Peru: April 5
On how a coup d'etat, a self-coup d'etat or a counter-coup comes about

The so-called self-coup d'etat by President Fujimori happened April 5, 1992, five months after my resignation as President of the Council of Ministers and Minister of Exterior Relations. The circumstances that led to such a measure progressively worsened during the preceding twenty months, fifteen of which I had spent in the Cabinet. The following, is my personal interpretation, but it is strictly based on true facts.

Not withstanding the accumulation of forces and pressures, my personal testimony is that the decision to break the existing constitutional order was a measure foreseen and evaluated only in the last weeks before the coup, when President Fujimori understood clearly that he was entangled in knots of power and that he could not continue forward. We shall identify the reasons.

Unfolding facts

President Fujimori carried out the self-coup d'etat when he realized that the accumulation of pressures had forced him into the following position: either he fell as President or he dissolved the Congress with all of the consequences that would follow such action.

Between July 1990 and the beginning of 1992 the pressures had accumulated and demonstrated that they constituted a threat, but the self-coup would not take place until the President saw with his own eyes that he had no other choice.

The fall of President Fujimori could occur at any moment for the reasons that follow.

The social-economic situation as a global framework

The dramatic situation in which the President found himself upon taking office is known by all but has not been sufficiently analyzed in light of those events.

The principle adverse factors that combined in a negative manner were and continue to be the following:

--A prolonged economic recession --The serious threat of the return of hyper inflation --Extreme structural poverty that encompassed more than 60% of the population --The return of the per capita product to the levels of the sixties --Extreme pressure from the external debt --Salaries and remuneration that only accounted for 27% of national income in 1989 as compared with 50% in 1973 --The incapacity of the production forces to generate jobs. In 1990, under employment was at 75% while unemployment was 10%, approximately 6 million under employed persons and one million unemployed. --Reduction of agricultural production due to serious droughts, terrorism, and lack of credit financing --Serious contraction of social spending due to the impoverished State. In constant terms in 1985 spending was cut from $40 per capita to $12 in 1990 --Terrorism: 22,000 deaths and $2.3 Billion in destruction --Drug traffic: it was estimated that the volume of business was close to a third of the total exports of the country --Immorality natural to under developed economies and made worse by terrorism and drug traffic --Lack of a ruling class with definite plans for development --Disintegration of the political class into a multitude of groups that impeded the combination of power in two or three viable directions --Dislocation of the youth without hope for work

To all of these elements it is necessary to add the epidemic of cholera and new problems with drought.

There were great expectations for exterior help, once Peru could re-enter the international community. Putting things in order, however, was very slow and very poor. Notwithstanding the great efforts realized, twenty months after the initiation of Fujimori's administration, offers to help and actual donations never even reached $1.2 Billion, and the calculations indicated that Peru needed at least $50,000 Billion for the next ten years. The response of the international public was, as I have said, slow and insufficient, and in so far as the private international effort is concerned, as is natural, it would take even more time to observe the stability of the new order. Time in both cases: a factor that in Peru today determines the future.

The political situation: as a specific framework

Surprisingly for almost everyone, Fujimori was elected President. But it was no surprise that the Parliament resulted excessively divided between the multitude of political forces. Even the President's own political parliamentary group represented an insignificant sector within the Congress.

The division of the Congress impeded constructive action from the start. Agreement converted into a mechanism to pressure the President. The public image of the Parliament was that it did not work and that it opposed everything that the Executive proposed. In reality this was not quite correct, there were great efforts on the part of some representatives to present projects and support development, but the objective view is that the mechanism did not function adequately, and the image of the Congress worsened.

Communication between the President and the Parliament was carried out fundamentally through the President of the Council of Ministers. During my term, we obtained a reasonable agreement that allowed the Executive to exercise extraordinary legislative powers, delegated by the Congress. My resignation five months prior to the coup was due to the fact that I had concluded the program of my Cabinet that was announced before the Congress, of more than one hundred Legislative Decrees restructuring labor legislation, investments and peace; but also that all possibilities for dialogue were exhausted. A replacement was urgently needed, in my opinion, that could revive the inter-power political colloquy, in order to evade entrapment and obtain flexible solutions. This is how I explained it to the President.

The new Cabinet under the leadership of Doctor de los Heros continued the work of dialogue, but each day it became more difficult. The tension between the two powers flared up systematically and permanently. The confrontation was frequently made worse by actions of the press and the interest of the parliamentarians to appear in the communications media.

The President's language was direct, frank and true; but in traditional terms, it was conflictive. The public supported him.

The guarded threat

During this tension, beginning in August 1991, the President was threatened with replacement by another President by the Congress. The replacement of President Fujimori would require three elements: legal foundation, an ad hoc person to replace him, and a flame to ignite the action.

--Legal foundation

The Constitution of Peru 1979 specifies that the President vacates office for death, resignation, remaining outside of the country for longer than authorized, or for dismissal after having been sentenced for the crime of treason against the country, impeding elections, dissolving the Congress, or impeding the functions of the National Jury of Elections or the Tribunal of Constitutional Guaranties. But also, in Article 206 of the Constitution, there exists the possibility of declaring a presidential vacancy for "moral incapacity or permanent physical incapacity declared by the Congress."

In the last two cases: moral or physical incapacity (as opposed to dismissal), the Constitution does not require investigation or judicial sentence and also permits the legitimate interpretation of the declaration of vacancy by a simple majority of the congressmen present during the session. Constitutional analyst Chirinos Soto, who was connected with Fujimori's adversary during the elections, writes about this constitutional article in his book "The New Constitution": "This article clearly points out the supremacy of the Congress over the President...the President may commit acts which, without being criminal, are considered to have a blemished character by the high magistrate that carries it out. The Congress could resort to article 206. This is the case, in recent years, of President Carlos Julio Arosemena of Ecuador, who in public ceremonies, did much more than simply forget about the existence of the Protocol." (1979:220). This example given by a leading constitutional analyst, allows us to appreciate the breadth of the constitutional norm for removing the President.

--The replacement person

The adequate person according to the political class was the First Vice President, Engineer San Román, who also formally constituted part of the President Fujimori's team. In the opposition it was public knowledge and notorious, the separation between the two. In the Congress, San Román had built an image as a flexible and communicating man. He frequently presented himself as the person who was always attempting to convince the President to accede to the pressures of the political class. In addition, San Román had been forming or permitting others to form an image of him in the public opinion as "president material".

It was public knowledge that the understanding between President Fujimori and Vice President San Román was only formal. San Román was speaking two languages, one informal and critical of the President before members of the opposition and another quite different before the communications media and on the floor of the Congress.

In his first language, San Román criticized the acts of the President making it clear that he was attempting to change things in favor of the orientation of a diverse but representative sector of the Parliament. In this manner, San Román won the confidence of a vital sector of the Parliament, forming an image of himself as a reasonable person, communicative, and flexible. Based on a comparison with the President, that he himself had created, he molded his own political image. For this reason, many thought that he was, in fact, "president material".

In his second language, San Román never expressed clearly his point of view that conflicted with the President. He always let on as if Fujimori was the best President that Peru had ever had.

This strategy was obvious to all politicians that were close to the Palace and was evident for any politician with an observor's spirit.

San Román never changed his attitude despite the uprooting that he suffered. But he was contrary to Vice President García, and García did not opt for clear, distancing language, but rather preferred his own strategy.

But this problem which could have been, and in other governments has been, a simple misunderstanding, acquired serious stature when some representatives began speaking in their chambers in mid-1991 about a possible dismissal of President Fujimori for "moral incapacity".

Not having but a minority of representatives in his favor, two fundamental facts weighed heavily against President Fujimori: the possible legal basis for his vacancy and the certain candidate that would replace him, San Román. The only thing lacking was the crisis.

The crisis would have to be serious, so serious that it would move the press and the press would then move the opinion of the public.

--The crisis

Between August 1991 and March 1992 two crisis were presented during which some parliamentarians advanced an opinion before the media about the possibility of declaring the Presidency of the Republic vacant "...for the moral incapacity of the President." The first crisis did not prosper among the public, and the second was interrupted by the events that finally exhausted the elastic forces of communication, overwhelmed by the pressure of inflexible powers, that historically, preceded a complete institutional breakdown.

The first stroke: the conspiracy

The first case came about in mid-1991 during the tension with Ecuador. Action by a small sector of the opposition against the government was carried out by an attempt to present the government's solutions to the confrontation of the troops, as anti-nationalist conduct. San Román played an important role. As President of the Commission of Exterior Relations of the Senate, he allowed the opposition to aid and initiate action designed to complicate the situation, and by indirect effect, to harass the President, who was the central objective. Under the Constitution, it is the President and not the Chancellor, who is in charge of exterior politics. (Const. art. 211, 14).

This occurred at the same time that the representatives were making public statements about the possible vacancy of the Presidency for "moral incapacity". The situation was extremely grave, but since it was all transparent, it did not incite public sentiment. When the situation with Ecuador was under control, San Román defended the government before the Senate. I could see that for him, this took enormous force.

In my opinion, President Fujimori perceived rapidly what many of us had placed in doubt, that acting within good will, Vice President San Román had fallen into the hands of traditional politicians, that inflated him and led him to believe that he was the presidential alternative, causing an attitude that was human and understandable, but that denoted his inexperience in political affairs.

--The sad confirmation

The best proof of all of this is in what happened after April 5th. San Román delayed one week in taking a stand. He declared himself against the coup when he was sure that he could count on international support, with the support of the political parties, and with the supposed aid of the Armed Forces (assured that as soon as he arrived in the country he would have the help of high military personnel who had assured him of their allegiance). The partisan game was also clear: when the facts were against San Román, the representatives accepted a change of the Constitution outside the legal trenches.

Vice President San Román waited one week to make a pronouncement. Too much time, when almost everyone had already taken a stand in favor or against the coup. Later, when he arrived in Lima, he spoke to the people in the language that before had been reserved for use with the political class. Now, he was publicly declaring that President Fujimori was a tyrant, dictator, liar and in one instance, he even used the expression monster. The people could not understand the radical change in his message, as was demonstrated by the polling that took place immediately.

Peace and terrorism

One of the fundamental causes of tension, perhaps the most important, was the promulgation of the "Law of Parliamentary Control over normative acts of the President of the Republic 25397", published February 9, 1992, opportunity in which, in my opinion, the President began to seriously evaluate the possibility of dissolving the Congress.

The Control Law was designed to control excesses of power that the President could take in certain normative acts that were expressly permitted by the Constitution. Fundamentally, it referred to Extraordinary Supreme Decrees, with the status of law, that the President may dictate in emergency situations, and also, Legislative Decrees dictated by the President under a delegation of power by the Congress, the declaration of states of exception in cases of grave national insecurity, and the celebration of international executive agreements.

In the opinion of a few serious constitutional thinkers, and some old but still active partisans of Vargas LLosa like Dr. Chirinos Soto, this law was unconstitutional, because it attempted to minimize the constitutional attributes of the President in reducing the effectiveness of Supreme Emergency Decrees to only six months. (El Comercio, March 9, 1992).

This law, that I also personally denounced as unconstitutional and saw as the beginning of the end of the catalytic events, established in article 25 that the Congress may derogate, and therefore leave without effect, a state of emergency decreed by the President. By this article, the Congress actually claimed for itself the power to approve such decrees. The power to approve extensions by the Congress is expressly granted in the case of a state of siege, but not for states of emergency decreed by the President "in case of disturbance of the peace or of the internal public order, catastrophe or serious circumstances affecting the life of the Nation."

In Peru today it is beyond doubt that narco terrorism is more than a simple disturbance of the peace or of the internal public order. It is one of the most cruel forms of terror known to the history of the world. It is enough to recall that nearly 22,000 people have died at the hands of terrorists, double the number resulting from the main war in Peru's republican history, and that the amount of losses as a result of destruction is greater than the total amount of the external debt, another $2.5 Billion. If we compare this quantity with the scarce international donation of $1,500 Billion from the international community, it is easy to see that the magnitude of harm caused by narco terrorism is the same as that of an extremely serious internal war.

From the military political perspective, following the publication of the Control Law on February 9, 1992 (60 days before the coup), it was easy to foresee how things would unwind in the following months: the President declared a State of Emergency in an area convulsing from terrorism and financed by drug traffic, which immediately caused a parliamentary debate that not only had the possibility of leaving the decree without effect, but also placed immediate moral pressure on the Ministers and the Armed Forces stationed in the area.

Was it possible, we ask ourselves, to combat the internal war, while some political sectors, working from within the system, were acting to repress presidential action that was carried out in conformity with the Constitution? Perhaps, thinking logically, yes, it was possible; but at the same time it is also reasonable that in the logic of the person who has the political and military responsibility to govern a country in extreme crisis, it is unacceptable that at the height of the struggle, his own forces would limit the powers that were granted to him by the Constitution. This had already happened before in a prior war, and Peru lost. The memory of Grau serves as a reminder.

From all of these facts, we can see that the breaking of the constitutional order in Peru was not an act but rather a process that began February 9, 1992 upon the publication of the Control Law 25397. The political and military forces were not in a condition to confront the war with intermittent political support during the most grave moment in the history of Peru.

Thirty days following the publication of the Control Law, the opinion of constitutional analyst Chirinos Soto would be published admitting the unconstitutionality of the norm dictated by the Congress to limit presidential action and then, thirty days later, the President would respond to the action by closing the Congress, an equally unconstitutional act.

The last resource

The Control Law 25397 was rejected by the President, but notwithstanding his objections, the law was reconsidered in both Houses of Congress and entered into force.

But, the President still had one last option to detain the unconstitutional law reducing his powers. He could go before the Tribunal of Constitutional Guaranties and demand a declaration that the law was unconstitutional. The President of the Council of Ministers announced that he would study this alternative.

The Tribunal of Constitutional Guaranties had been recently established under the Constitution of 1979. In the twelve years that it had been functioning, in the judgment of constitutional specialists, its sentences were extremely poor. But, the criticism most important to President Fujimori was that the Tribunal was composed of members connected with the Aprista political party, and therefore, it was not impartial. For this reason, the possibility of success in the Tribunal was extremely low.

On March 13, 1992, this option was abandoned when a sentence by the Tribunal of Constitutional Guaranties was circulated in which the "Law Promoting Jobs", a legal norm considered fundamental within the government's program, was declared unconstitutional. Almost all respected jurists considered the sentence obviously unconstitutional or illegal and attributed the sentence to the fact that the Tribunal was integrated to a major degree by Aprista party members. We were within three weeks of the coup.

The last second

President Fujimori was under extreme pressure: the grave economic and social situation, the extreme social tension and the delay in the arrival of foreign aid, the advancement of terrorism and of the international drug trade, the unconstitutional restriction of his powers, the pressure of the military and police that needed more support from the political power, the unconstitutional partiality of the Tribunal of Constitutional Guaranties, a new and exaggerated scandal over the handling of donations of used clothes, the preceding conspiratorial actions that occurred between September and October and the possibility that a Presidential vacancy would be declared followed by a sure replacement, Vice President San Román, who could count on the support of the majority of the political class. These pressures led the President, in my opinion, to the conclusion that he himself qualified not as a coup d'etat, but rather a COUNTER- COUP.

The option

Rational legal logic tells us that President Fujimori had the option of newly approaching the Congress, sacrificing his Cabinets, in order to seek a dissolution of the Senate which the Constitution authorizes after three cabinets are rejected by the Congress. This possibility, however, was not certain, besides the Senate took care to censure ministers and not cabinets, so that the cabinet itself would not collapse. In any event it was a long term process.

The President did not opt for the rational legal logic but instead for that which the population considered politically reasonable.

The collision: rationality versus reasonableness

In the Peruvian conscience there exists a serious collision between rationality and legal reasonableness. The first corresponds, fundamentally, to the classes formed in the tradition of legal deduction of continental Europe. It is here, particularly, that we find that there are as many lawyers (that almost unanimously deplored the coup) as politicians, who were educated within the same logical scheme.

In effect, in continental Europe, a system of legal deduction has developed from constitutional text. Once a political system ceases to function, as in France before 1789, a constitutional system is created in which constitutionally pre-established institutions are developed in an orderly fashion in accordance with the constitutional order. On the contrary, in the English system, instead of breaking the prior system, it is progressively changed, in the spirit of practical reasoning of the English which has come to be called the logic of reasonableness.

While at times the rational mind is inflexible, the reasonable mind looks for resolutions to conflict. While the first constructs schemes and then expects them to develop in the real world, the second goes along building the institutions that will comprise the complete structure, one by one.

Peru has had, among provisional and constitutional statutes, many texts constituting schemes, all generous juridical constructions, but unfortunately, not one has felt as if it "belonged" to the population, not even the current Constitution, a modern text that includes the right to insurrection against any whom break the constitutional order. In any event, opposite from what was expected, all of the opinion polls approved President Fujimori's coup d'etat, many by more than 85 percent.

Generally, the population, modest people or great enterprises and also a substantial part of the professional technicians like engineers, economists or administrators, not only lacks this rational legal formation, but inversely, is actually better adapted to the reasonable management of public affairs.

To this we add a fundamental factor that in large part constitutes the driving force behind solutions reached through rationality or through reasonableness. For the people, the Constitution does not give anything concrete. Constitutional juridical rights are granted to all, but only a small, limited segment of the population actually enjoy these rights. This clash between reality and theory is not only attributed to the differences that are frequent in all parts of the world, but also, in Peru, to the fact that there is a schizophrenic separation between doctrine and "possible reality", which in turn has caused a serious raise in expectations, and also "undisciplined expectations".

This serious and schizophrenic separation of doctrine and reality has led the population, leaving the political class to one side, towards solutions that may not be legally rational but are nonetheless reasonable and understandable.

The multi-class social pressure caused by closing the Parliament was presented from the first government of Belaunde in the 1960's. President Belaunde followed what he considered the most correct rational logic, in spite of popular expression, while President Fujimori, instead preferred the logic most reasonable.

Intermittent formal democracy

The collision between institutional rationality and reasonableness has contributed to the unfortunate maintenance in Peru of a "stable" system of intermittent formal democracy: legal governments and de facto governments have alternated with the same bi-partisan frequency as in other political systems.

It involves two currents that turn in preference of the population, at times motivated by rational constructions, perhaps perfectionist, and at other times by practical reasonable solutions when reality overwhelms the rational schemes. In the first case, the instrument is a new Constitution like a verb that must become reality, and in the second case, the machine is a coup d'etat, like sheer will confronted with the frustration produced by the collision between doctrine and a hard reality.

The establishment of a permanent democracy that will break this cycle, must necessarily begin with the integration of legal norms with reality, or as we may refer to as the nationalization of law. For this it is necessary, in a pluralistic country like our own, that the Constitution, in addition to being approved by a free Constituent Assembly, be ratified by the population itself through a referendum that seals the commitment of the people to its law.