The Constitutional Tribunal made a hugely significant decision on 17 October by refusing to acknowledge Gonzalo Ortiz de Zevallos as a member.
Ortiz de Zevallos’ name had been put forward by the former president of Congress, Pedro Olaechea, to replace Eloy Espinosa-Saldaña as a member of the seven-member tribunal. Not only was Ortiz de Zevallos Olaechea’s cousin but he was known to have close sympathies with the fujimorista cause.
In the event, and confounding expectations, only two members of the TC voted for Ortiz de Zevallos.
Had he been elected to replace Espinosa-Saldaña, it would probably have tipped the balance in the TC towards the fujimoristas at a moment when the tribunal has, amongst other things, to rule on whether the dissolution of Congress was carried out in accordance with the constitution and on whether Keiko Fujimori’s detention defies her constitutional rights.
The TC’s task is to judge whether specific actions are in accordance with constitutional principles. As such, it plays a key role within the functioning of the state. Its members are supposedly chosen for their impartiality and their experience as jurists. They are not supposed to be influenced by political affinities or calculations.
Fears had built up in previous days that the president of the TC, Ernesto Blume Fortini, would use his casting vote to approve Ortiz de Zevallo’s nomination. In practice, however, his nomination by Olaechea was vitiated by voting irregularities in the Congress and by the fact that it was never published in the official gazette.
Now, with Congress suspended until January, it will not be possible to nominate new members to the TC, even though the majority of its members should have retired by now. They have to continue to fulfil their role as justices until such time as they are replaced.
The existing TC will first have to consider the admissibility of the case brought by Olaechea about the legality of the dissolution of Congress. A hearing has been scheduled for 29 October. If deemed admissible, the TC would then have to adjudicate on whether it followed constitutional norms. In practice, it would prove difficult, and massively contentious, were the TC to rule that the dissolved Congress should be restored.
It will also have to rule on Keiko’s case. Failure to ratify Ortiz de Zevallos probably reduces the chances of Keiko walking free anytime soon.