Constitutional jurisdiction in Peru: diffuse control and concentrated control, the problem of the two bodies

Abstract

This article analyzes the evolution of constitutional review in Peru, from the 19th-century parliamentary model to the incorporation of diffuse and concentrated judicial review. It highlights the slow and fragmented development of this system, as well as the persistence of the so-called ‘two-bodies problem’ from the 1979 Constitution to the current one. Although the latter expanded the powers of the Constitutional Court, its normative structure and the strong presumption of constitutionality of laws have hindered the declaration of unconstitutionality and weakened diffuse review, demonstrating a persistent political distrust of the constitutional court.
The article also reviews the main theoretical debates on the role of the Constitutional Court and explains how fundamental rights operate as conflicting principles that must be resolved through the principle of proportionality. While the Peruvian Constitutional Court has partially adopted this methodology, a tendency persists to validate norms by default when majorities are lacking, thus limiting effective judicial review. The article concludes that the Peruvian model is dysfunctional due to its excessive deference to the legislator and proposes a structural reform of the Constitutional Court that strengthens constitutional supremacy and the effective protection of fundamental rights.