Runoff in Peru: A referendum on 1993 constitution

This post originally appeared as “Peru’s upcoming presidential election is really a referendum on its troubled constitution” in The Monkey Cage at The Washington Post on May 13, 2021. It was co-authored with Paolo Sosa-Villagarcia, (Versión en español aquí).

On June 6, Peru will vote in a runoff election for president, deciding between the top two candidates from first round of voting. On the left is Pedro Castillo, a rural teacher and street-fighting union organizer who came in first with only 19 percent of the vote; on the right, is Keiko Fujimori, who squeaked out 13 percent. Polls put Castillo in the lead. Castillo has promised a new constitution. Since Keiko Fujimori is the daughter of Peru’s now-jailed former dictator Alberto Fujimori, some observers fear that she would restore a corrupt and authoritarian dynasty. Constitutional reform may be Peru’s best alternative to becoming ascrisis-wracked and polarized as Venezuela.

Frontrunner Pedro Castillo faces off against dynastic candidate Keiko Fujimori

For decades, Peruvians have been divided over the legacy of President Alberto Fujimori, in office from 1990 to 2000, currently serving a 25-year sentence for human rights crimes and corruption. His daughter, Keiko, thrice candidate for the presidency, faces 30 years in prisonfor allegedly receiving and conceal over $17 million in illegal campaign contributions from powerful business allies. Her party’s role in clashes among the legislature, executive and judiciary contributed to one of Peru’s biggest recent political crises, in which four presidentsrotated through the palace in five years.

Her father’s primary legacy is the 1993 Constitution, progeny of an autogolpe (or self-coup). In April 1992, Alberto Fujimori closed congress and suspended the constitution, drafting a new constitution to legitimate his rule. He fled in 2000 after his unconstitutional bid for a third term was derailed by a major corruption scandal, and was captured, tried and jailed in 2009.

Keiko Fujimori now defends the constitution and neoliberal economic model it enshrines. Castillo is campaigning as the outsider, candidate of a new party called Peru Libre. Like Alberto Fujimori in 1990, Castillo has never held public office. His run channels voter anger over poverty, neglect, corruption, a dismal pandemic response and economic crash – and focuses that on a call for a new constitution.

From self-coups to executive-led republican refounding in Latin America

The program of Peru Libre, drafted by its radical leader Vladimir Cerrón, outlines what has come to be known as republican refounding. Its plan is simple: Run for office promising a referendum on a new constitution; convene a constituent assembly, which may serve as a legislature; and submit the new draft to a referendum. This sidesteps the illegitimacy of the autogolpe, but can have similar consequences.

For example, Venezuela’s former president Hugo Chávez enjoyed broad popular and military support. But when he convened a constituent assembly, the opposition was effectively shut out; he used the assembly to expand executive power. When the opposition attempted to overthrow Chávez in an April 2002 coup, Venezuela accelerated its gradual but catastrophic regime breakdown.

Similarly, Ecuador’s president Rafael Correa rewrote that country’s constitution in 2008, and then governed through plebiscites and appeals to public opinion, bypassing congress and relentlessly attacking his opponents. After he stepped down in 2017, his successor used a referendum to nullify a constitutional amendment that would have allowed Correa to run again, without term limits.

In Bolivia, President Evo Morales convened a constituent assembly. When that body could not reach consensus, Congress amended it; voters approved the new constitution in a 2009 referendum.  Morales then defied both the new constitution and a 2017 referendum upholding term limits, and sought a third term in office. Disputed reports of electoral irregularities in the 2019 election sparked protests; Morales fled to Mexico after the military withdrew its support.

Venezuelan-style authoritarianism is unlikely in Peru

Recent research (including our own, still underway) suggests that constitution-making can derail democracy when there are power asymmetries between incumbents and opponents. Castillo is unlikely to follow the Venezuelan path for three reasons.

First, if elected, Castillo is likely to be a weak president. He has neither Correa’s popularity, Chávez’s military background, nor Morales’ social base. He has a tenuous relationship with his own party, Peru Libre, which won a slim plurality of seats in the Congress, just 37 of the total 130.

Second, he faces powerful opponents. Peru’s electorate is conservative, especially in Lima. Memories of the internal conflict between 1980 and 2000 linger painfully. A fragmented but virulently anti-communist right-wing opposition aligned with powerful media and corporate groups will be tough opponents; some already talk about a possible coup.

Third, Castillo has pledged respect for the constitution and made alliances with moderate left-wing candidate Veronica Mendoza’s Juntos por el Perú, repudiating Cerrón’s suggestion that the left should seize power and stay there.

Constitutional change is therefore unlikely to derail democracy. A recent poll showed that over half the electorate supports constitutional change. Having committed himself to respecting the 1993 Constitution until it is replaced, however, Castillo will have to work within Article 206. That prohibits constitutional reform without the prior approval of congress, followed by a referendum.

The alternative: an accord on constitutional reform

Chile has recently done something that might be instructive. In response to protests starting in 2019, Chile’s lawmakers designed a constitutional process that has some guardrails. Their “Agreement for Social Peace and a New Constitution” gave Chileans the power to choose how they would elect a constitutional convention, which would then have the power to do one thing: draft a constitution to be submitted to a referendum. The constitutional convention cannot act arbitrarily, nor be subjected to interference.

Peru’s legislature could choose something similar, filling the assembly with representatives of a variety of parties, unions, business organizations, and other social and political groups. This could begin to close the representation gap left since the the party system collapsed during the Fujimori dictatorship, expanding citizen participation to encompass Indigenous peoples and the rural and informal poor.

Two possible roadblocks loom. Castillo could win, but the right wing could obstruct any efforts at reform. Or Keiko Fujimori could win, and turn Peru sharply in an authoritarian direction. Either could lead to dangerous confrontations. A precarious or unpopular president facing an implacable but fragmented opposition in Congress could undermine democracy.

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