Constitutional Court of Peru

The Peruvian Constitutional Court or Constitutional Tribunal[1] is an independent constitutional agency of Peru that was established in the 1993 Constitution of Peru that was created during the government of Alberto Fujimori. The court's members are nominated by the Congress of Peru; these nominations sometimes lack transparency and are based on political favors that nominees can provide to legislators.[2][3][4] Since May 2022, the Constitutional Court has been used to provide institutional strength to Fujimorists in Congress, according to IDL-Reporteros.[5]

Constitutional Court
Tribunal Constitucional

Established1980 (Court of Constitutional Guarantees)
1996 (Constitutional Court)
LocationArequipa (de jure)
Lima (de facto)
Composition methodCongress of the Republic of Peru
Authorized byConstitution of Peru
Judge term length5 Years
Number of positions7
Websitehttp://www.tc.gob.pe/
President of the Constitutional Court
CurrentlyFrancisco Morales Saravia
Since5 September 2022

The court's historical headquarters are located in the city of Arequipa but its national operative headquarters are located in the capital city of Lima. The Constitutional Court is the highest organ of constitutional control and interpretation in the country. It is an autonomous and independent organ that is only bound by the Peruvian Constitution and its Organic Law – Law N° 28301.

Functions

The Constitutional Court is entrusted with upholding the principle of constitutional supremacy, against the laws or acts of state bodies that seek to undermine it and intervenes to restore respect for the Constitution in general and constitutional rights in particular. The Court is the one specialized organ that is responsible for this type of enforcement. It has the authority to review the adequacy of laws, draft laws and decrees of the executive, conducting a review of the constitutionality of such acts.

According to Kelsen's model, the Constitutional Court acts as a negative legislator, lacking the power to make laws but with the power to repeal all or portions of the unconstitutional laws/acts. More recent theories argue that the task of the Constitutional Court strictly involves judicial functions and resolving constitutional disputes, which may include a review of the performance of the legislature, the protection of fundamental rights and the distribution of powers between the branches of government.

Controversy

Seat nominations
Members of the United States Congress expressing concern about Constitutional Court nominees in a 2023 letter

Congress, which is primarily filled with opportunistic politicians that are not linked to Peruvian society, has attempted to manipulate court nominations in order to achieve political objectives.[3][4][6] Legislators have attempted to nominate members of the Constitutional Court who would serve their political interests.[4][3] In May 2022, six of seven members of the court were replaced by Congress in a process that lacked transparency according to Human Rights Watch.[2][7] Following these nominations, the Constitutional Court began to serve on behalf of the Fujimorist interests within Congress.[5]

In response to the nominations in the context of the Peruvian political crisis, fifteen members of the United States Congress expressed concerns about reports of the Congress of Peru attempting control governmental institutions.[8]

Rulings

Human Rights Watch stated that in 2022, the Constitutional Court "issued several rulings that were inconsistent with international human rights standards, including on same-sex marriage, Indigenous rights, and justice for crimes against humanity".[2] The court ruled in February 2022 that the killing of 113 prisoners in 1986 by Navy officers was not a crime against humanity.[2] In March 2022, the Constitutional Court ruled that controversial 2017 presidential pardon of Alberto Fujimori, who was imprisoned for human rights abuses, be reinstated.[9] The pardon was performed by Pedro Pablo Kuczynski, with the Mamanivideos scandal showing that he had agreed to pardon Fujimori for the political favor of avoiding impeachment.[9] The Inter-American Court of Human Rights (IACHR) denounced the move by the Constitutional Court, saying that Fujimori remain in prison.[10] A month later in April, the IACHR also condemned the Constitutional Court's decision to allow the government to take indigenous land without first consulting them or obtaining consent.[2][11]

A ruling in February 2023 by the Constitutional Court of Peru, whose members are elected by Congress, removed judicial oversight of Congress, essentially giving Congress absolute control of Peru's government.[12][13]

Members
  • Justice: Francisco Morales Saravia (President)
  • Justice: Luz Pacheco Zerga (Vice President)
  • Justice: Luis Gutiérrez Ticse
  • Justice: Helder Domínguez Haro
  • Justice: César Ochoa Cardich
  • Justice: Manuel Monteagudo Valdez

References
  1. Nollkaemper, Andre (2011). National Courts and the International Rule of Law. Oxford, England: Oxford University Press. p. 203. ISBN 978-0-19-923667-1.
  2. "Peru: Events of 2022", Human Rights Watch, 12 January 2023, retrieved 9 March 2023
  3. Salazar, Elizabeth (24 June 2021). "Intereses privados y denuncias de parcialidad empañan elección de miembros del TC". Ojo Público (in Spanish). Retrieved 9 March 2023.
  4. Pública, Agenda. "Elección de miembros del TC: un asalto precario a la democracia peruana". El Pais (in Catalan). Retrieved 9 March 2023.
  5. "Ni siquiera topo: apenas tapón". IDL-Reporteros (in Spanish). 22 May 2023. Retrieved 26 May 2023.
  6. Augusto, Maria Claudia (30 April 2022). "Politicised Constitutional Courts in Latin America: Lessons From Peru". International Public Policy Review. University College London. Retrieved 9 March 2023.
  7. "Ni siquiera topo: apenas tapón". IDL-Reporteros (in Spanish). 22 May 2023. Retrieved 26 May 2023.
  8. Vega, Renzo Gómez (29 July 2023). "US Democrats pressure President Dina Boluarte over Peru's human rights violations". El País. Retrieved 30 July 2023.
  9. Rochabrun, Marcelo; Aquino, Marco (18 March 2022). "Peru court rules polarizing ex President Fujimori can leave prison". Reuters. Retrieved 9 March 2023.
  10. Aquino, Marco (31 March 2022). "Peru should not release jailed ex-President Fujimori, says Inter-American Court". Reuters. Retrieved 9 March 2023.
  11. "IACHR Concerned About Peru's Constitutional Court Decision Affecting the Rights of Indigenous Peoples". www.oas.org (in Spanish). Retrieved 9 March 2023.
  12. Romero, César. "Tribunal Constitucional falla a favor del Congreso, que tendrá un poder absoluto y sin control judicial". La República (in Spanish). Retrieved 2 March 2023.
  13. Romero, César. "El Tribunal Constitucional está destruyendo el régimen democrático del país". La República (in Spanish). Retrieved 2 March 2023.
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