The referendum in Peru: doctrinal foundations and legal regulation

Abstract

The aim of the article is to show the institution of popular voting regulated – in fact, for the first time – in the current constitution of Peru from 1993. The referendum is mentioned – in the Basic Law in several places – in, at least four meanings: the basic right of citizens to decide on political matters; a means by which citizens can participate in public life, when specific popular issues are put to the vote; a mechanism through which citizens are called to take a stand on matters of decentralization of the State, creation of regions, new administrative division of the country; a legal condition for amending the Fundamental Law of Peru through one of the constitutional procedures provided for this purpose. The author comes to the conclusion that the regulations in question, when submitted for detailed regulation at the level of acts, were suspended by them, without the possibility of their actual implementation in practice. The statutory provisions issued on this basis did not introduce a real and effective civil right to hold a referendum, i.e. to approve or reject a draft standard with statutory force by popular vote in the period between its parliamentary adoption and its signing (promulgation) by the President of the Republic. On the other hand, laws already in force cannot be undermined by a vote of the people, because Article 103 of the Constitution only permits the repeal of a statute by an another one or the deprivation of its binding force through the Constitutional Tribunal ruling. The recently passed Act No. 31,399 of January 1, 2022 and its recognition by the Constitutional Tribunal as compliant with the Peruvian Basic Law definitively paralyzed the examined device of direct democracy in that polity.