The Peruvian crisis and abusive constitutionalism

The “abusive constitutionalism,” according to the expression of Professor David Landau, refers to constitutional procedures that formally seem perfect, but that are substantially fraudulent. These are cases in which majorities use certain procedures to install or perpetuate themselves in power and to get rid of control mechanisms, such as the separation of powers or judicial independence, which are the essential devices of constitutionalism to prevent abuses of power and guarantee democratic alternation.

Landau refers to constitutional reforms that seek to entrench a ruler in power, such as the referendum for a second re-election of Uribe, which the Constitutional Court fortunately struck down, or indefinite re-election in Venezuela. But his concept of abusive constitutionalism is also applicable to cases in which majorities use other formally constitutional procedures to entrench themselves in power, as is happening in Peru.

The Peruvian Congress, which is unicameral, last Monday declared the vacancy or cessation in office of President Martín Vizcarra by 105 votes out of 130 possible, for which it invoked Article 113 of the Constitution, which allows for that declaration in cases of “permanent moral incapacity” of the president. The Congress’s argument is that there are ongoing investigations against Vizcarra for alleged cases of corruption before he became president.

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The procedure seems formally appropriate. But the matter is more complicated.

If the reason for Congress to remove Vizcarra is the judicial investigations against him, then, in order not to interfere with justice, it should have allowed them to take their course. In addition, the vacancy decision was made in a few days and the debate lasted a few hours. There was a minimal due process. Finally, in Peru, Article 117 of the Constitution establishes the only cases in which the sitting president can be prosecuted and does not include the crimes for which Vizcarra was vacated.

Peru is not a parliamentary regime in which Congress can, given certain conditions, bring down the government with a simple motion of censure. It is a presidential regime in which the president is elected for a fixed term and can only be removed or declared vacant for specific reasons, which have to be proven. And that did not happen in this case.

Furthermore, Congress had already tried to vacate Vizcarra a few weeks ago, which shows that this is a political confrontation in which the dominant groups in the Peruvian Congress took advantage of the ambiguity of the vacancy due to moral incapacity to overthrow Vizcarra and take the Presidency, instead of waiting for a pronouncement that the Constitutional Court was going to make, to which Vizcarra had turned to clarify the meaning of that mechanism.

Today the new president is Manuel Merino*, who as president of Congress led the procedure against Vizcarra. This not only seriously affects the separation of powers, but also implies another violation of due process, since in the action against Vizcarra the congressmen were, in a way, both judges and parties.

Within the framework of growing citizen protests, the institutional solution to this serious crisis is in the hands of the Constitutional Court, which should declare that Congress abused the figure of the vacancy due to moral incapacity. And it must do so with retroactive effect, annulling Vizcarra’s vacancy, as it can legally do, in accordance with Article 113 of the Code of Constitutional Procedure. It is the only way to prevent the “abusive constitutionalism” of the Peruvian Congress from bearing fruit.

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* This column was written before Manuel Merino presented his resignation from the presidency of Peru.