So, yesterday the President of Peru dissolved Congress and called for new legislative elections. The Congress called that illegal, and deposed the President. What’s going on?
Constitutionally, we have a bit of a mess. The reason, however, isn’t really that the Constitution is unclear. (In fact, the Peruvian constitution is a very nice document.) It is that all sides are playing hardball, sticking to the letter of the rules but without any informal norms to keep things on the rails.
Short version: Peru has a mixed Presidential-Parliamentary system with a President and a Prime Minister. The President, however, retains executive authority. Think France, not Germany.
The Congress, controlled by the Fujimorista opposition, tried to pack the Peruvian supreme court. The President said this was against the rules, and told the Prime Minister to send a “confidence vote” against the move directly to the floor. (Article 133.)
The first problem: does the confidence vote take priority over all other matters? Article 133 doesn’t explicitly say that confidence votes should take priority, but that appears to have been the intention of the 1993 authors of the document. (Weirdly, no one is asking them.) The Congressional leadership, in a chaotic session, decided to vote on court packing before the confidence vote. (Chaotic means chaotic: fistfights, shouting, physically stopping the Prime Minister from taking the floor by locking the door. )
The President took Congress’s decision to postpone the confidence vote to be the equivalent of having his government lose a confidence vote. According to him, this was the second vote lost during the current presidential term, and so he dissolved Congress and called new elections under Article 134 of the Constitution.
But this brings us to the second problem. Article 134 gives the president the power to call new congressional elections should the administration lose two confidence votes. But has President Martín Vizcarra lost any confidence votes? In point of fact, he has not lost any confidence votes since assuming office.
But Vizcarra claims that since he is only finishing disgraced ex-President Pedro Kuczynski’s term, a lost confidence vote on education policy during Kuczynski’s term should count as a loss for him. Add in Congress’s failure to hold the second confidence vote, and he has the two failed votes he needs to call new elections.
Well, once Vizcarra declared Congress dissolved, Congress counter-declared that the President was breaking the law and suspended him from office for a year. Mercedes Araoz then became president. Article 114 allows Congress to declare the president “temporarily incapacitated.” Once again, though, that is supposed to be an equivalent of the 25th Amendment, something to be used when the president is, well, temporarily incapacitated. Article 117 concerns removing the president, by trial.
But back in the bad days of Alberto Fujimori, in 2001, Congress did remove him from office after he fled the country. Fujimori tried to resign, a la Nixon, but Congress insisted on holding the vote. I don’t think anyone intended to establish a precedent, but they did, so now Congress has suspended the President for a year and elevated his Vice-president in his place.
I should mention here that the opposition tried to remove Vizcarra permanently, but they didn’t have the votes. I don’t know if that was because legislators couldn’t stomach the outright unconstitutionality and preferred to have the fig leaf of Article 114 or if it was for some more Machiavellian reason.
Politically, my sympathies are with the President. It’s clear that the opposition has been playing constitutional hardball. They haven’t been breaking rules and nor has the government; Peru isn’t Bolivia or Honduras, let alone Nicaragua or Venezuela. But they have been playing to the letter of the law in an extremely destructive way.
I don’t suppose it matters. Right now you have Peru with two people claiming to be the legitimate president and no clear-cut constitutional case. Nonetheless, this was not how the framers of Peru’s constitution expected things to go. They did expect that the confidence vote would get priority and they did not expect the Congress to be able to remove the President with a simple vote, even temporarily.
This won’t lead to civil war or a military coup (the military backs Vizcarra). But it is sobering and it is ugly. And closer to home, it should remind us of where constitutional hardball could lead here in the United States. I am glad that Mitch McConnell recognizes that if the house votes to impeach then the Senate has to hold a trial, but he could have gone the other way. He did in the Merrick Garland case. Republicans have elsewhere, and Democrats are tempted to follow suit.
And that will, as Peru shows, inevitably end in tears. The only question is how many tears.
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