—Fernando J. Loayza-Jordán, Assistant Professor of Law, Washington and Lee University School of Law; Paolo Barrero-Lira, Associate Researcher, Grupo de Investigación de Estado y Sociedad, Pontificia Universidad Católica del Perú (PUCP)
Introduction
2013 and 2022 were pivotal moments for constitutional justice in Peru in which Congress had to replace most of the country’s Constitutional Court (CC) justices simultaneously. In both cases, challenging common assumptions about fragmented parliaments, the Peruvian Congress attempted to capture the Constitutional Court through repartijas – a term colloquially used in Peru to describe obscure and unethical political pacts among political establishment figures[1].
This wasn’t supposed to happen. Literature on judicial independence (Ginsburg, 2003[2]; Finkel, 2008[3]; Dargent, 2009;[4]) predicted that fragmented politics in new democracies would lead to more autonomous and powerful constitutional courts. Indeed, in these environments, weak parties would be hesitant to rely solely on their electoral power to protect their interests against other actors. They would then favor an independent court with prestigious, non-partisan justices that could protect them from the worst instincts of future majorities. In Peru’s unpredictable political environment, with an almost nonexistent party system dominated by anti-establishment sentiments, every party had reasons to purchase this judicial insurance: they could become even weaker, or face threats from an antagonistic majority in Congress, or from a combative, popular Executive.
However, the Peruvian Congress didn’t follow scholars’ expectations. Instead of advocating for an independent court to protect all political actors, they structured an alternative insurance mechanism: repartijas. Each weak political party elected at least one justice that it could closely control.
Interestingly, the same weakness that led political parties to engage in repartijas made them vulnerable to contestation. When confronted with decisive opposition from public opinion, the media, and social movements, repartijas struggled to sustain themselves. This was the main difference between 2013, when a repartija was stopped by public outcry, and 2022, when Congress successfully captured the CC. This case also shows how the political support of external actors can act as a supplement when constitutional rules meant to prevent democratic backsliding are insufficient to maintain the Court’s independence.
1. Two opaque appointment processes
In 2013, Peru’s Congress was due to conduct the biggest renewal of justices in Peru’s CC since its return to democracy. During this period, Congress –the only political institution involved in the nomination and appointments of all Court justices- was fragmented among 6 parties. Defying scholars’ predictions, it soon became clear that these political actors would not opt for an autonomous Court: the appointment process was soon accused of serious irregularities.
Procedurally, the process lacked transparency and meritocratic mechanisms. Congress deviated from the customary practice of consulting fourth-branch institutions, such as the General Comptroller’s or Ombudsman’s Offices, which would review potential nominees’ backgrounds and thereby prevent the nomination of candidates who were clearly unqualified or had criminal or unethical records. The Congressional special committee also lacked any public rubric or guidelines for its assessments of the potential nominees’ fitness to serve as justices[5].
The resulting nominees reflected this process’ opacity. Three out of six were deemed extremely partisan by public opinion: they had previously been congresspeople and militants of the parties that had nominated them, while two had questionable ties to corrupt figures or had been subject to serious investigations[6]. To make matters worse, a day before the election, a national news outlet leaked audio recordings in which lawmakers from the appointment committee could be heard divvying up the seats of the Court, disregarding professional credentials in favor of partisan affiliation. The public was furious and actively opposed the repartija in the streets, successfully stopping it and forcing Congress to restart the process and appoint an independent court.
Similarly, in 2022, Congress was again due to elect the replacement for 6 (out of 7) CC justices.Congress was even more fragmented than its 2013 counterpart: it now consisted of 9 parliamentary groups. The pluralist prediction was again inverted: instead of an acceptable political agreement, lawmakers opted to subordinate the Court by appointing extremely politicized nominees with opaque professional credentials.
Considering the experience of 2013, in the months leading to the election of the new justices, Congress tried to mislead the public with new regulations for the nomination process that were supposed to guarantee its transparency. However, soon after the start of the process, Congress abandoned this facade entirely: when the Transparency and Access to Public Information Tribunal ordered Congress to make public the reports that the Comptroller General’s Office had issued on the 30 potential nominees being evaluated by Congress, lawmakers refused to comply with the order, only to make the information available to the public one day before the election, with 80% of its content redacted, effectively preventing any accountability[7].
The resulting justices again reflected the opacity of their appointments process: one of them had been the personal lawyer of its nominating party for years prior, while another was an ex-bureaucrat of the Court, separated from his post for improperly hiring the spouse of his boss, whose party was now nominating him as a justice[8].
Why, if this second repartija was even more grotesque, was Congress able to succeed when it failed in 2013 with a less fragmented congress and less weak parties?
2. Why do repartijas fail?
In 2013, mass media, demonstrators, intellectuals, and even business associations demanded that the Peruvian Congress revert 2013’s repartija. After days of widespread civic and mediatic pressure against Congress, the party of then President Humala defected from the arrangement, and the rest of Congress soon followed: they not only publicly apologized and annulled the whole election process, but also organized a new, far more transparent and meritocratic one, with a central compromise: the new nominees would not have strong partisan ties[9].
In 2022’s case, external contention was weak. Peruvians, exhausted from a 6-year cycle of political crises -which had seen the rise of 5 presidents in 6 years- and diverted by the more sophisticated procedures of this new repartija, didn’t take to the streets like in 2013. Pressure from business associations was also absent, and -while some civic associations did try (and fail) to judicialize the process, most of the little pressure exerted came from a handful of lonesome journalists. Unlike in 2013, the public pressure was not sufficient to stop these appointments. And the Court’s rulings would show.
3. The effects of contention: independence or subordination
The public’s success or failure in reverting these repartijas had a direct effect on the Court’s independence from other political institutions. The unsuccessful 2013 repartija led to a relatively autonomous court, while 2022’s successful one led to a captured one, which, time and again, showed its subordination to the Congress that appointed it.
The autonomous Court (2014-2021), elected after the backlash against the 2013 repartija, was made up of relatively prestigious and less partisan judges, who defied political power despite its internal ideological divide. In 2017, it struck down an anti-defection statute passed by Congress’ dominant party, restricting legislators’ ability to switch parties. In the same year, it declared unconstitutional a reform passed by Congress which eliminated the Executive’s confidence vote -a crucial horizontal accountability mechanism in Peru, through which the government can force a showdown with Congress and, if rebuffed twice, constitutionally dissolve it. And in 2019, it rejected lawmakers’ petition to annul the President’s recent dissolution of Congress[10].
Likewise, when Congress increasingly encroached on the Executive’s budgetary sphere, enacting popular but costly measures during the COVID pandemic, the Court again curbed its efforts. In 2021, it declared unconstitutional a law upgrading the contracts of thousands of public servants, which would’ve allegedly cost the Executive an extra 400 million soles. Soon after, it struck down a law ordering the refund of contributions to the state pension fund to the public, which would effectively bankrupt the public pension system[11]. All these laws were passed by 2/3 majorities; the 2014-2021 CC still imposed its authority over them.
In contrast, the successful 2022 repartija led to a weak and subordinate court, unwilling to perform its accountability function and beholden mainly to Congress. Not only did it expand the impunity of Congress’s party leaders -investigated and even indicted for a myriad of serious crimes-, but it also formalized Congress’s power grabs over other branches. In 2022, the CC deemed constitutional a statute passed by Congress which severely limited the public’s ability to propose popular referendums. In 2023, it ruled in favor of Congress against the Judiciary, whose oversight capacity over Congress was highly diminished. Likewise, between 2025 and 2026, the Court dismissed several serious criminal investigations against high-profile politicians (such as ex-president Dina Boluarte and current president Keiko Fujimori). The CC also reinstated the previously suspended Attorney General, who had been investigated for his links to Los Cuellos Blancos del Puerto, a criminal organization that linked Congress with Supreme Court judges and prosecutors in a major influence-peddling case[12]. Without strong checks over its authority, the 2021-2026 Congress was free to engage in legislative authoritarianism[13], and to consolidate a process of authoritarian parliamentarization[14].
4. Closing remarks
This case demonstrates that weak political actors in weak democracies do purchase judicial insurance, just not in the way scholars predicted. Weak political actors can also insure their interests through the subordination of the Court, rather than through its independence.
Additionally, the Peruvian case hints at the claim that, in democracies with weak parties and low levels of horizontal accountability, institutional design by itself is insufficient to preserve a CC’s independence. In these adverse conditions, the most relevant guardian of constitutional democracy is the people. Formal rules, then, should facilitate the flow of information from institutions to civil society and its organizations, which can then function as veto players of repartijas and other forms of democratic erosion.
Suggested citation: Fernando J. Loayza-Jordán and Paolo Barrero-Lira, Repartijas and Judicial Independence in Peru, Int’l J. Const. L. Blog, Aug. 20, 2026, at: http://www.iconnectblog.com/repartijas-and-judicial-independence-in-peru/
[1] Pamela Loayza, Los orígenes de la repartija: Balance de la selección de magistrados del Tribunal Constitucional, REVISTA ARGUMENTOS, no. 4, 2013, https://argumentos-historico.iep.org.pe/articulos/los-origenes-de-la-repartija-balance-de-la-seleccion-de-magistrados-del-tribunal-constitucional/.
[2] Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge Univ. Press 2003), https://doi.org/10.1017/CBO9780511511189.
[3] Jodi S. Finkel, Judicial Reform as Political Insurance: Argentina, Peru, and Mexico in the 1990s (Univ. of Notre Dame Press 2008), https://muse.jhu.edu/pub/200/monograph/book/7326.
[4] Eduardo Dargent, Determinants of Judicial Independence: Lessons from Three “Cases” of Constitutional Courts in Peru (1982–2007), 41 J. Latin Am. Stud. 251, 251–78 (2009), https://doi.org/10.1017/S0022216X09005562.
[5] Paolo Barrero Lira, Autonomía precaria: los guardianes externos del Tribunal. Una teoría sobre los determinantes extrapartidarios de la autonomía judicial del Tribunal Constitucional del Perú (2007–2026) (2026) (B.A. thesis, Pontificia Universidad Católica del Perú). (on file with author).
[6] Id.
[7] Panel Independiente para la Elección de Magistrados y Magistradas al Tribunal Constitucional del Perú, Informe Final del Panel Independiente para la Elección de Magistrados y Magistradas al Tribunal Constitucional del Perú 29–30 (June 30, 2022), https://drive.google.com/file/d/1I-1w6AXKyDntfoCqxE6UXbnApvgET97Z/view
[8] Congreso Eligió por Mayoría a los Seis Nuevos Miembros del Tribunal Constitucional, Infobae (May 10, 2022), https://www.infobae.com/america/peru/2022/05/10/congreso-elige-a-miembros-del-tribunal-constitucional-en-vivo-son-6-los-candidatos/.
[9] Loayza, supra note 1.
[10] Barrero Lira, supra note 9
[11] Luis Huerta, Tribunal Constitucional del Perú y conflicto de poderes [Constitutional Court of Peru and Conflicts of Powers], No. 90 Derecho PUCP 415 (2023) (Peru), https://doi.org/10.18800/derechopucp.202301.012.
[12] Barrero Lira, supra note 9.
[13] This concept refers to a recently theorized path of democratic backsliding, in which a coalition of legislators motivated by narrow, short-term interests concentrated power in Congress and debilitated horizontal accountability institutions. For more, see Paolo Sosa-Villagarcia, José Incio & Moisés Arce, The Rise of Legislative Authoritarianism, 36 J. Democracy 106 (2025), https://doi.org/10.1353/jod.2025.a954567.
[14] Fernando Loayza-Jordán, Authoritarian Parliamentarization (2026) (unpublished manuscript) (on file with author).