OPPOSITION PARTY PROPOSALS AFFECTING PRESIDENT

C O N F I D E N T I A L SECTION 01 OF 02 LIMA 002250 SIPDIS E.O. 12958: DECL: 05/18/2015 TAGS: PGOV PINS PREL PE SUBJECT: OPPOSITION PARTY PROPOSALS AFFECTING PRESIDENT TOLEDO'S TENURE IN OFFICE OF DOUBTFUL CONSTITUTIONALITY REF: A. LIMA 2241 ¶B. LIMA 2222 ¶C. LIMA 2054 AND PREVIOUS ¶D. 04 LIMA 2699 ¶E. 04 LIMA 613 Classified By: Political Counselor Alexander Margulies. Reason: 1.4(b /d). ¶1. (U) SUMMARY: Congress, on 5/19, is expected to debate at least three proposals to sanction President Alejandro Toledo for his alleged involvement in fraud in connection with the registration of his Peru Posible party for the 2000 elections. Most of the proposed sanctions are of doubtful constitutionality. A proposal to vacate the Presidency, while within the Constitution's parameters, almost certainly lacks the two-thirds vote (81 legislators) required. END SUMMARY. ¶2. (U) The final report of the congressional committee investigating allegations that President Alejandro Toledo and his Peru Posible party engaged in massive fraud to register the party for the 2000 elections ("Villanueva Committee") contained three separate recommendations from its three opposition members on proposed sanctions to be applied to Toledo (Ref C). Committee Chairman Edgar Villanueva (Peru Ahora) urged that Congress vacate the presidency, Xavier Barron (Unidad Nacional) suggested that Toledo be prohibited from assuming public office for 10 years once his term ends on 7/28/06, and Victor Velarde (APRA) opined that the President should be suspended from office until criminal investigations/proceedings are concluded (which would last beyond the end of Toledo's term). ¶3. (U) Several Articles in the Peruvian Constitution address the impeachment of the President, the suspension of the President, vacating the Presidency, and disqualifying the President from holding office. -- Article 117 provides that the President, during his term of office, can only be accused for committing certain enumerated acts: treason to the fatherland; impeding presidential, parliamentary, regional or municipal elections; dissolving Congress for reasons other than those listed elsewhere in the Constitution; and for impeding the meeting or functioning of the National Electoral Board and other electoral system organs. -- Article 113 provides that the President's office is vacated if the President dies; Congress declares his moral or physical incapacity; Congress accepts his resignation; if he leaves the country without Congress' approval or does not return within the period fixed by Congress; and if he is destituted after being sanctioned for one of the infractions listed in Article 117. -- Article 114 provides that the President can be suspended from office for temporary incapacity declared by Congress, or if he is being tried by the judiciary in conformance with Article 117. -- Article 99 provides that it corresponds to the Permanent Committee of Congress to accuse the President before the full Congress for violating the Constitution and for all crimes that he commits in the exercise of his functions and for five years after the end of his term. -- Article 100 provides that it corresponds to the full Congress (less the Permanent Committee) to suspend, dismiss, or disqualify from holding office for up to ten years public officials. ¶4. (U) There has been no/no suggestion that Article 117 applies to the current situation, as President Toledo is not/not accused of any of the activities enumerated in that Article. ¶5. (C) Article 113 applies to Congressman Villanueva's proposal that Congress vacate the Presidency, should a sufficient number of legislators conclude that Toledo's actions constitute "moral incapacity." The Constitution, however, is silent with respect to the number of votes required for such a finding. The Constitutional Tribunal has held that no less than a two-thirds vote is needed (the Constitution does state that this is the number required for vacating some lesser offices),and Congress passed a Legislative Resolution in June 2004 adopting this standard (Refs D-E). Given the inadequacies of the Villanueva Committee's investigation and report (Ref C) and the GOP's 42-member legislative bloc, it is highly unlikely that the opposition parties could amass the 81 votes necessary. APRA legislative bloc leader Cesar Zumaeta acknowledged this to Polcouns on 5/16, and Unidad Nacional's Barron told the Ambassador on 5/18 that no more than 3-6 congressmen would vote in favor of a resolution to vacate the Presidency. ¶6. (C) Article 114 deals with suspension of the President for "temporary incapacity," a term that is not/not further defined by the Constitution. Constitutional experts have generally opined that this applies to a temporary physical or mental disability, or to a situation in which the President has been captured by hostile forces. APRA representatives who have spoken out in favor of applying Article 114 to Toledo, have not clearly detailed how the conduct Toledo allegedly engaged in can constitute "temporary incapacity." Zumaeta, for example, suggested that the uncertainty regarding Toledo's guilt pending a criminal investigation and trial could constitute a "temporary moral incapacity" sufficient to justify the President's suspension. Most commentators, however, have rejected the idea of a "temporary" moral incapacity, holding that moral incapacity either exists permanently or not at all. ¶7. (U) Barron's proposal that Toledo be disqualified from office for ten years following the conclusion of his term does not/not appear to fall within the scope of Congress' powers under Articles 99 and 100. Those articles provide that Congress' authority to disqualify a President from holding future office only extends to acts committed while the President was in office or for five years after the end of his term and Toledo is accused principally for acts committed before taking office. Toledo could conceivably be accused of complicity in efforts by GOP and Peru Posible officials to obstruct justice by facilitating the temporary flight of a key witness (Ref C),but no/no evidence directly linking the President to the alleged acts has yet been presented. ¶8. (U) COMMENT: The doubtful constitutionality of most of the sanctions being advanced by the opposition parties makes it likely that they will not/not obtain the necessary level of support to be approved by the full Congress on 5/19. Opposition leaders recognize this, but are prepared to go ahead with voting on the proposed sanctions to make political points (Ref A and Septel). END COMMENT. STRUBLE