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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