Chapter 8: Peru, 2002-03
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In 1992, Peruvian President Alberto Fujimori undertook a self-coup, suspending the country's 1979 Constitution. Fujimori later convened a constituent assembly - in breach of the amendment provisions of the 1979 Constitution - which produced a constitution ratified by voters in a contested referendum in 1993. This chapter examines a 2003 judgment of the Constitutional Tribunal of Peru, in which the validity of the 1993 Constitution was challenged; the applicants arguing for the re-establishment of the 1979 Constitution partly based their challenge on a provision stating the constitution would not lose its validity if abrogated contrary to its own rules of change. The Court noted the 1993 Constitution's post-coup origins were illegitimate, but determined that the real question was whether the 1993 Constitution was valid. The Court answered that question in the affirmative, applying a conception of validity based on a norm's actual force, and determined it was beyond the judicial sphere to determine legal validity using other normative frameworks. The chapter details the Constitutional Court's judgment and situates it within the longer historical context of Peruvian constitutional history, as well as the Court's recommendation for a new constituent process.

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