Will it be possible for the authorities to understand and act in the face of the events that the country is experiencing? Will it be possible to think about the proposed legal alternative or other necessary alternatives that do not delay the popular demand?
By Antonio Peña Jumpa*
December 16, 2022.- Following the presidential vacancy of Mr. Pedro Castillo declared by the Congress of the Republic of Peru on 7 December 2022, and the proclamation of the vice-president Ms. Dina Boluarte as the new president, violent protests have begun with regrettable loss of life in various regions of Peru. As of 14 December, 8 people have been reported dead, including 2 minors, in protests that consisted of closing highways, taking over airports, taking over and burning police stations, prosecutors' and judicial offices, and private premises (see reports on Peru online). In this context, what explains these protests and what should be done legally?
The causes of the protests and the context:
Behind the protests, three demands are being made public: the closure of Congress, early elections, and the release of Mr. Pedro Castillo who is in detention after his failed attempt at a self-coup d'état. Of these three demands, the most important is the demand for early elections. By fulfilling this demand, the closure of the Congress is partly satisfied, by producing a change of congressman in a short period of time, and the expectations of the people who support the followers of Mr. Pedro Castillo (who are demanding his freedom) are satisfied to a large extent, by showing changes that go beyond an alleged persecution of the detainee.
These demands have led the country into a situation of social upheaval. Thousands of people are directly affected and cannot move by land or air. The local population in the provinces and regions is also affected, as foodstuffs and products needed for consumption, trade and commerce are not being transported. Business associations report the loss of hundreds of millions of dollars per day of transport stoppage. In addition, regional strikes are leading to the closure of commercial premises and, at the extreme, to acts of looting and destruction of public and private property.
Under these circumstances, on 13 December, the central government decreed a state of emergency in the most convulsed regions and ordered the entry of the armed forces to support the police forces in controlling internal order. But, the following day, faced with the reproduction of the social protests, a State of Emergency was declared IN THE ENTIRE NATIONAL TERRITORY, with the intervention of the Armed Forces. These decrees confirmed the situation of social unrest throughout the country, which, in turn, confirmed the priority of the demands.
A Legal Alternative:
The situation of social upheaval can lead us to think of various alternative solutions to the problem. There are military, political, and legal solutions. If Peru has a constitutional order or rule of law and has sought to respect it, it is appropriate to follow that path. In other words, legal solutions should be sought before political or military ones. In this sense, it is worth asking whether it is legally possible to bring forward the elections to satisfy the main demand of the protesting people.
Peru's central government and Congress have agreed that it is possible to bring forward the 2026 elections to 2024 or, at the extreme, to December 2023. To achieve this, both entities have
considered that a reform of the Political Constitution is necessary, and they already have reform projects and interest in approving them in the short term. However, in the face of these proposed deadlines and the reform initiative, protests continued and spread.
Everything suggests that the people want elections to be called immediately and held within a short period of time. Is this legally possible?
Two issues relate to the legal problem raised: a constitutional issue and an electoral issue. The constitutional issue is the main one and is related to understanding whether it is possible to bring forward elections without constitutional reform.
If the political actors (central government and Congress) and the institutional actors (the judiciary, the Constitutional Court, the Public Prosecutor's Office, the Electoral Processes Body, and the National Electoral Jury) are willing, the legal response is not complex. Article 115 of the Constitution allows for immediate elections to be called (before the end of the presidential term) if the incumbent president has been replaced due to permanent impediment:
Article 115.- In the event of temporary or permanent incapacity of the President of the Republic, the first Vice President shall assume the duties thereof, or, in his absence, the second Vice President, or, in the event of incapacity of both, the President of Congress. Whenever the incapacity is permanent, the President of Congress may immediately call an election.
According to the constitutional article, the President of Congress must immediately call for elections if the Vice-Presidents are permanently prevented from doing so. The Vice-Presidents apparently do not have this obligation but given the situation of social upheaval in the country, the obligation to call elections immediately becomes mandatory even for them as it is the case for the President of Congress.
This is a matter of sociological-constitutional interpretation. The actual context of the country leads to the interpretation discussed above. If the current President (who has been Vice-President) cannot govern, the constitutional norm obliges her to immediately call elections.
On the other hand, the electoral issue requires legal reforms that the Congress of the Republic is obliged to carry out. The main one concerns the deadline for calling elections. Article 82 of the Organic Law on Elections (Law No. 26859) should have an exceptional period before elections are called: it could return to its original period of 120 days (instead of the 270 days it currently regulates).
Will it be possible for the authorities to understand and act in the face of the events that the country is experiencing? Will it be possible to think about the proposed legal alternative or other necessary alternatives that do not delay the popular demand?
(written in Lima, on December 15, 2022).
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*Antonio Peña Jumpa is a professor at the Pontificia Universidad Católica del Perú and the Universidad Nacional Mayor de San Marcos. Lawyer, Master in Social Sciences and PhD in Laws.
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