3
i)
On January 2, 1997, Justices Nugent and Díaz Valverde “requested
another vote.” On January 3 of that year, the two justices who had requested
the second vote abstained because they had expressed their views, and
withdrew their signatures. Two other justices, Mr. Actosta Sánchez and Mr.
García Marcelo, chose not to express an opinion. Mr. Aguirre Roca, Mr. Rey
Terry and Mrs. Revoredo Marsano de Mur voted as they had before, that Law
No. 26,657 was non-applicable;
j)
By note of January 14, 1997, 40 congressmen from the majority party
in Congress sent a letter to the Constitutional Court seeking to ban
publication of “a decision that would declare Law 26657 to be ‘nonapplicable’.” Citing Article 34 of Law No. 26,435, the congressmen added that
the deadline for publication had expired on January 10, 1997. They also cited
Law No. 36,301, governing an action seeking compliance [Acción de
Cumplimiento], and requested that the Constitutional Court expressly rule on
the constitutionality of Law 26,657 within a period of thirty working days;
k)
In their note, the 40 congressmen in question requested the following:
That the Constitutional Court declare the action brought by the Lima Bar
Association challenging the constitutionality of Law 26,657 to be either founded
or unfounded and that the judgment not contain any “declaration” of nonapplicability, as that would seriously imperil fundamental and political rights
recognized in the Constitution. It would also constitute an abuse of power,
since the Constitutional Court would be taking upon itself an authority that its
own Statute does not confer upon it;
l)
On January 16, 1997, justices Acosta Sánchez and García Marcelo
decided to “abstain from voting.” However, they did not withdraw from the
proceedings in order that a judgment might be entered. The working paper
that was under consideration was discussed again and put to a vote that
same day. It became the definitive judgment when it was approved by a vote
of three in favor and four abstentions. With the abstentions mentioned earlier
and in exercise of the Court’s oversight authority, the decision unanimously
declared that Law No. 26,657 –the Authentic Interpretation Act- was “NONAPPLICABLE in the specific case of the incumbent President’s candidacy for
the office of President in the year 2000.” On January 17, 1997, the judgment
was published in the El Peruano official gazette. Due to typographical errors,
it was published again the following day. The date that appears on the
judgment, however, is January 3, 1997;
m)
On January 20, 1997, the Lima Bar Association requested clarification
of the January 3, 1997 judgment. On instructions from the President of the
Constitutional Court and by agreement with the full Bench, the draft decision
issued on the request for clarification, and which is part of the judgment, was
written by the justice designated to do so, who was Justice Rey Terry. “As
agreed, that working paper was discussed, voted on and signed by the
justices that had voted for the judgment whose clarification was requested.
That document (the working paper or draft decision) was sent, via the regular
channels, to the Office of the President, for the appropriate purposes. The
Office of the President ordered its publication, since in its view the document
did not have to be brought to the attention of the full bench,” given the
bench’s previous agreement. The procedure followed for the clarification had
been ratified by the full Administrative-Law bench, as the document dated