: 
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
Read the UPDATE!
Table of Contents
Links for Laws and Government in Peru
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.
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.
The government is
Unitarian, representative and decentralized and is organized according to the
principle of separation of powers.
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.
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.
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.
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.
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.
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).