Writting by Antonio Peña Jumpa (*)
More than 50 deaths have been caused by the social protests and the political-military actions of the central government authorities and the Congress of the Republic following the presidential vacancy of 7 December 2022 in Peru. Moreover, on 18 January 2023, a rally of people from different regions began to mobilise towards Lima, the country’s capital, to express their rejection of the deaths that have occurred. What are the legal alternatives in the face of these events?
Representatives of the peoples of the southern Andean regions, particularly the Aymara and Quechua of Puno, as well as peoples from the regions of Cusco, Apurimac, Arequipa, Ayacucho, Huancavelica, Moquegua, Tacna and Madre de Dios, accompanied by representatives from the northern regions, in particular the ronderos (peasant patrols) of Cajamarca and Piura, and from the central regions of Peru, have called a meeting in Lima to protest. Since the authorities in Lima do not listen to or minimise the social protests in the regions, they have decided to gather in the capital as well.
In addition to the demands for the resignation of the current president and the closure of Congress, there is now a demand for a new Political Constitution. A change of authorities is now not enough. In the wake of the new deaths, the need for a new constitutional order has been raised.
In this context of multi-regional protests in Lima and their demands, it is important to understand the following:
- The protests and demands are not those of «terrorist» or «foreign subversive groups». There are people protesting in the streets, but there is also most of the Peruvian population that supports these protests.
- The protests of the people in the regions of Peru are legitimate. Their citizens have every right to demand the change or cessation of a government and a Congress that do not represent them (Article 2 of the Political Constitution of Peru).
- Most of the protesters belong to the diverse cultural and social reality of the country. From this diversity, the extreme economic inequality at the national level, the centralist power of Lima and the corruption that is not effectively sanctioned by the powers of the state are clearly perceived.
- The social upheaval is national; it is not just local or regional. This social upheaval makes it impossible for the president and her ministers to exercise constitutional government. The deaths have delegitimised the central government and its institutions, reproducing a permanent moral and physical incapacity (article 113 of the Political Constitution of Peru).
- The deaths that have occurred also show that the central government and the Congress of the Republic have not fulfilled their executive and legislative functions, as regulated in article 118 and articles 92, 96, 97, 99, 100 and 102 of the Political Constitution of Peru, respectively. Furthermore, according to the same Political Constitution, both State institutions do not guarantee the full enjoyment of human rights (Article 44), nor do they exercise State power responsibly (Article 45).
What are the legal alternatives in this situation?
There are two constitutional alternatives to appease and limit the origin of the social protests:
- That a transitional government be FORMALLY constituted. This supposes that the current president resigns and/or the Congress of the Republic of Peru carries out an exceptional constitutional reform in two immediate legislatures to provide for two measures: (1) the cessation of the presidential and legislative mandate, and (2) the constitution of a transitional government that calls for immediate elections and manages the social and administrative order until the election of the new government (article 206 of the Political Constitution of Peru).
- That a transitional government be constituted MATERIALLY. Faced with the formal refusal of the president and Congress, the people exercise their right to remove and revoke their authorities, and to self-justice; and appoint, without the need to occupy the Government House or the Congress of the Republic, a transitional government to represent them (Articles 31 and 149 of the Political Constitution of Peru) and to call immediate elections and manage the social and administrative order until the election of the new government.
The Jurisdictional Power of the State (Judicial Power, Public Prosecutor’s Office and Constitutional Court) and the Police and Military Forces have the duty to understand the current context and respect the constitutional order that emanates from the people (articles 45º and 138º of the Political Constitution of Peru). It is everyone’s duty to prevent more deaths.
(*) About the author: Professor at the Pontificia Universidad Católica del Perú and lecturer at the Universidad Nacional
Mayor de San Marcos. Lawyer, master’s in social sciences and PhD in Laws.