Hearing of the case: Who decides—the Constitutional Court or the legislator?
- Carlos A. Fonseca Sarmiento
- Dec 24, 2025
- 8 min read
Published in AGNITIO: https://agnitio.pe/articulo/vista-de-la-causa-quien-decide-el-tc-o-el-legislador/
In procedural law, the term vista de la causa (hearing of the case) does not raise interpretative difficulties, even for those who are not legal laypersons. It suffices to consult the Dictionary of the Spanish Language (1992, Vol. I, p. 2098), which defines it as: “20. Law. A procedural act in which a case or incidental matter is presented before the court, with notice to the parties, for the purpose of rendering a decision, hearing the arguments of the defense attorneys or interested parties who attend.” As can be seen, three concurrent elements exist in this clearly identifiable procedural stage: formal summons of the parties to a specific date, a public hearing before the judge, and the right of attorneys to present arguments.
The hearing of the case is a fundamental component of judicial proceedings, as it guarantees the right of defense and gives effect to the principle of immediacy [1]. The general rule should therefore be: every case must have a hearing. In other words, every case should involve a public hearing in which the parties’ attorneys may present oral arguments, debate with the opposing party, and respond to the judge’s questions. Like any rule, this one may have exceptions. One of the main reasons for not applying it is the existence of manifestly inadmissible claims that unnecessarily increase the judicial workload. It would be pointless to deploy judicial activity when a case is so absurd that it offends the judge’s eyes. Nevertheless, a decision of this nature should be regulated and sufficiently reasoned, so that the exception does not become an artificial mechanism to undermine the right to effective judicial protection. In any event, the law may establish that in certain cases there should be no hearing of the case, but if the law mandates it, the summons, the hearing, and the right to present arguments must be complied with.
However, what is settled in comparative law is not so in the national context, particularly when proceedings take place before the Constitutional Court. In recent years, two positions have emerged among constitutional justices regarding its implementation in resolving Constitutional Appeals (Recursos de Agravio Constitucional – RAC) [2]. For some, it is mandatory; for others, conditional. The main argument used to justify a conditional hearing is the time it requires. If all constitutional rights protection proceedings brought before the Constitutional Court were required to have a mandatory hearing, manifestly inadmissible cases would affect the constitutional rights involved in clearly meritorious cases by delaying decisions. As Couture famously stated, “in procedure, time is more than gold; it is justice” [3].
Let us briefly summarize the positions adopted both by the Constitutional Court and by Congress in recent years, where an evident conflict can be observed.
To begin, we may refer to Judgment No. 0987-2014-PA/TC (Vásquez Romero), issued by the Constitutional Court on August 6, 2014. In its Legal Ground 49, and as binding precedent, it created the figure of the Interlocutory Dismissal Judgment, which allows the Constitutional Court to resolve RACs without further proceedings—declaring them inadmissible (and obviously without a hearing)—in four specific cases: (i) when the alleged violation invoked in the RAC lacks substantiation; (ii) when the legal issue raised in the RAC lacks special constitutional significance; (iii) when the legal issue contradicts binding precedent of the Constitutional Court; and (iv) when substantially similar cases have already been dismissed.
From that point onward, the figure of the Interlocutory Dismissal Judgment was used with great regularity and interpreted expansively by the former Constitutional Court (with strong opposition from Justices Ferrero Costa and Blume Fortini). While it is true that this significantly reduced the Court’s caseload, the question arises: at what cost? A very high one. Numerous cases were dismissed by the Court without a public hearing and without allowing attorneys to present oral arguments. In response, the New Constitutional Procedural Code (NCPC), in force since July 24, 2021, sought to eliminate this figure and attempted to settle the issue through the second paragraph of Article 24, which provides: “Before the Constitutional Court, the hearing of the case is mandatory. The lack of summons to the hearing and the exercise of the defense invalidate the processing of the constitutional appeal.”
However, the Constitutional Court swiftly set its position regarding the interpretation of this provision through its Plenary Agreement of August 8, 2021, formalized by Administrative Resolution No. 154-2021/P/TC. It adopted what could be described as a “heterodox” interpretation, distinguishing between “hearing of the case” and “public hearing,” and considering that the exercise of the right of defense is guaranteed through written submissions, without oral arguments being mandatory. Under this interpretation, the “hearing of the case” was understood as the set of procedural acts by which the Court becomes effectively acquainted with a RAC through review of the case file and the written briefs submitted by the parties’ attorneys. The public hearing, by contrast, was deemed a subsequent and non-mandatory procedural act, occurring only in certain cases, in which oral arguments are permitted. In other words, despite the clear wording of the NCPC, the Constitutional Court held that not every constitutional proceeding—amparo, habeas data, habeas corpus, or compliance—would necessarily include a public hearing or oral arguments by counsel.
This position was not unanimous. There were controversies both during the approval of Administrative Resolution No. 154-2021/P/TC and in subsequent cases where Article 24 was applied. An emblematic case was Judgment No. 02129-2021-PHC/TC (Antauro Humala Tasso), issued on November 19, 2021, which dismissed the claim without a hearing. In this case, Justices Ferrero Costa and Blume Fortini issued dissenting opinions rejecting the restrictive interpretation and considering that “hearing of the case” and “public hearing” are one and the same. On the opposing side, Justice Ledesma Narváez considered it legitimate to interpret these terms differently, arguing that “once a law is enacted, it becomes independent from its author” [4]. Among other arguments, Justice Blume Fortini invoked the pro homine principle: “What better protects the fundamental rights of litigants: considering that the mandatory hearing regulated in Article 24 can be held without oral arguments, or considering that it is mandatory to grant litigants and their attorneys the opportunity to speak if they so request? The answer is obvious, since constitutional principles must be respected and the hearing of the case must include oral arguments, as this position optimizes respect for, protection of, and defense of fundamental rights” [5].
In response to this issue, legislators re-entered the debate and, through Law No. 31583, in force since October 5, 2022, amended the second paragraph of Article 24 of the NCPC with wording that left no doubt as to their intention and categorically nullified Administrative Resolution No. 154-2021/P/TC: “Before the Constitutional Court, the hearing of the case in a public hearing is mandatory. Attorneys have the right to present oral arguments if they so request. This right may not be prohibited or restricted under any circumstances, under penalty of nullity.”
Thus, not once but twice has the legislator taken a position—more forcefully and clearly the second time—leaving no room for doubt: the hearing of the case cannot be conditioned by the Constitutional Court or by anyone else. The legislator has decided that it is a mandatory procedural act in the processing of a RAC. As the late and renowned Justice Antonin Scalia stated, “to give meaning to what has no meaning is to create a text rather than interpret it” [6]. This gives rise to two major questions concerning the limits of constitutional interpretation and the legitimacy of Congress to regulate constitutional proceedings. On the one hand, can the Constitutional Court assign to the term “hearing of the case” a meaning contrary to that attributed by procedural law, especially when Parliament has expressly confirmed its natural meaning? On the other hand, is Congress legitimized, based on the principle of legislative freedom of configuration, to require the holding of hearings in cases under the Constitutional Court’s jurisdiction, or does this affect the Court’s procedural autonomy?
The truth is that one should not go against the nature of legal institutions. The hearing of the case is a procedural stage whose essence lies in the three aforementioned elements: a scheduled date for summoning the parties, a public hearing, and the right of defense attorneys to present arguments. Indeed, the NCPC itself expressly provides so in Article 91, referring to the popular action process: “Article 91. Hearing of the case. Once the procedural acts indicated in the preceding articles have been completed, the chamber shall set a day and time for the hearing of the case, which shall take place within ten days following the response to the complaint or the expiration of the period to respond. At the hearing, attorneys may present oral arguments. The chamber shall issue its judgment within ten days following the hearing.”
The new composition of the Constitutional Court has also engaged in this debate in its recent Judgment No. 00030-2021-PI/TC, dated January 31, 2023, issued in an unconstitutionality proceeding in which the claimant (the Judiciary) challenged several provisions of the NCPC—but notably not the second paragraph of Article 24. Despite this, the Court deemed it appropriate to interpret said provision (though not in the version amended by Law No. 31583) and concluded that it is constitutional “provided it is understood that the summons to a hearing in a public hearing and the exercise of the right of defense may be carried out orally when it is appropriate to issue a ruling on the merits and in those cases in which the Plenary considers it indispensable.” In other words, if there is to be no ruling on the merits, there will not necessarily be a summons, a public hearing, or oral arguments.
In the same judgment, Legal Ground 209 states: “It must be added that the current regulation of the second paragraph of Article 24 of the NCPC seriously endangers the timely and expeditious handling of those cases that truly merit urgent protection or that transcend the limits of the particular controversy in which they arise, in accordance with the nature and purpose of constitutional liberty proceedings.” On this basis, the Court considers that, by virtue of its constitutional procedural autonomy, it may assign a particular meaning to what should be understood as a hearing of the case. The problem here lies in the counter-majoritarian argument, which seeks to prevent a judicial body from overstepping its bounds.
The Constitutional Court’s renewed interpretation—once again distinguishing the hearing of the case from the public hearing, contrary to the text of the law—may lead to a practical conclusion: even if Congress exercises its legislative freedom of configuration and insists that the hearing of the case must be mandatory, if the Constitutional Court deems such a measure unreasonable, it will simply use the force of interpretation to alter or modify the legislator’s decision. In other words, the final word does not belong to the legislator, but to the Constitutional Court. This is precisely what has occurred with the regulation of the hearing of the case in Peruvian law and raises a broader issue: the limits of constitutional judicial interpretation and the democratic legitimacy of a Constitutional Court to bend a law to its own will. Each time the Court considers that a statutory mandate creates a problem, may it resolve it through interpretation? A highly controversial issue.
[1] The principle of immediacy is expressly recognized as a governing principle of constitutional proceedings in Article III of the New Constitutional Procedural Code.
[2] The Constitutional Appeal (Recurso de Agravio Constitucional – RAC) is the procedural mechanism through which the Constitutional Court hears constitutional rights protection proceedings, specifically amparo, habeas corpus, habeas data, and compliance actions.
[3] Cited by Santiago Sentís Melendo in his article “Couture y su obra procesal (25 años de labor),” p. 58, referring to the explanatory memorandum of the Draft Code of Civil Procedure (1945) prepared by the Uruguayan procedural law scholar Eduardo Juan Couture Etcheverry.
[4] Legal Ground 11 of the dissenting opinion of Justice Ledesma Narváez in Judgment No. 02129-2021-PHC/TC.
[5] Legal Ground 23 of the dissenting opinion of Justice Blume Fortini in Judgment No. 02129-2021-PHC/TC.
[6] SCALIA, Antonin, and Bryan A. GARNER. Reading Law: The Interpretation of Legal Texts. First Edition. Minnesota, 2012, p. 134. This is a free translation of the following: “To give meaning to what is meaningless is to create a text rather than to interpret one.”
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