By Antonio Peña Jumpa*
December 22, 2022.- The social protests that began after the presidential vacancy and the inauguration of the new president on 7 December 2022 in Peru, have increased in recent days. In addition to the protests and violence in the streets, there has been coercion by the forces of law and order, which, in their need to control internal order, has led to an increase in the number of deaths, affecting the legitimacy of the institution and the central government. What should be done legally?
Protests reached regrettable results in the region of Ayacucho on 15 December 2022. During a massive protest of the population (not only of alleged supporters of the former president or violent people) there was a confrontation with a group of soldiers that resulted in 8 dead, 42 seriously injured and 12 less seriously injured. (RPP audio news, 2022-12-16).
In other parts of the country, in the northern region and in the central region in particular, protests continued with a new number of deaths and injuries. In the Junín region, in the Amazonian part called Pichanaki, 3 deaths were reported in the last hours of 16-12-2022 (information from the Regional Health Direction of Junín, online).
Thus, in Peru, a total of 20 civilian deaths from acts of protest and 5 deaths from road blockades have been recorded, according to the Ombudsman's Office and the media (see Twitter of the Ombudsman's Office and La República newspaper online).
In this context, the measures taken by the central government in recent days have not yielded the expected results, and there is no certainty that this will happen in the coming days. In addition to declaring a state of emergency throughout the country, the Armed Forces have intervened and, most recently, a "curfew" (absolute restriction on traffic in the afternoon or evening) has been imposed in the most troubled areas. These decisions were followed by the events in Ayacucho and other deaths and hundreds of wounded in the last two days.
The Council of State (the body of authorities representing the main powers and institutions of the Peruvian state gathered in the face of the crisis) has shown no signs of seeking alternatives and has accepted the decisions and events that have occurred (see Twitter feed from the Council of State).
What to do legally?
First, it is important to understand the problem facing the country (not only the situation in Lima, but also in the diverse cultural regions of the country). The problem of social unrest, which in some regions has turned into social upheaval, has its roots in the accumulated actions of the state authorities since before the last government. It is a problem rooted in extreme inequalities, in the centralist management of the budget and public decisions, and in public and private corruption.
Second, understand the limitations of each public office vis-à-vis the people. If we live in a state under the rule of law or a constitutional order, public office is owed to the people, not to a state power or an armed institution. According to Article 46 of the Political Constitution of the State, "The power of the State emanates from the people” and adds: "Those who exercise it do so with the limitations and responsibilities that the Constitution [given by the people themselves] and the laws establish". This means that neither the Congress of the Republic, nor the Central Government, including the Armed Forces or the Police, have absolute power. Absolute power lies with and belongs to the people.
Third, understand that the Constitution must be interpreted and amended in accordance with the absolute power of the people. At this time of crisis or social upheaval, the central government and Congress could have called for immediate elections (as regulated by Article 115 of the Constitution) without waiting for a constitutional reform (see the author's previous article). Given the increase in social protests, now focused on the closure of Congress and the resignation of the current president, other legal alternatives should be sought.
Fourth, a legal alternative is for the questioned authorities to leave public office before the people. The central government and the Congress of the Republic can constitutionally cease their functions and appoint a transitional government that would only call elections and manage social order with the control of internal order. To do this, Congress would have to approve two special transitional constitutional reform norms: 1) A norm that regulates the immediate cessation of public office for the central government and members of Congress, given the context of social unrest; 2) A norm that establishes a transitional government with two functions: to call for immediate elections and to coordinate the management of social order, which includes internal order.
Within this legal alternative, the transitional government would be made up of constitutional institutions that are representative and functional to its creation. Thus, the entities in charge of the electoral processes that constitute the electoral system (Articles 176 et seq. of the Constitution) and the newly elected representatives of regional and local governments are clear examples.
Within the same legal alternative, the management of social order, which means seeking to act in community, would be under the coordination (not the mandate, not the order) of regional and local government representatives.
Will the central government authorities and Congress understand and recognise the limits of their office in the current context of social upheaval, and will they be able to implement legal alternatives such as the one proposed, recognising the power of the people?
(written in Lima on December 17, 2022)
*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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