Athina

Prólogo

Víctor García Toma — Fri, 07 Jul 2023 00:00:00 -0500

Presentación Athina

Alvaro Medina Quintana — Fri, 07 Jul 2023 00:00:00 -0500

Presentación

Renzo Diaz Giunta — Fri, 07 Jul 2023 00:00:00 -0500

The constitutional content of fundamental rights as a set of constitutional norms

Luis Castillo Córdova — Fri, 07 Jul 2023 00:00:00 -0500

The solution of legal problems related to fundamental rights calls for a material concept of fundamental right. Such concept is compatible with the way of understanding the constitutional content of fundamental rights as a set of constitutional norms produced by the different sources of constitutional law existing in our legal system. This work is intended to justify and show what these sources are and how they come to shape the constitutional content of fundamental rights

Peru: from an exclusionary to a transforming constitutionalism, progress and pending challenges

Marcela Huaita Alegre, Andrea Choccechanca Gamboa — Fri, 07 Jul 2023 00:00:00 -0500

This article covers the evolution of key gender relations issues in Peruvian constitutions for almost a century, from 1931 to 2021. It analyses the path travelled from the exclusion of women as citizens to the achievement of parity in political participation; the transformation of the equality clause into one that has the possibility to incorporate discrimination based on sexual orientation as a prohibited category; as well as changes in the conception of maternity protection by the State, until one arrives at a provision that recognizes the right of people to decide individually about their reproductive choices. The article also reports on the participation of women in the struggle for these gains, their initiatives both in formal and informal spaces, as well as the demands of first and second wave feminist movements. All these points are organised through categories coined by Ruth Rubio Marín, to understand constitutionalism from a gender perspective: exclusionary, inclusive, participatory, and transformative constitutionalism.

The freedoms we forget about the elders

Edward Cayotopa Luna — Fri, 07 Jul 2023 00:00:00 -0500

The article explains the development of the principle of equality from its material side according to Robert Alexy’s perspective. In this manner, the article specifies that in situations where people are not treated equally, the concepts known as ‘reasonable accommodation’ and ‘discrimination by differentiation’ are applied. This last one (discrimination by differentiation) supposes a legal discrimination by the legislator who, when regulating a specific area, did not anticipate the particularities of some subjects, in the case of this article, the elderly. Therefore, to expose the problem, several emblematic cases are discussed and the approach to the rights of the elderly is compared in the ‘Charter of San Jose on the Rights of Older Persons in Latin America and the Caribbean’ (which prohibits legal discrimination that limits access to satisfy various minimum needs) and in the ‘Charter of Fundamental Rights of the European Union’ (which emphasizes guaran[1]teeing self-determination without interference). Finally, this article explains that the ‘Peruvian Constitutional Court’ has missed several opportunities to evaluate the freedoms of the elderly because it hasn’t favored the self-determination of this social group.

The right to freedom of expression and social media

Renzo Díaz Giunta — Fri, 07 Jul 2023 00:00:00 -0500

In this article, the author develops the content of the right to freedom of expression and analyzes its exercise by citizens, in the digital age, through social networks. Likewise, it highlights the importance of this right as a pillar of constitutional democracy. Also, he specifies the limits that this right has. In addition, he reflects on how freedom of expression is affected today through the ‘culture of cancellation’, ‘troll’ profiles and intolerance on the internet.

Interview: Vaccines and the right to health

Violeta Bermúdez Valdivia — Fri, 07 Jul 2023 00:00:00 -0500

In this interview, the author analyzes the protection of the right to health and the fight against the pandemic, from within the Transitional and Emergency Government of President Sagasti. In addition, it develops the success story of how Peru went from not having guaranteed vaccines to vaccinating all older adults and ensuring vaccines for all Peruvians. It also reflects on the impact of the pandemic on the right to health of Peruvians, as well as the main health measures that were adapted from the government and the cooperation of other sectors of society.

Facing the inability to determine when we are in a vacancy due to Permanent Moral Incapacity of the President of the Republic of Peru (some references to what i pointed out as a singular vote in this regard)

Eloy Espinosa-Saldaña Barrera — Fri, 07 Jul 2023 00:00:00 -0500

In this article, the Magistrate Eloy Espinosa-Saldaña, who has not agreed with the decision made by the Constitutional Tribunal in response to the request for Vacancy due to Permanent Moral Incapacity of the President of the Republic of Peru, develops the arguments why the request should have been declared founded. Also, it explores the form of government included in the Peruvian Constitution of 1993, as well as the presidential vacancy and the cause of permanent moral incapacity in Peruvian constitutionalism. In addition, it analyzes whether Congress, in the use of its powers and attributions, could interrupt the regular exercise of the President.

The vote of confidence in the Peruvian constitution

Carlos Hakansson — Fri, 07 Jul 2023 00:00:00 -0500

The application of the vote of confidence has been producing changes that affected executive-legislative relations, making the dissolution of Congress (September 2019). In this article, we propose to explain its nature and scope according to constitutional theory.

The prior control of the constitutionality of laws in comparative law: comparative notes between France and Colombia and possible contributions to the Peruvian case

Alexandra Molina Dimitrijevich — Fri, 07 Jul 2023 00:00:00 -0500

Through a comparative methodology, this article pursues to analyze the model of previous constitutional review, starting from some essential, general concepts, and then examining the specific cases of France and Colombia, which currently share this previous constitutional review model (despite being regulated differently in each country’s constitutional system). In this regard, the applicability of this previous constitutional review in Peru is analyzed in the article, as well as its usefulness and the possible design of previous review that could be ideal in our country.

Constitutional reform, Constituent Assembly and referendum: carry it out without Congress?

José Naupari Wong — Fri, 07 Jul 2023 00:00:00 -0500

In this article, the author analyzes the arguments -specifically, the jurisprudence- that are usually used as an argument in favor of the feasibility of directly calling a referendum for the approval of creating a Constituent Assembly. In addition, it develops the scope of the right to referendum initiative as a constitutional right of legal configuration. Also, it contributes to the academic debate by exposing the limits of the Constituent Assembly

Interview: a tribute to Javier Alva Orlandini; politician, democrat and constitutionalist

Cesar Landa Arroyo — Fri, 07 Jul 2023 00:00:00 -0500

In this interview, the author recounts various highlights in the career of Javier Alva Orlandini, his colleague and friend. Likewise, he analyzes his various facets as a politician, academic and President of the Constitutional Court of Peru. In addition, the author highlights his constitutional engineering work as a magistrate and the democratic spirit that characterized him. It also develops what is related to the draft Constitution that Alva Orlandini drew up and his legacy as a benchmark for Peruvian constitutional democracy.

Parliamentary control of presidents in minority: a balance

MIlagros Campos — Fri, 07 Jul 2023 00:00:00 -0500

This article takes stock of parliamentary control in Peru in recent years, due to the parliamentary presidential regime, and under the context of constant confrontations between the Executive and the Legislature. Likewise, the author explores the control mechanisms contemplated in the Peruvian Constitution; the issue of mandatory trust, requests for information, the invitation to report, interpellation, ministerial censorship, and investigative commissions. It also addresses some of these control mechanisms, accounting for their use in governments without a majority and fragmented congresses.

The new Constitutional Procedural Code: an overview of its drafting process, approval and main contributions

Luis Andrés Roel Alva — Fri, 07 Jul 2023 00:00:00 -0500

The present article aims to explain the motivations for the reforms to the former Constitutional Procedural Code, which were to make constitutional justice more accessible to individuals and clarify the procedural rules for constitutional judges and magistrates, this being an important opportunity to demystify the argument that some legal professionals and even representatives of the State wielded at the time, regarding that the New Code of Constitutional Procedure was carried out hastily and without due analysis of the reforms proposed and approved in the Congress of the Republic.

Bicentennial of the republic: culture and constitutional reform

Raul Gutiérrez Canales — Fri, 07 Jul 2023 00:00:00 -0500

Starting with the bicentennial of the Republic of Peru and the discussion on the possibility of starting a constituent process, it is analyzed whether the conditions actually exist to guarantee a change to the Constitution that responds to the purposes of the constitutional rule of law. For this purpose, the scope and relevance of the constitutional culture is developed, identifying that at the national level even it constitutes a challenge. In such a scenario, some elements are needed that contribute to the promotion of actions that ensure its presence in the State and in society, highlighting its consolidation as a transversal public policy that can decisively help to strengthen institutionalism and constitutional loyalty.

Consumer protection through the Peruvian Constitution and the jurisprudence of the Constitutional Court

Alejandro Quinteros Cortez — Fri, 07 Jul 2023 00:00:00 -0500

Life in society and the social relations that allow economic exchange to make it vitally necessary to guarantee the defense and protection of consumer rights. Consumers play such an important role in our economy that the Constitutional Court itself has prefer to define them as “the target of every economic activity” (07339-2006-PA/TC Argument 20). Nevertheless, in spite of the Peruvian Political Constitution in its Article 65 clearly and precisely regulates Consumer Protection, in our country most studies on this topic have been primarily analyzed by the administrative law. Therefore, the present essay pretends to join the effort to innovate in the constitutional investigation of the Consumer Protection Law.

Round table: Selection process of judges of the Constitutional Court, precautionary measures and parliamentary acts

Cesar Delgado-Guembes, Ursula Indacochea — Fri, 07 Jul 2023 00:00:00 -0500

In this round table, the authors carry out a legal and constitutional analysis of what happened during the selection process of judges of the Constitutional Court of Peru, as well as the conflict between powers generated by a precautionary measure of the Judicial Power and by the parliamentary acts that followed it. This new crisis in the Peruvian State; polarizing and controversial, is analyzed by two prominent constitutionalists whose opposing positions and argumentative solidity make this round table highly reflective and of great legal and doctrinal value.

Round table: Social market economy and the economic regime of the Peruvian constitution

Enrique Ghersi, María Teresa Quiñones — Fri, 07 Jul 2023 00:00:00 -0500

In this round table, the authors carry out a legal and constitutional analysis regarding the economic regime established by the 1993 Constitution, currently in force. The authors analyze the positive impact of this regime on the Peruvian economy and put forward some reform proposals. Likewise, the concept “social” within the social market economy triggers a debate among the authors, who have opposing opinions on the matter. This allows its origins, nature, implications and importance to develop.