Power in the Balance: Presidents, Parties, and Legislatures in Peru and Beyond

3. Constitutions and Constitutionalism in Peru,1985–2006

43 3 Constitutions and Constitutionalism in Peru, 1985–2006 In Peru, we have very good laws, but one is missing: a law that says that all the other laws should be complied with. —Nicolás de Pierola, President of Peru, 1895–18991 Not the rules themselves, but rather adherence to the rules: that is what Nicolás de Pierola seemed to be lamenting. And ironically, the president’s quip rings true precisely for the commanding heights of state power. Since the promulgation of Peru’s 1933 Constitution (which set the mold for two subsequent charters), constitutional rule has broken down completely on five separate occasions. Even during ostensibly democratic periods , constitutional norms have been episodically weak or uneven. Constitutions matter—sometimes. In this chapter, I first consider Peru’s twentieth-century historical experience with constitutionalism. I then compare the constitutions of 1979 and 1993, the two constitutions that were in effect in Peru during the period under study, highlighting the extensive similarities between the two documents as well as their limited differences. But the main focus of this chapter is not the constitution itself; it is, instead, adherence to the constitution, and to the rules of the game more broadly, among political elites. I demonstrate that practices of constitutionalism changed dramatically at several points in the twenty-one years from 1985 to 2006. 44 Power in the Balance The content of Peru’s constitutions changed modestly during this period. In moving from the 1979 charter to the 1993 charter, framers made only minor changes to institutions shaping the balance of lawmaking powers between the legislature and the executive: rules on presidential decree authority, veto power, and the right to exclusive introduction of legislation (Shugart and Carey 1992; Mainwaring and Shugart 1997). Presidential decree authority (at least on paper) weakened slightly after 1993, while veto power and exclusive introduction of legislation remained largely unchanged. And another important feature of legislative-executive relations in Peru—making cabinet ministers subject to censure and parliamentary confidence votes—has been in effect since the 1930s. Other legal and institutional shifts in the 1990s, such as restructuring the judiciary and lifting the prohibition on immediate presidential reelection , did indirectly bolster executive power. However, these “reforms” were initiated by an already-powerful executive and implemented by an already-docile legislature. What changed most drastically was not so much the content of the constitution but rather constitutionalism— constitutionally prescribed and proscribed behavior on the part of politicians, and the norms and expectations surrounding that behavior. These rose, fell, and rose again over the past three decades. If political actors regularly bend or break the rules, then the formal rules of the game will not strongly condition (or predict) the strength or weakness of legislatures and executives. Under such circumstances, disparities emerge between the de jure powers granted by constitutions and the de facto exercise of power. Norms of constitutionalism have historically not been strong in Latin America in general and have a particularly tumultuous track record in Peru. Yet rule adherence among competing political elites did increase with the 1978 transition to democracy and reached a peak in the mid-1980s. The rule of law—especially among Peru’s rulers themselves—then began a phase of decline. As I suggested in chapter 1, the reasons for this decline are several. The late 1980s and early 1990s was a period of unprecedented economic crisis and violent social conflict in Peru. The guerilla wars that had been raging mainly in the rural highlands descended on the capital city with force. Political analysts voiced concerns over the possibility of a military coup as early as 1987. Hyperinflation raged, reaching an annual peak of over 7,000 percent in 1990 (Kenney 2004, 23). Shortages of con- sumer goods were endemic. These multiple crises contributed directly to a decline in constitutionalism. Though this downward trend began in the second half of the 1980s, its most egregious manifestations were seen in the 1990s, with devastating effects on the configuration of power between the elected branches of national government. A president’s seizing power in a 1992 “self-coup,” the widespread use of military and intelligence services for political ends, the evisceration of judicial autonomy, and the strategic plying of massive corruption in order to secure presidential reelection, to name just a few examples—these all greatly strengthened the executive and weakened the legislative branch. After Peru fully emerged...