14
*
*
*
42.
At the public hearing on November 22, 2000, the Court received the reports
of the experts and the testimony of the witness offered by the Inter-American
Commission. These statements are summarized below.
B) TESTIMONIAL EVIDENCE
Court
Testimony of Delia Revoredo Marsano, Justice of the Constitutional
The Lima Bar Association filed suit challenging the constitutionality of Law 26,657 or
the Authentic Interpretation of Article 112 of the Constitution (hereinafter
“Interpretation Law”). This action followed the normal procedure; in other words,
the President delivered the file to the full Constitutional Court so that it could be
examined by one of the justices (the rapporteur), who in this case was Justice
Guillermo Rey Terry. After examining the file, the Constitutional Court agreed to
hear the suit on unconstitutionality on September 23, 1996, and on December 27
that year, Justice Rey Terry submitted his working paper on the merits of the issue
to the full Court.
The working paper stated that the Interpretation Law was not a law for general
application, but referred to the specific case of President Fujimori, who had been
President before and after the entry into force of the 1993 Constitution.
Accordingly, if he ran for a third presidential mandate, he would violate the
provisions of Article 112 of the Constitution. In Justice Rey Terry’s working paper,
the Constitutional Court, using its oversight authority, declared that this norm was
not applicable to President Fujimori and, consequently, prohibited him from
presenting his candidacy for the 2000 elections. It indicated that five of the justices
were “convinced that it was unconstitutional” with erga omnes effects; however,
they could not state this because, according to the Court’s statute, the votes of six
of the seven justices who composed the Constitutional Court were needed in order
to declare a law unconstitutional. They therefore opted to declare that the law was
non-applicable, which only required a decision by a simple majority and had effect in
the specific case. Either declaration - that the law was unconstitutional or that it
was non-applicable - would have had the same effect in the concrete case; that is,
President Fujimori would be unable to run for a third term; thus the essence of the
Constitution would be protected.
On December 27, 1996, the Court adopted this working paper by five votes to two.
Justices García Marcelo and Acosta Sánchez, who were not in agreement, resolved
to deliver their individual opinions, with the respective reasoning, as soon as
possible, so that the judgment could be published and notified.
The same evening, television’s Channel 4 broadcast the content of the working
paper. From then on, the Constitutional Court justices began to be pressured by
politicians and the media, among others, and, in a letter to the Court, 40 members
of Congress went so far as to demand that they not make that decision.
On December 28, 1996, the two justices who had said they would give individual
opinions stated in a press communiqué that the Constitutional Court had not had
quorum, “that the full Court had not been present, that the working paper had not