Exhortative rulings and legislative autonomy: The conflict between the Constitutional Court and Congress in Peru

Abstract

This article critically studies the problem of non-compliance with exhortative sentences issued by the Constitutional Court of Peru, emphasizing the tension between the function of constitutional control and the legislative autonomy of Congress, since, although they do not have binding effects, their purpose is to guide the legislator to adapt the analyzed regulations in accordance with constitutional values, especially when vices of unconstitutionality are noted. However, their effectiveness is limited by the absence of political will, which prevents them from being addressed, even in cases where fundamental rights are compromised.

Through the study of emblematic cases in Peru and the analysis of their treatment in comparative law in Argentina, Colombia, Mexico, Chile, and Guatemala, it is evident that this problem is not exclusive to the national sphere, although in Peru it is exacerbated by institutional fragility and the lack of mechanisms that compel Parliament to rule on these decisions.

The investigation concludes that non-compliance is not only due to the lack of binding force of the exhortative rulings, but also to a resistance on the part of Congress to any attempt by the Court to interfere in the legislative agenda, because, in many cases, the exhortations are exposed as attempts by the Constitutional Court to carry out legislative action but indirectly, which strains the separation of powers. Finally, it is proposed to establish institutional mechanisms that prioritize and evaluate compliance with these rulings, in order to guarantee a better inter-institutional relationship between constitutional control and legislative work.