And the fact is that neither the republic, nor decentralization, nor the separation of powers depend on whether or
not certain public officials, such as mayors, for example, are reelected immediately. As a result, the present
complaint must be dismissed because the constitutional reform law that is being challenged is not contravening
key parameters of the configuration of our Constitution, in terms of either jurisdiction, procedures, or contents. 59
74. In the ruling indicated above, one judge issued a concurring vote on the basis of the following terms:
(…) the constitutional reform that is the focus of review in the instant case contributes to the broader observance
of the principle of rotation in government office on the basis of the following: It discourages the detrimental
differentiation between politicians (commonly referred to as the “political establishment") and ordinary citizens,
in the sense that it prevents a situation in which only a few individuals effectively participate in the decisionmaking process and the steering of public affairs in the context of local government because of their access to
public office by universal suffrage and the corresponding “specialization” that this entails;
- As a result of this, citizens, regardless of their political experience or background in terms of direct participation
in public affairs, can become increasingly involved in the latter, so as to foster and promote the renewal of
authorities in public service, which in turn appears as an imperative call made to political parties participating in
electoral contests, so that they can initiate or continue with the above-mentioned effort of renewing high-ranking
party members and the democratic participation of the rank and file without the same candidates as always, which
in turn strengthens these parties because it imposes real limits on the power of leaders who tend to keep for
themselves the spaces of power inside political parties; and
- It also promotes scrutiny of the outgoing administration by the new incoming administration, which in turn acts
as an institutional mechanism for disclosure and monitoring of possible concealed practices, which are usually
not uncommon among many of the municipal administrations in our country, which is consistent with the
consideration whereby, as referred to by this Constitutional Court, “combating all forms of corruption is protected
by the constitution, as evident in Articles 39 and 41 of the Constitution, as well as by democratic law and order as
provided for in Article 43 of the Constitution" (STC 00017-2011-PI/TC, FJ 16). 15. As a result, I note that the
constitutional reform that is being challenged in the instant case does not entail any impact on the supremacy of
the constitution for mayors who are being targeted by this reform, to the extent that our legal system has not
recognized the right to be reelected, let alone to be reelected immediately, and which, on the contrary, contributes
to full realization of the above. 60
75. As for the Supreme Court of Justice of the Nation of Argentina, in 1999 it dismissed an extraordinary appeal
aimed at having the Court disqualify the ninth transitory clause of the Constitution and to authorize the
presidential reelection of Carlos Menem. In his vote, Minister Petracchi stressed:
(..) that Article 90 of the National Constitution provides that “the president and the vice-president remain in office
for four years and may be reelected or mutually succeed each other for a single consecutive term of office. If they
have been reelected or have mutually succeeded one another they cannot be elected to either of both offices,
unless the interval of one term of office has elapsed. The ninth transitory clause establishes that “the term of office
of the incumbent president when this amendment was being enacted shall be deemed to be his or her first term
of office.”
(…) the republican form of government―liable, in and of itself, to a wide range of alternatives justified on the basis
of social, cultural, institutional, etc. reasons―does not necessarily require recognition of the right of rulers to be
elected again (…). What underlies the clause being examined when authorizing a six-year term of office to be
succeeded by two four-year terms, is an assessment of what is deemed excessive for a republican system.
(…) standards that impose limits on reelecting those who perform executive roles does not breach any of the
principles of the National Constitution (…) precisely because one of the essential pillars (if not the most essential)
of the democratic system adopted in our Constitution is the limit on the duration of presidential functions. 61
Judgment of the Constitutional Court of Peru, Case of the Law of Constitutional Reform on banning the reelection of mayors v. Congress
of the Republic, October 4, 2018.
60 Judgment of the Constitutional Court of Peru, Case of the Law of Constitutional Reform on banning the reelection of mayors v. Congress
of the Republic, October 4, 2018, concurring vote of Judge Ledezma Narváez.
61 Ortiz Almonacid, Juan Carlos without filing an appeal for protection on constitutional grounds. Judgment of March 16, 1999.
59