Unconstitutionality lawsuit filed against the amendment to the Forestry Law that promotes deforestation and grants rights to mafias in Peru

Unfortunately, the law’s approval was rushed through even though a vote on two requests for reconsideration was pending. Instead, it was signed into law by the President and Vice-President of Congress, while these requests for reconsideration - that were to be reviewed and voted on in the Plenary of Congress in March - were simply eliminated, in violation of the Congress’ procedural rules.

The amendment and approval of the law was carried out despite a strong response from organised civil society, including Indigenous organisations, agrarian organisations, academia, and organisations working on human rights and environmental issues. This contrasted with the silent complicity of the Peruvian Executive, specifically bodies such as the National Forestry and Wildlife Service (SERFOR), the Ministry of the Environment (MINAM), the Ministry of Culture (MINCU), and also the Ombudsman's Office, among others.

Controversial changes and impacts amid climate crisis and killings of Indigenous defenders

 

"This amendment of the Forestry Law is worrying. Companies are free to flout rules and will remain free from sanction.... And the State is legalising deforestation that would cause terrible damage to our ecosystems. With the approved law... the risk that property titles and certificates of possession will be issued in an irregular manner increases. We Indigenous peoples and environmental rights defenders will be affected, because of the risks of illegal activities that invade our territories and cause deforestation will increase", said Nelsith Sangama, member of the board of directors of AIDESEP.

 

The amendment of the Forestry Law suspends the mandatory nature of forest zoning  in the process through which authorisations for land use changes are granted, which ends up being a contradiction, as the previous law sought to determine what kinds of activities could be done in what type of area. And oversight responsibilities are transferred from the government sector that regulates the environment to the sector that regulates agriculture

But the most perverse change in the law comes in its final complementary provision, which establishes that those private areas under ownership or possession that no longer contain forest mass and where agricultural activities are being carried out would automatically be called areas of agricultural exclusion. And they would be able to access titling without the technical requirement of the Classification of Land by Major Use Capacity (CTCUM by its Spanish acronym, a process through which soil samples are evaluated to determine whether the soil is apt for forest or agricultural use).

This will especially benefit large-scale monoculture companies involved in deforestation that previously cleared forested areas without disclosing or formalising their activities because they lacked the required soil analysis. Therefore, they will no longer be required to comply with the CTCUM. In other words, if people deforested a plot of land and then seek permission to do so, now such deforestation will simply go unpunished in the country.

Furthermore, this law violates the right of Indigenous peoples to Prior Consultation and to obtain Free, Prior and Informed Consent for measures that clearly affect their territories and livelihoods.

This amendment also affects the environmental certification procedures of large companies with environmental debts in terms of management instruments, which will now be favoured.

The Peruvian State is severely violating the international commitments it has ratified, such as the Joint Declaration of Intent (DCI) with Norway, Germany and the United Kingdom, the Free Trade Agreement (FTA) with the USA, which prohibits regulations that lower environmental standards to promote trade, and even the European Union's Deforestation Free Regulation (EUDR). Additionally, the law also impacts Peru's efforts to join the OECD, given its social and environmental requirements.

Undoubtedly, the message this law sends is egregious in a country with precarious democratic institutions: "engage in informal and illegal activities that drive deforestation, such as illegal logging, illegal mining, land trafficking and drug trafficking, and absolutely nothing will happen".

Finally, this anti-forests counter-reform renders invisible the threats, attacks and murders of Indigenous and environmental defenders, who oppose illegal activities in the forests that exist in their territories and where in recent years, 33 indigenous leaders have already been murdered, according to the Interethnic Association for the Development of the Peruvian Rainforest (AIDESEP).

 

"So how can we think that the State is going to pass such a law? It is a great threat. It's more conflict, more deaths, what is the State looking for in the end? They already killed Quinto. Does the State want more people to kill us? This strengthens the illegal groups, the settlers. What kind of inhuman State makes these kinds of rules? They are killing us. I ask that this law be repealed. We are not going to allow them to walk all over us", said Manuel Inuma, apu of the Native Community of Santa Rosillo de Yanayacu.

 

 

"The State does not respect the various international environmental and climate treaties, as well as trade agreements such as those with the United States and the European Union. It also contradicts recent commitments made by Peruvian ministers and Amazonian regional governors in the framework of the Joint Declaration of Interest with Norway, Germany and the United Kingdom. This law also contradicts the commitments made by the President of the Republic in the Declaration of Heads of State at the Belen Summit of the Amazon Cooperation Treaty Organisation (OTCA). The State is laying its own grave", said Nelsith Sangama, member of the board of AIDESEP.

 

What is requested in the unconstitutionality lawsuit?

To declare the complaint well-founded and, consequently, to declare the unconstitutionality of Law No. 31973, in all aspects of its content, in terms of form and substance.

Who is being sued?

The Presidency of the Republic and the Congress of the Republic.

What rights and principles have been violated?

"The right to an adequate and balanced environment for the development of life, enshrined in article 12.2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), article 11 of the Additional Protocol to the American Convention on Human Rights in the area of economic, social and cultural rights, and article 2.22 of the Political Constitution of the State have been violated. In addition, the following constitutional rights are threatened - in a certain and imminent manner:

• The right to enjoy a balanced environment adequate for life recognised in article 12.2 b) of the ICESCR, article 24.2 c) of the CRC, article 11 of the Additional Protocol to the American Convention on Human Rights in the Area of ESCR, article 15 of the Inter-American Democratic Charter, article 2.22 of the Political Constitution of the State, article 3 of the Code of Children and Adolescents, and article I of Law N° 28611, General Environmental Law.  
• Human dignity, recognised in Article 1 of the Political Constitution of the State and Article 1 of the Universal Declaration of Human Rights.  
• Life and conditions of dignified existence, recognised in Article 4 of the American Convention on Human Rights (ACHR), Article I of the American Declaration of the Rights and Duties of Man (ADRDM), Article 1 of the Universal Declaration of Human Rights (UDHR), Article 6. 1 of the International Covenant on Civil and Political Rights (ICCPR), Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), Articles 4 and 6 of the Convention on the Rights of the Child (CRC), and Article 2.1 of the Constitution.

Likewise, the following constitutional principles are violated:

• Conservation of biological diversity, recognised in article 68° of the Political Constitution of the State.  
• Sustainable use of natural resources, recognised in Articles 67 and 69 of the Constitution.  
• Social rule of law, recognised in Article 58 of the Political Constitution of the State.  
• Solidarity, recognised by the Constitutional Court in its ruling in case No. 0009-2005-AI/TC (Cusco Bar Association).  
• Intergenerational equity, recognised by the Constitutional Court, in the judgment handed down in case N° 0048-2004-PI/TC (legal grounds 13 and 19 to 21), and the judgment handed down in case N° 1757-2007-PA/TC (legal ground 26)".

Once the complaint has been received, the Constitutional Court has 10 days to review and admit the complaint and, if admitted, the Court gives Congress 30 days to reply. With or without a reply from Congress, a hearing should be set within 10 working days and then the judgment should be rendered within 30 days of the hearing.