Thread by @Alonso_GD

So, what happened in Peru? Does it have two Presisents now? Was there a coup? Let me try and explain this in context. For that, lets start in the beginning.
Peru’s 1993 Constitution states that the President can only be impeached if s/he prevents elections, commits treason /1

In 2001, after autocrat Fujimori fled the country marred in corruption scandals, he tried to resign. Congress refused to let him and instead declared the absence of a Presidency, by reason of “moral incapacity”. This is known as “vacancia”, and it is diff from impeachment /2

“Moral incapacity” was a legal term of art for “mental dissability”. The Presidency is “empty” because he is unable to discharge the role. It had nothing to do with being immoral. The 2001 crisis though changed that in practice. Fujimori was “too immoral to be President” /3

So, in practice, “vacancia” by reason of moral incapacity, became indistinguishable from impeachment. But what is moral incapacity? What does that include? Tbh nobody knew. In theory it meant “as immoral as Fujimori”. /4

Enter President Kuczinsky (PPK for short) in 2016. He was weak and without majority in Congress, that was under the control of the Fujimorista party. This Congress was very aggressive, trying to deny him the abbility to carry out his main policies /5

Congress impeached several of his ministers and worked against the Executive agenda. Now, in these cases, Peru’s Constitution provides for one mechanism of defence: the vote of confidence /6

Basically, the President can say that he needs the backing of Congress for a specific law/policy. If he doesn’t, he needs to sack his cabinet. But Congress can only do this once. If it denies trust twice, the Pres can constitutionally dissolve Congress and call for elections /7

So its a system with two silver bullets. Congress can “vacate” the President on a specious “immorality” standard. The President can “dissolve” Congress after two VoC are denied /8

PPK filed a VoC and lost. Strike 1. The Fujimorista majority though tried to “vacate” PPK on account that “he lied” when asked by Congress if he had had business with Odebrecht, the corrupt Brazilian giant. He had. But the vote failed. /9

Then, new information showed that PPK had not put all of his businesses in a blind trust. Was this “immoral enough”? Instead of going through a second “vacancia” process, he resigned /10

Note though that there are zero guidelines as to how to find immorality. Immorality was never meant to be cause for impeachment. It is a flawed unfair process that needs serious reform /11

Enter Vizcarra, PPK’s VP. He is determined not to suffer the same fate as PPK. He has his own silver bullet and is not afraid to use it. He decided to embark on a crusade against corruption and presented a series of Constitutional reforms to that regard /12

Fujimorista Congressmen have long been marred by corruption accusations so moved very slowly on these reforms. Eventually, Vizcarra made them an issue of confidence. If Congress did not pass them, he would dissolve Congress. /13

Here is the trick. Under Peruvian Comstitutional law, there is no clarity as to what happens if Congress simply lies: it grants confidence but then does not carry out the policy it granted confidence to. And this is exactly what Congress did /14

Vizcarra asked for confidence on a referendum to return to a bi-cameral Congress. Congress agreed but then tried to use the bill to also limit Vizcarra’s abbility to present votes of confidence. It was a trick. Vizcarra thus had to campaign against his own policy /15

There are Constitutional scholars who believe that in this “lying scenario” the President can dissolve Congress. Others think he can but shouldnt. Others think he cant. Nobody is correct. Only practice can tell us who was right... its more politics than law /16

So after the Trick, and as the corruption scandals got worse, including bought judges and shielding of Congressmen through Parliamentary immunity, Vizcarra again asked for confidence on anti-corruption reforms /17

He asked that Parliamentary Immunity be lifted by court order, not by an ethics committee in Congress itself: a clear conflict of interest. Again though, Congress lied. It granted confidence and then failed to deliver the bill. The ethics committee stayed in charge /18

Under the “lying = dissolution” theory, many expected Vizcarra to dissolve Congress during his independence day speech, on July 28 of this year. He didnt. He instead called for Congress to vote on a constitutional reform to hold early elections for both President and Congress /19

Congress hated this, as the election for new Constitutional Tribunal justices was coming up, and if those key positions were filled with friendly faces, they could avoid having to respond for their corruption accusations. So Congress simply archived Vizcarra’s bill /20

After whatsapp screenshots surfaced noting a desire to elect a Fujimorista-friendly Constitutional Tribunal surfaced, Vizcarra made his final move: he requested confidence on a bill to change how these justices are selected /21

Votes of confidence have a special urgency in Constitutional Law, they have to be debated in one of the next two sessions. Congress, however, was having none of it. They locked the doors of Parliament and refused to let the Prime Minister in, in violation of the Constitution /22

They also did not let the PM speak after he got in, he had to use yielded time. Congress pretty much acted like he was not there and moved on with electing new justices, despite the request for confidence /23

This was all, of course, very shady. As if they needed these justices no matter what. Things got so ugly that a congresswoman had her vote coopted: she was not in her seat and someone voted for her... it was a mess /24

But then, if “lying = dissolution”, then, Vizcarra thought, completely ignoring the request and doing exactly the opposite of what the vote of confidence asks is also an “= dissolution”, right? Vizcarra retreated with his cabinet and Congress panicked - would he dissolve? /25

So Congress suspended session and decided to deliberate on the vote of confidence on an emergency basis. Peruvian politics became a race to see who did what first? Would Vizcarra dissolve first? Would Congress approve the vote first? /27

While Congress was debating, Vizcarra went on TV and under the expanded view of “lying = dissolution; ignoring = dissolution”, he declared that a second vote of confidence had been denied and that he was therefore authorized to dissolve Congress /28

As he was saying this, though, Congress voted to approve his vote of confidence. And because Vizcarra tried to “unconstitutionally close congress”, Congress moved to “vacate Vizcarra” for moral incapacity /29

Congress though did not have the votes for this so, in the end, they could only temporarily suspend Vizcarra, for a year. The President said Congress was no longer Congress and Congress said the President was no longer President /30

Now Congress has sworn in the VP as interim President and the armed forces have sided with Vizcarra. /31

So, was this a coup?

I personally do not think so. Not if you follow the course of events and the underlying constitutional theories.

But please, don’t believe anybody that tells you this is uncontroversial. It is. And it is a crisis. And probably an unfortunate precedent /32

In any case, consider this: Vizcarra was “temporarily vacated” without any due process and under an extremely specious standard of “immorality”... was that also a coup? /33

At this point, though, it is probably wiser to listen to political scientists than law professors... and that in itself is unfortunate. Rule of law in Peru has been stretched to its limits. For some, it was broken. It is a sad day for democracy, regardless of what you think /34