Peru: “The Armed Forces are Not Political Arbitrators”

Interview with Juan Carlos Ruiz Molleda, Attorney at Law, Institute of Legal Defense (IDL)

The lawyer of the Instituto de Defensa Legal (IDL), Juan Carlos Ruiz Molleda, clarifies why the Armed Forces cannot intervene in the current electoral process.

“The Armed Forces are not political arbiters. Article 169 of the Constitution states that they are not deliberative and are absolutely subordinated to the democratically elected authorities”.

So says the lawyer of the Instituto de Defensa Legal (IDL), Juan Carlos Ruiz Molleda, in reference to the letter sent to high commanders of the Armed Forces calling for insurgency.

Ruiz Molleda explains in this brief article seven reasons why this call is unsubstantiated and why the retired military officers who signed it incur in criminal responsibility.

Can retired military personnel call for the insurgency of the armed forces?

67 retired military officers of different ranks have sent a letter to the high command of the armed forces, in which they threaten insurgency if their request to review the records of the recent electoral process is not met, in the following terms:

“Taking into consideration the above, the undersigned, retired officers of our glorious Armed Forces, we call upon the High Military Command to rigorously abide by Art. 38 of our Political Constitution, demanding compliance with the legal order of the Nation, correcting the irregularities demonstrated, to prevent the highest authority of the country from being appointed illegally and illegitimately as a result of a crime. Otherwise, according to the provisions of Art. 46 of our Constitution, the Armed Forces would have the right to not obey and therefore to disavow as President and Supreme Chief of the Armed Forces and National Police a person who has been appointed in violation of the Constitution and the Laws of our country, being able to resort to the Congress of the Republic to provide a democratic solution and in accordance with the Law”.

In view of these statements, we must point out the following:

1. The power of the State emanates from the people. According to Article 45 of the Constitution, power emanates from the people, and those who exercise it do so with the limitations established by the Constitution and the laws. The will of the people is expressed through elections, through the popular vote.

2. It corresponds to the National Jury of Elections to proclaim the electoral results and to administer electoral justice. The distribution of competences established by the Constitution must be respected. Article 178 paragraphs 4 and 5 are very clear. It corresponds to the JNE to administer justice in electoral matters and to proclaim the electoral results. And the JNE has not yet pronounced, which is why the armed forces lack the least competence to arrogate to themselves the power to pronounce who the winners are. It is up to the JNE to give the results.

3. The armed forces are not political arbiters. Article 169 of the Constitution is very clear. It says that the Armed Forces are not deliberative, as it is pretended here. They are absolutely subordinated to the democratically elected authorities. Those who sign this letter erratically consider that the armed forces are the guarantors or arbitrators of the electoral process, which is incompatible with the legal system.

4. The right to insurgency does not apply. Article 46 of the same Constitution, although it recognizes the right to insurgency, this only applies when we are faced with the exercise of power by someone or by a group of persons who have not been or have not been elected by the population through electoral processes. This right does not apply in this case, because we are not in that case, since the JNE has not yet pronounced in the last and final instance.

5. Freedom of information and opinion do not protect calls for a coup d’état. Freedom of expression is not absolute, it has limits. The preservation of the Democratic State and the constitutional order are a limit to the communicative freedoms, recognized in article 2.4 of the Constitution. At stake here is the public order, the public interest. As stated in Article 13 of the American Convention on Human Rights, although censorship is not appropriate, it is possible to demand “subsequent responsibilities, which must be expressly established by law and be necessary to ensure […] the protection of national security, public order […] “.

6. The president of the Congress cannot assume the presidency. As we know, Article 115 of the Constitution states that “In case of temporary or permanent impediment of the President of the Republic, the First Vice President shall assume his functions. In the absence of the latter, the Second Vice President. In the event of impediment of both, the President of Congress. If the impediment is permanent, the President of Congress shall immediately call for elections”. This rule cannot be interpreted without reference to Article 45 of the Constitution.