Constitutional Wars: Constitutional Roots of the Peruvian Political Crisis
Rafael AsteMarch 3, 2023
The outlook for Peruvian democracy is rather bleak. Its democratic institutions effectively withstood the attempted self-coup by former President Pedro Castillo, but structural problems seem to be driving the country toward democratic collapse. Though a plethora of variables are needed to explain Peru's recent non-linear trajectory of democratisation, this paper focuses on the constitutional provisions that have given place to constant conflicts between the Executive and the Legislative. Instead of strongly ensuring the principle of separation of powers found in presidential systems, Peru's hybrid regime was preemptively designed for conflict in the form of balance of powers.
The current high levels of political instability in Peru are the result of a dysfunctional presidential system, the collapse of political parties, and the generalised delegitimisation of democratic institutions. The country has been undergoing a political crisis since 2016 marked by constant conflict between the Executive and the Legislative branches (Freeman, 2023). Tensions reached new heights last December when former president Pedro Castillo tried to orchestrate a self-coup by unilaterally dissolving the opposition-led Congress. But with the support of the armed forces, Congress ignored Castillo's act of tyranny and impeached him. Ousting Castillo can certainly be seen as a justified defence of democracy, but it did not solve Peru's structural political problems. Neither did it succeed in bringing political stability to the country. President Dina Boluarte, Castillo's former vice-president, is now in power while people across the country are mobilising and demanding her immediate resignation and early general elections. At the time of writing, more than 50 people have died as a consequence of both violent protests and severe repression.
Still, Boluarte refuses to resign. Her intention is to rule supported by a feeble agreement with the opposition and the economic elites. As a concession to protestors, she has asked Congress to reform the Constitution to allow for new elections in 2024 instead of 2026, claiming that before holding new general elections, Peru requires constitutional reforms in order to "have a more respectable Congress and improve the legitimacy of the political class". Indeed, constitutional and political reforms can potentially improve governability, legitimacy and political representation, but the dysfunctional Peruvian political system impedes coming to an agreement on which reforms those might be. This paper will mainly focus on analysing the provisions embedded in the Constitution that, combined with other sociopolitical variables, have given place to the current protracted political crisis; mainly the faculties given to Congress to impeach the President and for the President to dissolve Congress. Though an in-depth analysis of the bills currently being introduced by congressmen is out of this paper's scope, it can be concluded, perhaps rather pessimistically, that they fail to properly address any of the structural issues that have taken Peru to the brink of collapse.
Permanent Moral Incapacity
In only six years, Peruvians have seen six presidents and three Congresses come and go, worrisome figures for what it is supposed to be a presidential system with five-year terms for both the Executive and the Legislative. Following Linz's (1990) depiction of the presidential system, the relations between the branches of power present two main elements: the president is independent of parliamentary votes of confidence, and, can be removed between elections only by the drastic step of impeachment. None of these apply in Peru. The first key to understand the excessive deposition of presidents in Peru rests on the fact that the 1993 Constitution did not develop impeachment as a drastic measure. Article 113 gives Congress the faculty of impeaching the President by declaring his or her permanent physical or moral incapacity, a condition that was framed as ambiguously as it sounds in the Constitution and that Congress has abused during recent years.
The detailed procedure of presidential impeachment has been regulated in the Standing Orders of the Congress, though without a definition of permanent moral incapacity. In order to be admitted for debate, the motion of impeachment needs the support of at least 40% of the legal number of congressmen. After this, Congress sets a date for the final debate, during which the President is allowed 60 minutes for his defence. The final requirement for impeachment is that 2/3 of Congress supports the motion, a high threshold indeed, though certainly not impossible to achieve in a political system where parties have completely collapsed and are now a coalition of independent opportunistic politicians with no accountability towards neither political platforms nor their constituents (Levitsky & Zavaleta, 2016).
Even just reaching the 40% threshold can be damaging enough for the government's stability, as it allows the opposition to politically try the president in front of the country. Since it has become a persistent trend for presidents in Peru to rule with a frequently disloyal minority, Congress has been able to abuse this faculty, generating a disequilibrium of powers (Dargent & Rousseau, 2020). Six impeachments on the grounds of permanent moral incapacity have been attempted during the current political crisis, with Congress only passing the final threshold twice. There is no limit whatsoever on how many motions of impeachment can be put forward other than the potential deterioration of public support. Since congressional reelection was recently constitutionally forbidden, this disincentive derived from political calculations has been undermined. The constitutional provision on presidential impeachment raises more structural problems. It enters in direct conflict with article 117, which develops the concept of the constitutional infraction and defines, narrowly and specifically, the conditions over which the President can be accused while in office, such as high treason or illegally dissolving Congress, just as Castillo did. Thus, in a presidential system that already recognises the possibility of trying an unlawful president, one could be forgiven for asking what purpose the concept of permanent moral incapacity serves other than creating political instability. This is a question that the Constitutional Court itself has avoided to address in recent sentences, leaving the matter in the legislator's hands. Naturally, regulating impeachment is not in Congress' best interests. It gives the opposition a vague and broad —though conveniently constitutional— tool to oust presidents who have fallen out of favour. Consequently, during the current 'reformist agenda,' no proposal has been put forward to narrow the concept of permanent moral incapacity. The last time Congress introduced a bill on the matter, it was even more problematically ample, defining it as having a drug abuse, gambling addiction, or other unethical behaviours which go against moral and social conventions.
The Vote of Confidence
The Executive has also been provided with 'constitutional weapons' that are unlikely to be found in presidential systems. The President, elected through direct voting, appoints a Prime Minister in charge of forming a ministerial cabinet. Article 130 establishes that a newly formed cabinet must attend congress to present the government's general policy. After a debate in Congress, the Prime Minister asks for a vote of confidence that must be approved by an absolute majority. Article 133 further gives the Prime Minister the faculty of proposing new votes of confidence during the cabinet's administration in support of a policy or law. If a vote of confidence is rejected, the Prime Minister must resign and a new cabinet must be appointed. However, Congress must carefully reflect on when to make a stand and reject a vote of confidence, since article 134 gives the President the faculty of constitutionally dissolving Congress and call for new congressional elections if it has rejected two votes of confidence.
This provision has the intention of ensuring governability and avoiding parliamentary deadlocks. Unsurprisingly, reforming and limiting the use of the vote of confidence has been a common target of Congress over the past years. One of the main constitutional reforms being debated now is eliminating the vote of confidence required by new ministerial cabinets, established in article 130. The events that led to Castillo's self-coup revolved entirely around these issues. The opposition made use of its majority in congress to pass a law developing the provision of the vote of confidence and establishing that its content could not be applied for matters that were the competence of other branches of power, particularly constitutional reform. This effectively suppressed Castillo's intention to use the vote of confidence to force a referendum on the creation of a Constitutional Convention, similar to the one in neighbouring Chile. The Constitutional Court, an institution that has played an important role of referee during the political crisis, declared the constitutionality of the law on the grounds that it is the legislative's exclusive competence to develop and reform the Constitution; limiting the use of the vote of confidence by application of the principle of separation of powers (Tribunal Constitucional, 2022).
Previous attempts to limit the vote of confidence were not as successful. In 2018, an opposition-led Congress modified the Standing Orders of Congress to forbid the use of the vote of confidence when its aim was to promote or interrupt the passing of a law or a act of political control, such as the censure of a minister. The Court ruled this modification unconstitutional on material and formal grounds. It stated that the vote of confidence could only be modified by reforming the Constitution and that this modification denaturalised the objective of balance of powers that the Constitution seeks to preserve (Tribunal Constitucional, 2018). Indirectly, the Court's sentence poses an interesting question: if the goal of the vote of confidence is securing the balance of powers, is it proportional —or even reasonable— that a president can dissolve a democratically elected institution to enforce a policy? Recent examples in Peru apply to conflicts over the education policy. Article 132 gives Congress the power of censuring the minister of Education with an absolute majority. The Prime Minister can then do a vote of confidence to tie this policy to the government's general policy. If Congress rejects this vote of confidence, it could be dissolved by the president if it is the second time. On the one hand there is governability, on the other it seems rather undemocratic to dissolve the Legislative in support of an unelected official. In Peru, it seems as if the balance of powers enters in direct conflict with the separation of powers.
Unfortunately, in the current political climate no serious debate can be had on these issues. Nor would it be reasonable to believe that reforming impeachment and the vote of confidence would magically stabilise Peru. Explaining why this political crisis erupted now and not during the past 30 years of constitutional regime requires a more in-depth analysis. The main objective here is to put constitutional issues in the spotlight which, combined with other structural causes such as the collapse of the party system and a complete breakdown of parliamentary representation, maximises the government's opposition in Congress, reduces the Executive's governability and create an almost perpetual state of political conflict between branches of power. An element that so far appeared missing was social mobilisation. Now, with high levels of social turmoil, the country seems to be moving closer toward an extreme compromise in the form of a Constitutional Convention, or a collapse of the democratic system.
- Dargent Bocanegra, E. & Rousseau, S. 2021, "Perú 2020: ¿El quiebre de la continuidad?", Revista deciencia política (Santiago).
- Freeman, W. 2023, "Peru's Democratic Dysfunction", Foreign Affairs.
- Levitsky, S. & Zavaleta, M. 2016, "Why no party-building in Peru?", Challenges of party-building in Latin America, pp. 412-439.
- Linz, J.J. 1990, "The perils of presidentialism", Journal of democracy, vol. 1, no. 1, pp. 51-69.
- Pérez-Liñán, A. 2007, Presidential impeachment and the new political instability in Latin America, Cambridge University Press.
- Tribunal Constitucional 2022, Sentencia 374/2022, Sentence edn.
- Tribunal Constitucional 2018, Sentencia 0006/2018, Sentence edn.
- Zavaleta, M. 2022, Coaliciones de independientes: las reglas no escritas de la política electoral, Instituto de Estudios Peruanos.