DEATH PENALTY-PERU:
President's Bid Unlikely to Save Bill
Angel Páez

LIMA,  (IPS) - In an attempt to overcome the congressional defeat suffered by his death penalty bill, Peruvian President Alan García said he would seek a referendum to allow citizens to vote on whether or not they want capital punishment for terrorists.

Forty-nine members of Congress voted against García's bill late Wednesday and decided that it should be shelved. The initiative only won the support of 26 governing APRA party legislators and supporters of former president Alberto Fujimori, grouped in the Alliance for the Future. The session was attended by 75 of the 120 members of parliament.

In response, García said he respected the legislators' decision, but that it was "out of sync with the public, 80 percent of whom (according to the polls) are in favour of the death penalty for terrorists."

"When the political class fails to respond to what the people think, it seems anti-democratic not to consult them (by means of a referendum)," the president argued, after his first congressional defeat in his nearly six months in office.

But the president is unlikely to enjoy success in his bid to call a referendum.

The chairman of the congressional constitution commission, APRA lawmaker Aurelio Pastor, who had lobbied for approval of García's bill, told the press that the constitution does not allow a referendum to be held on an initiative that suppresses a fundamental right like the right to life.

One of the clauses of article 32 of the constitution states that the suppression of fundamental rights cannot be submitted to referendum.

The leader of the APRA legislators, Javier Velásquez, also expressed his doubts on the viability of García's proposal to hold a referendum.

"A constitutional reform would be necessary in order to submit the death penalty for terrorists initiative to referendum," Velásquez told IPS. "The APRA members of Congress have not met to analyse the president's new proposal."

"After the vote to shelve the bill, I believe it is improbable that Congress will approve a reform that would make it possible to call a referendum on the death penalty. For now, it is a closed issue for us, and we are working on other things."

A Constitutional Court magistrate who spoke to IPS on condition of anonymity said it would not be appropriate to call a referendum for the public to express its views on whether or not those found guilty of terrorism charges should be executed.

And if Congress did eventually approve García's proposal, the Constitutional Court would have the final say.

The "Democratic Constituent Congress" (Congreso Constituyente Democrático, CCD) created by former president Fujimori (1990-2000) after he dissolved the legislature in his Apr. 5, 1992 "self-coup", adopted the death penalty for terrorists.

At the time, the country was still in the grip of a civil war between government forces and the Maoist Shining Path (Sendero Luminoso) guerrillas and the smaller Tupac Amaru Revolutionary Movement (MRTA), when insurgents and suspected collaborators were imprisoned on terrorism charges.

However, Fujimori did not apply the death penalty, among other reasons because the Inter-American Court of Human Rights reminded the government that as a signatory to the American Convention on Human Rights, it could not introduce the death penalty.

What García's bill would have done is to incorporate the death penalty in the penal code, in order to make it effective. But the legislators of the Nationalist Party, the Union for Peru and the National Unity coalition voted it down.

The failure of García's bill in Congress was also a defeat for the Fujimoristas who, in an undeclared parliamentary alliance with the APRA lawmakers, backed the death penalty initiative.

Both García and Fujimori are facing cases in the Inter-American Court, for human rights violations allegedly committed by their past administrations.

García was president of Peru from 1985 to 1990.

Fujimori fled to Japan in 2000 to avoid prosecution when his government collapsed amidst a major corruption scandal. He is currently in Chile, facing extradition to Peru on corruption and human rights charges.

Juvenal Ordóñez, spokesman for the Nationalist Party -- whose members voted against the death penalty bill -- said that behind the initiative lurks a desire to challenge the American Convention on Human Rights, with the ultimate aim of refusing to comply with the imminent Inter-American Court rulings, which are expected to find García and Fujimori responsible for human rights abuses.

"We rejected García's bill because we discovered that it was concealing the government's aim of denouncing the American Convention on Human Rights and withdrawing from the jurisdiction of the Inter-American Court. Why? To try to save his ally Fujimori, and for García to save himself, because sentences for human rights violations committed by their governments will soon be handed down," Ordóñez told IPS.

Asked about García's proposal for a referendum, Ordóñez said "That shows that the president has not read the constitution. A referendum is prohibited when the right to life is involved."

Legislator Luisa María Cuculiza, a representative of the Fujimorista lawmakers, confirmed that they would back García's proposal to call a referendum.

"We agree, because the people will have the possibility to decide whether or not they want the death penalty for terrorists. Consulting them is part of democracy. Didn't they want democracy? Well, there they have it," she told IPS.

Constitutionalist lawyer Aníbal Quiroga León told IPS that a referendum "would violate the fundamental right to life," and that a referendum for abolishing the death penalty would be more viable.

"Applying the death penalty would imply, in juridical terms, restricting a fundamental right -- the right to life. It would be unconstitutional and should not be proposed, and the election authorities should not accept the request for a referendum. The government should consider the case closed," Quiroga told IPS.

García introduced the death penalty for terrorists bill to Congress in November, but the APRA legislators held a surprise debate on it after the Inter-American Court ruled that Fujimori and the Peruvian state were responsible for the May 1992 massacre of 41 prisoners facing terrorism charges in Canto Grande prison in Lima, a month after the former president's self-coup.

The Inter-American Court ruled that the victims did not die as the result of a shootout triggered by a riot mounted by prisoners belonging to Sendero Luminoso, as was officially reported by the Fujimori administration, but that they were singled out and killed by the security forces. The victims included some of the main leaders of Sendero.

The Court ruling ordered the Peruvian state to pay reparations to the families of the victims of the massacre and to pay public homage to the victims.

The second part of the sentence drew a loud protest from President García, who announced that he would consider whether or not to comply with the ruling.

APRA leaders like Mauricio Mulder and Javier Velásquez even warned that Peru might withdraw from the jurisdiction of the Inter-American Court.

Velásquez said he and his fellow APRA lawmakers did not feel that they had been defeated in Congress. "We proposed what people in the streets are calling for: the death penalty for terrorists. If Congress decided not to listen to the voice from the streets, then we had better take a look at what is happening, why Congress is out of step."

Ordóñez, however, said the real defeat was for García himself.

"Of course this is a political defeat for President García, since he was the driving force behind the introduction of the death penalty for terrorists," said the National Party congressman. "Congress refused to commit itself to a question that would force us to allow people to be killed, in the name of the state and justice, which is something we do not want to be involved in. We do not want dead people on our conscience."

The president of the non-governmental Human Rights Commission (COMISDEH), Miguel Huerta, applauded the vote by Congress. "President García's proposal implied a violation of the American Convention, because it was a clear violation of the right to life," he told IPS.

"Approving it would have put us in a controversial position on the international stage. And contrary to what APRA says, the vote against the bill is not a step backwards in the fight against terrorism, because we have very stiff laws. The Sendero leadership was recently sentenced to life in prison," he added.

What most drew the attention of local human rights groups, said Huerta, was that the arguments set forth by García and his party coincided with those of the Fujimoristas. "And who would benefit the most? Fujimori," he argued.

García had also presented another death penalty bill, one that would provide for capital punishment for child rapists. Passage of that law, however, would require a constitutional amendment.

Velásquez said that after this week's decision, approval of the child rapist death penalty bill is unlikely. "I think that before submitting the bill to debate, we should seek a consensus, otherwise we will lose again when it goes to vote," he said.