Archive for the ‘Rule of Law’ Category
Lourdes Flores Corrects Woodman
According to business newspaper, Lourdes Flores corrected her vice presidential running mate, Arturo Woodman, who said the struggle against corruption is not one of his priorities.
Judicial Reform is Dead
Maxwell A. Cameron
January 8, 2006
There are important insights in a feature story from El Comercio, entitled “La Reforma Judicial Sigue Durmiendo,” January 8, 2006, pp. A1, A8-9-10. The basic thrust of the story is that judicial reform has simply gone into sleep mode. Notwithstanding comprehensive reforms recommended in a report by the Comision Especial para la Reforma Integral de la Administracion de la Justicia (known by its acronym CERIAJUS), Peru’s judicial power remains as inefficient, corrupt, and backlogged as ever.
Views on “Selective Amnesty” for Military Forces Proposed by Luis Iberico
Maxwell A. Cameron
December 28, 2005
Luis Iberico, a member of congress for the Frente Independiente Moralizador (FIM), and president of the defense committee, has proposed a selective amnesty for members of the armed forces accused of human rights abuses. The president of the Constitutional Tribunal, Víctor García Toma, has warned that such an amnesty could be struck down by the courts. In his view, congress should not encroach on the administration of justice, or presume to decide who is guilty or innocent. An amnesty would be an abdication by the state of its responsibility to uphold the rule of law.
The issues raised in this interview are similar to those we noted in an earlier posting on Martha Chavez returns to congress. Some of Peru’s most distinguished legislators appear to have a poor understanding of the principles underpinning a separation of powers system. If members of congress want to uphold the rule of law, they should stop trying to act as judges. If they want to improve the judiciary, they should provide it with adequate funding.
2005 Global Corruption Barometer
Source: La Republica, December 10, 2005
The 2005 Global Corruption Barometer, based on a Gallup International survey conducted on behalf of Transparency International for International Anti-Corruption Day 2005, reveals widespread concern about corruption around the globe.
Fernando Tuesta on JNE and TC dispute
Fernando Tuesta has called for the executive to “observe” the law that would make the rulings of the National Election Board final. Any such law would leave citizens whose fundamental rights have been violated without recourse under the law and is therefore an invitation to the abuse of power. No state institution is above the law or the constitution.
(Refer to our Rule of Law archives for more items on this discussion)
Congress: JNE decisions are not to be reviewed by TC
On Thursday, December 1, Congress, in committee of the whole, approved — after a long delay and extensive public discussions among the JNE, TC, members of Congress and constitutional experts (refer to our archives), that decisions made by the National Electoral Jury could not be reviewed by the Constutitional Tribunal. Congress voted: 64 votes in favour, 7 against and 4 abstentions. This decision would guarantee jurisdictional autonomy and independence to the JNE, according to Congress.
Refer to pages 123-133, Diario de Debates del Congreso, December 1, 2005. Download file
The Trouble with Alberto
By Maxwell A. Cameron
November 12, 2005
A perusal of the charges against former president Alberto Fujimori reveals an assortment of pecadillos ranging from vile abuses of power to mundane acts of private enrichment. How do you build a legal case when the specific crimes are hard to prove although the broader pattern of the abuse of power is indisputable?
All constitutions really do is tell us how laws are to be made; once a legal system is in place the laws can be enforced with penalties. But there is nothing in a constitution that spells out the consequences of violating the constitution (such provisions would be absurd, since constitutions precede laws and hence penalties). The worst offenses committed by the governments over which Fujimori presided were actions that were reprehensible not so much because they were illegal (though they involved systematically breaking the law) but because they were unconstitutional. They included:
– The autogolpe of 1992
– The 1995 Amnesty Law
– Ramming through congress the “law of authentic interpretation”
– Disbanding of the Constitutional Tribunal in 1997 when it struck down the law of authentic interpretation
– Running for an unconstitutional third term in 2000
– And, of course, putting Montesinos on the payroll for a job that was never formally defined but which amounted to turning control over much of the machinery of government to the intelligence service and giving free rein to the Colina group.
These are serious violations of the constitution, and they involved systematic law-breaking, but the Chilean judges are presumably going to want to see evidence of specific criminal wrong-doing that links particular crimes directly to Fujimori. After years of investigation there is precious little by way of material evidence linking Fujimori directly to such heinous crimes as the massacres at Barrios Altos or La Cantuta.
There is testimonial evidence that Fujimori was directly involved in these events, and there is written evidence that he rewarded the principals, but what is surely more serious is the fact that he was responsible, along with Montesinos, for creating a political system in which such actions could occur with impunity.
Fujimori and Montesinos created a system of government based on impunity, in which key offices in all major government agencies were captured and subordinated to the will of the executive. Montesinos was directly involved in torture, extortion, bribery and corruption of public officials. His criminality is beyond question.
Fujimori should be thought of not as a common criminal–though crimincal charges against him may ultimately be sustained–but more importantly he was the intellectual architect of a criminal regime. What is required here is political not legal judgment. And that is why it is vital to remember that what bars Fujimori from running in the 2006 election is a political judgment not a legal one.
Such is the sorry state of affairs of the Peruvian judiciary that there is not one single sentence against Fujimori, only charges. Having fled the country, Fujimori could not be tried. Apparently—though I have trouble accepting this, and would happily be corrected if anyone else knows better—he could not be sentenced in absentia in Peru.
Whatever the case may be, the fact that there are some 20-plus charges against him does not stop him from being a candidate (except that it might mean campaigning from behind bars). The impediment to his candidacy is a congressional vote that designates him ineligible for public office for 10 years. The power to designate an individual ineligible for office is a faculty that resides in the congress according to Peru’s constitution.
This faculty is political not juridical. Congress does not need a judicial sentence to ban someone from holding public office. That does not mean it can do so arbitrarily. Like any such political judgment, it had better be supported with solid reasons capable of winning the support of the vast majority of the voters, or else it will appear to be nothing better than political persecution. This, of course, is exactly what Fujimori and his supporters are arguing.
And that is why it is incumbent upon the political parties that have a commitment to democracy to insist that Fujimori cannot run for no other reason than to protect Peruvian democracy.
Fujimori has never run in an election that was not tarnished by some sort of doubt about his legitimacy as a candidate. He has, once again, positioned himself in the middle of a storm of controversy in which the central issue is, as usual, his eligibility for office.
Happily, some candidates, like Jaime Salinas, have followed Juan Sheput’s advice to pledged themselves to present a united front against Fujimori and, if necessary, abstain from any election in which the former leader might be a candidate. The public, particularly Fujimori’s supporters, need to hear a reasoned and unified defence of the political decision to bar Fujimori from office. Candidates should not try to stand behind the feeble shield of the judiciary. It is not enough to say that Fujimori is facing legal charges; the deeper question is political. Can Fujimori coexist with Peru’s fragile democracy? His decenio suggests the answer is “No.”
A number of related articles on this topic follow.
Peruvian Congress decision: JNE prevails over TC
Poder Judicial and Tribunal Constitucional are not entitled to examine the Jurado Nacional de Elecciones rulings concerning elections, according to a Congress’ Constitution committee ruling. This ruling may undermine the supremacy of the Constitution. The next step is for Congress as a whole (Pleno) to take a final decision regarding this committee ruling.
Jurado Nacional de Elecciones versus Constitutional Tribunal
La Comision de Constitucion del Congreso discutira el 17 de octubre una propuesta que podria afectar el caracter irreversible de las resoluciones emitidas por el Jurado Nacional de Elecciones (articulo 142 de la Consitucion Politica del Peru). El Tribunal Constitucional apoya la propuesta y arguye que las resoluciones del ente elecoral son revisables si es que violan derechos fundamentales. El JNE has expresado desacuerdo con la posicion del Tribunal. Esta discusion, tan cerca a las elecciones generales del 2006, ha generado criticas en diversos medios.
Acta de la sesión Ordinaria del la Comision de Constitución y Reglamento, lunes 17 de octubre de 2005 Download file
Informe Final de la Comision de la Verdad y Reconciliacion
Informe Final de la Comision de la Verdad y Reconciliacion
Excerpt from the Final Report from the Truth and Reconciliation Commission of Peru, vol. VIII
A Christmas Surprise
The Secretary General of “Si Cumple”, the electoral machine connected to Alberto Fujimori, has announced that the former president will return to Peru in December 2005.