Peru high court deems Puno regional president’s intention to legalize coca unconstitutional

Peru’s highest court, the Constitutional Tribunal, or TC, deemed Puno regional President Hernán Fuentes’ regional ordinance to fully legalize coca — the raw material for cocaine — and to declare it cultural and historical patrimony unconstitutional.

For the past two days, Lima-based legislators and prosecutors opposed to unregulated cultivation of coca have upped the pressure against Fuentes, who says he plans to appeal the TC’s decision to an international court, such as the Costa Rica-based Inter-American Court of Human Rights.

Fuentes insisted his ordinance did not seek to legalize illegal coca.

“The coca leaf is legal in this country, but some economically powerful groups want to see it disappear,” said Fuentes in comments to state news agency Andina. “We want to protect the legal crops we have in the region that are grown with licit, cultural, and traditional objectives and not as some have tried to make it seem. The issue has been politicized and they haven’t decided in an honest or correct manner. The TC’s decision is suspicious.”

“We aren’t protecting any type of illicit activity,” added Fuentes, “least of all drug trafficking. We are protecting our coca products and this will contribute to making sure activities are carried out in a controlled rather than disproportionate manner.”

Coca cultivation in Peru is legal but — in theory — heavily regulated to stem the cocaine trade.  Illicit coca production is rampant, and Peru is the world’s second largest producer of cocaine after Colombia. Coca production increased by 4.5 percent in 2007 to nearly 54,000 hectares, with  approximately 92 percent of the crop destined to drug traffickers according to the United Nations Office on Drugs and Crime.

Fuentes attempt to unshackle coca production in his region has “caused great harm to our country because part of the funds the government allocates to administering justice had to be dedicated to a case, whose result was known ahead of time,” said Víctor García Toma, president and dean of Lima University’s Faculty of Law, and a former TC judge.

In comments to daily newspaper El Comercio, Garcia added that he hoped the final written ruling would include a financial sanction against Fuentes to cover the legal costs of hearing the case, because on two previous occasions the tribunal had ruled in a similar manner against regional ordinances enacted by Huánuco and Cuzco.

Concerning Fuentes’ intention to appeal the decision in a supranational court, said Foreign Affairs Minister José García Belaunde, “it is absurd because no human right is being violated. Fuentes doesn’t know anything about international law.”

A supranational court’s hypothetical intervention in this matter would undermine Peru’s sovereignty, said TC President Carlos Mesía. “It would be like abdicating our national sovereignty.”

Mesía also said that Fuentes’ ordinance opened the door to legalizing coca in Puno and undermined Peru’s national state policies to fight drug trafficking.
Regional Ordinance Nº 022-2007, similar to two Huánuco and Cuzco regional laws promoting expanded cultivation of coca and overturned by the TC in 2005, recognizes the coca plant as a “regional, cultural, ethno botanical, sociological, historical, nutritional, medicinal and industrial patrimony as well as a symbol of the Quechua-Aymara people of the Puno region.”

“It seems strange that the TC has not recognized its own resolutions,” said Fuentes. “In 2005 it emitted a sentence recommending that the Congress and the INC (National Culture Institute) undertake the necessary process and action to recognize the coca leaf.”

In 2005, the TC overturned the two regional ordinances, stating that the regional governments of Huánuco and Cuzco did not have the authority to declare the laurel-shaped leaf “cultural patrimony.”

But the 54-page high court ruling suggested that Congress should include coca on the list of crops considered “national patrimony” and that Peru’s National Institute of Culture should evaluate whether traditional uses of coca should be classified as “cultural patrimony.”

The six magistrates called on then President Alejandro Toledo to reevaluate Peru’s national counter-drug policy and questioned why Peru focused the bulk of its efforts on eradicating illicit coca crops instead of pursuing stricter regulation of chemicals, like kerosene, sulfuric acid and sodium carbonate.

“In other words, it is not completely constitutional that the preventative battle against illicit drug trafficking is directed solely at one of the ingredients,” the court decision said.

Coca leaf, which is the raw material for the manufacture of cocaine, plays an important role in traditional Andean culture and is also widely used by Peruvians of all social classes for therapeutic teas used to alleviate fatigue, hunger, gastro-intestinal disorders, rheumatism, and, among other things, altitude sickness.

Coca leaves sold for teas, soft drinks and chewing, as well as the small amount of legally produced cocaine which is sold to pharmaceutical companies, is marketed by the state-owned National Coca Enterprise (ENACO). This “legal” coca is produced on 10,000 hectares, or 25,000 acres of registered land in the Cuzco province of La Convención y Lares, the Huallaga Valley, and small areas in the departments of Huánuco, La Libertad, Ucayali and Puno.

Peru was once the world’s leading producer of coca. But the country slashed its production by 70 percent between 1995 and 2001 primarily because of low coca prices, interdiction, forced eradication of coca fields and programs to en-courage farmers grow alternative crops.

But by 2002, the number of hectares used to illegally grow coca in Peru increased as efforts to eradicate the crop in Colombia forced production southward.

This can be explained by the balloon effect, or the drug fields’ tendency to shift elsewhere and sometimes to smaller and harder-to-reach plots in response to local eradication campaigns, and the fact that for farmers, the coca harvest provides more money than any other crop: up to five times as much can be earned for a kilogram of coca than for a kilogram of coffee.

In June 2008, a study conducted by Peru’s National Commission for the Development of Life without Drugs, or Devida, and the United Nations Office on Drugs and Crime indicated that coca crops had increased by 4.5 percent in 2007 and that approximately 92 percent of Peruvian coca production is destined for the fabrication of cocaine paste and cocaine hydrochloride.

Fuentes, a strong supporter of the Bolivarian Alternative for the Americas, or ALBA, the network of cultural centers which many Peruvian lawmakers believe are ideological fronts funded and orchestrated by Venezuelan President Hugo Chavez to meddle in Peru’s internal affairs and promote a regional revolution, has repeatedly accused Garcia’s government of political persecution against him and earlier this year said he was considering seeking political asylum in Bolivia.

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