CONSTITUTIONAL TRIBUNAL RULES REGIONAL COCA

UNCLAS SECTION 01 OF 02 LIMA 004217

SIPDIS

E.O. 12958: N/A
TAGS: SNAR PGOV PINS PE
SUBJECT: CONSTITUTIONAL TRIBUNAL RULES REGIONAL COCA
ORDINANCES UNCONSTITUTIONAL

REF: A. LIMA 3416

B. LIMA 3264

C. LIMA 3033

D. LIMA 2813

E. LIMA 2699


1. SUMMARY: The Constitutional Tribunal (TC),on 9/27,
ruled unconstitutional the pro-coca ordinances issued by the
Cuzco and Huanuco regional governments. While siding with
the GOP on the main legal point -- that coca policy is
exclusively within the national government's domain -- the TC
also harshly criticized the government's coca policies and
their implementation, exhorted the GOP and its anti-drug
agency DEVIDA to implement more effectively its Program of
Alternative Development, called on the Congress to include
the coca plant in the list of plants recognized as "Natural
Patrimony of the Nation," and asked the National Institute of
Culture to declare the traditional use of coca as "Cultural
Patrimony." The TC's recommendations to recognize
traditional coca as national or cultural patrimony are of
concern, and we will be consulting with our counter-narcotics
and legal sector contacts as to their implications. END
SUMMARY.


2. The TC's decision was announced on 9/27, just four days
after it held oral hearings on the GOP's challenge to the
Huanuco and Cuzco coca ordinances (Refs A, B, D, E). In its
59-page ruling (available at www.tc.gob.pe),the Tribunal:

-- held that the Cuzco and Huanuco regional governments'
pro-coca ordinances were unconstitutional.

-- called on President Alejandro Toledo to re-evaluate
Peru's national and international anti-narcotics policies so
as to make them more "efficient and in accordance with the
national and regional law and reality," in particular with
the critique of the GOP's policy made by the consultancy
Grupo de Analisis para el Desarrollo (Analyis Group for
Development or GRADE),whose findings that the GOP placed too
much emphasis on forced eradication and not enough on
interdicting precursor chemicals were cited approvingly by
the TC in paragraphs 135-142 of its ruling.

-- called on Congress to include, "as soon as possible," the
coca leaf plant in the list of plants recognized as "Natural
Patrimony of the Nation."

-- called on the National Institute of Culture to initiate
the administrative proceedings necessary "to evaluate the
technical appropriateness of declaring the traditional use of
the coca leaf plant as non-material cultural patrimony, in
conformance with international rules."

-- called on the Executive Branch, and in particular DEVIDA,
to adopt the necessary measures to implement, "as soon as
possible," the Program of Alternative Development provided in
the National Strategy in the Fight Against Drugs 2002-2007,
which was approved by Supreme Decree in 2005.


3. DEVIDA Director General Fernando Hurtado praised the TC's
decision, which he claimed "cleansed" the country's
international image that had been tarnished by the regional
coca ordinances. Hurtado went on to urge Congress to pass
the Coca Leaf Law proposed earlier this year by the
government (Ref C),commenting that this law, combined with
the issuance of regulations implementing the Precursor
Chemicals Law should provide the GOP with the tools to carry
out the TC's directives.


4. Independent Moralizing Front (FIM) Congressman Fausto
Alvarado said that his party, which had previously supported
fellow-FIM Cuzco Regional President Carlos Cuaresma on the
Cuzco coca ordinance, accepted the TC's ruling and would
abide by it. Alvarado added, however, that the Cuzco
Regional Government had the right to take the "measures it
deems convenient" in response. Cuaresma himself said that he
would obey the ruling, hinted that Cuzco may appeal it to
higher legal bodies (i.e., the Inter-American Court of Human
Rights),and warned that it could spark cocalero protests.


5. Huanuco Regional Vice President Hamilton Estacio also
stated that the Huanuco Regional Government would respect the
TC's decision. He added that it would continue to promote
the registration of Huanuco cocaleros as licit growers and
oppose the forced eradication of coca leaf.


6. COMMENT: The Constitutional Tribunal's ruling clearly
establishes the essential constitutional/legal doctrine that
anti-narcotics and coca leaf policy in Peru are the exclusive
domains of the national government. This should obviate
concerns that regional and municipal authorities will attempt
to issue their own coca/drug regimes. The TC's critique of
GOP anti-drug policies and their implementation, as well as
its recommendations to recognize traditional coca leaf and
its use as national and cultural patrimony are of concern,
however, and we will be consulting with our counter-narcotics
and legal contacts as to their implications. END COMMENT.
STRUBLE