We’ve all experienced the agonizingly slow process of democratic bureaucracy; we lament the lines, the paperwork, and the drudgery that is required to get anything done. But every now and then, a change happens—and it happens fast. In the span of a week, Peru underwent a dramatic upheaval that removed the popular sitting President, Martín Vizcarra, and left the opposing party in charge in what protestors have deemed a “legislative coup.” When the drudgery of bureaucracy is defeated so swiftly, it’s important to look behind the scenes, delve through the legal jargon, and figure out why these dramatic upheavals took place. In the case of Peru, it’s difficult to tell whether the Peruvian system is broken entirely, or whether the people operating within it are the ones at fault for the chaos of this last November. After sifting through the history and some Peruvian legalities, I have come to the conclusion that the people of Peru have the right to protest Vizcarra’s removal—and their use of the term “legislative coup” may not be far off.
In November of 2000, Peruvian President Alberto Fujimori was ousted by Congress on the grounds of “moral incapacity.” After ten years of controversial and polarizing leadership, Fujimori resigned voluntarily from his post and moved to Japan, only to be further condemned by the Congress’s articulation of Article 113 of the Constitution that claimed Presidents could resign if deemed by Congress to have permanent “moral incapacity.” This declaration, most likely delivered with the intention to drive a final dirty nail into the coffin of Fujimori’s legacy, was not meant to set a precedent.
However, history shows that precedent can be set regardless of intention.
Twenty years later, and Peru has once again been launched into chaos as its President, Martín Vizcarra, was declared “morally incapacitated” by an opposition-dominated Congress on a 105 to 19 vote. His crime? A claim that when working as a governor in the past, he had “accepted bribes from companies that won public works contracts.” Though the investigation of this crime had not yet been completed at the time of his removal and Vizcarra denied allegations of corruption, he nevertheless took the cue from Congress to step down from the Presidency. The speaker of the Congress, Manuel Marino, entered as interim president and was quickly met with mass protests and accusations of launching a legislative coup against Vizcarra.
This wasn’t the first time that Congress had tried to use the moral incapacity rule against Vizcarra. In mid-September, the Peruvian Congress attempted to vote Vizcarra out of office based on audio tapes that implied he had “tried to obstruct an influence peddling probe” by negotiating with an obscure singer, Richard Swing. The Ministry of Culture had negotiated contracts with Swing totaling nearly $50,000 for “activities like motivational speaking.” The September ousting failed by a significant margin, where only 32 lawmakers voted to remove Vizcarra and 78 voted to keep him in power.
Evidently, this margin was not a large enough setback to keep Congress from holding a second vote to remove Vizcarra only a month and a half later.
Ozan Varol defines stealth authoritarianism as “the use of legal mechanisms that exist in regimes with favorable democratic credentials for anti-democratic ends.” In most examples of democratic erosion, we might see an incumbent executive utilize stealth authoritarianism to gain influence in the legislature and courts in order to maintain power and upheave the probability of truly fair and free elections. Peru, however, is set on a very different stage. If protestors are correct in claiming that a legislative coup took place, then the stealth authoritarianism taking place is internal—such that the Peruvian government is turning against itself—instead of externally manipulating how the voting system works.
Varol suggests that one reason studying stealth authoritarianism is important in this day and age is to demonstrate “the limits of democratic processes and their vulnerability to authoritarian abuse.” But in the case of Peru, was the democratic process actually abused? Or was it misconstrued to the point of illegality? The Peruvian Constitution reads that the sitting President can only be charged with “committing high treason; preventing presidential, congressional, regional, or municipal elections; dissolving Congress, except in cases as set forth in article 134 of the Constitution; and preventing the meeting or operation of Congress, the National Election Board, or other bodies of the election system” according to Article 117. It follows that these would also be the only grounds for impeachment.
In September of 2019, Vizcarra did, in fact, dissolve Congress. Article 134 dictates that “[t]he President of the Republic has the power to dissolve Congress if it has censured or denied its confidence to two Cabinets.” Whether this criterium was fulfilled is up for debate—Congress had certainly denied one cuestión de confianza (question of confidence), but had not officially voted on the second cuestión de confianza that would have merited its dissolution. Congress had, however, “elected a member of the Constitutional Court— a de facto denial of the cuestión de confianza.” These were the grounds on which Vizcarra had invoked Article 134.
However, while the constitutionality of Vizcarra’s decision can be debated, it is moot to do so in the context of his removal. Congress did not invoke Article 117 to justify the impeachment. Instead, they chose to utilize Article 113, which permits the President to vacate the office—voluntarily.
In 2000, Fujimori had already declared his resignation when Congress decided to declare him morally inept. In 2020, Congress deemed Vizcarra morally incapable to force him from the executive position—and Vizcarra accepted. Given the phrasing of the Peruvian Constitution, “moral incapacity” is a justification for an existing vacancy, not a cause to force a vacancy that was not initiated by the incumbent President. However, this order of events was reversed in the case of Vizcarra in a way that violated the legal norms of the Peruvian Constitution.
Are Protests the Prerogative?
Vizcarra’s removal from the Peruvian Presidency was committed under an extraordinary precedent wherein a controversial leader resigned and was then condemned by Congress. By attempting to remove Vizcarra twice, the Congress made clear that its motivations were targeted towards the sitting President specifically, not towards crime or corruption in general. Furthermore, the order in which constitutional articles were invoked was inverted from the preceding incident regarding Fujimori. Since Vizcarra chose to step down after the vote deemed him morally incapable, his departure was technically constitutional; however, had he decided not to vacate the Presidency, it may not have been legal for Congress to force him to leave. Either way, this event violated norms in such a dramatic way that I think the Peruvian protests are legitimate.
In their work How Democracies Die, Levitsky and Ziblatt describe democracy as “grinding work. . . All politicians are frustrated by these constraints, but democratic ones know they must accept them.” When a grand decision is made that seems startlingly abrupt, that overthrows the system as it exists in one short, brutal shot, it is important to question whether that decision was made within the legal bureaucratic grind of democratic institutions or outside of it. In the case of Vizcarra’s removal, it seems that the latter case is more applicable.
The reversed order of events that occurred this November enforces the dangerous precedent that Fujimori’s vacancy implied 20 years ago: that the choice of President is up to the Congress, not the people.
https://www.latimes.com/archives/la-xpm-2000-nov-20-mn-54772-story.html Peruvian Constitution: https://www.constituteproject.org/constitution/Peru_2009.pdf?lang=en  Aquino, Marco. “Peru Plunged into Political Upheaval as Congress Ousts President Vizcarra.” Reuters, Thomson Reuters, 9 Nov. 2020, https://www.reuters.com/article/us-peru-politics-vizcarra/peru-plunged-into-political-upheaval-as-congress-ousts-president-vizcarra-idUSKBN27P2EK  Gurmendi Dunkelberg, Alonso. “Peru ‘Coup’: Public Fury Forces Resignation of Interim President Leaving Dangerous Power Vacuum.” The Conversation, 16 Nov. 2020, https://theconversation.com/peru-coup-public-fury-forces-resignation-of-interim-president-leaving-dangerous-power-vacuum-150200  Armario, Christine, and Franklin BriceÑo. “Peru President Survives Impeachment Vote amid Virus Turmoil.” The Washington Post, WP Company, 19 Sept. 2020, https://www.washingtonpost.com/world/the_americas/peru-president-faces-impeachment-vote-amid-pandemic-turmoil/2020/09/18/fa4f19e4-fa17-11ea-85f7-5941188a98cd_story.html Varol, Ozan O. “Stealth Authoritarianism.” Iowa Law Review, vol. 100, no. 4, 2015, pp. 1684–1741., https://ilr.law.uiowa.edu/print/volume-100-issue-4/stealth-authoritarianism/  Orozco, Zaraí Toledo. “Peru Dissolves Its Congress, Setting Up a Fight for the Political Future.” NACLA, 5 Nov. 2019, https://nacla.org/news/2019/11/04/peru-congress-vizcarra  Levitsky, S., & Ziblatt, D. (2019). How Democracies Die. New York: Broadway Books.
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