Constitution of the Republic of Peru of 1920
Preamble
Well, to delve with the constitutions of the twentieth century, that of 1920 and that of 1933, first it must, but that was not or did not have control and that is why this facilitated the population of that time to denounce the infractions to the Constitution at that time in our Republican history.
However, it should be noted that if we need in 1919 the Constitution that was going to be sanctioned the year that would come, Javier Prado at that time proposed the project of the parliamentary commission chaired by the same in which the jurisdictional control ofThe constitutionality of the laws this time by the Supreme Court, but this in the end did not result or prosperous in any way or another
The same happened time later another proposal to discuss the creation to the Constitution that was going to replace it, this was going to be of course the Constitution of 1933;Then the ad hoc commission was appointed to write a draft constitution of the State that was chaired by Manuel Vicente Villarán, but once again the project, never to be approved as in a first chance
Now, the emphasis mustprocess was going to have an advisory character;That is why Law No. 4042 dated January 31, 1920, in which it would be pointed out that both the attributions of the Board will be almost all of the advisory and administrative nature.
However, the government on duty became the passing of time in an ultra authoritarian regime in which it remained 10 years in power, and the State Council never worked: and therefore it was also not appointed its members;This incident would never appear again in the constitutional texts of Peru.
Background to the facts
They were the elections of the year 1919 in which the candidate Augusto Leguía gave the winner, at first he feared that Congress was unaware of such an electoral result, that is why the virtual winner that is, Leguía was going to seize the presidency through acoup d’etat that on July 4 of that same year. His regime was going to be called Patria New and that same year on July 10 the government gave a decree in which it stated that there was a need to initiate the reforms that were raised that is why it underwent a popular consultation, it was thenThat through a plebiscite it was going to be decided whether or not a new Constitution was going to be incorporated, with regard to the presidential elections of the Republic and for representatives they both were held on August 24 in which President Leguía was elected;Now the installation session of the Constituent Assembly would take place on September 24, 1919 in which it was in full meeting until December 27 of that year.
Historical consequences
The 1920 Constitution was going to suppress both the vice presidency of the Republic, as well as the renewal with respect to the two thirds of the Congress, it was also going to be eliminated with reference to the senators and alternate deputies all those incompatibilities both between the legislative mandate and withAnother public office, for this, the ratification of the Supreme Court had to be important, since they were going to have judges of first and second instance, another consequence history was the prohibition of receiving more than one salary from the State this was to avoid emulatingIllicit actions. Importance in working conditions were taken, as well as the minimum wage, the social function of property, so will the conciliation such as the mandatory arbitration in conflicts between capital and labor.
Assistance services will also be in the new agenda with the promotion of motherhood, as well as the protection of the child and defense of the indigenous race. The regional congresses that did not heal the evils of its villages were not accurate or effective either local life, limiting themselves to being other bureaucratic and petitioners;Indigenous communities were recognized;It was declared that the teaching staff is a public career, with a degree of obligation and free teaching in their other degrees and finally, the constitutional prohibition referring to the presidential re -election living between 1920 and 1930, in a regime rather than personal,It would be indefinite .
Legitimacy
Peru throughout its republican history has had twelve constitutions, making balance we can say that on average it has been every fifteen years, this tells us a lot as a society since this evidences – as Manuel Vicente Villarán says – that our vocationAs a Peruvian society is to make and undo constitutions, now pursuing this idea of our Constitutional Court by recapitulation of our republican history as well as constitutional, it points out the following and that is that the usual fact in the target is basically referring to the extent that it isMake a constituent as an act after all coups that we have tended throughout our republican history since 1821 ”[Footnoteref: 3] to such extent Manuel V. It tells us how the National Constitutions of 1823, 1826, 1828, 1834, 1839 appear until they reach the 1920According to what one could expect in beneficial of all but their respective constitutions were in the midst of political seizures and that in turn were serious such as external wars, civil wars, military uprisings, between others;Well here the matter is that one could be called a constituent assembly one hundred percent legitimally with such premises.
For Bidart Campos, the term legitimacy has three concepts: fair legitimacy, referring to philosophical justification, the sociological that links with the social beliefs that ensure and justify power, this is independent of themselves are apparent with the philosophical foundation and, byanother side is the legalized justification, which is the legal expression with which the power itself is through the legal system at the end will always be justified.
The legitimacy is fair or not, it could also be called philosophically speaking would be critical legitimacy, value linked to a certain conception of justice and therefore it is necessary and typical of natural law, while on the other hand sociological legitimacy is the legitimacy accepted accepted Socially in this case by the population based on this we can see and analyze that a five -letter word will always be there and this is the problem of power, as well as that of State, social coexistence and finally, legal legitimacy is by End or rather it will always be recognized by the legal or legal system that is on duty.
Now let’s understand that constitutional law would always regulate the structural issues of a nation, the purely legal aspect extends to what our Constitutional Court has pointed out as “the expression of everything that the nation (…) was, is and aspires to reach as collective group ". It is this and will be an area and space where the values will be protected and since they not struggles to achieve them will reflect interesting moments but also in turn will be difficult and we will live it intensely, as Pablo Lucas Verdú says.
The legitimacy then, will be the sociological justification of power and, the degree of it will always be subject to the purely emotional adhesion of the collective against values, axiology, principles, legal assets, institutions, rights and duties that are considered fundamental not forThe majorities but that specific group;However, the level of emotional adhesion could allow the fulfillment of civic duties to be carried out by conviction or bone obligation in some way or another refers to the fact that the conviction corresponds to a legitimacy beyond superlative bone, while the obligation will be aA petty or diminished legitimacy.
Constitution of the Republic of Peru of 1933
It was given by the Constituent Congress in which it was promulgated by President Luis M. Sánchez Cerro, this Constitution was in force between April 9 of that same year until July 28, 1980. The constituents tried to modernize the legal letter and there were no qualified men among its members, some time later a preliminary draft called Villarán, which Basadre considers superior to the subsequent Constitution was drafted.
In those debates, parliamentarians of brilliant minds, such as Víctor Andrés Belaunde, were looked. The vote to those over 21 were approved, but did not join the women. The apristas and others raised the restriction of central power to limit presidentialism, personalism, frequently selfish or egotist that is one of our great evils and that happened with the predecessor Constitution.
After that Constituent Assembly and of course that Constitution of 33 became de facto governments, the importance of many of its norms were only accidental or eventual;There were no laws that if they were important in which important agreements were going to be regulated, despite their norms were important in years in which the validity of the Constitution would be recognized. For giving an example with a reference to the problems of the first Government of Belaunde, jacked by an opposition parliament this same figure had its origin in the Constitution.
With reference to the vote it was a transcendent and pure permanence fact, it is also important to highlight the presence of decentralists and socialists. An important step forward referring to decentralism was just in the constituent, not only by the laws given, but also by new voices by the manifestations of new political forces. The socialists of dispersed and finally socialism had to reduce to a simple figure of the trained, honest, professor and lawyer Luciano Castillo. The decentralists tried to approx. Emphasis must.
Background to the facts
Dated August 22, 1930 in Arequipa, a revolution led by the Commander broke out, it was then that Leguía resigned from command on August 25. Then Sánchez Cerro commanded on September 2, 1930. It was then that he convened for just law on November 8 a unique assembly in which he was in charge of dictating a new political letter in which he would be governed by several decrees laws the Governing Board was then that I reaffirm.
It was then that this constitution from a sociological point of view was born obsolete;He expressed a purely aristocratic conception of power at a historical moment in which the decline was precisely giving a decline speaking of course at the state and nation level, however, the oligarchy began the pressure of a bourgeois regime inwhich was important to promote modern projects according to that time
A considerable growth of both the middle sectors was observed as well as the beginning of a radicalization process and a purely classist organization within the most popular sectors of Peru, the claim of that order, of pure domination without response, of legalism without contentrelevant, the preponderance of caciquism, frivolity and irresponsibility in government works and the always rhetoric of Parliament.
This began to be out of the timeline and march and direction or vision that we had as a country and therefore our contemporary history as a nation. It was then that the constituents of 1933 did not repair such requests from above, referring to social phenomena that indicated the end of our society in which it was lived, but that was a mistake, since said Constitution of 1933 looked more at thepast that did the future. A clientelism impression on which they did not roy because they could not govern. More useful was to the oligarchy to resort to repression, mere dictatorship, to numbing clientelism so there is also that of state welfare, like many of the alternative modalities that only served only to stay in power.
Legality: The legalization of power
Legality is against the face of legitimacy. While it justifies the origin and exercise of power, that is the channel or condition for its exercise. On the Norberto Bobbio point, it indicates that the legality justifies the duty of obedience of the citizen while becoming the main guarantee that their rights will not be unknown31. Legality is, therefore, adjusting to the law, the fidelity of external behaviors regulated to the legal provisions established in a specific place and time32. However, the expression also contains as a substantive element the fact that this law to which the citizen must adjust has been issued according to the formal creation procedure. Thus, legality is synonymous with the adjusting of behavior to the formally valid law.
In a rule of law, legitimacy and legality are two faces of the same currency. A government will be understood legal only if it is conducted by the spaces that the legality grants;the measure of the legality of their actions- from the other perspective- will ensure the required legitimacy. Thus, the rules issued are only valid- and binding- to the extent that they emanate from legitimate power. It is a fundamental element of said legality, the justice of its contents.
In other words, a legitimate and legally constituted power is one that achieves the obedience of its citizens, which is finally the best proof of its legitimacy. The legitimate power is thus "the one who asks for obedience in the name of a legitimacy title, whose last proof is given only by the fact that obedience has been effectively granted"
However, the problem that exists talking about the distinction between legitimacy and legality, we can say that if there can be a legitimate government even if the latter is illegal, to the extent that the ruler himself or head in this case would be the president to decide to depart from the lawwhich is formally valid;But without detriment of that, there are people who mainrelevant or at least justice justification or why not say legal certainty. In conclusion, the words justice and/or legal certainty become a factor of justification of the same legality.
Conclusions
With such precepts mentioned above, it can be concluded that both the existence of those concepts of both legality and as well as that of legitimacy will always have varied meanings or senses in which they may be philosophers specifically speaking in the branch of law is therefore that it is writtenand interpreted according to constitutional jurists in what we have tried to present this time.
However, it is inevitable to specify that we must opt or bow in a position that leads us to perform an analysis of whether a new constitution is not necessary, we say it because we still continue with the current 1993 Constitution and live in times whenA certain sector of the population has this and that is that the 1993 Constitution is no stranger to the predecessor letters. Legitimacy should be understood as a justification when talking about an approach is philosophical, sociological or focusing on the legal with regard to power or exercise, now when talking about an instrument in which the social pact will regulate, it is committedIn the collective incorporation of the company that ensures obedience and compliance with the document declared as a Political Constitution, the Magna Cart.
Without prejudice to the analysis or reflections offered by the Constitutional Court, we must notice that the government of Alberto Fujimori after the coup d’etat of April 5, 1992 becomes a government of obviously de facto but not illegitimate, this happens already which had the majority approval of the citizens and this was reflected not only in public opinion surveys referred to said specific matter but also in the results that came month by month of government approval or disapproval, then it is that if this is It can question legitimacy only for the number of people who voted, but it could not be denied that those people who did not go to the polls to exercise their vote, or who chose to vitiate their votes or who left them blank manipulated to act in such a way; And this is yes, since when a qualified majority were not yet reached, it was a majority that paradoxically was effective in the approval of that new Constitution; Ultimate The one who was perceived in the 1979 Constitution, then it can be said that only in this sense it is possible to rebuke his illegality. Without detriment of what the democratic Constituent Congress is convened, it is like an effective expression of a power that works alone and believes itself indispensable, extraordinary and with unlimited powers, because there is the answer there because that will have enough faculties to be able to establish its own method or procedureWith regard to the creation of a new Constitution and/or Carta Magna.
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