Why is democracy at stake in Peru?
By Diego Sanchez Borjas
On November 9th, 2020, the Peruvian Congress agreed, by 105 out of 130 votes, to vacate President Martin Vizcarra Cornejo on the grounds of “permanent moral incapacity” under Article 113(2) of the Political Constitution of Peru. The main basis for this decision was the alleged bribes the President received when he occupied the position of Regional Governor of Moquegua from 2011 until 2014, as confessed by three to-be whistle-blowers during the debate held in Parliament. As a result, the seat of President should have been transferred to the Vice-President. However, due to the resignation of Mercedes Araoz, the line of succession, according to Article 115 of the Constitution, now moved to the Speaker of Congress, Manuel Merino de Lama, at the moment in which the political crisis began.
With a situation threatening to escalate further, it is imperative to discuss the Congress’ decision within the framework of legitimacy in a consistent manner, to clarify the sounding outcry in Peruvian streets.
Why is the Congress decision controversial?
Reason 1: Lack of reasonability.
The Congress attempted twice to vacate President Martin Vizcarra under the same grounds of “permanent moral incapacity”. The first attempt, on September 18th 2020, failed by a significant number of votes. However, an important legal action arose by the then-President Vizcarra who requested the Constitutional Court to interpret the constitutional requirements to vacate the President on the grounds of “permanent moral incapacity,” joined by the injunction to suspend the vacation process until the Court hands over its judgement. The injunction was dismissed, and the Court decided, after the success of vacating President Vizcarra, to schedule the hearings on November 18th.
However, the order dismissing the injunction unfolds relevant criteria regarding the vacancy process on the grounds of “permanent moral incapacity”. The Constitutional Court set the threshold in “undisputable and unobjectionable facts that deteriorate seriously the institution of the Presidency and that make impossible, in a permanent manner, to who occupies the seat to continue doing so”. The Court even anticipated a standard from which generic charges do not necessarily entail sufficient grounds to constitute “a permanent moral incapacity” as the Congress possess other effective mechanisms to investigate them adequately (i.e. oversight and investigation commissions) without adopting a decision with severe consequences for the social and political life of the country.
Contrasting the opinion of the Court to the main reasons to request the start of the vacancy process against the President contained in the Motion to Set the Order of Business (“Moción de Orden del Día”), reaffirms no reasonability derives or originates from the facts explained therein. The official request establishes a logical consequentialist connection between the questionings of the then-President’s moral suitability, based on controversial facts (not fully proven), and the alleged lack of transparency of the April 2021 General Elections. It is not clear how the facts established in the Motion affect the transparency of an electoral process controlled by three different constitutional organs without the participation of the President as a candidate. Moreover, the Congress justifies the reasonableness of its decision taking into account the celebration of elections when the “permanent moral incapacity” serves to set aside someone from the seat of President due to unquestionable and unobjectionable facts that affects him to perform, in a permanent manner, his duties as President. If the President publicly reiterated his intention to not seek re-election to the Office, and to maintain the date of Presidential and Parliamentary Elections, this latter through Decree, it is unclear how his continuance in the Office affect in any way whatsoever transparency of the Elections when he does not exercise any power over the elections final outcome.
Reason 2: Lack of necessity.
Nonetheless, the Congress decision clashes with an ongoing preliminary investigation. The Office of the Chief Prosecutor announced the opening of an investigation to determine whether President Vizcarra committed a felony during his term as a Regional Governor once his mandate would come to an end (after July 28th, 2021). Moreover, the President announced in several speeches that he would not seek re-election during the April 2021 Presidential Elections, so no clear risk to the ongoing investigation could have been drawn.
Furthermore, given the negative impact to the national economy due to restrictive measures imposed to prevent the rise of COVID-19 cases, abruptly changing the seat of the President and replacing the entire Cabinet could create a risk of contradictory measures and/or slow or stop current government efforts as policies may change with the new government. A new government entails a new set of policies that would have to deal with the pending affairs left by the previous government, including, whether to continue enforcing its late decisions. In such a short period of time, with the ordered transition aspects to be covered, it is not reasonable to believe the new government will be able to bear the burden of COVID-19 effects and its transversal effects into several other issues.
Was it necessary to start the vacancy process against President Vizcarra? No. The continuance of Martin Vizcarra in the seat of President did not pose any direct or indirect threat to the integrity of the ongoing preliminary investigation. Besides, to offer predictable and coherent measures regarding the mitigation of the negative impact of COVID-19 in Peruvian society, his presence in the Presidential seat ensured a specific course of action based on the government’s previous decisions.
Reason 3: Lack of legitimacy
In words of John Locke, legitimacy derives from the consent of the governed. Both Martin Vizcarra, as First Vice President under Pedro Pablo Kuczynski during the 2017 General Elections, and Manuel Merino, as Member of Congress during the 2020 Extraordinary Parliamentary Elections, were elected by popular vote to perform the duties to the seats they concurred in their respective elections. Accordingly, given that the people voted for them, the consent applies inasmuch to the exercise of the Offices they were elected to. However, in the current case, the consent mutates into the form of public trust, as noted by Max Weber in the rationale-legal form of legitimacy, in a manner where public perception of the rule of law and institutional system produces the legitimacy of the rule of succession under the Peruvian Constitution in case of vacancy. The more trust the people have in their system and rational order through the rule of law, the more legitimate the government will be, thereby ensuring political stability. However, in our current case, it was not through the elections, but through popular disaffection and rejection in the form of protests that public trust on the process from which the new government ascended is under scrutiny.
On the other hand, the Congress decision to vacate President Vizcarra awoke a significant popular distrust towards questioning the suitability and capacity of many of its Members given their controversial criminal and judicial records. With open criminal investigations, suspended sentences, judgements on first instance in both civil and criminal matters (including, but not limited to, corruption, bribery, extortion), that affect Manuel Merino and more than 50 other Members of Congress, the governed question whether the current Congress was in place to determine the moral suitability, especially in times where the Executive faces the effects of the pandemic.
How can you reconcile declaring someone for alleged accusations without unquestionable evidence as “morally incapacitated in a permanent basis” when those who declared him as such face greater accusations (with proven facts under the criminal justice system)? A paradox from which the standard of public trust may only be purposeful to establish the lack of legitimacy to the extent that the governed feel that no moral suitability exists to exercise this prerogative conferred by the Constitution without endangering the public interest or what benefits everyone within the community. To represent the Nation in its entirety is a greater responsibility that all Members of Congress bear upon themselves to exercise responsibly, joined by the power to legislate, both relying heavily on popular support. Legitimacy will consequently be measured in the extent to which the Congress exercises its duties to control the Executive power without abusing or misapplying any constitutional or legal provision.
Owing to the aforementioned, vacating the seat of the President during the attempts to tackle the impact of COVID-19 in the economy and society, after several months under a state of emergency and severe restrictions, is perceived as creating an exceptional regime under which it is highly likely no sounding benefits will be produced to the community. The controversy surrounding the decision to start the vacancy process evolved into a sounding rejection of the Congress decision, subsequently affecting the government originated from the decision to set aside Martin Vizcarra and place the Speaker, Manuel Merino, as the new President. As noted in repetitive hashtags namely, “#MerinoNoMeRepresenta” (Merino Does Not Represent Me), “#EsteCongresoNoMeRepresenta” (This Congress Does Not Represent Me), and the imminent need to suffocate mobilisations, as confirmed by the current holder of the Presidency during a call with the former Ministry of the Interior, the governed are currently challenging the legitimacy of the new holder of the Executive.
A constant, unequivocal, and clear message arises from the mass mobilisations rejecting the Congress decision, many of whom are met with disproportionate violence, including the use of lachrymogenic gas and use of live fire rounds against protesters. As of now, mass protests and mobilisations have taken to the streets demanding the resignation of the ‘illegitimate’ government presided by Manuel Merino and his Cabinet, even despite the excessive use of force and arbitrary detentions undertaken by the National Police to suffocate them. Regional and international organizations have called the Peruvian Government to guarantee the right to protest, which is constitutionally protected in Peru, without any unduly restrictions, including those that directly inflict against the right to life and physical integrity. Therefore, if legitimacy is measured in the popular support towards Congress in the exercise of its powers, and mass mobilisations demand its resignation, no unquestionable legitimacy exists in the decision made by Congress to vacate President Martin Vizcarra.
Democracy in Peru is under serious threats. To live somewhere the political class acts against the best interest of the community they represent and ignore them knowingly to execute their interests misapplying existing constitutional mechanisms leads to only one end: the irrecoverable lack of trust in representative democracy. To act responsibly goes beyond the mere concurrence of formalities, it proves the level of commitment towards achieving a common goal (and how everyone benefits from it). Reasonable, necessary, and legitimate decisions result from the correct exercise of tests of political opportunity whereby people are confident they rely on facts and evidence and aim at acting for the sake of certainty. When these three criterions are not perceived, the people are discouraged from respecting a decision outside the scope of their needs. With this situation, the most basic need is, indeed, someone who is trusted to act only in the interest of everyone, and not in the interest of a few groups.
 Constitutional Court of Peru, Order of 17 September 2020, 0002-2020-CC/TC, para 24.  Ibid., para 25.  Congress of the Republic of Peru, Motion to Set the Order of Business nº 12684, p. 15.  Official Gazette “El Peruano”, Supreme Decree nº 122-2020-PCM, art. 1.  “Ministerio Público investigará al presidente Martín Vizcarra por el caso 'Richard Swing' cuando acabe su mandato”, RPP Noticias, 9 October 2020, https://rpp.pe/politica/judiciales/ministerio-publico-investigara-al-presidente-martin-vizcarra-por-el-caso-richard-swing-cuando-acabe-su-mandato-noticia-1297670, Accessed 10 November 2020.  “Vizcarra respetará su palabra y no buscará la reelección en 2021”, El Periódico, 16 January 2020, https://www.elperiodico.com/es/internacional/20200116/vizcarra-respetara-su-palabra-y-no-buscara-la-reeleccion-en-2021-7808488, Accessed 11 November 2020; “Martín Vizcarra: "Seré presidente hasta julio del 2021 y no hay posibilidad de reelección"”, RPP Noticias, 15 January 2020, https://rpp.pe/politica/gobierno/martin-vizcarra-sere-presidente-hasta-julio-del-2021-y-no-hay-posibilidad-de-reeleccion-noticia-1239823, Accessed 11 November 2020.  John Locke (2017), Segundo Tratado sobre el Gobierno Civil, España: Alianza Editorial, pp. 162-163.  Max Weber (1978), Economy and Society: An Outline of Interpretive Sociology, United States: University of California Press, p. 218  “Estos son los 68 congresistas que tienen procesos en investigación en el Ministerio Público”, Caretas, 9 November 2020, https://caretas.pe/politica/estos-son-los-68-congresistas-que-tienen-procesos-en-investigacion-en-el-ministerio-publico/, Accessed 12 November 2020.  Constitutional Court of Peru, Judgement of 5 July 2004, 0090-2004-AA/TC, para 11.  Constitutional Court of Peru, Judgement of 8 March 2007, 0026-2006-PI/TC, paras 7-10.  Yurany Arcniniegas, “Perú: enfrentamientos con policía en multitudinarias protestas contra el Gobierno interino“, France24, 13 November 2020, https://www.france24.com/es/am%C3%A9rica-latina/20201113-per%C3%BA-enfrentamientos-con-polic%C3%ADa-en-multitudinarias-protestas-contra-el-gobierno-interino; ”¡Yo ya no soy ministro del Interior!”: Merino llamó a Gentille por no controlar protestas, reveló IDL-Reporteros”, Diario Correo, 12 November 2020, https://diariocorreo.pe/politica/martin-vizcarra-manuel-merino-llamo-a-ministro-del-interior-por-no-controlar-protestas-en-las-calles-tras-vacancia-revelo-idl-reporteros-nndc-noticia/, Accessed 13 November 2020.  Franklin Briceño and Christine Armario, “Peru’s swears in new leader as political turmoil hits nation”, Associated Press, 10 November 2020, https://apnews.com/article/peru-new-leader-manuel-merino-protests-745260a933905ed37c0bf6b27d5bdcfe; “Perú sale a protestar tras la destitución del presidente Vizcarra”, La Vanguardia, 13 November 2020, https://www.lavanguardia.com/internacional/20201113/49426131840/peru-protestar-destitucion-presidente-vizcarra-policia-disparar-video-seo-ext.html  “La CIDH llama al Estado de Perú a garantizar la institucionalidad democrática y la plena vigencia del Estado de Derecho, ante la declaratoria de vacancia presidencial”, Inter-American Commission on Human Rights, 11 November 2020, https://www.oas.org/es/cidh/prensa/comunicados/2020/270.asp; “Perú debe garantizar el derecho a la reunión pacífica, urgió ONU Derechos Humanos”, Oficina del Alto Comisionado de Naciones Unidas para los Derechos Humanos, 12 November 2020, https://acnudh.org/peru-debe-garantizar-el-derecho-a-la-reunion-pacifica-urgio-onu-derechos-humanos/; Constitutional Court of Peru, Judgement of 2 June 2020, 0009-2018-PI/TC, para 74.