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DEATH PENALTY-PERU: Alan García's New-Found Faith in the Firing Squad
By Ángel Páez
LIMA, Nov 9 (IPS) - Within the first 100 days of his administration, Peru's President Alan García has put forward two proposals for applying the death penalty: for raping children and terrorism. But Congress is not in as much of a hurry to pass the president's draft laws as he is.
The chairman of the congressional Constitutional Commission, Aurelio Pastor, of the governing Peruvian Aprista Party, does not share the president's enthusiasm and sense of urgency for expanding capital punishment, although he would not comment on the content of the draft laws.
At present Peruvian law reserves the death penalty for treason committed at a time of war with a foreign power.
On Sept. 20, García sent a draft law to Congress to make the crime of raping and then murdering children under seven years old punishable by death. Following normal procedure, it was passed on to the Constitutional Commission for a ruling on whether it is constitutional.
Other political sectors have also submitted their own draft laws invoking the death penalty for persons convicted of raping minors.
The same procedure will be followed when the new draft law announced by García, calling for the death penalty for those convicted of acts of terrorism as defined by Peruvian law, is introduced in Congress. The 1993 Constitution provides for capital punishment for terrorists, but no laws to include this in the Criminal Code have yet been enacted.
"The draft law on the death penalty for child rapists is in the hands of a working group we have set up to deal exclusively with constitutional reforms," Pastor told IPS.
"The working group's agenda has made the reform of the administration of justice its top priority. Once it has completed that task, we will decide on the next priority. I can't say whether that will be the draft law on the death penalty, or a different constitutional reform."
García, who took office on Jul. 28, gained immediate popular backing for his proposal to execute child rapists. But he surprised everyone when he announced, on Nov. 1 -Peru's Day of the Dead, or All Souls' Day- that he also wanted the death penalty for those found guilty of terrorism, and referred expressly to the Maoist Shining Path (Sendero Luminoso) guerrillas, who are still sporadically active in the jungle valleys of the Ene, Apurimac and Huallaga rivers, in the centre and south of the country.
García was very specific. He only mentioned the activities of Shining Path, which in his view is trying to rekindle the armed struggle. He told the press he would send a draft law to Congress so that anyone who engages in the crime of terrorism, which did Peru such harm, would face a firing squad.
The opposition is critical of the undeclared alliance between the ruling party and the lawmakers who support former president Alberto Fujimori (1990-2000), currently in detention in Chile awaiting a ruling on his extradition to Peru.
The government is basing its call for the death penalty for terrorists on the 1993 Constitution, imposed by Fujimori to legitimise his "self-coup" in April 1992, when he dissolved parliament and suspended fundamental freedoms.
The constitutional reform of 1993 provided for capital punishment for terrorism, although it was never applied by the Fujimori regime. Paradoxically, García is now saying he would bring it into effect, using the same arguments as Fujimori and his then security chief Vladimiro Montesinos, who were his sworn enemies in the 1990s.
During García's first term as president (1985-1990), the number of attacks by Shining Path guerrillas and the Túpac Amaru Revolutionary Movement (MRTA) rose sharply, according to the independent Truth and Reconciliation Commission. Nevertheless, at that time the authorities did not consider using the death penalty to punish them.
In 1985, Shining Path killed 348 people and the MRTA killed two. In 1990, at the end of García's first administration, Shining Path killed 851 people and the MRTA killed 21.
Ministry of Interior statistics indicate a major drop in the number of Shining Path victims. In 2001, 34 deaths were attributed to the Maoist guerrillas; 12 in 2002; 14 in 2003 and three in 2004.
The MRTA has been completely dismantled, and what is left of the Shining Path has retreated into jungle areas where they survive by collecting "taxes" from drug traffickers. The Shining Path is no longer a threat to the state, as it was at the end of the 1980s.
In this context, the death penalty "makes no sense, because Shining Path today has only a fraction of the followers it had in the 1980s," sociologist Carlos Reyna, an expert on political violence, told IPS.
"If the Shining Path were defeated with effective police intelligence procedures, why is there a need for the death penalty today? García's proposal is just a publicity stunt," he said.
But the hardline wing of the government, represented by Vice President Luis Giampetri, a retired vice admiral, is fired with enthusiasm for the project.
"How many of those people (guerrillas), who have done enormous damage to the country, should not be alive today," Giampetri, a declared enemy of human rights organisations, said at a press conference. "There are debts that are still unpaid," he added.
Perhaps for the same reason, García said it had been an error not to execute insurgents captured during his first administration.
But Ismael Vega, the representative of Amnesty International in Peru and a director of the National Coordinator of Human Rights, told IPS that "He is wrong when he says he was wrong."
"According to the Truth Commission's report, more than 80 percent of the victims of the armed conflict were from indigenous communities in the Andean highlands and Amazon jungle regions. García's error was not to do anything for those communities. The way to avoid repeating the same mistake would be to help these affected communities now," said Vega.
The president "is very poorly advised, because extending the death penalty to terrorists runs counter to the American Convention on Human Rights (signed in San José, Costa Rica in 1969). The proposal is non-viable from a legal point of view, and is a setback for democracy," he added.
Some of his critics say that the president is attempting to introduce this drastic penalty with the intention of reneging on the Pact of San José, as the Convention is also known.
"Unlike the proposal to extend the death penalty to child rapists, the initiative to apply capital punishment to terrorists does not require a constitutional reform, because it is provided for in article 140, but it violates the Pact of San José," constitutional expert Francisco Eguiguren told IPS.
"That's why the Fujimori regime never went through with enacting a law to include the death penalty (for terrorists) in the Criminal Code. So the first question President García should be asked is why, in spite of its authoritarian nature, the Fujimori regime did not apply the death penalty. And the answer is very simple: because they knew that it would violate the American Convention on Human Rights," he said.
When he announced his latest proposal, the president only talked about Shining Path and did not mention any other form of terrorism.
During his first administration, there was an active paramilitary commando group which called itself "Rodrigo Franco", the name of an Aprista leader killed by the Maoists.
This illegal group was made up of Aprista party supporters, under the protection of then minister of the Interior Agustín Mantilla. The group murdered people it suspected of belonging to Shining Path and the MRTA.
Although it has not been proved that the Rodrigo Franco commando was part of the party structure, the Truth Commission concluded that the group had been formed to combat subversion, out of the sense of frustration shared by some Aprista party supporters and members due to the incapacity of the state institutions to combat terrorism, and to avenge the deaths of Aprista members and authorities, as well as eliminate a few political opponents.
Similar practices were continued under the Fujimori regime with the death squad known as the Colina group, made up of members of the Army Intelligence Service, which kidnapped, tortured and killed suspected guerrillas.
"It's not true that terrorists weren't executed during (García's) government. They were, illegally and clandestinely. There were executions in the jails and in the field. A study of the military reports made after each engagement shows that no terrorists were ever wounded or taken alive. There were only casualties, dead subversives. So the death penalty was, indeed, applied," Reyna said.
The president has approximately 1,700 days left in government, and he has already proposed two crimes that he wants to make punishable by execution. In his speeches, he has referred to a wide spectrum of targets to be cracked down on: kidnappers, drug traffickers and those guilty of corruption, among others. Perhaps he will again propose the firing squad as a solution.
(END/2006)
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