Essential Issues of the Peruvian Legal System

By Sergio Endress Gómez

Sergio Endress Gómez has a Masters in Law from the Universidad de Chile. Since 1994, he has been a lawyer and a Professor of Taxation and Trial Taxation at the School of Law of the Universidad de Chile. He is also a partner of Endress, Israel, Olguín, Lawyers and Tax Advisors. He has published “Las inversiones en materia Tributaria” (Investment from tax perspective), Editorial Conosur, 1994-1998; “Manual de Impuesto a la Renta” (Income Tax Handbook), by Patricio Figueroa V., Editorial Jurídica de Chile, 1997 and reprinted 2004, (in collaboration); “Tributación del Propietario de Empresa”, (Shareholders and Partners Taxation in Chile), Editorial Jurídica de Chile, 2005; and several articles about taxation.

Published April 2005
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Introduction

Peru is located on the Pacific Coast side of the continent of South America, with an area of 1,285,220 Km (slightly smaller than Alaska), and has a population of 28,409,897 habitants (2003). The capital city is Lima, located in the center of the country with a population of 6,941,672 people (1996). The population is in majority Catholic (90 %) and from an ethnic point of view they are 45% Amerindian, 37% mixed, 15% Indo-Europeans, 3% Afro-American, Orientals, and others. The language is Spanish (official) and in specific regions quechua (official also) and aymara. In general terms, the weather is mixed from tropical in the East to dry desert in the West. The western coastal area is plain, high and rugged.

Constitutional Principles

The Republic is ruled by the Constitution of 1993. It was approved on October 31, 1993 with 52 % of the vote (3,548,334 votes). The amount of total electors was 8,178,742 and the abstention was 3,663,946, or 30.94 % of the suffrage total of registered voters. The Constitution was modified in December 23, 1993, in some issues regarding “Consejo de la Magistratura” and in December 24, 1993, was modified again with Art. 1. According to it, Peru is a democratic, social, independent and sovereign republic.

Type of government

The government is Unitarian, representative and decentralized and is organized according to the principle of separation of powers.

President

The President is the Chief of State and represents the Nation. He must be more than 35 years old and must enjoy suffrage rights. He is directly elected in public elections for the people and he has to win a half plus one of the total electors. As in other countries, Perú has a second ballot formula to elect from two main majorities, if none of them can obtain more than fifty percent in the first round. The Presidential mandate is for five years without chance for immediate reelection.

Along side the President exists a “Consejo de Ministros” (Council of Ministers) who has to approve, with majority, “decretos legislativos” (legislative decrees) and proposal laws from the President.

Congress

The legislature is currently a unicameral National Parliament. It has a Legislative Chamber called the “Congreso”, which has 120 legislators serving five year terms. Elections were last held 8 April 2001 (next to be held on 9 April 2006).

The Congress has among its duties the task of issuing, modifying and derogating of laws and legislative resolutions (“resoluciones legislativas”) as sanction of the International Treaties. The President and congressmen have legislative initiative, but in specific matters certain organizations (and even citizens) have this power.

The President has the power to make changes to the “approved congress law”. When the Congress approves a law, it will be sent to the President to sign it. The President can propose changes to the law before enacting it, within fifteen days. Made to reconsider by the Congress, the President of the Congress, with the approval of the majority of members, can enact the law. This means that the President of the Congress with the approval of the majority of the members can enact the law despite the fact that the President does not agree with the law.

The Executive power could issue laws (named “decretos legislativos”). The Congress gives authority (throughout the law) to the Executive Branch (President) to act in place of Congress with the purpose to made and enact new laws. In these cases, it (the delegation act) should be previous to make and enact the specific law by the President (executive power).

The “Decreto Legislativo” – the decree- and the law –“ley”– have the same hierarchy.

Certain matters that rule functions and structure of State Entities require certain quorum.

The reform of the constitution requires a simple majority from Congress and referendum. Otherwise, the reform can be approved by two consecutive congressional approvals, with specific quorums.

Constitutional Court

The Constitutional Court is autonomous and independent, formed by seven members elected for five years by the congress. The Court must review the contradiction/opposition between laws and the Peruvian Constitution. The Court also has to make the final judgment in trials about “habeas corpus”, “habeas data”, “amparo” and “acción de cumplimiento”.

This site provides full access in Spanish of “jurisprudencia”, found on the left side on the main page of the site.

Judicial System

The judicial system consists of the Supreme Court and other Courts and judges as defined by law. The “Consejo Nacional de la Magistratura” selects and appoints judges. There is a Public Prosecutor and a Public Defender. The Public Prosecutor has the duty to represent the public interest and to defend the rule of law. This site will have a jurisprudence database soon according to the site.

Administrative organization

The Republic is divided in regions, departments, provinces and districts, as follows: 12 regions and 1 constitutional province. The regions are Amazonas (de Loreto), Andrés Avelino Cáceres (de Huanuco, Pasco, Junin), Arequipa (de Arequipa), Chavin (de Ancash), Grau (de Tumbes, Piura), Inca (de Cusco, Madre de Dios, Apurimac), La Libertad (de La Libertad), Los Libertadores-Huari (de Ica, Ayacucho, Huancavélica), Mariategui (de Moquegua, Tacna, Puno), Nor Oriental del Maranon (de Lambayeque, Cajamarca, Amazonas), San Martín (de San Martín), Ucayali (de Ucayali). The one constitutional province is Callao.

Main Laws and regulations

Laws and regulations are published in “El Peruano”, a newspaper founded by Simon Bolivar, an important Latin American hero during the independence wars. Peru is a civil law system that has not accepted the compulsory International Court Jurisdiction.

Legislation is accessed by year and month. A separate library, similarly organized, provides brief summaries arranged by subject of laws and regulations appearing in El Peruano.

You can find the full text of laws for free online (government site).

Most important rules

  • The Constitutional Process Code. Law Nº 28.237. It was enacted in May 28, 2004, and published in May 31, 2004. It contains process rules to exercise the most important constitutional actions and remedies like, habeas corpus, habeas data and amparo. Amparo is the main remedy to protect most of the rights granted/establish in the Peruvian Constitution according to the Constitutional Process Code or “CÓDIGO PROCESAL CONSTITUCIONAL”, LEY Nº 28.237, paragraph 37.
  • The Civil Code was enacted in 1984, and was enforced in November of the same year by the Law Nº 23.403 of July 27, 1984. It was a result of special commissions who revised a proposed project of the Civil Code made by a Commission established in 1965, by the Supreme Decree Nº 95, from March 1, 1965. The text has 2.132 articles, distributed in ten sections (or “Libros”) with a final section.
  • The Commercial Code was enacted in February 15, 1902. The General Law Company (Ley General de Sociedades) was established by Law Nº 26.887.
  • The Penal Code was enacted in April 3, 1991 and published in April 8, 1991. It was the result of several Commissions appointed to revise and improve a previous project. The Congress gave authority (throughout the law Nº 25.280) to the Executive Branch (President) to act in place of the Congress with the purpose of drafting and enacting a new penal code.