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Legal alternatives after the new social protests in Peru. Understanding for the lives lost in Puno | Antonio Peña Jumpa


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Writting by Antonio Peña Jumpa (*)

What happened in the region of Puno, Peru, following the death of at least 17 people who tried to take over the facilities of the Inca Manco Capac airport in the city of Juliaca and were repelled by the National Police yesterday, 9 January 2023, confirms the contempt for life on the part of the current regime led by Mrs. Dina Boluarte and Prime Minister Alberto Otárola. Is an airport worth more than the lives of these dead people, particularly the Aymara and Quechua people of the region?

Although the deaths that occurred will be investigated to identify those directly or immediately responsible for the shooting of pellets, tear gas bombs and bullets, or for the actions that caused the deaths of the people mentioned, we clearly have in mind those who are indirectly or mediately responsible: President Dina Boluarte, Prime Minister Alberto Otárola and the ministers and generals of the Forces of Order who are directing the actions in the region from Lima.

The events confirm the results of the attempted takeover of the airport of Huamanga, Ayacucho region, in which at least 10 people perished, and the attempted takeovers of airports in the regions of Arequipa, Cusco and Apurimac, with deaths and injuries in each region. All of them occurred in the social protests following the presidential vacancy and succession in the government of Peru on 7 December 2022.

The central government has justified the deaths on the grounds that the airports are strategic facilities for the whole country. This means that they are how immediate aid (medicine, food, etc.) and battalions (with their weapons or security equipment) are transported so that they can control the internal order of the region where the protests are taking place. The protection of these airports is apparently intended to favour most people who do not protest.

This apparent justification of defending strategic installations, particularly airports, is a military response. It responds to the actions of the population through military action and not through a social response or strategy that, given the known facts, should correspond to the protests. The origin of the protests is not military, nor are their effects. Their origin and effects are social in nature. The takeover of an airport is only a means (which can be political, communicative, or other) that puts the protesting population itself at risk and that the same population will be able to control and sanction in the event of excesses.

But deaths cannot lead us to accept this apparent justification. There is no justification for a death when social protests occur. If law enforcement agencies cannot control protests using legitimate (legally permitted) violence and turn to violence that results in deaths, there is no justification.

However, what happened in Puno confirms an additional fact: the protests and the form of control in Peru have an ethnic character. The Aymara people who restarted the protests in the southern Andes on 4 January 2023, followed by the Quechua people, confirm an ethnic character like what happened in Ayacucho, Apurimac, Cusco, and Arequipa a few days earlier. These are peoples with a different cultural identity from that of the central government authorities. This statement, unfortunately, can also be interpreted from the results of the protests: the deaths do not occur in Lima, but in the geographically and ethnically different regions; and it seems that the lives of those protesting matter little or nothing.

What should be done legally?

Constitutionally, the Congress of the Republic of Peru should have controlled the current president for the 28 deaths that occurred in the protests of December 2022. It has been a situation of permanent moral incapacity, due to the repressive action after the protests, which in fact shows an incapacity to govern. In the same sense, constitutionally, the Public Prosecutor’s Office and the judiciary should also have intervened more quickly, based on the division of powers, to control the direct and mediate criminal responsibility of those in power: firstly, on the central government, and secondly, on the Congress of the Republic itself if it does not fulfil its function.

With state institutions failing to fulfil their functions and given the facts and grievances that continue in the country, the will of the protesting population and those who disagree with the current rulers must be heard and understood. There is no capacity for constitutional government in these circumstances. Therefore, in the immediate term, the resignation of the current president, Mrs. Dina Boluarte, is required, and the Congress of the Republic, also delegitimised by the facts, must cease its functions. This means that there is only room for a transitional government that the Congress itself can constitutionally establish before she steps down (see previous article by the author).

Let us remember that the livelihood of a state is not to be found in its rulers, let alone in military or police institutions. It is the people who sustain it. This is established in Articles 45 and 138 of the Political Constitution of Peru. If these people are culturally diverse and have diverse forms of social protest, they must be understood. In this understanding lies the legitimacy of a government for Peru. The deaths following the protests are the effect of the incomprehension and illegitimacy of their rulers in the state.

(*) 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.


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