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Peru: Congress Should Respect Judicial Independence

Peru’s Congress should reject an effort to remove members of the National Board of Justice and uphold judicial independence, the rule of law, and the protection of human rights, Human Rights Watch said today. The move against the board is part of a pattern of congressional actions to coopt independent democratic institutions.

The board appoints and removes judges and prosecutors, as well as the heads of the agencies that organize elections and maintain the electoral registry. A board coopted by political interests would jeopardize the right to due process, including the right to access independent and impartial courts, and the right to vote. Congress is scheduled to debate and vote on the removal of board members on November 8.

“The National Board of Justice is key to maintaining the impartiality and independence of judges, prosecutors, and electoral authorities,” said Juanita Goebertus, Americas director at Human Rights Watch. “Removing its members through a politically motivated process would threaten the pillars of Peru’s democratic system and the protection of human rights. Congress should say no to removing the board members.”

Factions of Congress have taken a series of actions in an apparent effort to undermine checks on their power and take over electoral bodies, including by attacking the justice board. On September 7, 2023, Congress approved a proposal to instruct its Justice and Human Rights Committee to carry out a “summary investigation” with the express goal of removing the members of the Justice Board, on the basis of allegations already being considered in separate proceedings before the subcommittee on constitutional affairs.

The board said at the time that the allegations were baseless and that removal without evidence of infraction would violate the law and the separation of powers.

While the constitution allows Congress to remove members of the board for “serious infractions,” the law does not define what those infractions are, nor does it define a process of removal that would guarantee the due process rights of the members.

On October 18, the Justice Committee’s final report, drafted by its technical secretariat, concluded members of the board had not committed any serious infractions that would merit their removal. Yet, the same day, the committee disregarded that report and approved a new one, which had not yet been drafted, concluding members of the board had committed three serious infractions.

The first alleged infraction was a statement issued by the board in defense of judicial independence while Congress was trying to remove prosecutor and former attorney general Zoraida Ávalos. Lawmakers suspended Ávalos from office for five years in June because they disagreed with her legal analysis that the constitution prevented her charging a sitting president—Pedro Castillo—in a corruption case.

The second also involved a difference in interpretation of the law. The board considered that while the constitution required that anyone appointed to the board had to be under the age of 75, it did not require them to leave when they turned 75. The government agency in charge of public service administration supported the board´s interpretation, but Congress continued to regard it an infraction to allow a member who is over 75 to remain in office.

Finally, lawmakers claimed the board had failed to present its 2021 and 2022 annual reports to sessions of the full Congress, as the constitution requires, although lawmakers had not convened the sessions to receive those reports.

The board has opened several disciplinary investigations into the conduct of the attorney general, Patricia Benavides, including about alleged actions to shield her sister, a judge, who was under investigation for corruption. Benavides claimed that the board has no disciplinary power over her decisions.

Many members of Congress are also under investigation for corruption, and under the law, those cases are under the ultimate jurisdiction of Benavides’ office.

The attempt to remove the members of the board is part of a pattern of actions by some factions in Congress to undermine the independence of other democratic institutions.

In 2022, Congress replaced six of the seven members of Peru’s Constitutional Tribunal in a process that lacked transparency and clear criteria for the selection of candidates.

In February 2023, that tribunal issued a sweeping ruling that appears to grant Congress wide-ranging authority with minimal oversight from the courts. In May, the tribunal allowed Congress to move forward in appointing as ombudsperson—the public official entrusted with defending human rights—a former member of Congress with no experience or expertise on human rights, who has subsequently failed to criticize efforts by Congress to undermine judicial independence.

Members of Congress are seeking to remove the head of the National Elections Tribunal, which defended the integrity of Peru’s electoral process in 2021 from false claims of fraud. Members of Congress are also seeking that Peru withdraw from the American Convention on Human Rights.

Anti-corruption prosecutors have also been the target of disciplinary investigations that threaten to derail the fight against corruption in Peru. In October, the authority in charge of prosecutors’ disciplinary matters suspended Rafael Vela Barba, a top anti-corruption prosecutor, for eight months for statements he had made to the media in 2020.

The government led by President Dina Boluarte has failed to defend democratic institutions. On the contrary, in September her foreign ministry called the UN representative in Peru to admonish him for a UN news release saying that separation of powers is crucial for democracy.

Judicial independence is crucial for the defense of human rights and integral to the rule of law and the democratic system. The UN Basic Principles on the Independence of the Judiciary state that “it is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.” The Inter-American Democratic Charter of the Organization of American States (OAS) affirms that an essential component of representative democracy is “the separation of powers and independence of the branches of government.”

The international community should condemn the flawed process to remove members of the board and speak out in defense of Peru’s democratic system. OAS Secretary General Luis Almagro should visit Peru to meet with relevant stakeholders.

In 2013, after Ecuador’s Congress dismissed all Supreme Court justices and other judges, the Inter-American Court of Human Rights concluded that the move “constituted an attack on judicial independence” and “disrupted the democratic order,” observing that “the separation of powers is closely associated, not only with the consolidation of the democratic system, but also seeks to preserve the freedoms and human rights of citizens.”

In 2021, the Inter-American Court ruled that protection of judicial independence bars impeaching judicial officials for the content of their decisions, except on cases of intentional violation of the laws or proven incompetence.

“Peru’s Congress is destroying the country’s democracy from within by attacking, undermining, and ultimately co-opting institutions that can exert control over its actions,” Goebertus said. “The international community, particularly the Organization of American States, needs to step up and respond to threats to the democratic system in Peru.”

Source: HRW