«POLITICAL CONSTITUTION OF PERU 29 December 1993 Translation by PETER B. HELLER Based on the Official Edition of the Constitution Published by the ...»
Interpellation is done in writing. It must be submitted by no fewer than 15 percent of the legal number of Congressmen. For their acceptance the vote of one-third of the number of competent representatives is necessary. A vote must be taken without fail at the subsequent session.
The Congress determines the day and hour for the ministers to respond to the interpellation. The latter may not occur or be voted upon before the third day of its receipt or after the 10th day.
Article 132 The Congress actualizes the political responsibility of the Council of Ministers or of the ministers individually by means of a vote of censure or by defeating a vote of confidence.
The latter may only be proposed upon a ministerial initiative.
Any motion of censure of the Council of Ministers or of any of the ministers must be introduced by no fewer than 25 percent of the legal number of Congressmen. It is debated between the fourth and tenth calendar day following its introduction. Its approval requires the vote of over half the legal number of the members of Congress.
The Council of Ministers or the censured minister must then resign.
The President of the Republic accepts his resignation within the subsequent 72 hours.
The defeat of a ministerial initiative does not obligate the minister to resign, unless its approval was made a question of confidence.
Article 133 The President of the Council of Ministers may introduce before the Congress a question of confidence on behalf of the Council of Ministers. If confidence is denied or if the President is censured or if he resigns or is removed by the President of the Republic, a total crisis of the Cabinet is produced.
Article 134 The President of the Republic has the power to dissolve the Congress if the latter has censured or denied its confidence to two Councils of Ministers.
The dissolution decree contains a call [convocatoria] for the election of a new Congress.
Said election must take place within four months of the dissolution of Congress without any alteration to the existing electoral system.
The Congress may not be dissolved in the final year of its mandate. Once the Congress is dissolved, its Standing Committee, which cannot be dissolved, maintains its functions.
The parliamentary mandate may not be revoked in any other form.
Under a state of siege, the Congress may not be dissolved.
Article 135 Once the new Congress meets, it may censure the Council of Ministers or deny it a vote of confidence after the President of the Council of Ministers has explained before the Congress the actions of the Executive Power during the parliamentary interregnum.
During this interregnum, the Executive Power legislates through emergency decrees, about which it gives an accounting to the Standing Committee so that it may scrutinize them and present them to Congress after the latter is installed.
Article 136 If the elections are not held within the deadline provided for, the dissolved Congress may meet as a matter of right, recovers its powers, and remove the Council of Ministers. None of the latter’s members may be reappointed minister during the remaining presidential term.
A special Congress elected in this manner replaces the previous one, including the Standing Committee, and completes the constitutional term of the dissolved Congress.
Chapter VI State of Exception Article 137 In agreement with the Council of Ministers, the President of the Republic can decree, for a specific period, across the entire national territory or in part of it, and giving an accounting to the Congress or its Standing Committee, states of exception mentioned in
this article, namely:
1. State of emergency in case of a disturbance of the peace or of the internal order, catastrophe, or grave circumstances affecting the life of the nation. In this eventuality, the exercise of constitutional rights may be restricted or suspended as they relate to personal freedom and security, the inviolability of the home, and the freedom of assembly and movement in the territory included in clauses (9), (11), and (12) of Article 2 and in clause (24), section (f) of the same article. Under no circumstances can anyone be exiled.
The period of a state of emergency may not exceed 60 days. Its extension requires a new decree. In a state of emergency, the Armed Forces assume control of the internal order if so decided by the President of the Republic.
2. State of siege in case of invasion, foreign war, civil war, or imminent danger that such may occur, with reference to those fundamental rights whose exercise is not restricted or suspended. The applicable period does not exceed 45 days. After a state of siege is decreed, Congress meets by right. The extension requires the approval of Congress.
Chapter VIII The Judicial Power Article 138 The power to administer justice emanates from the people and is exercised by the Judicial Power through its hierarchic organs, in accordance with the Constitution and the laws.
In any process, when an incompatibility exists between a constitutional norm and a legal norm, the judges are to prefer the former. Equally they are also to favor the legal norm over all other norms of a lower order.
The following are principles and rights of the judicial function:
1. The unity and exclusiveness of the judicial function.
There does not exist nor can there be established any independent judicial authority with the exception of the military and arbitration machinery.
No judicial process is possible through assignment or delegation.
2. The independence in the exercise of the judicial function.
No authority may remove a case pending before a judicial organ nor interfere in the exercise of its function. Neither may it nullify resolutions handed down by a court or halt procedures under way or alter sentences or delay their execution. These provisions do not affect the right of pardon or the power of investigation of the Congress whose exercise should not, however, interfere in the judicial process or have any judicial effect whatever.
3. The observance of due process and judicial oversight.
No person may be turned away from a jurisdiction predetermined by the law, or be subjected to a procedure different from those previously established, or adjudicated by the [state of] exception judicial organs or by special commissions created for that purpose no matter how denominated.
4. The publicity of processes, unless there are contrary provisions in the law.
Judicial processes pertaining to the responsibility of public functionaries and for offenses committed by means of the press and those that relate to fundamental rights guaranteed by the Constitution are always public.
5. A written explanation of judicial resolutions at all levels, with specific mention of the law applicable and of the bases in fact supporting them.
6. The plurality of instances.
7. The indemnification in the form determined by law for judicial errors in criminal cases and for arbitrary detentions without prejudice to the responsibility involved.
8. The principle of continuing the administration of justice despite a deficiency in the law.
In such a case, the general principles of law and of customary law must be applied.
9. The principle of the inapplicability through analogy of criminal law and of the norms that restrict rights.
10. The principle that no one may be penalized without judicial process.
11. The application of the law more favorable to the accused in case of doubt or of conflict between criminal laws.
12. The principle of not being sentenced in absentia.
13. The prohibition against reopening closed cases with an executory resolution.
Amnesty, pardon, definitive stay of execution, and application of the statute of limitations produces the effects of a judged case [producen los efectos de cosa juzgada].
14. The principle of not being deprived of the right of defense at any stage of a trial. Any person will be immediately informed in writing of the cause or the reasons of his detention. He has the right to personally consult with a counsel of his choice and to be advised by the latter from the time he is cited or held by any authority.
15. The principle that any person must be informed, immediately and in writing, of the causes for or the reasons of his detention.
16. The principle that the administration of justice and of defense is free of charge for needy persons and for all others in cases provided by law.
17. The people’s participation in the appointment and recall of judges, in accordance with the law.
18. The obligation of the Executive Power to provide the cooperation which may be required in procedures.
19. The prohibition against exercising the judicial function by anyone who has not been appointed in the form provided by the Constitution or the law. The judicial organs may not then assume their office or have to suffer the consequences.
20. The principle of the right of any person to analyze and criticize judicial resolutions and decisions, within the limits of the law.
21. The right of inmates and the condemned to be provided adequate facilities.
22. The principle that the criminal justice system has as its object the re-education, rehabilitation, and reintegration of the convict into society.
Article 140 The death sentence may only be applied for the crime of treason to the fatherland in wartime and for terrorism, in accordance with the laws and the treaties obligating Peru.
Article 141 It is the duty of the Supreme Court to function as an appellate court or as one of last instance when legal action is initiated in a Superior Court or before the Supreme Court itself, in accordance with the law. Similarly, it may act as a court of cassation with regard to resolutions of the armed forces, within the limits established by Article 173.
Article 142 Not subject to judicial review are resolutions of the National Board of Elections as they relate to balloting or those of the National Council of the Magistracy as regards the evaluation and confirmation of judges.
Article 143 The Judicial Power is made up of the judicial organs which administer justice in the name of the Nation and by organs which apply and administer it.
The judicial organs are the Supreme Court of Justice and the other courts and tribunals determined by the organic law.
Article 144 The President of the Supreme Court is also the head of the Judicial Power. The Plenary Chamber of the Supreme Court is the highest deliberative organ of the Judicial Power.
Article 145 The Judicial Power presents its budget bill to the Executive Power and defends it before the Congress.
Article 146 The judicial function is incompatible with any other public or private activity, with the exception of university teaching outside of working hours.
Judges may receive only the remuneration assigned to them by the budget and compensation from teaching or other employment expressly provided by law.
The State guarantees to members of the Judicial Power:
1. Their independence. They are only subject to the Constitution and the law.
2. The stability [inamovilidad] of their position. They may not be transferred without their consent.
3. Their tenure in the service as long as they evidence behavior and conduct proper to their function. And
4. A remuneration that secures for them a standard of living worthy of their mission and rank.
To qualify as a judge on the Supreme Court, the candidate:
1. Must be Peruvian by birth.
2. Be a citizen in the exercise of his rights.
3. Be over 45 years of age.
4. Have been a judge in a Superior Court or a senior public prosector for 10 years or to have practiced law or taught law at the university level for 15 years.
Article 148 Administration decisions affecting rank are subject to challenge through contentiousadministrative action.
Article 149 The authorities of the Peasant and Native Communities, with the support of the Peasant Circles, may exercise judicial functions within their territorial jurisdiction in accordance with customary law as long as they do not violate the fundamental rights of the person.
The law provides for the forms of coordination of special jurisdiction with the Justices of Peace and the other instances of the Judicial Power.
Chapter IX Concerning the National Council of the Magistracy Article 150 The National Council of the Magistracy is charged with the selection and appointment of judges and prosecutors, except when these are popularly elected.
The National Council of the Magistracy is independent and is regulated by its organic law.
Article 151 The Academy of the Magistracy, which is part of the Judicial Power, is entrusted with the formation and training of judges and prosecutors at all levels for the purpose of their candidacy.
Special studies are required by the said Academy for the candidacy of members of the judiciary.
Article 152 Justices of the Peace are popularly elected.
Said election, its requirements, the performance of judicial duties, training, and the term of office are regulated by law.
The law may determine the election of judges of the first instance and also the relevant mechanisms.
Article 153 The judges and prosecutors are forbidden to participate in politics, to unionize, or to declare themselves on strike.
The following are the duties of the National Council of the Magistracy:
1. To appoint, following a prior public competitive examination and personal evaluation, judges and prosecutors at all levels. Said appointments require a vote of two-thirds of the legal number of its members.
2. To recertify [ratificar] the judges and prosecutors at all levels every seven years.
Those not certified may not reenter either the Judicial Power or the Public Ministry. The process of certification is independent of disciplinary measures.