CUZCO COCA REGULATION - NO LEGAL IMPACT BUT

C O N F I D E N T I A L SECTION 01 OF 03 LIMA 003416

SIPDIS

E.O. 12958: DECL: 08/03/2015
TAGS: ASEC PGOV SNAR ETRD PE
SUBJECT: CUZCO COCA REGULATION - NO LEGAL IMPACT BUT
POLITICAL TENSIONS BUILD

REF: A. LIMA 3264


B. LIMA 303...

id: 38244
date: 8/9/2005 14:18
refid: 05LIMA3416
origin: Embassy Lima
classification: CONFIDENTIAL
destination: 05LIMA3264
header:
This record is a partial extract of the original cable. The full text of the original cable is not available.



-------------- header ends --------------

C O N F I D E N T I A L SECTION 01 OF 03 LIMA 003416

SIPDIS

E.O. 12958: DECL: 08/03/2015
TAGS: ASEC PGOV SNAR ETRD PE
SUBJECT: CUZCO COCA REGULATION - NO LEGAL IMPACT BUT
POLITICAL TENSIONS BUILD

REF: A. LIMA 3264


B. LIMA 3033

C. LIMA 2813

D. LIMA 2699

Classified By: PolCouns Alex Margulies Reason: 1.4 (b,d)

(U) 1. SUMMARY: The regulation implementing the Cuzco
Regional Government's ordinance on coca production/commerce
was published in the official gazette on 8/1; it largely
conforms with current national policy. The Cabinet
authorized lawsuits challenging the constitutionality of the
Cuzco and Huanuco ordinances on coca, which has put Prime
Minister Carlos Ferrero, Housing Minister Carlos Bruce and
national anti-drug agency DEVIDA director Nils Ericsson at
odds with Fernando Olivera (leader of the pro-GOP FIM party,
to which Cuzco Regional President Cuaresma belongs). We
expect the Constitutional Tribunal to declare the regional
ordinances unconstitutional, but the political consequences
of the regional governments' pro-coca initiatives remains to
be determined. An unofficial Embassy translation of the
Cuzco regulation follows in Para 7. END SUMMARY.


2. (SBU) On 8/1 the Regional Government of Cuzco published in
the official GOP newspaper "El Peruano" its regulation to
implement the coca ordinance previously released on 6/12 (Ref
C, D). The regulation declares coca produced in three Cuzco
valleys (La Convencion in La Convencion Province, Yanatile in
Calca Province, and Kosnipata in Paucartambo Province) to be
a botanical resource and part of the regional, natural,
biological, cultural, and historical patrimony of Cuzco. The
regulation limits the scope of coca to be considered legal to
that destined for medicinal, religious, cultural, ceremonial,
and chewing purposes. The regulation goes on to limit the
production of licit coca to that within the law and to those
producers who are legally registered. (COMMENT: The limits
established in the regulation essentially reiterate the
existing definitions for licit coca production, and do not
appear to go beyond current national law. Though the GOP has
an outdated list, the issue of who is legally registered will
likely be a source of future debate. END COMMENT.) The
regulation seeks to promote research on the benefits of coca
and calls for a Regional Institute for Scientific Research
dedicated to the topic.

3) (C) The GOP filed a challenge to the constitutionality of
the Cuzco ordinance with the Constitutional Tribunal (TC) on
7/26 before the regulation was issued. On 8/1 the GOP
similarly challenged the constitutionality of the Huanuco
regional ordinance (Ref A). The regional governments have 30
days to respond after which the TC convenes a hearing
allowing both parties to present their arguments. The Cuzco
ordinance hearing is scheduled for 9/26 or 9/27, with the TC
expected to issue a decision in October. TC President Javier
Alva Orlandi noted in the press that this is the first case
of the national government challenging the constitutionality
of a regional ordinance. The primary issue will be national
versus regional authority over the issue of coca control. On
8/2 President Toledo told the Ambassador that the GOP was
not/not going to back down from the case the government has
filed with the TC.

4) (C) Fernando Olivera, Peru's Ambassador to Spain and
leader of the Independent Moralizing Front (FIM) party, a
member of President Toledo's governing coalition, has
publicly come to the defense of Cuzco Regional President
Cuaresma, also of the FIM party. (COMMENT: Olivera is now in
Lima and expected to soon receive a cabinet appointment, most
likely Foreign Relations. END COMMENT.) Meanwhile, Prime
Minister Carlos Ferrero and Nils Ericsson, the head of the
Antidrug Agency, DEVIDA, have publicly criticized the
ordinance, while popular Housing Minister Carlos Bruce has
threatened to resign if the GOP backs off from its
constitutional challenge to the regional ordinances. Press
continues to highlight the ongoing political spat between the
FIM and GOP leaders punctuated by Olivera calling for
Ericsson's resignation.


5. (C) The Ambassador met with Olivera on 8/1. Olivera said
that the Cuzco regulation makes clear that the ordinance is
in conformity with the national law. The Ambassador told
Olivera that he was more concerned with the political than
the legal implications of the ordinance. The Ambassador said
that Regional President Cuaresma had opened the door for
courting the cocaleros -- others were now outbidding him and
Cuaresma himself was treating the issue in a populist manner.
The Ambassador also deplored divisions on drug policy within
the GOP that the Cuzco ordinance had provoked.


6. (C) COMMENT: The regional ordinances will likely be
declared unconstitutional by the TC. The political effect of
these regional challenges to GOP drug policy remain to be
seen. The current infighting within the GOP, between the
FIM's Olivera, PM Ferrero/DEVIDA's Ericsson, and the
President's Peru Posible Party demonstrates the issue's
divisive potential. The cocaleros have been silent in
response to the Cuzco regulation, which legally delivers
nothing new to them, likely viewing the ordinance itself as a
victory. END COMMENT.


7. (U) Begin text of the ordinance:

WHEREAS:

By means of Regional Ordinance number 031-2005-GRC/CRC, dated
June 21, 2005, it was determined that the coca leaf is a
natural, biological, cultural, and historical regional
patrimony of Cuzco, as well as a botanical resource,
integrated into the culture and cosmological vision of the
Andean world and to the cultural and medical customs and
traditions;

The Ordinance must be implemented through regulatory
standards that complement its contents in an appropriate
manner in order for it to be fully enforced, in view of the
fact that it is a matter which concerns the public and
citizens, and since its contents do not transgress any law;

With the authority granted by the Regional Governments
Organic Law, Law 27867, amended by Law number 27902, in its
Article 40;

RESOLVES:

Sole Article: To Authorize the Regional Ordinance No.
031-2005-GRC/CRC Regulation, which is made up of seven
Articles and whose content follows makes up this Executive
Regional Decree, is to be published in the "El Peruano"
Official Daily.

Transcribe it, record it and notify it.

CARLOS RICARDO CUARESMA SANCHEZ
President

REGULATIONS

Regional Ordinance
Number 031-2005-GRC/CRC
Regarding the Coca Leaf

Article 1: Purpose of the Regulation
The purpose of this regulation is to set complementary
standards to aid in the appropriate application of Regional
Ordinance number 031-2005-GRC/CRC, that determines that the
coca leaf is a natural, biological, cultural, historical, and
regional patrimony of Cuzco, as well as a botanical resource.
This regulation has been enacted in accordance with
provisions included in Law 27867, Organic Law of Regional
Governments.

Article 2: Scope of Application
The scope of its application are the production areas
referred to in Article 2 of the Regional Ordinance, found in
the Department of Cuzco and encompasses the coca valleys of:
La Convencion, in the province of the same name; Yanatile in
the province of Calca and Kosnipata in the province of
Paucartambo.

Article 3: Identification of the Coca Valleys or Basins
Coca valleys are areas called by that name, which are located
in: La Convencion in the province of the same name; Yanatile
in the province of Calca and Kosnipata in the province of
Paucartambo, all of them belong to the Department of Cuzco
and are acknowledged to be coca basins, in accordance with
legal norms and the demarcation made at a national level,
which ENACO S.A. is responsible for identifying.

Article 4: The Legal Nature of the Coca Leaf Production
The legal nature of the coca leaf production is limited to
the valleys which are specifically mentioned in the Ordinance
and refers to those that are designed for medical, religious,
cultural and ceremonial use, as well as traditional chewing,
practiced in the Peruvian Andean Region, whose purposes are
protected by the regional regulation.

Article 5: Limits to the Production of Coca Leaf
The production of coca leaf must not exceed the limits set by
the appropriate legal regulations and covers those producers
who are registered in accordance to law.

Article 6: Promotion and Incentives for the Research on the
Attributes of the Coca Leaf
The promotion and incentives granted to foster research of
the attributes of the coca leaf, shall be complemented
subject to available financial and economic resources
provided by the Cuzco Regional Government, and in compliance
with the Agreed Strategic Regional Plan for Cuzco through

2012. This research shall promote its beneficial, medical,
scientific and nourishing aspects, and shall foster its
industrialization in those aspects with the participation of
the private sector, as well as the cooperation of
professional and university institutions with a bearing on
that issue.

Article 7: Establishment of the Regional Institute for
Scientific Research
In order to foster the promotion and research of the
attributes of the coca leaf, the establishment of the
Regional Institute for Scientific Research will be promoted,
with the participation of the Cuzco universities, the
producers, coca leaf research institutions, the civil society
and country and city dwellers, devoted to the research and
promotion of the benefits of the coca leaf.

End Text.
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