Determinants of judicial independence: Lessons from three 'cases' of constitutional courts in Peru (1982-2007)

Abstract

The Peruvian Constitutional Tribunal (CT) is currently an independent institutional actor in Peru's politics. By comparing and contrasting the recent history of the CT and two previous 'cases' of 'failed' constitutional courts - the CT's role during the Fujimori regime and its predecessor, the Tribunal of Constitutional Guarantees - the article tests several theories that aim to explain the emergence of independent courts in democracies. The three cases provide evidence in support of theories that highlight the importance of political pluralism as a necessary condition for the emergence of independent courts, but the cases also show that an institutional design that 'mirrors' this pluralism is crucial to attain this outcome. The importance of these political and institutional factors suggests that it is too soon to be optimistic about the likelihood that the present CT can maintain its independence in the future. © 2009 Cambridge University Press.