UNCHECKED POWER:
THE PRESIDENCY UNDER FUJIMORI AND BEYOND
PHILIP MAUCERI
DEPARTMENT OF POLITICAL SCIENCE
UNIVERSITY OF NORTHERN IOWA
CEDAR FALLS, IA 50701
PHILIP.MAUCERI@UNI.EDU
Comments Welcome
This Paper is part of a larger project on Constitutional Reform and the Presidency in Colombia,
Venezuela and Peru. Presented at the Panel “The Y2K Problem in Peru: Fujimori and the Bases
for Liberal Democracy: Institutions and Processes” at The XXII International Congress of the
Latin American Studies Association, 16-18 March, 2000 in Miami, Florida
Since first being elected in 1990, President Fujimori has dominated the politics of Peru by
defining the policy agenda, redesigning the country’s institutional framework and maintaining
almost consistently high public approval ratings. No other institution within the state structure has
appeared to check presidential power and no organizations in civil or political society have been
able to challenge what has at times appeared to be an almost inevitable concentration of political
power in the presidency. These trends raise important questions about the role of presidents in
Peru and Latin America in general. Were the sources of Fujimori’s power and legitimacy in the
1990s the result of a particular “coyuntura” or indications of structural and/or institutional
conditions likely to influence the course of Peruvian politics in the coming decades? More
generally, what are effective checks on presidential power and how do they develop? Finally,
what does such a dominant presidency say about the social and cultural underpinnings of power
relations in a society such as Peru’s at the start of the 21st Century?
This paper will argue that the Fujimori administration accelerated trends already in place
during the 1980s towards ever greater presidential power. The analysis focuses on the three
primary “checks” in modern liberal democracies on presidential power: mutual power checks
among institutions, decentralization of decision making and party systems. The historical legacy of
Peru, the political practice of the Fujimori government and the institutional framework that
developed in the 1990s have undermined the possibility of developing checks on presidential
power. The paper ends with some reflections on the likelihood of institutional reforms in the postFujimori era.
The preponderance of academic studies of presidential systems has been highly critical
(Lijphart 1991, Mainwaring 1993, Stepan & Skach 1993, Linz and Valenzuela 1994). These
critics have argued that a presidential system is more likely to promote immobilism, institutional
conflict and weak legitimacy as well as inexperienced and authoritarian leadership. The Latin
American cases found in the second volume of the Linz and Valenzuela study (1994), offer a
convincing series of country studies that attempt to demonstrate how presidentialism has
contributed to unstable democracies and in some instances, outright democratic breakdowns. One
of the few analyses to focus on the advantages of presidentialism is found in Shugart and Carey
(1992), which focuses on 48 countries that have held at least two presidential elections during the
20th Century. The authors suggest that presidentialism provides a high level of both
accountability and identifiability of alternatives, as well as mutual checks and an arbiter of social
and political conflicts. Most importantly, they question whether presidentialism is any more likely
to lead to democratic breakdown than parliamentarism.
Despite the apparent scholarly consensus against presidentialism, the historical reality of
most democracies established in recent decades, particularly in Latin America, is that
presidentialism (or at least a mixed semi-presidential system), remains the favorite choice in
constitutional frameworks. Of the three new constitutions adopted in the region during the
1990s–Colombia, Venezuela and Peru–not only was a changeover to parliamentarism not even
debated, but in the cases of Peru and Venezuela the formal powers of the presidency were
strengthened. For scholars and policy makers interested in deepening democracy in Latin
America, the unlikelihood of alternative systems being adopted in the near future suggests that it
is time to move beyond the presidential vs. parliamentary debate. Given that presidential systems
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have been and are likely to continue to be a fixture of Latin American constitutions, a more
fruitful line of inquiry would focus on the sources of presidential power and legitimacy.
Specifically, how do we define “checks and balances” in a modern liberal democratic system and
are there conditions under which such a situation is more likely to develop? Finally, what
institutional mechanisms and/or social configurations can be used to prevent (or undo) a situation
of unchecked presidential power?
I. Defining Unchecked Presidential Power in an Electoral Democracy: Beyond `Delegative
Democracy’
In a now seminal article, Guillermo O’Donnell (1994) defined “delegative democracy” as a
situation in which a president becomes “the embodiment of the nation and the main custodian of
the national interest”. As such he has little tolerance for institutional rules and procedures, which
are viewed as possible impediments to achieving his goals. Politics is viewed in personalist and
plebiscitarian terms. Although elections are generally free of significant fraud and minimal civil
liberties are maintained, manipulation of the media and intimidation of the opposition are the
norm. O’Donnell’s description of a “delegative democracy” paints a bleak picture of presidential
power run amok and clearly from Peronist Argentina onward, the latter half of the 20th Century
in Latin America offers numerous examples of what might be labeled delegative democracies.
The power of presidents in these “democracies” to undertake policies with few
constraints, provides a vivid example of unchecked presidential power and offer an illustration of
the fear expressed by James Madison in Federalist Paper #47 that, “The accumulation of powers
[in the same hands]...whether hereditary, self-appointed or elective may be justly pronounced the
very definition of tyranny”. Building on the ideas of Locke and Montesquieu, Madison devised a
system based on checks and balances, or what presidential scholar Richard Neustadt has termed
the principle of “separated institutions sharing power” (Neustadt, 1960: 33). The purpose of
“checks and balances” is to prevent any single institution from making decisions without the
support or at least acquiescence of other institutions. The system forces participants to negotiate,
bargain and compromise in order to achieve their objectives, inhibiting “winner-take-all”
scenarios, whereby oppositions and/or minorities have no ability to shape or influence policy
making. Mutual checks thus become mutual restraints on the exercise of institutional power. The
Madisonian approach to dividing power was extended to the division between national and local
power in a federal system. The justification is found in Federalist Paper #51, where Madison
argues that “The different governments will control each other.” The framers of the US
Constitution hoped that the federal and state governments would restrain each other just as the
executive, legislative and judicial branches would do so at the national level.
When discussing checks and balances, most of the literature builds on the Madisonian
tradition by focusing on specific constitutional mechanisms designed to divide and check power.
Although these remain the primary checks on presidential power in modern liberal democracies,
there is at least one more institutional arrangement that evolved beyond Madison’s scheme,
namely party systems, that can exercise important checks on executive powers. Beyond their
function as “interest aggregators” linking the state with civil society, parties provide important
linkages between the branches of government as well as between national and local authorities.
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Parties not only provide channels for demands and participation to be expressed, but they also
shape preferences and as such play an important role in creating democratic legitimacy and
accountability. The autonomous political and institutions interests of parties creates a level of
accountability between the executive as politicians to party elites.
In summary, this paper suggests that there are three institutional mechanisms that are the
primary checks on presidential power in modern liberal democracies:
Mutual Institutional Checks Under Separation of Powers: The system of mutual checks developed
in the US political system included specific checks on presidential powers by the Congress and
Courts, such as the ability to overide vetos, advise and consent on diplomatic treaties and judicial
review. While the specific mechanisms will vary, the purpose of formal checks on the presidency
is to provide the other branches of government legal restraints on the policy making and/or
implementation powers of the executive.
Nonetheless, the mere existence of formal/legal checks on presidential power does not in
themselves guarantee their effectiveness, particularly where there is not the political will to
enforce the authority of those checks. The unwillingness to exercise that authority might result
from a variety of factors, from partisan closeness to the president to outright corruption. A good
example of this dynamic is the legislative power given to presidents. In a number of systems,
including Peru’s, the Congress can cede legislative authority to the executive. Under most
circumstances that authority is limited to specific issues within a set time limit. Although
legislative decree powers, if used sparingly would not necessarily result in excessive presidential
power, the unwillingness of legislatures to set specific limits or timetables or enforce those limits,
often for partisan reasons, usually contribute to concentrated presidential power. Thus it is not
the formal/legal mechanism but the abdication of legislative authority that neutralizes the check on
power.
Decentralized Decision Making and Local Autonomy: Beyond formal/legal checks by other
branches of government on the President, the Madisonian approach to checks and balances also
creates multiple sources of legitimacy and authority, namely the idea of a federal system of
governance in which separate local institutions and laws exist and derive their legitimacy from
officials elected independently of national leaders. The impact of federalism or other forms of
decentralization is to carve out a series of policy arenas and jurisdictions over which presidents
have little effective power. Moreover, the alternative governing figures--from mayors and
governors to local legislators and judges--limit the ability of presidents to proclaim themselves the
embodiment of the national will by establishing other actors with a legitimate claim to represent
the people’s will.
Institutionalized Party Systems: Parties as organizations have a broad range of interestsideological, electoral, financial, membership–which they are likely to enforce when dealing
political actors, including a president. The consequences of policies over the long term on party
interests will inevitably be an important part of presidential decision making and is likely to act as
a constraint. Since presidents in such systems are likely to come from the party machinery, there is
a sense of mutual obligation between party leaders and the president to advance each others
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interests and avoid policies that might be costly to each other. Mexico provides a superb example
of this dynamic.
During most of the 20th Century, Mexican presidents were highly authoritarian and
paternalistic. Yet the “presidencialismo” of the Mexican system was far from a model of personal
and arbitrary rule. Mexican presidents were traditionally constrained by party elites and interests
both within the party organization as well as those entrenched in the state apparatus. When
presidents did undertake actions that many party leaders opposed, as with the 1981 bank
nationalization by President Lopez Portillo, they were often frustrated by the party’s check on
their power. (Camp, 1996: 156). The mutual dependence of the dominant PRI and the president
thus ensured that executive personalism would not develop.1 By contrast, in personalist systems
the president focuses on personal popularity, emphasizes short-term policies and, unconstrained
by the needs or interests of a party organization, appeals directly to the electorate generally
disdaining institutional norms and procedures.
The presence of one or more of the above checks on presidential power is likely to be the
result of the social and historical context of a political system, and particularly the experience with
institutions. Institutions reflect social and cultural attitudes, and executive power and its
institutional limitations are not an exception to this general principle. In much of the recent
analyses of presidential systems in Latin America, however, surprisingly little attention has been
paid to this dimension. In one of the few efforts to address this issue, Glen Dealy suggests that
although Latin American constitutions historically incorporated formal separation of powers, the
idea of separation of powers has little basis in the Ibero-American understanding of the limitations
of power, where “restraints were not procedural but moral” (1982: 168). Unlike the Madisonian
approach which assumes a Hobbesian view of human political behavior, and thus requires specific
constraints on the accumulation of power, the writers of Latin American constitutions, Dealy
argues, believed the only restraint on the exercise of power that was needed was the selection of
virtuous rulers. The accumulation of power was not viewed by Ibero-American philosophers as
inherently evil and so there was little need to develop elaborate schemes to divide, separate and
balance the exercise of governmental power. The primary task of constitution writers was to
ensure the moral exercise of power, something that would occur through moral education, social
conformity and the enforcement of religious authority.
Although this understanding of power has not been immutable during the last two
centuries, it clearly has played an important role in shaping political patterns. A history of
arbitrary, personalist and authoritarian rule is an obvious impediment to producing either
institutional arrangements focused on limiting the power of executives or a culture of executive
accountability. But checks and balances are largely the result of political craftsmanship and with
sufficient support from political elites and public opinion, might offer a creative breakthrough to
deepen the process of democratic institutionalization. In order to examine both the challenges and
promises such an attempt might confront we now turn to the case of Fujimori’s Peru.
1
This is not to argue that the Mexican presidency operates in ways that are consistent
with democratic institutionalism. Although the presidency has traditionally had a highly
authoritarian character, it has not been a tool of arbitrary personalist rule.
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II. Sources of Presidential Power and Legitimacy in Peru
The Fujimori presidency offers a good example of unchecked presidential power. While
elections have generally been free of fraud and minimal civil liberties have been maintained,
institutional rules and norms have been altered in ways that enhance the powers of the president
over other institutions in the state and society. Largely eschewing any reliance on organizations
outside direct executive control, President Fujimori’s rule has been based on an arbitrary
personalism that has put into place an informal network of supporters to advance the political
interests of the president. The most direct challenge to democratic institutionalism during
Fujimori’s administration came in April 1992, when the president used the armed forces to
forcibly shut-down the Congress and Judiciary. Largely as a result of international pressure, the
administration was forced to hold constituent assembly elections and ultimately a new constitution
was approved by voters in a 1993 plebiscite. Under the 1993 Constitution, both the congress and
judiciary saw their formal powers reduced. Since the adoption of the new constitution, neither the
congress nor the judiciary, which are dominated by Fujimori appointees and loyalists, have
impeded the adoption or implementation of a major policy initiative of the president. Where the
threat of such an event occurred, as in the Constitutional Tribunal’s decision regarding
presidential reelection, institutional rules and personnel were arbitrarily changed. An evaluation of
possible checks on presidential power nonetheless requires an examination of the traditional
sources of checks on presidential power and influence, a task to which we now turn.
A. Personalism and The Use of Informal Networks over Political Parties
Viewed from a historical perspective, Fujimori’s highly personalist style of governance is
certainly not unprecedented in either Peru or the region. Latin America has a long experience with
caudillo (strongman) rule, both civilian and military. As mentioned earlier, the historical and
cultural context in which the idea of executive power developed is key to understanding this
experience. Nonetheless that does not mean that the ways in which this power is either
understood or operationalized is deterministically fixed. New power relations, technologies and
social structures are likely to impact on how presidential personalism is viewed and/or exercised.
President Fujimori has been quite adept at incorporating many of these new elements into this
traditional pattern, most notably his use of television as a way to shape political opinions.
Carefully orchestrated media events, in which the president appears dressed in traditional
costumes, dancing, drinking or bantering with local peasants or workers have been a staple of the
administration. Such events are the results of a sympathetic national media willing to provide a
forum for a popular president, but also of the network of media consultants, focus groups and
polling data that can artfully craft an image for politicians everywhere.
Fujimori has been very successful in appealing to the different social classes and groups
that make-up modern Peru, by creating a discourse that links his own person with the needs,
interests and even culture of these disparate groups. Like the populists of the past, Fujimori has
demonstrated enormous political skill, mixed with demagoguery, in convincing people with such
divergent interests that loyalty to him personally is the best way to achieve their goals within the
political system. Fujimori’s ability to maintain such personal loyalty even while implementing
policies that create high economic costs for these constituencies, has been one of the most
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surprising aspects of his administration and also the source of much academic attention.2 A key
aspect of this dynamic has been the extraordinary focus, both in policy terms and the discourse
offered the public, that the administration has had on “practical” solutions to everyday problems.
A Japanese engineer-president focused on pragmatic problem solving had special appeal in the
context of the hyper-ideologized political society, spiraling political violence and near economic
collapse of Peru in the early 1990s.
What is perhaps most astonishing is that continued support has come despite the complete
disinterest in political organization and mobilization. Unlike classic populist politicians such as
former president Alan García, the Fujimori administration has been uninterested in mobilizing
support from lower class groups and has avoided using class-oriented appeals or redistributive
policies to gain support. While cultivating approval in opinion polls and elections, there have
been no significant pro-government organizations designed to channel support for administration
policies. Since the start of the administration, Fujimori has consistently attacked the concept of
parties as well as the existing parties in Peru. Indeed, Fujimori was elected in 1990 in part as an
“outsider” to the party elites. Peru since the 1960s had a multiparty system with the major parties
mixing ideology and strong class identity with the charisma of a founding leader. By contrast, the
two “parties” developed by Fujimori and his supporters, Cambio 90 and Nueva Mayoria, are little
more than electoral vehicles. Neither has a national organizational structure, independent
leaderships or programmatic agendas, and both are viewed as mere electoral labels for proFujimori candidates.
In order to accomplish many of the tasks that a formal party structure might provide,
President Fujimori has been astute in creating a web of personalist networks throughout the
administration made up of people loyal to his person and occupying formal and informal roles in
the government. These networks provide the president with the staff of loyal followers within the
state bureaucracy that is often recruited from a political party. They also help the president
manage and ultimately aggregate the demands coming from different sectors of society. Unlike
party officials however, they do not have an independent power base of their own, and are thus
unable to provide a check on presidential activities. Their dependence on the president means
that their positions are tied to their ability to loyally serve the interests and needs of the president.
If they are perceived as threatening, they can be easily removed and in contrast to party officials
who might have organizational interests of their own, there are likely to be few if any
repercussions for the president.
There are two primary networks that Fujimori developed from the start of his
administration: social/familial and technocratic. Lacking a formal political party, it was almost
inevitable that once elected, Fujimori would turn to friends and family to staff his administration.
Although many in the developing family/social network were highly trained and competent, others
had little more than their ties to Fujimori as qualifications. Santiago Fujimori, the new president’s
brother became a de-facto chief of staff, overseeing appointments and promotions within the
2
See in particular Ken Roberts, “Neoliberalism and the Transformation of Populism in
Latin America: The Peruvian Case”, World Politics 48(4), October 1995, pp. 82-116; Susan
Stokes, “Economic Reform and Public Opinion in Peru, 1990-1995" Comparative Political
Studies 29(5), October 1996. Pp. 544-565.
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executive branch and until their separation, Fujimori’s wife Susana Higuchi also played a role as
informal advisor. Victor Joy Way, a successful Chinese-Peruvian businessman from the Andean
department of Huanuco and friend of the president has at various points been Prime Minister and
President of the Congress. The administration recruited heavily among the Japanese-Peruvian
community, which had traditionally not been politically active or mobilized. During the 1990s,
several prominent ministers and vice-ministers came from this community, including Daniel
Hokama, former Minister of Energy and Mines, Alejandro Afuso Higa, director of the social
program FONCODES and Victor Kobashigawa, Vice-Minister of Education. The most
prominent figure from this community and one of the most influential officials of the first Fujimori
administration was Jaime Yoshiyama, who first as Minister of Energy and Mines and later as
director of the Ministry of the Presidency oversaw much of the economic and governmental
restructuring that took place between 1990 and 1995. Yoshiyama was often mentioned as a
possible successor of Fujimori and became the administration’s candidate for Mayor of Lima in
November 1995, but narrowly lost. Yoshiyama’s growing prominence, ambitions and semi-public
efforts to build an independent political base were important factors behind his summary dismissal
as governmental minister at the end of 1996.
The penetration of the state bureaucracy by this social network although providing a loyal
staff for the president has often led to charges of corruption (as with Santiago Fujimori) and/ or
the erosion of professionalism. Nowhere is the latter more clear than in the security forces. By far
the most powerful of the informal advisors to the president has been Vladimiro Montesinos, a
former army captain and shadowy figure who had been Fujimori’s attorney during the 1990
presidential campaign, Montesinos was instrumental in using his contacts in the security forces to
help purge the armed forces and establish the new presidents control over them. Although he
occupies no formal position within the governmental structure, he has effective control over both
the armed forces and the intelligence agency, SIN. Promotions, retirements and assignments have
been heavily influenced by Montesinos, and his power and influence has been the source of
resentment within the security apparatus.3 Allegations of corruption and ties to drugtraffickers
have had no impact on his influence and efforts by opposition congresspersons to investigate his
role have been quashed.
As social networks have extended their influence throughout the state, professional criteria
in personnel decisions have suffered. Again, the armed forces provide a stunning example of this
dynamic. Before 1990, professional criteria strictly governed promotions within the military.
These criteria, developed in the 1950s, linked promotions to the upper echelons of the military
with academic rankings at the Escuela Superior de Guerra and previous assignment experience.
Moreover, a strict calendar of rotation was built into most appointments, including that of the
commander generals of the individual service branches. All of these criteria were swept aside by
presidential decrees in 1991 and 1992, paving the way for appointments based on personal and
political criteria. High ranking officers today may serve indefinite terms at the pleasure of the
president, who officially makes the final determination. These changes allowed Fujimori to replace
“institutionalist” officers with those who were personally loyal to his administration. As happened
3
See for example Enrique Obando “Fujimori and the Military: A Marriage of
Convenience” NACLA: Report on the Americas , 30(1) July/August 1996. pp. 31-36.
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with civilians, officers whose loyalty came into question or appeared to be building an
independent power base were dismissed. Such was the fate of General Nicolas de Bari Hermoza,
who from 1991 until 1998 was both Commander General of the Army and President of the Joint
Command, and thus Peru’s most powerful military officer. Nonetheless after highly publicized
disputes with Vladimiro Montesinos and efforts to rally other officers to his side in growing
conflicts with the administration, particularly over the Ecuador-Peru border conflict, General
Hermoza was abruptly retired.
A second type of personalist network that has been used extensively during the 1990s was
the technocratic. Technocrats are highly trained and specialized functionaries. Most have
advanced degrees from foreign universities, particularly in the United States, with a focus on
economics or finance. Throughout Latin America in the 1990s, technocrats have developed
extraordinary influence in state policy making and Peru has not been an exception. Technocrats
have played a central role in reorganizing the state structure and implementing economic reforms.
Their ability to forge links between government politicians, international economic actors (both
financial organizations and multinational corporations), and the domestic business sector have
played a critical part in the successful implementation of the administrations structural reform
package.
Where party systems exist, the party organization can provide the core of trained
personnel beyond that which exists in the civil service. Such a cadre of party technocrats is likely
to have constituencies and support within the party apparatus, as well as interests that likely
transcend those of the sitting president. The recruitment of technical personnel outside of a party
structure accentuates the already strong links that exist between technocracy and the executive
branch since technocrats are generally found in the executive branch bureaucracy. The potential
for a virtual monopoly by the executive on technical expertise is a very real danger that puts other
governmental branches as well as political society at a disadvantage. Unable to acquire the
expertise needed to evaluate presidential policies, they must either rely on the executive to
provide this information or acquiesce in the presidential monopoly on technical information. In
Peru, as in most of Latin America, the legislative and judicial branches have few resources and
have traditionally not developed an independent technical staff that could serve their institutions in
the way the executive is served by its bureaucracy. An “information gap” between these
institutions than contributes to an increase in presidential power and influence.
The Fujimori administration has relied heavily on technocrats for both developing and
implementing its economic reform project. Technocrats have been found at all levels of the
executive, from ministers to agency staff, and have been especially important in restructuring
agencies which were seen as having a strategic role in the liberalization of the economy. Not
surprisingly two agencies stand out: SUNAT, the tax collecting agency whose priority was to
increase tax collections and thus strengthen governmental revenue and COPRI, the agency
charged with overseeing the privatization of state enterprises. Staff and managers at both
agencies were notable for being highly trained professionals, predominately lawyers, accountants
and economists, many with foreign degrees. In addition to providing valuable technical advice,
they played a key role in forging links between the executive, international financial institutions,
including multinational corporations, and the domestic business sector. This was especially true in
the first (and for economic reforms, the most critical) Fujimori administrations, with figures such
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as former Minister of Economy Carlos Boloña and informal advisor Hernando de Soto providing
important international contacts and also attracting a cadre of technocratic advisors to work in the
administration. The reliance by the president on technocratic networks that are directly
responsible to the executive, to design and implement economic restructuring has effectively
marginalized other institutions in the policy making process and in fact contributes to the
perception that legal or legislative deliberation is merely an obstacle to overcome rather than an
integral part of the process. The acceleration of privatization efforts in the immediate aftermath of
the autogolpe highlights the virtual disdain that some technocrats had towards the process of
democratic deliberation.4
B. Separation of Powers or the Arrogation of Decision Making to the Executive?
Peru’s presidential system has historically been closest to the model of separate rather than
connected powers. The key difference between these two models is whether or not the terms of
the executive is subject to legislative powers, specifically a vote of confidence. The 1860, 1920
and 1933 Constitutions gave the Peruvian Congress the right to censure cabinet ministers, thus
creating a semi-presidential system. As McClintock notes, these provisions were part of a long
standing struggle between these branches, a struggle that effectively ended when the 1979
Constitution sharply limited cabinet censures (McClintock, 1994: 289-292). Despite the
vulnerability of specific cabinet ministers and under certain circumstances of even the entire
cabinet to censure, the President’s term is not affected.
In general, the 1979 Constitution ushered in a period of growing presidential power and
influence. In part this resulted from the substantial majorities Presidents Fernando Belaúnde
(1980-85) and Alan García (1985-90) enjoyed in the Congress. Both presidents extensively used
their legislative decree powers, duly granted to them by the Congress. Over 50 percent of the laws
passed during the Belaúnde administration and 60 percent of the laws passed during the García
administration were legislative decrees issued by the executive(Planas, 1999: 120). In addition, no
ministers were censured and few were called by the Congress for interrogation. Important policies
were usually initiated by the executive, without prior communication or coordination with party
officials or congressional allies. The most egregious example of this dynamic was the 1987 bank
nationalization by President García, a plan that was developed by a small circle of advisors and
launched with little outside input, that dominated the political agenda of the country for two
years. Both presidents were known for their highly personalist style of governance. While
Belaunde focused on personally overseeing and inaugurating public works projects throughout the
country, Garcia was most noted for his “balconazos”, fiery speeches delivered from the balcony of
the presidential palace to crowds of loyal APRA followers. Garcia’s government was often
referred to as simply “Alanista” emphasizing the personal character of the administration.
The trend of the 1980s towards greater presidential power accelerated dramatically in the
1990s under President Fujimori and the 1993 Constitution. The power of the presidency increased
both within the executive branch itself as well as over the Congress and Courts. The key event in
4
This was made clearest to me in an interview with a COPRI official on July 26, 1996
who gleefully recounted how easier and much more “efficient” his work was after the autogolpe.
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reshaping these relations was the 1992 “autogolpe” or self-coup. While most analyses note the
important role disputes between President Fujimori and Congress played in bringing about the
coup, few suggest this was the primary cause.5 Although Fujimori, unlike his two predecessors
lacked a majority in Congress, he was nonetheless able to get most of his major policy initiatives
approved as well as winning legislative decree power on a number of issues. Under international
pressure, including the threat of possible sanctions from the United States, a Constituent
Assembly was quickly elected and set about the task of writing a new constitution. Seizing the
advantage of high public approval ratings, a disorganized political opposition and the
overwhelming dominance of pro-Fujimori representatives in the Assembly, the administration
pushed through a constitutional blueprint that was heavily tilted in favor of presidential power.
This tilt is especially notable in executive-legislative relations. Under the 1993
Constitution, Congress is smaller, has even fewer clear checks on Presidential power than in the
1979 Constitution and is more vulnerable to the threat of dissolution. The 1993 Constitution
created a unicameral legislature of 120 members compared to the 240 member bicameral
legislature under the 1979 Constitution. Moreover, all members are elected on national lists,
which applied only to Senate members in the 1979 Constitution. The practical impact of these
changes are obvious. As Fernando Tuesta has pointed out, the Peruvian Congress is one of the
smallest in the world and only comparable to those of much smaller countries (Tuesta, 1996:
137). The smaller Congress is also less representative of national opinion, insofar as not all parties
or departments are guaranteed representation. The result is a high level of “disproportionality”,
whereby the actual percentages of votes by parties or region are not reflected in the
apportionment of representatives. Moreover, the lack of a geographically fixed constituency,
significantly weakens representative legitimacy by making legislators more vulnerable to national
public opinion and tying their electoral fate to that of the president.
The smaller size and thus reduced representativeness of Congress was accompanied by
new limitations in checks on the president. Among the most important policy checks on
executives in a presidential system are legislative approval for international treaties and high-level
diplomatic and military promotions. Although the wide majorities enjoyed by the García and
Belaúnde governments meant that no significant treaties or promotions were rejected, the process
allowed Congress to question candidates and provided opposition parties the opportunity to
expound their alternatives. The 1993 Constitution eliminates this requirement, freeing the
president to make and ratify treaties in a series of policy arenas (Article 56) and to designate
ambassadorial and military appointments without congressional approval.
The presidential veto and congressional ability to overide it, is a classic type of mutual
check in presidential systems. Article 108 of the 1993 Constitution maintains the right of
presidents to observar congressional laws, a veto mechanism that existed in the 1979
Constitution. If the president does not promulgate a law with 15 days of congressional passage,
5
The most notable analysis of presidential-legislative dispute as the source of the
autogolpe is found in Charles Kenney, “Por que el autogolpe? Fujimori y el Congreso, 1990-92"
in Fernando Tuesta Soldevilla ed. Los Enigmas del Poder: Fujimori 1990-1996. Lima: Fundacion
Friedrich Ebert, 1997. Most analyses stress factors such as the socioeconomic context, military
politics or the authoritarian disposition of Fujimori and his supporters.
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the law expires. Congress may than promulgate it with the votes of 51% of its members. The only
difference in this regard between the 1979 and 1993 Constitutions is that the current Constitution
allows the President to partially promulgate a law, in what amounts to a rough equivalent of a
“line-item veto” in the US system (Chirinos Soto, 1995: 187-191). As legal observers in the US
have noted, such partial vetos enhance the power of executives, allowing him to pick and choose
which aspects of the law he finds palatable. In the Peruvian context, the majorities favorable to the
President and the fact that most laws originated in presidential decrees, made the use of
presidential observaciones exceedingly rare. Nonetheless a new line-item veto is yet another
concession to presidential power.
In the area of economic policy making, the new constitution retains the limited role of the
Congress in developing and administering the nations finances and budget. Article 211 of the
1979 Constitution clearly gave this authority to the President. The Congress may discuss, debate
and finally vote on the budget, but it cannot substantially alter spending proposals, the initiation of
which remains an executive prerogative. The 1993 Constitution continues this tradition. If
anything the restriction is reenforced in Article 79 by requiring the prior approval of all tax laws
by the Ministry of Economics and Finance. A persistent problem facing the Congress in this area
has been the lack of independent economic or budgetary information. Congress does not have its
own budgetary research staff and as a result, members receive their information from the
executive branch, the media or private research institutes.
The Congress does not have any specific investigatory powers and it’s ability to remove
officials is similarly limited. Ministers can be interrogated by Congress on policy and as
mentioned earlier, cabinet censure is a prerogative of Congress. In some ways censure appears to
be a legislative “check” on presidential power. However, the censure of a minister or even an
entire cabinet does not affect the President, whose extensive policy making and implementing
powers remain unaffected. Moreover, censure carries inherent dangers for the Congress. Under
the 1979 Constitution three cabinet censures by the Congress allowed the President to close the
Congress for new elections. Under the new Constitution, the President can dissolve the Congress
after only two cabinet censures. Moreover, unlike the older censure mechanism which restricted
the President to proceeding with only one congressional dissolution per term, the 1993
Constitution allows the President to dissolve Congress an unlimited number of times and provides
that the President can govern through “decrees of urgency” until a new Congress is elected,
leading some analysts to suggest that this provides an incentive for a President to provoke crises
with an uncooperative Congress (Bernales, 1995:102-3).
Despite limited investigatory powers and few resources, Peru’s Congress in the 1980s did
appoint a number of multiparty investigative commissions, primarily in the area of human rights
violations, that resulted from public pressure and were critical of executive actions. These
included investigations of paramilitary activities and the 1986 prison massacre. The 1990s
witnessed no such investigations, despite calls from the media and opposition legislators to
appoint such commissions to examine accusations of corruption, drugtrafficking and human rights
violations carried out by executive branch officials. In dealing with abuses of power or
accusations of malfeasance, Peru’s Constitution does not have an “impeachment” clause. The
closest mechanism is the “antejuicio” in which officials from all three branches can be stripped of
their immunity from office if they are found to have committed malfeasance in office. Unlike
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impeachment in the United States, an antejuicio does not cover violations of the constitution or
abuse of power, but is restricted to specific criminal conduct (Paniagua: 1995: 127-129).
A final area where legislative authority has been limited further is in the area of legislative
decree power. The 1979 gave the Congress the power to cede law-making authority on specific
issues for a set time period to the President, a power that Belaúnde and García used extensively.
Article 104 of the 1993 Constitution continues this tradition and only requires that the President
inform the Congress of such decrees when they are issued. The new constitution also creates a
new category of decrees that are considered “urgent” and can thus be put into place without prior
congressional authorization (Fernandez Segado, 1994: 38-40).
The judiciary in Peru has historically been the branch most susceptible to political
manipulation and domination by the president and as a result offering few effective checks on
presidential power.6 After dismissing most of the country’s judges, including members of the
Supreme Court during the 1992 autogolpe, President Fujimori promised wide ranging reforms to
deal with a judiciary that was largely viewed as corrupt and inefficient. Many of these reforms,
such as elected justices of the peace and a new ombudsman office (defensoria del pueblo) have
been promising, however they have not fundamentally altered the reality of a system that remains
highly vulnerable to executive manipulation.
Two important bodies within the judicial system that have the potential to check
presidential power are the National Council of Magistrates, which directs the selection of judges,
and the Tribunal of Constitutional Guarantees, which reviews the constitutionality of laws. Both
institutions have been subject to political pressures by the executive, seriously compromising the
idea of judicial independence. Up to four of the seven members of the National Council can be
from outside the judicial system and even the field of law, opening the way for purely political
appointments, which has been the practice of the administration (Fernandez Segado, 1994: 53).
Moreover, the appointment of an executive “reorganization” commission in 1996, headed by
former Admiral Jose Dellepiane, effectively took control of the National Council’s functions, by
purging and appointing a new series of justices throughout the system. Executive intervention in
the Tribunal of Constitutional Guarantees was even more egregious. Members of the Tribunal are
elected by Congress and can also be removed by Congress. In 1997 three members of the Tribunal
were removed, at the behest of pro-Fujimori legislators, by Congress for having voted against the
possibility of a presidential reelection. With the appointment of more clear-cut Fujimori loyalists,
the Tribunal has issued rulings that are consistently on the side of the executive (Planas, 1999:
215).
Executive efforts to influence judicial decision making and thus undermine judicial
independence have occurred largely where either administration officials have been accused of
corruption or where investigations of human rights abuses have threatened to undermine the
administration’s counter-insurgency campaign. Judges and prosecutors have been pressured to
end investigations and the outright dismissal of investigators has been a common occurrence.
When serious allegations of corruption involving drug-trafficking against presidential advisor
6
The most comprehensive examination of the judicial system and reform efforts in English
is Lynn Hammergren, The Politics of Justice and Justice Reform in Latin America: The Peruvian
Case in Comparative Perspective. (Boulder: Westview Press, 1998).
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Vladimiro Montesinos surfaced during the trial of one of Peru’s most notorious drug kingpins,
prosecutors suppressed possible evidence and refused to allow further questioning.7
The most notorious interventions in judicial processes have involved human rights abuses.
As evidence mounted in 1995 that security forces were involved in the killings of students and
professors at La Cantuta University, the Congress at the behest of the President passed a blanket
amnesty law for all military officers involved in human rights abuses. In a further limit on judicial
independence, trials for terrorist suspects are carried out by special military tribunals, over which
no civilian court has jurisdiction. During these trials, cross examinations were not allowed,
evidence was not shared with defense attorneys and sentences could only be appealed once to a
higher military court. Most trials lasted only a few minutes, the minimum guilty sentence was
thirty years and the conviction rate of those accused was an astounding 97 percent.8 Needless to
say, these procedures are a fundamental violation of due process. Although most of the laws
allowing these trials have been suspended, their past use demonstrate the vulnerability of judicial
independence to arbitrary executive authority.
A final element in highlighting the lack of checks and balances within the governmental
structure of Peru in the 1990s is the growing power and authority of the executive itself. As noted
earlier, the presidency has traditionally dominated the policy process, particularly through the use
of legislative decrees. During the Fujimori administration, this dominance has been enhanced by
an expansion in the size and scope of the executive bureaucracy. In 1992 the administration
created the Ministry of the Presidency, which concentrates previously scattered executive offices
under one cabinet-level ministry. From it’s creation until 1995, it’s budget expanded nine-fold.9
The Ministry concentrates control over all spending on infrastructure projects, from road building
to school construction, as well as most social programs. A significant part of the Ministry’s
budget goes to the latter, particularly a series of new social programs designed and implemented
during Fujimori’s first term in office. These included the National Development and Social
Compensation Fund (FONCODES), the National Housing Fund (FONAVI) and the National
Nutritional Assistance Program (PRONAA). In addition, the Ministry took control of previously
existing programs, most notably the Glass of Milk program which was created and run by
municipalities until 1996. Funding for these programs initially came from profits derived from
privatizations and had the support of international aid agencies. Nonetheless, the implementation
of these programs have usually been carried out in ways that advance the president’s political
interests. Not surprisingly, billboards announcing the benefits of these programs are painted in
bright orange, the same color used by Fujimori’s electoral vehicle, Cambio 90.
7
“Acusacion: La denunuca de Vaticano” Caretas. August 22, 1996. pp. 16-19.
8
A good summary of the rules behind these procedures is found in Rodolfo Gamarra,
Terrorismo: tratamiento juridico. (Lima: Innstituto de Defensa Legal, 1995).
9
Bruce Kay, “Fujipopulism and the Liberal State in Peru, 1990-1995" Journal of
InterAmerican Studies and World Affairs 38(4), Winter 1996. p. 83; Also see Marcial Rubio,
“Ministerio del Presidencialismo” Cuestion de Estado, 1(2), 1993. P. 23.
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C. Reversing Decentralization: The End of Local Autonomy and Governance.
Peru has traditionally had a highly centralized political system, a legacy of Spanish
colonialism during which Lima was a viceroyal capital. Unlike many of it’s neighbors, the issue of
federalism has never been salient in Peruvian politics. Centralization was a key feature of the
political system throughout the 19th and 20th centuries, although local caciques had considerable
autonomy and used their economic and social dominance to not only perpetuate themselves in
power, but on occasion to resist efforts by national actors to impose their authority.10 Without a
system of local governments, Peru historically lacked an important check on executive power: a
legitimate set of regional institutions that could initiate and implement policies independent of the
national executive. One of the most promising features of the 1979 Constitution was the promise
of regionalization. For the first time in Peru’s history, the Constitution mandated a federal-like
system of regional governments with control of local development issues, extending the first steps
toward local autonomy taken in the 1960s with the election of mayors. Although the Belaúnde
administration did not actively develop plans to implement this mandate, the García administration
put into place a scheme that divided the country into twelve regions, each with a regional
assembly that would have substantial powers to legislate and control local finances (McClintock,
1994: 293).
The movement towards decentralization was to prove short-lived, as the Fujimori
administration moved quickly to end regionalization. As a result of the 1992 autogolpe, the
regional assemblies were closed down. In their place, President Fujimori established Transitional
Councils of Regional Administration (CTAR) whose members are designated by the President and
which are dependent on the Ministry of the Presidency. The CTAR’s were meant to be
transitional bodies leading to the creation of permanent and locally elected councils. The promise
of such councils was held out in Articles 188-190 of the 1993 Constitution, but as of 1999 they
had yet to be created. Instead, the CTAR’s and presidentially designated “regional presidents”
remain the only form of local governance. The limits to any future development of regional
autonomy are made clear in Article 199 of the Constitution which explicitly states that both
regions and municipalities “must report their budgets to the Controlaria General de la Republica.
They are regulated by law” (my translation). The effect of this article is to make all local
governments responsible to the central government, and specifically the executive branch.
With regional governments reduced to mere implementors of presidential policies, it’s not
surprising that municipal powers have also been severely reduced. During much of the 1980s,
municipalities developed considerable policy autonomy. Some municipalities, particularly those
controlled by the Left in and around Lima, developed innovative programs to deal with housing,
nutrition and education needs. Among these initiatives was the Glass of Milk Program, started by
Mayor Alfonso Barrantes in Lima in 1984. The purpose of the program was to guarantee one
glass of milk to needy children in the city. The program’s success led to it’s being copied around
the country and it quickly became a showcase for the Left’s political agenda. Not surprisingly, the
10
A good example of these historic complexities is found in the analysis of the south and
central Andes offered by Nelson Manrique, Yawar Mayu: Sociedades terratenientes serranas:
1879-1910. Lima: DESCO, 1988.
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ability to develop policy initiatives made mayoral positions an important springboard to national
politics, as well as a political and policy competitor to the executive branch.
Municipal initiative, which allowed the opposition an important organizational as well as
policy forum, became a major target of the Fujimori administration’s effort to define and dominate
the country’s political agenda. During the first six years of the administration, 49 decrees were
issued by the presidency intended to eliminate or curtail municipal powers, from tax powers to
regulation of bus routes.11 Decree Law 776 issued in 1993, eliminates the ability of municipalities
to raise revenue by taxation and provides that all municipal revenue comes from a Municipal
Compensation Fund (FCM) whose criteria regarding the distribution of funds is determined by
executive decree laws and the Ministry of Economy and Finance, in effect making municipalities
fiscally dependent on the executive branch (Planas, 1999: 311). Continuing with the trend of
reducing municipal prerogatives, an executive decree was issued in 1996 transferring authority
over the Glass of Milk program from municipalities to the Ministry of the Presidency and thus
effectively eliminating the possibility of municipalities to initiate social welfare policies. As many
countries in Latin America during the 1990s were moving towards greater decentralization
(Colombia, Mexico, El Salvador) as part of broadening democratization, Peru was moving
decisively in the opposite direction.
III. The Presidency Under Fujimori and Beyond
In this paper, three institutional checks on presidential power under modern liberal
democracy have been outlined: mutual checks under separation of powers, a decentralized
governmental structure and a political party system. A review of the operation of these
institutional checks on presidential power in Peru in the 1990s suggests that they are either not
part of the institutional structure of Peru’s political system or have been rendered inoperable by
the political practices of President Fujimori and his followers. Although President Fujimori has
played a significant part in limiting such institutional checks, it is also clear that political elites in
Peru also bear some responsibility.
As I argued elsewhere (Mauceri, 1997), the 1980 “transition to democracy” put into
place a weak institutional foundation for democracy. The Left and popular movement of the
1970s opted to pursue radical change through social actions (strikes, protests, demonstrations)
rather than institution building. This was partly a result of exclusion, but also a political choice,
given it’s general disdain and undervaluation of institutions. Conservative elements which
dominated the transition and the first Belaúnde administration continued to rely on clientelistic
practices and did little to change the strong centralized and authoritarian character of Peru’s
political order. If we add to this mixture a rigid party elite structure, unable to introduce internal
mechanisms of democratization that could produce leadership circulation, we have a reasonable
understanding of why the political order created out of the 1979 Constitution would not produce
an institutional structure that would provide incentives for democratic behaviors among key
political actors. Both the institutional structure created by the 1979 Constitution and the behavior
of political actors, reduced the possibilities of maintaining let alone expanding democracy under
11
“En suma muchas restas” Caretas January 16, 1997, p. 10.
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this framework. When President Fujimori attacked the inefficiency and unrepresentative character
of Peru’s institutions, he was merely tapping into the general perception of most Peruvians. In
short, the “political decay” of Peru’s democratic institutions in the 1980s paved the way for the
authoritarian presidency of the 1990s.
Democratization cannot take place without an institutional structure that provides
incentives for political actors to engage in democratic behaviors. However, institutional
structures are themselves the result of complex historical and cultural legacies, not all of which
may be compatible with democratic norms. In the case of Peru, such legacies includes racism,
economic inequality, political and economic centralization, authoritarian and clientelistic behaviors
by elites, the lack of a culture of accountability and the belief in concentrated political power as
the ultimate agent of social change. The dilemma for those interested in deepening
democratization is in not only recognizing the importance of institutional structures in shaping
behavior, but in developing creative institutional arrangements that can overcome, or at least
minimize, past choices and legacies that have impeded democratization thus far. This is clearly not
an easily accomplished task.
It is highly improbable that the institutional environment created during the Fujimori
presidency can be significantly altered while President Fujimori remains in office. The dynamic
outlined in this paper suggests a combination of severe institutional limits on change and a
determined political willingness on the part of the President and his supporters to maintain the
status quo. Such change is therefore likely to come only with the end of the Fujimori
administration. It would be mere speculation on how such an end might occur–death, violence
(coup, rebellions etc...) or electoral defeat. If democratic reforms are a part of the post-Fujimori
political scene, than limiting the scope and reach of presidential powers, as they have evolved in
the 1980s and 1990s should be an integral part of this effort. Given that the 1992 Constitution has
become so closely identified with the Fujimori administration, there is a strong likelihood of it
being significantly altered if not simply scrapped in the post-Fujimori era. However such reforms
emerge, they obviously need to focus on strengthening the checks on the presidency outlined in
this paper and might include the following:
Increased Mutual Institutional Checks:
-Restoring congressional ratification powers on treaties.
-Restoring congressional approval of senior diplomatic and military appointments.
-Creating an independent technical research organization responsible to the congress.
-Providing Congress with more detailed powers over the budgetary process.
-Expanding the formal investigatory powers of Congress.
-Severely limiting presidential decree powers and eliminating “decrees of urgency”.
-Expanding the size of the Congress and electoral reforms to ensure each region
representation.
-Increased technical and financial support for the judiciary.
-Increasing the professionalization of the National Council of Magistrates.
-Significantly reducing the ability of Congress to remove members of the Constitutional
Tribunal or of the Executive to “intervene” the judiciary.
-Restrictions on the use of military tribunals.
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Implementation of Decentralization:
-Restoration of elected Regional Assemblies and Presidents.
-Independent and autonomous sources of revenue for regional and municipal
governments.
-Clearly established policy arenas for local governments.
-Specific restrictions on national governments ability to intervene in regional or
municipal affairs.
Creating a Reformed Political Party System:
-Internal democratic reforms of party structures, allowing for elite circulation and
responsiveness to voters, including primary-like elections.
-Oversight of party finances.
-Regulation of party access to media, particularly television.
-Incentives for the creation of nationally organized party structures.
While this is far from an exhaustive listing of the reforms needed to strengthen institutional
mechanisms that check presidential power, it points towards the type of reforms needed.
Although the likelihood of these reforms being adopted in the near future are minimal, progress
towards a more democratic institutional structure cannot take place without creative
craftmanship.
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