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