Back to Bicameralism: The Illiberal Goals of Peru's Constitutional Reforms

Peru has enacted a constitutional reform reverting to a bicameral parliament, despite a 2018 referendum in which the public rejected a similar proposal. This pivot, driven by illiberal forces, hints of a congressional coup, and poses serious risks to democratic principles and the balance of powers ahead of the 2026 elections – writes César Landa

The Republic of Peru, during its 223 years of independence, has operated for 185 years with a bicameral parliament. Amidst times of crisis or reform – with sometimes liberal and at other times conservative governments – the legislature has been transformed into a unicameral Congress or has returned to bicameralism. Recently, a constitutional reform, and return to bicameralism, has been approved in Peru, prompted by a highly unpopular (as well as illiberal) government. This requires a detailed examination of the reform and evaluation of its impact on the democratic and constitutional state. Through this, we see that the constitutional reform is merely a tool used by illiberal political forces that aim to consolidate power in parliament, ultimately controlling all constitutional institutions up to and including the presidency.

Reversion to Bicameralism

The Congress of Peru recently approved a reform affecting 58 of the 206 articles of the 1993 Constitution. This reform introduces substantial changes; notably, the unicameral Congress will become bicameral by reinstating a 60-member Chamber of Senators that will function alongside a 130-member Chamber of Deputies (Art. 90). Presidential candidates may simultaneously be candidates for senators or deputies. However, the President is barred from being elected as a member of Congress unless he or she resigns from office six months before the election (Art. 91). In addition, senators and deputies may now seek re-election immediately to the same position without term limits.

The Chamber of Deputies will be elected via proportional representation, in one national constituency, and there is a minimum age requirement of 25 years for candidates (Art. 90). The Chamber of Senators will use a system of mixed representation, whereby 33 senators will be elected by a national constituency and 27 by departmental constituencies, with a minimum age requirement of 45 years – this age requirement is waived for current and previous members of Congress (Art. 90).

Deputies will have oversight powers including the possibility of establishing investigative committees (Art. 97); they can further question and censure State ministers and grant or refuse confidence to State ministers at their request (Arts. 102-B, 132), as well as start impeachment proceedings before the Senate (Art. 99). The reform eliminates the so-called “investiture” of the ministerial cabinet, which required the cabinet to present its government policies before Congress and request a vote of confidence (Art. 130).

The Senate will have the power to review legislative initiatives and constitutional accusations (to bring impeachment proceedings) presented to it by the Chamber of Deputies, as well as legislative decrees, emergency decrees, and supreme decrees on treaties and states of exception issued by the Executive (Art. 102-A). Likewise, it may extend states of exception, approve international treaties on legislative matters, authorize the President’s travel abroad, and permit the entry of foreign troops into the national territory (Art. 102-A).

The Senate may also ratify and elect high authorities of independent institutions such as directors of the Central Reserve Bank, the judges of the Constitutional Court, the Superintendent of Banking, Insurance and Private Pension Funds, as well as elect and remove the members of the National Board of Justice, the Ombudsman and the Comptroller General (Art. 87; Art. 102-A).

Legislative bills must be approved in both chambers, where the deputies will have the prerogative of the legislative initiative, but the senators will have the final power in approving the law (Art. 105). However, in the case of the budget law it will be approved in a joint session of both chambers (Art. 81). The delegation of legislative powers to the Executive Branch will be carried out by Congress, but the Senate can review executive laws and decrees and ratify, modify, or repeal (Art. 102-A). A constitutional reform must be achieved by absolute majority of each chamber and ratified by referendum, but the referendum can be omitted where the reform is approved by two-thirds majority in each chamber in two successive legislatures (Art. 206).

The other constitutional reforms are less substantial, such as updating the title of Supreme Court justices to supreme judges, members of the Constitutional Court to magistrates, and updating references to the National Council of the Judiciary to the National Board of Justice (Art. 39).The reform also updates some powers of institutions such as the Public Prosecutor and modifies the requirements for the number of votes needed to approve special laws, among others.

Democratic-constitutional analysis: erosion of the separation of powers

The constitutional reform is set to take effect from the 2026 general and presidential elections. It significantly impacts the democratic political model by breaking the balance of powers of the presidential regime – attenuated with some parliamentary institutions – in favor of an assembly model. This shift concentrates power in Congress to the detriment of the Executive, deepening a power imbalance that has been established in practice since 2016 with the dismissal of Presidents Kuczynski, Vizcarra and Castillo.

This is particularly noteworthy against the backdrop of the low public approval rating for both congressmen and the President Boluarte (formerly the Vice-President who assumed office after the dismissal of Pedro Castillo), standing at only 5 per cent and 8 per cent respectively in 2024. Due to the crisis that exploded with Congress' nomination of Boluarte as President and the government's repression of citizen protests, resulting in the deaths of more than 50 people, there has been no responsibility thus far, no offer of advance elections, nor a constituent assembly as demanded.

The public’s disapproval is unsurprising, considering that in a referendum held in 2018, more than 90 per cent of voters rejected bicameralism and 85 per cent opposed the immediate re-election of congressmen. Adding to this, the reform eliminates the parliamentary vote of investiture, which was necessary for government formation. Previously, if this vote was rejected twice, it would trigger presidential dissolution of Congress and call for parliamentary elections – a mechanism to restore the balance of powers, as happened in 2019, with the full approval of the citizens.

The parliamentary majority that promoted this reform is led by the Fujimori party, which as a result of Fujimori's self-coup in 1992, replaced the 1979 Constitution with the 1993 Constitution. The 1993 Constitution abolished the bicameral system and introduced the possibility of having a vote of confidence for each new government’s ministerial team. In addition, it authorized immediate presidential re-election, dissolved directly elected regional governments, and reduced social rights, among other reforms.

Some institutions of the 1993 Constitution were reformed during the democratic transition starting in 2001. These reforms ensured there would be no immediate presidential re-election, a return to political decentralization, and the creation of the National Board of Justice, among other changes. However, starting in 2016, a reversal of these constitutional reforms began; this reversal was not aimed at strengthening presidentialism – as it was in 1993 – but in favor of the  illiberal parliamentary majority. Despite her party exerting full control over Congress since 2016, Keiko Fujimori has consistently lost presidential elections in 2011, 2016 and 2021 due to strong anti-Fujimorism among the Peruvian electorate when voting in runoff elections.

This highlights a trend where constitutional reform is seen as necessary only when it serves political objectives. Initially it was to strengthen presidentialism during the government of Alberto Fujimori (1990-2000) against a bicameral Congress in which he did not have a parliamentary majority. Later, it was used to strengthen the unicameral Congress controlled by Keiko Fujimori, who has led an alliance of populist and far-right movements while unsuccessfully bidding for the presidency (2016-2026).

Moreover, the constitutional reform is accompanied by a takeover of the Constitutional Court, the Ombudsman's Office, and attempted intervention in the Judiciary and the Public Prosecutor, as recorded in the corruption investigations of “Los Cuellos Blancos del Puerto” and “Operación Walkiria”. Additionally, two members of the National Board of Justice were dismissed, and the head of the National Election Jury faced impeachment. In these cases, the aim is not to reform the Constitution, but rather to make excessive use of the legislative power to subject said judicial and institutional institutions to control.

These actions have intensified citizens' rejection of Congress and the President, drawing serious calls for attention from the Inter-American Commission on Human Rights, Human Rights Watch, Amnesty International, and even United States Senators, among others.

Conclusion

It is clear then that the constitutional reform serves as a mere instrument for illiberal political forces, whose main objective is to empower themselves in Congress, with the ultimate aim of  controlling or hollowing out all institutions until reaching the Presidency: a congressional coup.

This situation jeopardizes the next electoral process in 2026 to renew the presidency and Congress. It is imperative for citizens to elect new, plural authorities who uphold the democratic and constitutional order, and with electoral authorities who remain independent from political pressure, not subject to harassment by the parliamentary majority, as has been happening.

In this context, the constitutional reform of bicameralism is the constitutional consecration of the imbalance between the powers of the State in favor of the parliamentary majority that has been implementing an illiberal political program, further exposing institutional weaknesses in Peruvian democracy. This endangers the national and international standards of a liberal democracy in Peru: respect for the rule of law, democracy and human rights.

César Landa is a professor of Constitutional Law at the Pontifical Catholic University of Peru, Former President of the Constitutional Tribunal of Peru and Vice President of the International Association of Constitutional Law.

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Suggested citation: César Landa, ‘Back to Bicameralism: The Illiberal Goals of Peru's Constitutional Reforms’, ConstitutionNet, International IDEA, 26 March 2024, https://constitutionnet.org/news/voices/back-bicameralism-illiberal-goals-peru

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