Who controls the Constitutional Tribunal?

8 July 2018

Those who control the body charged with deciding on whether laws are constitutional or not occupy a key role in any political system. In Peru, it is the role of the Constitutional Tribunal, a body of seven men (all are men, there are no women) who rule on whether laws passed by the Congress violate constitutional norms.

The Constitutional Tribunal will have to judge whether the so-called Ley Mulder (conventionally also called the ‘Gagging Law’) accords (or not) with stipulations in the 1993 Constitution about guarantees on press freedom.

The Ley Mulder seeks to prohibit the publication of public notices in the privately-owned media. Critics of the law, approved last month in the Fujimorista-dominated Congress, claim that the law represents a deliberate infringement of press freedoms by blocking an important source of media revenues. Although the law carries the name of its sponsor, the APRA congressman Mauricio Mulder, it was enthusiastically supported by the Fujimorista majority in Congress.

The move has been opposed by organisations representing the press both in Peru and internationally. It has been publicly rejected by President Martín Vizcarra who has referred it to the Tribunal. Other Fujimorista-backed legislation has also been referred to the Tribunal, such as the law to prevent members of Congress moving from one party to another, a law designed to prevent desertions within pro-Fujimori Fuerza Popular party.

As Augusto Alvarez Rodrich notes in an opinion piece on 7 July in La República, other laws designed to further the interests of Keiko Fujimori’s Fuerza Popular may also be referred to the Tribunal, such as proposals to change the system of two rounds in presidential elections, making it easier for the winner in the first round to be elected outright, a move judged to benefit Keiko’s presidential aspirations in 2021.

The issue of control of the Constitutional Tribunal came to the fore in the 1990s when then president Alberto Fujimori sought to dismiss members of the Tribunal who believed that his bid to run again for the presidency in 2000 was unconstitutional. Three of its members were arbitrarily sacked; their replacements blithely agreed to Fujimori’s ability to stand for a third time.

As Alvarez points out, the balance in the present Tribunal is such that its president, Ernesto Blume, has a casting vote on whether the Ley Mulder prospers or not. To rule a law unconstitutional requires five out of the seven members to vote in favour. Currently, it seems, four other members are thought to oppose the Ley Mulder while two support it. Blume is likely to be the object of intense political pressures.

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    The Peru Support Group exists to promote social inclusion, sustainable development and the observance of human rights in Peru. To that end the PSG highlights shortcomings in observance of established norms, whether international or local in nature, in its research, advocacy and publications. In so doing, it underscores the relationships that exist within the political system, how institutions work, and the effectiveness of policies that aim to reduce poverty and inequality within the context of sustainable development.

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