When rejected the demand of unconstitutionality of the government of the former coup leader Pedro Castillo once morest Law 31399 that regulates the referendum, the constitutional Court laid a foundation for an eventual call for a constituent Assembly. The maximum interpreter of the Magna Carta classified it as “unlawful” and “only possible through an act contrary to the law.”
In said lawsuit, the Executive branch alleged that Law 31399 was drawn up by Congress with a “sole purpose: to avoid a specific event, such as the development of citizen initiatives aimed at the approval of a law, via referendum, that allows the convening of a constituent Assembly”.
While, Parliament, in its response to the lawsuit, assured that the aforementioned rule “reaffirms the validity of article 206 of the Constitution,” which provides that “all constitutional reform must be approved by Congress.”
For this reason, the Constitutional Court considered it appropriate to rule on the legality of a call to a constituent assembly under the current Magna Carta.
The power of constitutional reform
“The constituent assembly as a solution to the problem of the power of constitutional reform”, was the title of the Constitutional Court in the section in which it analyzes the possibility of a constituent assembly as a legitimate alternative.
In this chapter, The signatory magistrates recall that the constituent assembly “is one of the forms of expression of the Constituent Power” and that the Magna Cartas of Costa Rica, Argentina and Bolivia provide for this figure as one of the ways for the total reform of their fundamental texts.
“It is clear that different countries in the region have constitutionalized the possibility of a reform through a constituent assembly; but it should be noted that not all constitutional texts provide, originally, the mechanism or similar figure to approve a new Constitution. However, this has not prevented a subsequent attempt to approve a new constitutional text, as has happened recently in the Chilean case and the constitutional referendum that chose not to approve the submitted project”, they state.
Then, the TC recalls that the constituent assembly was contemplated in the Peruvian Constitution of 1828, whose article 177 decreed that the text be valid for 5 years. After the deadline, a “National Convention” met to “examine and amend in whole or in part” the magna carta.
“From all of the above, it can be noted that Congress might constitutionalize the constituent assembly as an alternative to legitimize the reform processes. However, as long as there is no express provision in the Constitution, it is an unlawful alternative and only possible through an act contrary to the law”, is the conclusion of the TC.
