Walter Abanto Rojas
Florida International University Teaching Assistant of the course International Relations of Drug Trafficking. Ph.D. Student of the International Relations program at Florida International University.
As a person present in the riots against the new government, lives in a poor neighborhood and has to fight against the elite dominance of Peruvian education, I have to make this article and try to create an academic conversation with Mr. Gurmendi’s analysis.
First, the problem of the Peruvian constitution created in 1993 is absent in Gurmendi’s analysis. As Gurmendi said: “I only hope that we can find mechanisms to address the social injustices of our long colonial history while protecting the vulnerable democracy we have been able to construct in our short post-Fujimori history[1].” This is an implicit acceptance that the weak democratic institutions created for the constitution in Peru are working well. This is not true.
As Barry Levitt noticed: “Conversely, in all but a few of the newer democracies, representative government predated, or developed alongside, the rule of law. As a result, constitutionalism can be weak or inconsistent[2]” This is a constant in Peru. Our constitutional rules and institutions created in a controversial constitution in 1993 are weak and inconsistent.
Alberto Fujimori was the creator of this constitution. Authors like Carlos Hakanson said: “The 1993 Charter is a regulatory Constitution due to the desire to regulate almost all aspects of public life as well as to deal with matters that, strictly speaking, are not the competence of constitutional law.[3]”
The problem with this is that the constitution not only has law aspects. It contains rules that control the normal activity of the citizens, but something interesting happened. Like Felix, Reategui says: “About 80 percent of the population agreed. That number actually speaks of the conditions for the success of the coup, not its legitimacy. The Peruvian population was in a state of anxiety; armed violence and the economic crisis made her demand quick responses.[4]”
For Schmitt, this is enough for the creation of the new Constitution. The reason is that the majority of the population agreed with that and President Fujimori( for Schmitt) have the legitimacy and legality to make the new Constitution. On the other hand, Kelsen is against this event because we don’t have a legal norm that legitimates the event. This is very important because the author of that quote has a Kelsenian perspective and how the Peruvian academy interprets the law.
The reason that Kelsen is against the Schmittian idea is for the reason that these kinds of events are very popular and can legitimate dictatorships like Hitler in Germany and Fujimori in Peru. Furthermore, the convocation for the National Assembly was very supported by the people in that years. Like Lp news notices: “In June 1993, at the beginning of the referendum campaign, the approval percentage of the then President of the Republic, Alberto Fujimori, was 67%; against 26% disapproval, according to Datum’s Pulso Peru[5]”
The problem with this result is that Peruvians had a disconnection between two essential elements: authorities and population. We need to remember that democracy is about representation. That’s why Panfichi concludes that: “it seems that the State and society are governed by different operating logics and with few consensual areas of an encounter between the two[6].”
When an authoritarian leader thinks he has legitimacy and authority, he privates the population to have a good representation in the public sphere. In other words, Peruvians lost their right to discuss in the public sphere when they legitimated Fujimori in the referendum and supported them in the coup d’etat. This was reflected in how the government manipulated the votes in the election of the new Constitution. Like Lp notice: The problem extends when we saw how the Peruvians voted for the New Constitution. As Lp news shows us: “11,245,463 citizens were registered in the Electoral Registry of Peru, of which only 8,191,846 participated. A figure that draws attention despite the fact that compulsory suffrage existed and existed in Peru[7].”
Gurmendi analysis trust in the institutions and rules created in an authoritarian regime. Furthermore, Gurmendi wants change but using the rules created by an authoritarian regime and continued for the democratic administration only created problems and are part of the problems in our society. For that reason, his conclusion: “the protestors most want is for things to change, both in terms of politics and in terms of what kind of relationship they want with the state. As for the latter, Peru is a country where most people are on their own on most social issues,[8]” which is not enough to solve the problems in Peru.
In our opinion, the solution is the recognition of social rights and a new constitution that guarantees these social rights like education and public health. Furthermore, the recognition of different rights that indigenous people have any claim. For example, the claim for respecting their territories is violated by people who traffic terrains in the highlands and the jungle in Peru.
The second problem of Gurmendi’s analysis is the confidence of the “cabildos abiertos.” As he said, “To accomplish all this in more successful ways than a constituent assembly, my personal position is that Peru needs to start a process of “cabildos abiertos” – open consultations where civil society and political actors can present and discuss constitutional reform proposals.[9]”
In our vision, this is a bad idea. As Barry Levitt noticed talking about Peru: “economic crisis and political violence had eroded not just formal rules but rule-abiding behavior in politics[10]” Peruvian society is too fragmented. Right now, in an economic crisis, the opinion of the population is going to be radical, and the people who support the right wing are a lot in the capital. Furthermore, how many times did people talk, and the politicians and the elites didn’t care about our opinions? We have many examples; the sign of the treaty of Escazu or the claims for social justice have been ignored by Peruvian politicians for years. Moreover, the absence of the state in many places is an issue that the idea of Gurmendi didn´t take to analyze.
Furthermore, the idea to create “cabildos abiertos” is a lack of analysis of the product. Gurmendi centers too much on the process of creating a constitution, and that, in our opinion, didn´t care. The population and the indigenous people take care of the product that answers the constitution and have it for their problems.
Center the debate on how we can create a constitution focuses too much on legalism. This is a big mistake in Gurmendi’s analysis because it technocratizes the debate and puts the constitutional debate in little hands. In other words, the people with legal knowledge will create the conditions to create the constitution. This point of view denies the right of the people to create their own way to make their constitutional path. That is a problem that prolongs the differences between elite people and poor people in the country because the people want to create their constitution in the way they want. In other words, the idea of Gurmendi limits population options to create a new constitution.
Referencias:
[1] Available in: https://opiniojuris.org/2022/12/13/what-is-going-on-in-peru/
[2] LEVITT, Barry.2012. Power in the Balance: Presidents, Parties and Legislatures in Peru and Beyond University of Notre Dame Press: Indiana. p.32
[3] HAKANNSON, Carlos “Una vision panoramica a la Constitucion peruana de 1993” en Pensamiento Constitucional; Vol. 18, Núm. 18 (2013); 11-34 P.15
[4] Available in: https://idehpucp.pucp.edu.pe/opinion/secuelas-del-golpe-del-5-abril-1992/
[5] Available in: https://lpderecho.pe/la-constitucion-de-1993-historia-detras-de-su-promulgacion/
[6] PANFICHI, Adolfo “El fujigolpe: Salida autoritaria a una crisis de representación política” en THEMIS Revista De Derecho, (22), 25-28. p.26
[7] Available in: https://lpderecho.pe/la-constitucion-de-1993-historia-detras-de-su-promulgacion/
[8] Available in: https://opiniojuris.org/2022/12/13/what-is-going-on-in-peru/
[9] Avaliable in: https://opiniojuris.org/2022/12/13/what-is-going-on-in-peru/
[10] LEVITT, Barry.2012. Power in the Balance: Presidents, Parties and Legislatures in Peru and Beyond University of Notre Dame Press: Indiana. p.90
