Freedom of Association: Its Constitutional Protection in Peru

Miluska Orbegoso Silva

Universidad Panamericana

Freedom of association, in the Peruvian legal system, is recognised in Article 213 of the Political Constitution of Peru of 1993, which states: “Every person has the right: [... t]o associate and to establish foundations and various forms of non-profit legal organisations, without prior authorisation and in accordance with the law. They cannot be dissolved by administrative resolution”.

Broadly speaking, freedom of association, being a fundamental right, grounds its protection and constitutional recognition in human dignity, which in general terms can be understood as the value that every human being has by the mere fact of being human. In this regard, Article 1 of the Constitution reads: “The defense of the human person and respect for their dignity are the supreme end of society and of the State.” And, consequently, Article 2 reads: “Everyone has the right to [...]”, before cataloguing a list of rights. Article 1 has been widely interpreted both by Peruvian case law and academic opinion as an express recognition in the Constitution of human dignity as the basis of all the rights contained in the Constitution.

In this vein, we can also find a broad reference in the cases of the Constitutional Court to dignity when developing the basis of freedom of association. Thus, in a case decided by the Constitutional Court in 2004, the Court states that freedom of association: “is [...] the attribute that can be conceived as that right by which every person may freely and permanently join with others, in accordance with certain objectives or purposes”.

The Constitutional Court has been quite clear in identifying the elements that are part of the freedom of association and in that sense it has pointed out that it is made up of five indispensable elements as we can read in a case decided by the Constitutional Court in 2009.

First: with respect to the holder of the right, the Court has specified that the freedom to associate is an individual right, but that its effective exercise is fundamentally collective.  That is, since it is a right of freedom, the holder of the right is the person. Nevertheless, it is recognised that it is a right that becomes effective or materialises collectively, that is, in union with others.

In this vein, freedom of association presents a double ownership that corresponds to the two ways of exercising this freedom (see here at p 324). The Constitutional Court refers to two dimensions of the freedom of association: an individual one, where the freedom of association is owned by the individual, as such or as a member of an association; and a collective one, as a right of the association, as such, that is, as an entity or body (see here at p 127).

The second element is that it is a freedom that implies freedom of integration (freedom to associate in the strict sense or positive freedom to enter into the association), and the power not to compulsorily accept this situation (freedom not to associate or negative freedom) as well as to renounce it at any time, despite having accepted it at some time or in some circumstance (freedom to disassociate oneself). In other words, the Constitutional Court includes the different contents of freedom of action in general, which implies both a negative and a positive dimension.

Thirdly, the Constitutional Court points out that the freedom of association does not require any type of administrative authorisation in order to be configured as such. Therefore, the Court has clarified that in order to exercise the freedom of association, an administrative authorisation is not required. However, a different issue is that in order to carry out certain types of activities, such authorisation is required, since it allows the association to acquire legal personality.

Likewise, the Constitutional Court refers to the temporal element of the freedom of association and points out, as a fourth element, that freedom of association is a freedom that implies a certain permanence or continuity in time.

And finally, as a fifth element (on which, I must point out, there is discrepancy among  academics): with respect to the purpose for which an association is structured, the freedom of association is not conditioned to any particular objective or variable; that is to say, it is not a requirement that it be a non-profit association.

Regarding the content of freedom of association:, like any other right, it has an essential content, which emanates from the right itself (regarding this, see here) and it is only the interpreter's task to unravel its content. The Constitutional Court, developing the theory of essential content, has gathered in two sentences a statement of how the freedom of association is constituted. Thus, in a case decided by the Constitutional Court in 2004, the Court states that: “the essential content of the freedom of association is constituted by a) The freedom of association; b) The freedom not to associate and c) The power of self-organisation, the possibility for the association to establish its own organisation.”

In this regard, the Peruvian Constitutional Court has stated that an association’s power of self-organisation or self-regulation encompasses its authority to sanction its members for violations of the association’s rules. This includes both the power of the association to assess any violations and the power to establish the procedures by which the accountability of the members is determined, as well as the power to apply sanctions, including that of permanent expulsion.. The rules of the sanctioning process must be established in the bylaws and this process is also allowed to be regulated by the association. When this happens, the regulations are not registered in the public registry, but it is advisable that they be approved by the Board of Directors and/or the Assembly of Associates. That being the case, the association is empowered to establish the rules that will regulate its sanctioning function (see discussion here). In this sense, within this same freedom of association or, in other words, within its constitutionally protected content, there is also the freedom for the association created to have its own organisation, which is materialised through its bylaws. Such bylaws represent the pactum associationis of the institution created by the associative act and as such binds all the partners belonging to the social institution.

In short, we can conclude by saying that it is the Constitutional Court’s criterion that the freedom of association is a constitutional right, but that it must be consistent with the right to private due process within that association. And this should be understood as such because the Constitution and the rights contained therein are binding on everyone, including the members of an association. Therefore, it must be understood that the irradiation effect of fundamental rights means that these rights permeate even within the bylaws and rules or agreements between private parties; and, therefore, procedures that violate due process and violate the fundamental rights of associates by establishing unconstitutional separation procedures cannot be envisaged.

Dra. Miluska Orbegoso Silva is a Researcher at Universidad Panamericana, Campus México

Suggested citation: Miluska Orbegoso Silva, ‘Freedom of Association: Its Constitutional Protection in Peru’ IACL-AIDC Blog (22 October 2024) Freedom of Association: Its Constitutional Protection in Peru — IACL-IADC Blog (blog-iacl-aidc.org)