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A Test of Loyalties: Ollanta Humala, the ALBA, and a State of Emergency

December 7, 2011

(Message tweeted by the press office of Peruvian President Ollanta Humala declaring a State of Emergency for the Cajamarca region effective at midnight on Dec. 5th.)

In the months leading up to the polarizing presidential elections in Peru earlier this year, one of the greatest challenges faced by presidential candidate Ollanta Humala was overcoming the perception that his past ties with Venezuela’s Hugo Chávez would lead the way for Peru to join Venezuela, Cuba, Nicaragua, Ecuador, and Bolivia as the sixth member state of the ALBA.

Earlier this week, in the first major test of his presidency, President Humala responded to growing violence in the anti-mining protests regarding the Conga goldmine by declaring a state of emergency for the northern provinces of Cajamarca, Celendín, Contumazá, and Hualgayoc.

Although these two events seem unrelated on the surface, in a roundabout way, the decisions made by Humala over the next eight weeks could either validate or negate any lingering concerns about Humala’s potential connections with the ALBA.

A state of emergency clause is a provision found in many constitutions that allows the government (typically the executive branch) to determine that a situation is so severe that it warrants a temporary limitation—or outright elimination—of certain civil liberties. Some Latin American constitutions refer to this as “state of siege”, rather than “state of emergency”, but the Peruvian Constitution addresses both.

In a study called “The Suspension of Guarantees: A Comparative Analysis of the American Convention on Human Rights and the Constitutions of the States Parties”, Robert E. Norris and Paula Desio Reiton provide this translation of Art. 231 of the 1979 edition of la Constitución Política del Perú (emphasis mine):

The President of the Republic, with the accord of the Council of Ministers, decrees, for a fixed period, in all or part of the territory and rendering account to Congress or to the Permanent Commission, the states of exception that are contemplated in this article: (a) State of emergency, in the event of disturbance of the peace or of internal disorder, of catastrophe or grave circumstances that affect the life of the nation. In this event, may be suspended the constitutional guarantees relative to personal liberty and security, the inviolability of the domicile, the freedom of assembly and of movement throughout the territory, that are contemplated in paragraphs 7, 9 and 10 of Article 2 and paragraph 20-g of Article 2. Under no circumstance, may the punishment of exile be imposed. The period of the state of emergency does not exceed sixty days. Its extension requires a new decree. In the state of emergency, the Armed Forces assume the control of internal order when the President of the Republic so disposes.

Although the Peruvian Constitution has been amended since 1979, the main difference in the state of emergency clause is that it now falls under Article 137 instead of Article 231. The same article covers a state of siege, which is defined as a time of war or imminent war. A state of siege is not to last more than 45 days.

In the case of the current Peruvian state of emergency, for the next 57 (or so) days, law enforcement officers in the Cajamarca region have the authority to limit the right of the people to assemble and to make arrests without having warrants. Moreover, the military will supplement local police forces. Adam Isacson of the Washington Office on Latin America reports for Just the Facts that this is one event in an apparent growing regional trend as the militaries of Bolivia, Honduras, and El Salvador also take on more police responsibilities.

So far, everything has been completely constitutional. But Latin American political history has been marred by dictatorial regimes–to include Pinochet in Chile, the Sandinistas in Nicaragua, and a number of military dictators in Argentina–who have used the state of emergency or state of siege clause to consolidate power by extending it every 60 days for an extended period of time. In some cases, this has been done for years at a time.

It’s possible that Hugo Chávez (Venezuela), Daniel Correa (Ecuador), Evo Morales (Bolivia), and Rafael Correa (Ecuador)–all of whom have attempted, to varying degrees of peaceful success, to modify presidential term limits–learned this trick from watching Peruvian politics. In 1992, Peruvian President Alberto Fujimori dissolved congress completely in what came to be known as the 1992 Peruvian Constitutional Crisis. After declaring a national state of emergency, Fujimori also declared that he had sole authority to create legislation until a new Congress could be elected to rewrite the Constitution. When the new Constitution was approved by Fujimori’s Congress in 1993, it included several provisions designed to further empower the Executive.

It has been speculated that Chávez’s enthusiastic endorsement cost Humala the 2006 presidential elections, so he worked harder in 2011 to distance himself from el chavismo. Despite concerns about his socialistic tendencies, on June 5th, left-winger Humala succeeded in beating the right-wing hardline lawmaker Keiko Fujimori in the race to the center, winning the votes of many who preferred risking a systematic move toward socialism rather than legitimizing the presidential dictatorship of Keiko’s father, Alberto. Despite the political distance Humala has sought to create between Lima and Caracas, suspicions about his real intentions will never fully die. This might explain Humala’s slightly sensitive response to a September interview question about whether or not he planned to seek reelection.

Many observers still anticipate a similar move by Humala to consolidate power and seek an indefinite presidential term. It’s worth noting that rather than abusing the state of emergency clause, a more modern trend for consolidation of power used by the populist leaders of the ALBA is to use supporters in congress to amend the constitution, loosening the reins on (or flat out eliminating) presidential term limits. Under Article 134 of the Peruvian Constitution, dissolving Congress is still one of the powers of the Executive, as long as the country is not in a declared state of siege–again, this is used in a time of war–at the time.

Humala openly (and proactively) denied any intentions of joining with the ALBA during his 2011 campaign, he has made it clear that he will not seek reelection in 2016, and he was one of only a few Latin American Heads of State who chose not to attend the inaugural meeting of the Community of Latin American and Caribbean States (CELAC) hosted in Caracas earlier this week. Depending on how the next 60 days go, this state of emergency might actually serve to further distinguish President Humala from President Chávez.

After all, if Humala is going to try to consolidate power like his colleagues in the ALBA, now would be the perfect time. It isn’t every day that a Head of State has a legitimate emergency fall into the lap of his administration. As the saying goes, never waste a good crisis.

But a state of emergency was only declared for the Cajamarca region (the area affected by the increasingly violent protests), rather than for the entire country. And the Humala Administration has gone to great lengths to explain the efforts being made to negotiate with protestors, emphasizing that officials are working hard to re-establish order and rule of law in areas where civil liberties are currently restricted.

Only time will tell, in this case. We’ll have a better idea based on how events unfold in Peru over the next two months. But for now, it appears that Humala’s loyalty truly is with the people of Peru.

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