Constitutional Guarantees and Legal Framework of Peru

Concept and Classification of Constitutional Guarantees in Peru

Constitutional guarantees are defined as procedural mechanisms of defense, caution, and protection designed to ensure the full validity of the Constitution and the human rights recognized within it. According to Article $200$ of the Political Constitution of Peru, there are six fundamental guarantees: Habeas Corpus, Action of Amparo, Habeas Data, Action of Inconstitutionality, Popular Action, and Action of Compliance. These guarantees protect the hierarchical order where the Constitution prevails over all legal norms, and the law prevails over norms of inferior hierarchy.

Detailed Scope of Personal and Informational Protection Guarantees

The Action of Habeas Corpus proceeds against the act or omission of any authority, official, or person who violates or threatens individual liberty and connected constitutional rights. This includes the protection of personal integrity, the right not to be exiled without a sentence, and the right not to be held incommunicado. Any person is legitimized to interpose this action.

The Action of Amparo is directed against acts or omissions that violate or threaten constitutional rights not covered by Habeas Corpus or Habeas Data. These rights include equality, non-discrimination, health, education, work, property, inheritance, and the inviolability of the home, among others. This action is initiated in the Judicial Power before a Constitutional Judge, and only the affected or aggrieved party has the legitimation to interpose it.

The Action of Habeas Data is designed to protect rights regarding information and informative self-determination. It proceeds against acts or omissions that violate the right to request information from public entities as established in Article $2$, subsection $5$, and the right to ensure that information services do not affect personal or family privacy as established in Article $2$, subsection $6$. It is initiated before a Constitutional Judge by the affected party.

Normative Hierarchy and Legal Supremacy Guarantees

The Action of Inconstitutionality is used to protect the hierarchy of norms and the supremacy of the Constitution. It proceeds against norms that have the rank of law—such as laws, legislative decrees, urgency decrees, and treaties—which contravene the Constitution in form or substance. The Tribunal Constitucional (TC) holds exclusive jurisdiction over this action in a single instance. Those legitimized to file this action include the President of the Republic, the Fiscal de la Nación, the Defensor del Pueblo, $25\,\%$ of the legal number of congressmen, $5,000$ citizens (or $1\,\%$ if it concerns a municipal ordinance), Regional Governors, and Professional Colleges.

Popular Action is a mechanism to defend the Constitution and the law against administrative norms, regulations, and resolutions of a general nature that may infringe upon them. It is used against infra-legal norms such as supreme decrees or resolutions. Competence for this action resides exclusively within the Judicial Power, starting at the Superior Court and ending at the Supreme Court as the final instance. Any person may interpose this action.

The Action of Compliance is filed against any authority or official who is reluctant to comply with a legal norm or an administrative act. Its purpose is to ensure the effective fulfillment of laws and administrative mandates for the benefit of the citizen. It is initiated by the aggrieved party before a Constitutional Judge within the Judicial Power.

Competent Organs and Procedural Instances

The Judicial Power handles the initiation of most constitutional actions through specialized, civil, or criminal courts. Habeas Corpus begins with a Criminal Judge, while Amparo, Habeas Data, and Compliance begin with a Constitutional Judge. Popular Action is handled exclusively by the Superior and Supreme Courts. The Tribunal Constitucional (TC) functions as the supreme, autonomous, and independent interpreter of the Constitution. It hears Actions of Inconstitutionality in a single instance and hears the denial resolutions of Habeas Corpus, Amparo, Habeas Data, and Compliance in the last and definitive instance.

The Tribunal Constitucional is composed of $7$ members who serve a term of $5\,\text{years}$ with no immediate reelection. To be a member, one must meet the same requirements as a justice of the Supreme Court. Members are elected by the Congress of the Republic with the favorable vote of two-thirds ($2/3$) of the legal number of its members, which equals $87$ votes. They enjoy the same immunity and incompatibilities as congressmen.

Legislative Context and Transitions in Governance

The current legislative structure until $2026$ is unicameral, consisting of a single chamber of $130$ congressmen. The Plenary of this Congress is responsible for electing members of the Tribunal Constitucional and the Defensor del Pueblo with a qualified majority of $87$ votes. However, starting in $2026$, following Law No. $31988$, a bicameral system will be implemented. The Legislative branch will divide into a Chamber of Deputies, with a minimum of $130$ members, and a Senate, with a minimum of $60$ members. Traditionally, the faculty of electing high authorities such as TC magistrates will fall upon the Senate, acting as a chamber of reflection and political control.

Rules on Hierarchy, Sentences, and Exceptional States

The Hierarchy of Norms, often referred to as Kelsen's Pyramid, dictates that the Constitution sits at the top, followed by International Treaties, then Laws (Organic and Ordinary), Legislative Decrees, and Urgency Decrees. Below these are Regulations (Supreme Decrees), followed by Resolutions and other infra-legal administrative norms. Constitutional guarantees ensure that the Constitution prevails over all other legal norms.

In terms of legal effects, a sentence declaring a norm unconstitutional results in that norm becoming void the day after its publication in the official diary; such sentences do not have retroactive effects. Furthermore, during regimes of exception—specifically the state of emergency and the state of siege—the exercise of Habeas Corpus and Amparo is not suspended, ensuring that fundamental protections remain available to citizens even in crises.