisis that has triggered nationwide protests and an unprecedented mobilization of rural and Indigenous peoples demanding early general elections and a constituent assembly. Peru may be facing a constitutional moment, but it is crucial for any constitutional reforms to address power distribution, political accountability, economic reforms, and new socio-economic rights to meet citizens' demands and rebalance the division of powers among the branches of government – writes Professor César Landa

Introduction

In the last two hundred years of republican life in Peru, thirteen constitutions have been adopted. However, this has not guaranteed the exercise of constitutionally restrained power because these political charters were issued according to the needs of the incumbent ruler. Some of these changes were structural, such as independence from Spain and the establishment of the republic, and others were more circumstantial as a result of internal and international wars, as well as civil and military revolutions during the 19th and 20th centuries.

During the 21st century, this historical trend in Peru has not changed much, with its latest iteration a complex political crisis, triggered in December 2022 by Congress’s third attempt to dismiss President Pedro Castillo, who, in turn, attempted a self-coup d'état in retaliation. As a result, Congress removed him from office and appointed Vice President Dina Boluarte as his replacement. Since then, Peru is experiencing nationwide protests and popular mobilization with demands for early general elections as well as the convening of a constituent assembly. 

The current crisis shows a constitutional awareness of citizens in their fundamental right to protest and in their constituent power. This awakening has been strengthened by the declaration of a state of national emergency, documented police brutality leading to the death of more than sixty people, state repression through the arrest and detention of over a thousand people and raids of homes and buildings to arrest protesters. The following is an analysis of the causes of the current political crisis and the prospects for its solution through constitutional means.

Causes of the political crisis: (mis)use of checks and balances

Since Peru’s democratic transition began in 2001, the party opposing the elected leader has always held the majority in parliament. This contributed to a number of democratic checks and balances on the executive, allowing the balance of powers as well as the alternation of presidential power.

Since the 2016 elections, the parliament has used its legislative power to block the policies of successive governments . . . and its has pursued dismissal of successive presidents via impeachment for “permanent moral incapacity”.

Since the 2016 elections, the parliament has employed a model of illiberal democracy, expressed through the sustained use of legislative power to block the policies of successive governments. This is exemplified by two laws: Law No. 31355 and Law No. 31399, preventing the executive from proposing a vote of confidence on constitutional reforms and limiting popular sovereignty by preventing referendums on constitutional reforms without prior approval of parliament. Furthermore, the parliament has exerted indirect control over the judiciary and attorney general and also the Constitutional Court by appointing new magistrates that serve the political and legal interests of members of parliament.

The parliamentary opposition comprises a diverse mix of political groups that have espoused regressive views toward fundamental rights in parliamentary debates, and which do not always align with the pluralist and tolerant values of an inclusive democracy. This has been normalized not only through legislative questioning of ministers through interpellations, censuring ministerial cabinets, and filing constitutional complaints against ministers, but also through the persistent dismissal of presidents via impeachment for “permanent moral incapacity”. Thus, the conservative opposition has removed former Presidents Pedro Castillo (2022), Martin Vizcarra (2020) and Pablo Kuczynski (2018), with the latter resigning.

But the system of checks and balances has also been instrumentalized by the aforementioned presidents, such as pushing for votes of confidence on executive policies to trigger Article 134 of the Constitution, allowing the president to dissolve parliament after two cabinet censures or denials of confidence. This occurred in the 2019 constitutional crisis, when President Vizcarra decided to dissolve the Congress and call for new parliamentary elections, which was declared constitutional by the Constitutional Court.

In this sense, the crisis of democratic governance has a political origin, which has resulted in a breakdown of the principle of separation of powers, with the consequent recurrent political instability, which transcends the democratic conflict between the government and the parliamentary opposition and has crossed into a confrontation with civil society. Thus, in an unprecedented manner in Peru’s history, the native Indigenous populations have been mobilizing from their Andean and Altiplanic territories to Lima – the capital that concentrates power in an exclusive and excluding manner – to protest not only against military repression, deaths and discrimination, but also to demand elections for a new President and Congress and the convocation of a constituent assembly. It should be noted that the push for a constituent assembly has not been limited to Castillo’s political party as it has been presented by different political organizations. Moreover, after the fall of Castillo the request for the constituent assembly has been carried by the protesters.

Are we reaching a constitutional moment in Peru? If so, what constitutional reforms are necessary to reestablish and rebalance the division of powers that will respond to citizens' demands, particularly those of marginalized populations?

A constitutional moment? 

Any constitutional moment requires, in the first place, the recognition of the principle of popular sovereignty. This principle is considered an essential part of the constituent power because it allows the incorporation of social movements, public opinion, and other actors in a participatory democracy. Political forces are obliged to listen to and observe the will of citizens as expressed in demonstrations in the streets, squares and highways.  

Secondly, there is a need for political forces and leaders to be capable of assessing popular demands, both for elections and for the necessary reforms of the constitution. Otherwise, constitutional reforms could be instrumentalized by political, economic and media power groups, not as a guide for the basic common consensus of the society in transformation, but as a useful instrument to perpetuate their own interests. Currently, the political establishment is ignoring the population’s demands for new elections in 2023, and the conservative parliamentary majority is resisting the call for a referendum on establishing a constituent assembly, despite the fact that 69% of the population demands it: it is no wonder, then, that the Congress, which has historically suffered from a lack of legitimacy, has only 7% citizen approval.

Most of the population considers that Peru is facing a constitutional moment, arising due to the wear and tear of the 1993 Constitution in the post-pandemic period due to its politically centralist and economically and socially neoliberal model.

A third important element is the "constitutional moment", considered a historical period in which it is considered that a constitutional change could take place. At present, most of the population considers that we are facing a constitutional moment, arising due to the wear and tear of the 1993 Constitution in the post-pandemic period due to its politically centralist and economically and socially neoliberal model.

Beyond the massive indignation of the peoples of the southern Andean region and the population of the suburbs of Lima and other major cities, the contents of a constitutional reform that could channel the legitimate demands of popular sovereignty have not yet been clearly outlined. However, it is necessary to visualize the necessary changes in fundamental rights, the organization of power, and the constitutional economic regime that would be key issues in any future constitutional reform process.

A potential constitutional reform agenda

When thinking about a solution to the current political crisis, it is important that reforming sentiments be channeled towards constitutional reflection and debate. To this end, the old notion of constitutional governance should be recovered, as an ideology that protects rights and freedoms and controls the excesses of public and private power. At the same time, it is important to discuss new elements that shape modern societies: the values of solidarity in a multiethnic society, the decentralization of power, and the link between economic elites and a moral duty to return benefits to the community.

Therefore, we must start with the recognition of the ‘new subjects’ demanding inclusion. Vulnerable groups, such as the original Indigenous peoples and their suburban heirs, are at present postulating not only socio-economic reforms, but also political reforms that would transcend their position as a governed people to become a governing people. The most vital suggested reforms fall into three categories:

• Rights: The recognition of new rights, such as the right to prior consultation for projects that impact Indigenous peoples or their territories; quality education; the right to internet; the right to food, health, and universal minimum pension, and outlawing the precarization of employment.
• Distribution of power and accountability: Effective decentralization of public power; limiting the grounds for presidential impeachment; staggered renewal of parliamentary mandates; transparency in public spending; representative recall; safeguarding the autonomy of the attorney general, the Supreme Court, the Constitutional Court, and the electoral bodies; and suspending immunity for crimes of corruption.
• Economic reform: Incorporate sustainable development into the economic model of the country; protect natural resources and the environment for the benefit of local inhabitants; create a duty to contribute financially according to economic capacity; formalize small businesses; and penalize monopolies.

Conclusion

The Constitution, having a historical origin, is subject to the social changes of its time, but the current gap between its legal mandates and the political reality has created a social conflict that has put the very legitimacy of the constitutional state in crisis. Therefore, an alternative out of crisis is the proposal of a constituent assembly, as channeling the historical demands of citizens requires a constituent process that could create dialogue and restore social consensus based on the necessity of incorporating new subjects, the protection of new rights, and better control of the traditional public and private powers.

Professor César Landa is a professor of Constitutional Law at the Pontifical Catholic University of Peru, Former President of the Constitutional Tribunal of Peru and Vice President of the International Association of Constitutional Law.

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Suggested citation: César Landa, ‘The political crisis in Peru: is there a constitutional solution?’, ConstitutionNet, International IDEA, 27 February 2023, https://constitutionnet.org/news/political-crisis-peru-there-constitutional-solution

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