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Weekly Report - 03 October 2019 (WR-19-39)

Vizcarra takes the plunge and dissolves congress

For many months Peru’s presidency and congress have fought a protracted fencing bout, parry after riposte, before President Martín Vizcarra finally exploited an opening and lunged. The referee tasked with deciding whether he broke the rules in registering his ‘hit’, and disbanding congress, will be the constitutional tribunal (TC), the attempted replacement of which spurred Vizcarra to strike in the first place. But it is difficult to see the TC taking the side of congress. Vizcarra is in a strong position. The right-wing Fuerza Popular (FP, Fujimoristas), the dominant party in congress, which has persistently thwarted his efforts to advance an anti-corruption agenda, led claims of a coup, but governors, mayors, and the armed forces came out in support of Vizcarra, and a resounding majority of the public back his decision to convene fresh congressional elections for 26 January 2020.

The long-running power clash between President Vizcarra and congress finally came to a head in five days of political tension between 26 and 30 September. It began when the constitutional commission of congress, controlled by FP, opted on 26 September to archive Vizcarra’s proposal to resign along with congress and bring forward general elections by one year to April 2020. Vizcarra had tabled the proposal almost two months earlier during his state-of-the-nation address on 28 July as a means of breaking the political deadlock in Peru. Vizcarra called a cabinet concave to discuss a response to this latest in a long line of congressional rebuffs.

Vizcarra decided to up the ante. On 27 September he threatened to dissolve congress unless it approved a vote of confidence expressly tied to the expansion of a law guaranteeing transparency in the election of magistrates to the seven-strong TC. Appointing TC magistrates is the constitutional prerogative of congress. But the selection process has been the cause of grave concerns.

The Inter-American Commission on Human Rights (IACHR) issued a long statement on 26 September criticising the lack of transparency or participation of civil society. And TC magistrate Marianella Ledesma Narváez claimed in an interview in the local weekly Hildebrandt en sus trece on 27 September that an unnamed member of the TC had told her she could only retain her seat if she voted for the release of FP leader Keiko Fujimori. The TC is due to vote on an appeal by Fujimori to a supreme court ruling on 12 September which, while it cut in half her pre-trial detention sentence for involvement in the bribery scheme run by Brazilian construction firm Odebrecht, and attempted obstruction of justice, did not set her free. Ledesma said she had rejected the offer and would walk away “head held high and hands clean”.

Vizcarra pounced. He claimed that partisan interests had prevailed over the national interest in the selection of the 11 candidates to fill up to six positions on the TC. The election, he argued, must be “plural, public, and transparent”, adding that congress had a responsibility to ensure the candidates were “suitable” as the constitution stipulates that the TC must be independent and autonomous.

Vizcarra then announced that he would make the matter the subject of a vote of confidence in his government and present it to congress on 30 September, the same day it had planned to select the TC magistrates. Peru’s constitution empowers a president to dissolve congress if it rejects two votes of confidence in the course of one five-year term in office. Congress rejected one this term, albeit Vizcarra’s predecessor Pedro Pablo Kuczynski (2016-2018) was in power at the time.

When Prime Minister Salvador del Solar arrived in congress early on 30 September to demand approval of the vote of confidence, he encountered a febrile atmosphere of heckling and fist-banging, and was briefly shut out. After his departure, congress decided to proceed with the TC selection process as planned. It mustered the two-thirds majority required to appoint one new magistrate, Gonzalo Ortíz de Zevallos, the cousin of the president of congress, Pedro Olaechea (aligned with if not a member of FP), but failed in a bid to select a second.

Vizcarra then delivered a televised address excoriating legislators; announcing the dissolution of congress; issuing a supreme decree naming legislative elections to be held within four months, in accordance with the constitution; and declaring invalid all subsequent action by legislators whose mandate had been revoked. “It is clear that the obstruction… will not end and that no accord will be possible,” Vizcarra said. “Is it so difficult to think of Peru first?”

Vizcarra insisted that his course of action was “profoundly respectful of the constitution”, mention of which repeatedly punctuated his speech. It was, however, based on interpretation rather than strict application of the law. Congress did not reject the vote of confidence (indeed it actually approved it while he was giving his speech). Vizcarra’s judgement was that electing a TC magistrate amounted to a rejection of the vote of confidence; certainly, approving the vote of confidence without respecting the content of the request was tantamount to rejecting it.

Around one-third of congressional deputies accepted Vizcarra’s decision. The remainder voted to declare Vizcarra “morally unfit” to govern and suspended him from office for 12 months, naming Vice President Mercedes Aráoz as acting president. Aráoz accused Vizcarra of “a serious constitutional infraction” in her speech, adding that while she knew Peruvians were “disgusted with the political confrontation and polarisation”, and she shared their indignation, the solution was not “irresponsible and populist offers…and an unconstitutional and illegal move”. But there were celebrations in various cities across Peru, and mayoral and regional governors’ associations, Asociación de Municipalidades del Perú and Asamblea Nacional de Gobiernos Regionales, and the military top brass expressed their support of Vizcarra. The Organization of American States (OAS) issued a short statement, describing the decision to call elections as “a constructive step”, while adding that it was the responsibility of the TC “to rule on the legality and legitimacy of the institutional decisions adopted”.

Against this backdrop, Aráoz announced her resignation as vice president on 1 October. She also explained in a letter to Olaechea that the OAS statement confirmed her feeling that “the conditions are not in place” to serve as acting president, a position she renounced within 36 hours of accepting it, calling for general elections. With the realisation setting in that it had overplayed its hand, baiting Vizcarra once too often, FP, while not backing away from its claim that he had carried out a coup, echoed her call for early general elections. This is the exact proposal Vizcarra made in July that it had rebuffed days earlier as unconstitutional. Olaechea called on Vizcarra and deputies to resign ahead of general elections and let the people decide.

This shift amounted to a tacit acceptance of defeat by FP. But having finally gained the upper hand, Vizcarra was in no mood to compromise. Vicente Zeballos, appointed as prime minister to replace Del Solar, who had to resign over the rejection of the vote of confidence, ruled out Vizcarra’s resignation, saying congress had already rejected this possibility. Zeballos also said that Aráoz’s resignation as vice president was invalid as she tendered it before a congress that “no longer exists”.

FP is now concentrating all of its efforts into trying to persuade the president of the TC, Ernesto Blume, to accept the congressional appointment of Olaechea’s cousin as a magistrate in place of the liberal TC magistrate Eloy Espinosa-Saldaña in the hope of tilting the balance in its favour in any ruling on the legality of the dissolution of congress. But Vizcarra would challenge the legality of this appointment if it were made.

Is Vizcarra in the right?

Vizcarra insists that his decision to dissolve congress is rooted in the constitution. There was an element of constitutional sleight of hand about the decision, however, and some of his televised address struck a dangerously populist note, such as his assertion that “ultimately it is for the people [no mention of the TC] to decide who is right and wrong”. It is also axiomatic that whenever constitutionally established terms are abruptly curtailed, it creates political, and by extension economic, uncertainty and is damaging for democracy.

  • Economic impact

The long-running political confrontation in Peru has had an impact on the economy as well as investor confidence. While President Vizcarra’s decision to dissolve congress could improve this situation in the medium-term, uncertainty will prevail in the short-term. In the meantime, Peru’s central bank (BCRP) published a quarterly report last week reducing its GDP growth forecast for 2019 by seven decimals to 2.7% since its previous report in June (see TRACKING TRENDS).

That said this was not a case of riding roughshod over all of Peru’s institutions, still less a coup in the manner of the autogolpe carried out by Alberto Fujimori (1990-2000) in 1992. The sight of Vizcarra seated around a table in the presidential palace late at night on 30 September with all of the commanders of the four branches of the armed forces and the national police was not ideal, given that there is no cause for military interference in civilian affairs, but this was at least the extent of military involvement.

No tank was driven up to the steps of congress, or tear gas fired on senators within. The judicial branch is not being “reorganised”. Prominent members of the opposition have not been arrested. The constitution has not been suspended. The press is still operating as freely as it was before the dissolution of congress. And a 27-member permanent commission of congress is in place until fresh elections are held next January.

What now?

The national electoral council (JNE) has already announced that it will start organising January’s congressional elections. Some political parties, notably FP, could threaten to boycott the elections but ultimately, they are likely to take part for fear of losing influence. There is normally no shortage of candidates, although these elections will not be as appealing as usual as those elected to congress will only be able to serve until July 2021, with no chance of immediate re-election.

In the meantime, Vizcarra will set about appointing a new cabinet as per the rejection of the vote of confidence. It is likely to go well beyond a reshuffle. The foreign affairs and economy ministers, Néstor Popolizio and Carlos Oliva, respectively, resigned after Vizcarra’s decision to dissolve congress, which leaves at least two major portfolios to fill. And once the dust settles, the public, supportive of Vizcarra in his standoff with congress, will demand progress in other areas.

Power clash

Peruvians have closely followed a long game of constitutional cat-and-mouse, with the executive and legislature locked into an unedifying process of trying to outflank each other. The dissolution of congress is the dramatic culmination of over three years of acrimonious confrontation. While he contributed to his own downfall, Pedro Pablo Kuczynski was eventually hounded out of office in March 2018 by FP, which also used its congressional strength to resist meaningful political and judicial reform that President Vizcarra attempted to push through to combat official corruption in Peru despite sweeping support for it in a national referendum.