Rights group says ousting of President of Peru threatens rule of law

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The way Peru’s Congress removed President Martín Vizcarra from office on November 9, 2020, and the immediate consequences for the independence of the constitutional court, pose a serious threat to the rule of law in the country, Human Rights Watch said on Thursday. The Organization of American States (OAS) should urgently convene a meeting of its Permanent Council and closely monitor the situation, the rights group added.

The Peruvian Congress ousted President Vizcarra under questionable legal authority, claiming that he lacked “moral capacity” because of corruption allegations against him that prosecutors are investigating. Dozens of lawmakers in Congress, themselves under investigation for various offenses, had attempted but failed to oust him on other grounds in September. Vizcarra had pushed forward various anti-corruption initiatives that affected members of Congress. Manuel Merino, the head of Congress, was sworn in as president on November 10 amid massive protests and reports that the police used excessive force in response.

“The allegations against Vizcarra should be investigated, but the legality of his ousting is highly dubious and seems driven by legislators’ own interests in evading accountability,” said José Miguel Vivanco, Americas director at Human Rights Watch. “Leaders in the Americas should closely monitor decisions by Merino and Congress. There is every reason to suspect that they will use Vizcarra’s ousting to further undermine the rule of law.”

In the next few months, the Peruvian Congress and president are set to carry out key processes for the country’s institutions, including selecting justices for the constitutional court and organizing the 2021 presidential election, scheduled for April. A challenge to the legality of removing a president under Peru’s constitutional “moral capacity” clause is currently pending before the Constitutional Tribunal.

During his presidency, which began in March 2018, Vizcarra pursued several anti-corruption efforts, including to limit parliamentary immunity and to reform financing rules for political parties.

Media reports indicate that dozens of members of Congress, including from Merino’s party, are under criminal investigation, including on corruption charges.

Congress is currently in the process of appointing justices to the country’s Constitutional Tribunal, even as the court considers the constitutionality of the president’s ouster. On November 3, a group of lawyers said that Congress had arbitrarily excluded them as candidates. Congress should ensure a fair selection process that guarantees the independence and impartiality of the Constitutional Tribunal, Human Rights Watch said.

Peru’s Congress did not impeach Vizcarra. It can impeach a president under the Peruvian Constitution, but only if the president engaged in treason, prevented elections, unlawfully dissolved Congress, or prevented the work of Congress or of the country’s electoral bodies. Instead, Congress cited an obscure constitutional provision that allows it to declare the presidency has been “vacated” if the president resigns or faces “physical or moral incapacity.”

Constitutional experts have stated that a criminal investigation would not trigger this provision, which is not meant to punish misconduct but to address situations in which the president is unable to perform the functions of the office. Yet Congress accused Vizcarra of “moral incapacity” on November 2 based on allegations that he had engaged in corruption in 2014 when he was a regional governor. The November 9 debate in Congress over whether to remove Vizcarra lasted six hours, during which Vizcarra was given only one hour to speak.

The Vizcarra administration had scheduled the presidential election for April 2021. Vizcarra was not running for re-election. In his inauguration speech on November 10, Merino said he “ratified” the country’s electoral calendar. The government should ensure free and fair elections, and avoid arbitrary delays, Human Rights Watch said.

On November 10, thousands took to the streets of Lima, Peru’s capital, to protest Vizcarra’s removal, with many rejecting its legitimacy.

Journalists and human rights groups reported that police officers arbitrarily dispersed peaceful protesters, used excessive force, including tear gas and “less-lethal weapons,” against peaceful protesters, and arbitrarily detained some. While demonstrations were largely peaceful, some protesters became violent, including by throwing stones at the police.

International human rights law protects the right to peaceful assembly. Authorities should protect peaceful demonstrators and avoid unnecessary or disproportionate restrictions on such assemblies. Even when there are isolated incidents of violence, authorities should use the least intrusive means necessary to address them, while protecting the rights of others to peacefully assemble.

Under international standards, law enforcement should avoid the use of force, including tear gas, to disperse peaceful protests, even when it deems such protests unlawful. International guidelines such as the UN Principles on the Use of Force and Firearms stipulate that in the event of violence, force – including tear gas – should only be used to the extent that it is necessary and proportionate to address such violence.

Law enforcement agents are expected to avoid exacerbating the situation and are only allowed to escalate their use of force if other measures have proven ineffective or have no likelihood of quelling the violence. Any use of force should be preceded by clear warnings.

“Peruvians have every right to demonstrate over their country’s crisis,” Vivanco said. “The police and other authorities need to protect peaceful protests, and in all situations refrain from using excessive force.”

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