In order to overcome the political crisis that afflicts Peru, university professor Antonio Peña Jumpa develops his proposal for a transitional government, a challenge that tests the viability of a country that effectively recognizes its social and cultural diversity.
Legal alternatives after the new social protests in Peru 3. UNMSM and a transitional government.
By Antonio Peña Jumpa*
31 de enero de 2023.- After more than 54 people were killed in Peru, the regime of Mrs. Dina Boluarte and Mr. Alberto Otárola decided to intervene the Universidad Nacional Mayor de San Marcos (UNMSM), which housed students and people from different regions of the country who had come to Lima, its capital, to join the social protests. The measure, carried out on Saturday 21 January 2023 and which resulted in 193 detainees, has been described as abusive, disproportionate and in violation of human rights. These events, which complement the social protests that are spreading in the regions, confirm the need for a transitional regime to overcome the current crisis that identifies Peru.
Background to the UNMSM intervention:
In 1991, the UNMSM underwent a police-military intervention under the regime of Alberto Fujimori. On 21 May 1991, with the support of the National Police (PNP) and the Armed Forces (FFAA), Mr. Alberto Fujimori intervened the UNMSM. This took place after the intervention of the National University of Education Enrique Guzmán y Valle (La Cantuta University) and before the intervention of the National University of Engineering (UNI) with the aim of "restoring order and re-establishing the principle of authority in Peruvian universities, definitively eradicating infiltrated terrorist groups from their campuses" (Source: El Comercio, https://elcomercio.pe/huellas-digitales/archivo/ejercito-entro-san-marcos-cantuta-25-anos-207690-noticia/?ref=ecr).
This de facto intervention was preceded by police interventions during Alan García's government in 1987, and it was followed by an administrative intervention in 1995. In 1987, sporadic interventions began in the universities, particularly in the UNMSM, justified by the presence of "terrorists" or "common criminals" in their campuses (see Ministry of Culture, https://lum.cultura.pe/cdi/periodico/comprobada-presencia-de-extranos-en-universidades). In 1995, as a complement to the pre-existing police-military control of Alberto Fujimori's regime, the UNMSM was administratively intervened (like other universities), through a law of the Congress of the Republic that imposed a Reorganisation Commission on the elected authorities in order to "implement a reorganisation that would prevent the university from articulating movements opposed to the authoritarian regime" (Truth and Reconciliation Commission, final report, 2003, volume V, pp. 656).
The recent intervention of the UNMSM:
More than 30 years after the above-mentioned events, the police-military intervention of the UNMSM was repeated. This time under the State of Emergency of Mrs. Dina Boluarte's regime and following a complaint for the alleged commission of a crime against the university's property. The incident occurred when the UNMSM turned out to be the main centre of refuge for groups of students and people arriving from distant regions to protest for the deaths that had occurred in their regions and to call for the resignation and dismissal of the current president and Congress respectively. After the intervention, 193 people were arrested, many of them harassed as in previous interventions, but in the end, they were released for lack of evidence. Only one person was detained for having a judicial requisition (Communiqué of the Public Prosecutor's Office, dated 22-01-2023).
Under these facts, the intervention of the UNMSM turned out to be abusive, disproportionate and in violation of human rights. Although it was legally possible for the PNP to intervene, given the current State of Emergency situation and a previous complaint about an alleged crime committed, it should have carried out the act of intervention in coordination with the Public Prosecutor's Office (article 10.3 of the University Law No. 30220). Furthermore, the Political Constitution requires that the same act of intervention be reasonable or proportional to the causes that motivate the act, regardless of the State of Emergency situation (final part of Article 200 of the Political Constitution of Peru). It was not necessary to demolish one of the entrances to the university, nor to mistreat the people who were inside, and even less necessary to arrest en masse, including minors and a pregnant woman (online newspapers).
It is urgent that the Public Prosecutor's Office and the Judiciary assume their constitutional competence to investigate, denounce and prosecute the perpetrators, mediate and direct, who appear to be responsible for the arbitrary intervention.
This confirms the abuse of the current regime, of the president Mrs. Dina Boluarte and her prime minister, Mr. Alberto Otárola. The purpose was psychological: to intimidate those who disagree with their regime and particularly those who travel from other regions to Lima to protest. In these circumstances, it is urgent that the Public Prosecutor's Office and the Judiciary assume their constitutional competence to investigate, denounce and judge the perpetrators, both direct and indirect, who appear to be responsible for the arbitrary intervention.
Protest and social upheaval continue:
After the UNMSM intervention, the reaction of the population and public opinion has been against the regime. Young people from the regions have joined the protest and continue to travel to Lima. Various academic groups have also publicly joined in the rejection of the regime.
Protests continue in Lima and in Peru's regions. The South Andean region continues to lead these protests, but it has been the whole of regions that has disrupted dozens of main roads throughout the country, resulting in new injuries and deaths among the protesters, those suffering the effects of the protests and the PNP. In addition, the last few days have seen food and fuel shortages in the regions most affected by the protests.
The need for a transitional government:
On 27 and 28 January 2023, the Congress of the Republic confirmed by most of its members that it did not agree with the protests and that it did not want to bring forward the elections. The members of Congress do not accept the demand for the "resignation of Dina Boluarte, the closure of Congress and a new Constituent Assembly" that is being broadcast in the media and heard in the streets.
Peru is divided, with the central state institutions taking one position and those opposed to these institutions taking another. Most citizens do not believe in state institutions because their authorities do not show understanding and solutions to the grievances and protests occurring in the country. The Legislative Branch does not control the Executive Branch, and the Jurisdictional Branch (Judiciary, Public Prosecutor's Office, Constitutional Court) does not control either the Executive or the Legislative Branch. This situation shows the limitations of the division of powers in a socially and culturally diverse country, where the formal order of the Peruvian Constitution comes to a halt and makes necessary the intervention of a material order under the participation of the majorities and protected by the Constitution itself.
At this juncture, it is urgent to set up a transitional government that will neutrally call general elections and run the country provisionally until a new sovereign is elected.
At this juncture, it is urgent to set up a transitional government that would neutrally call a general election and lead the country on a provisional basis until a new sovereign is elected. The institutions of the State, and in particular the Congress of the Republic, can FORMALLY constitute this transitional government in accordance with the Political Constitution of Peru (see online previous articles by the author). If they cannot or do not want to do so formally, the transitional government can be constituted MATERIALLY in a constitutional manner (Ibidem).
The proposal for a transitional government:
How would a transitional government be formed and function constitutionally?
At the current juncture a transitional government needs to be representative of the state itself and of society. On the one hand, state authorities who are not involved in the current crisis are those who can take part in the transitional government. On the other hand, there are also institutions and associations in society that can take part because they constitutionally represent or work with its population. The constitutional basis for this proposal is regulated in articles 2, 28, 31, 45, 89, 138, 138, 149, 176, 188 and 189 of the Political Constitution of Peru.
Thus, of the state institutions that could form part of the transitional government, we identify the following:
- The electoral system: Jurado Nacional de Elecciones (JNE), Oficina Nacional de Procesos Electorales (ONPE), and the Registro Nacional de Identificación y Estado Civil (RENIEC).
- Regional Governments (newly elected and in office).
- Local Governments (newly elected and in office).
- Among the institutions and associations or organisations of society, which are also constitutionally recognised, we can identify the following:
- Trade unions.
- Guilds of small traders or businessmen.
- Guilds of Peasant Communities.
- Guilds of Native Communities.
- Guilds of the Rondas Campesinas (peasant patrols).
One suggestion is that the transitional government should be constituted with a representative from each of these entities. It would be a collegial government, WITHOUT A PRESIDENT, but under the figure of a COORDINATOR of the transitional government's membership, with administrative responsibility.
The transitional government would function for only 6 months and would have two main tasks: 1) the convocation and execution of general elections; and 2) the management of social order (management of regional and local governments) and public safety.
Will Peru have the capacity to constitute this transitional government in a FORMAL or MATERIAL way, and will it be able to fulfil its function? It is a challenge that would put it to the test as a country that effectively recognises its social and cultural diversity.
(written between January 25 and 28, 2023).
*Antonio Peña Jumpa es 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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