Politicised Constitutional Courts in Latin America: Lessons From Peru

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Disclaimer: This post reflects solely the opinion of the authors and should not be taken to represent the general views of IPPR’s management/ editorial team or those of fellow authors

Conservative Constitutional Courts in Peru: a barrier to LGTBIQ+ and reproductive rights

Constitutions are the core of governments and states. They determine how different branches of the government operate, which is the relation between the State and society and the procedures to modify its content. Most importantly, in democracies, they define human rights – following international conventions that protect and prioritise humans equally –  that the State must guarantee. In most countries, courts secure the constitution, solve conflicts, and take decisions on public matters. Therefore, the compositions and election processes of the judges are vital issues of study. 

In Latin American countries, the post-war European climate influenced the creation of modern Constitutional Courts: Colombia (1991), Peru (1993), Ecuador (1996), and Bolivia (1999) created autonomous institutions with binding decisions in economic, social and cultural, or ESC rights. Wilson and Gianella highlight that this granted marginalised groups access to rights and gave them the opportunity to claim them. Consequently, Constitutional Courts have been decisive in advancing fundamental rights in the past decades, and, in some cases,  they have even secured democracy. 

However, Constitutional Courts can also face political pressures. For example, between 1985 and 2009, Latin America’s Executive and Legislative powers pressured Constitutional Courts forty-four times to favour the preferences of politicians in power. Therefore, considering that Constitutions establish different selection processes to elect judges,  it is essential to analyse how political interests interfere with or influence their selection. 

The Peruvian case provides evidence on this point. The country is a case of “democracy without parties”, in which political parties are the result of opportunistic and temporary arrangements between political actors rather than representative organisations with ties  with society. Despite failed attempts to choose members under dubious procedures, evidence suggests that weak politicians are willing to manipulate formal rules to pick judges aligned with their political interests. 

Peru: a case of highly politicised Constitutional Court

At the start of this century, many Latin American countries shifted from right-wing governments, which played a key role in applying drastic market reforms during the nineties, to left-wing governments. In contrast the Peruvian case has surprising continuity, characterised by the defence of neoliberal policies and conservatism, which is bolstered by the salience of evangelist movements in Peru. 

The Peruvian Constitutional Court is highly conservative regarding ESC rights. The Constitution establishes that the court is formed by 7 magistrates that are elected solely by the Parliament. A special commission conducts a public contest. Candidates with the highest score form a shortlist that the Parliament votes on. At first sight, the selection follows transparent and meritocratic criteria. However, research and media reports show that formal rules are adjusted in informal ways to benefit some candidates over others. Specifically, they favour candidates aligned with some interests and positions, mainly politicising the process and eroding the institution’s autonomy. 

This practice is present in different Parliamentary periods. In 2007, Congress did not choose candidates with the highest scores. In 2013, it suspended the process after the media released audios that showed how politicians distributed the seats. Recently, in 2021, media reported that personal interviews were conducted with arbitrary criteria, suspending the process. This year, there were national and international questions raised about the transparency of the process when the Commission in charge picked six candidates out of six positions. Reports highlight political interests, question the adequateness of the process, and demonstrate unequal treatment between female and male candidates. For example, female candidates had to clarify  their position on sexual and reproductive rights, while their male peers did not. 

Impact on democracy 

Since the democratic transition in 2000, centre-right parties have ruled the Peruvian Congress. Despite efforts from the Executive, the Legislative has repeatedly opposed same-sex marriage and gender identity initiatives. In this scenario, Constitutional Courts can be decisive in advancing fundamental rights. Colombia, a country also ruled by centre-right parties, provides a good example: the Constitutional Court has been a key actor in securing rights on same-sex and gender identity initiatives, even by confronting the Parliament and going against public opinion.  

In contrast, the Peruvian Constitutional Court has not advanced fundamental rights on same-sex marriage and gender identity initiatives. Three examples illustrate the following. In 2009, the court forbade the free distribution of the morning after pill in public hospitals, arguing that this was essential to protect the right of conception. This revoked a previous ruling of 2006, that highlighted the benefits of free access to poor and vulnerable populations. The appointment of four new judges – aligned with a conservative agenda and loyal to the positions of  traditional centre-right parties – was key to explain this shift.

Second, a sentence regarding trans rights: in 2014, the Constitutional Court denied the petition of a trans woman who stated that the National Registry of Identification and Civil Status (NRICS) did not allow her to change her sex on  her national identity card. The Court judged that  transsexuality was a mental disorder. Although the Court revoked the judgement in 2016, it still establishes multiple bureaucratic and legal procedures for transgender people to obtain recognition. 

Finally, the third is the Ugarteche case. In 2018, Oscar Ugarteche appealed to the Constitutional Court for the recognition of his same-sex marriage. Since gay marriage and civil unions are absent in Peruvian legislation, he married in Mexico. His petition was rejected by the NRICS several times. Two years later, the Constitutional Court declared the case was inadmissible by stating that it was not about  fundamental rights. The decision went against previous decisions made by the Inter-American Court of Human Rights (IACHR), of which Peru is a former member.

This behaviour hinders democracy in several ways. First, it benefits particular agendas. It  opposes the rule of law, which states that decisions should treat citizens equally.  Second, it is not guaranteeing fundamental rights. For example, Peru reports weak legislation toward LGTBIQ+ and reproductive rights compared to other Latin American countries. Finally, it can reduce the credibility of democratic institutions. By 2021, only 19% of Peruvians were satisfied with democracy, and 45% supported Congress closure. Although the selection of the magistrates is not the only reason, it is part of an array of questionable decisions and scandals made by the Peruvian Congress.

Seeking a solution 

The selection mechanism for magistrates aimed to guarantee a balance between state powers. By delegating this power to Congress, it assumed it would choose magistrates based on meritocratic standards. However, evidence suggests that while the Parliament relies on formal rules to assure legitimacy, they apply informal rules that benefit political agendas and that can affect fundamental rights in the long run. 

The Peruvian Congress will appoint new magistrates in the following weeks. The decision to continue or abandon the process relies upon Congress. It is essential to reconsider the selection mechanism established in the Constitution in the long term. The only problem? Congress is in charge of approving constitutional reforms.

By Maria Claudia Augusto

Peruvian political scientist. Student of the MSc in Public Policy. My research interests include state capacity, democratic representation and radical-right parties.

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