By Maxwell Cameron*
A participant in a march in Venezuela holds up the country’s constitution. / TeleSURtv / Flickr / Creative Commons
Recent events in Paraguay and Venezuela raise yet again the issue of whether political leaders are capable of deliberating and acting in ways that show an appreciation for constitutional essentials, or whether they choose instead to perform their roles and offices in ways that continuously test constitutional principles and, over time, contribute to their erosion. The principles of re-election and term limits are important in every presidential democracy, the product of historical circumstance. In the case of Paraguay, a dictatorship under strongman Alfredo Stroessner from 1954 to 1989, sensitivity to the idea of a president serving for too long is strong. Venezuela’s elimination of term limits a few years ago set a dangerous precedent. Other constitutions limit incumbents to one term (Mexico, Paraguay) or two terms (United States, Colombia); in some constitutions, presidents cannot be re-elected immediately but can run later after a term has elapsed (Peru, Uruguay).
- More important than the constitutionality of term limits is that the re-election issue be settled in a way that commands the assent of all parties – within a certain spirit of constitutionalism. Paraguayan President Horacio Cartes’s error was to think that he could change the constitution by means that violated this spirit, even if the public would arguably support a modification of the re-election rule if pursued in the right way. (Since the fall of Stroessner, the Partido Colorado, the pillar of his rule, has won every election except in 2008, when Catholic priest Fernando Lugo was elected. Lugo was deposed in 2012.) The President of the Senate, Roberto Acevedo, opposed the change and was outraged by the way it was adopted: the Senate voted in a special session held behind closed doors. In that session, 25 Senators approved the measure, bypassing the opposition Partido Liberal Radical Auténtico.
The showdown in Venezuela over President Maduro’s effort to shut down the congress was another undemocratic blunder. A decision by the Tribunal Supremo de Justicia (TSJ), Venezuela’s supreme court, to arrogate legislative functions to itself or delegate them to other branches or agencies was unconstitutional. (The TSJ has the power only to declare a law invalid or that another branch of government is operating outside the law.) When the Fiscal General de la República, Venezuela’s equivalent of attorney general, Luisa Ortega Díaz argued that the TSJ’s decision was unconstitutional, she gave herself political cover by expressing loyalty to the Constitution of 1999 – the legitimacy of which has long been undermined by the fact that it is a document made to measure for chavismo. As a result of this and significant domestic and international pressure, the government backed down – a rare event. The attorney general’s insistence that the constitution not be violated indicates that a spirit of constitutionalism among chavistas is not completely dead, but it also shows that it remains a mechanism for coordinating the actions of agents within the government. Her position also raises the possibility of a split between constitutionalists and hardline militarists within the regime.
Democracy is not just a system of rules. It requires politicians to acknowledge and respect the essential constitutional agreements that have to underpin the struggle for power in a self-governing community. The crises in Paraguay and Venezuela both forewarn of the dangers of excessive partisanship and the risks of playing fast and loose with constitutional rules. Something similar seems to be playing out in Ecuador, where allegations of fraud have been made by the opposition. If spurious, they are condemnable; if supported by evidence, they are deeply disturbing. Either way, they reflect mistrust in institutions after a decade of rule by Rafael Correa (Likewise, U.S. Senate Republicans’ threats to use of the “nuclear option” to confirm Judge Gorsuch threatens to deepen the politicization of the U.S. Supreme Court.) The cost of the failure of politicians and citizens to cultivate a spirit of constitutionalism is very heavy. In Paraguay, it has resulted in deadly protests and resignations by top officials; in Venezuela it has taken the country to the brink of civil war; in Ecuador, there is a real prospect of debilitating governance problems as Lenín Moreno of Alianza PAIS takes office; and in the United States we are starting to see the kinds of governance problems that have long been associated with the “politicized states” (to use Douglas Chalmers’s phrase) of Latin America.
April 5, 2017
* Maxwell A. Cameron is Director of the Centre for the Study of Democratic Institutions at the University of British Columbia.
Posted by clalsstaff on April 5, 2017
A months-long political feud over the Supreme Court in El Salvador has blossomed into what observers are calling a constitutional crisis. The first shot was fired in April when legislators from the FMLN engineered a “legislative decree” to replace five court Magistrates, the outgoing Assembly’s second shot at choosing justices during its three-year term. The court’s Constitutional Chamber in June declared the decree unconstitutional – because each Legislature gets to vote only once for Magistrates. At the same time, the Chamber invalidated a similar move by the opposition ARENA party affecting Magistrates chosen in 2006.
The theater came to a head this month when two feuding Supreme Courts met in different wings of the same building and claimed legitimacy – one with five members elected in 2009 and the other with the 10 invalidated members. The rightwing ARENA party and its allies in Washington are claiming the crisis represents a shift against democracy by the FMLN. Two Cuban-American members of the U.S. Senate have called on the Obama Administration to impose sanctions – principally suspending negotiations on a second Millennium Challenge Corporation compact potentially worth hundreds of millions of dollars – if the crisis is not ended quickly and in the manner they wish. The Inter-American Commission on Human Rights (IACHR) has called for prompt resolution, and the U.S. Ambassador in San Salvador and the State Department have expressed “concern.” A Washington Post editorial this week lambasted the FMLN for shifting toward Chávez-style authoritarianism and President Funes for failing to stop it.
This episode reflects maneuvering within the FMLN – fueled by frustration that President Funes’s soft line toward ARENA has only weakened the party’s influence – and poor judgment among activists on where and how to pick the fight. The legislators rushed the decree because they anticipated correctly that they were about to lose control of the Assembly in elections several weeks later. The crisis falls into a much more ominous pattern, however, in that – like the coups in Honduras (2009) and Paraguay (2012) – the right wing and its coreligionists in Washington exploit events to challenge the democratic credentials of a democratically elected reformist government to rationalize weakening it, while the Obama Administration responds timidly. ARENA is again demonstrating its superior lobbying skills in Washington, which have already severely disadvantaged President Funes on issues such as relations between his security cabinet and its U.S. counterparts – resulting in a serious erosion of his own influence over security issues. If the current political impasse is not resolved to the satisfaction of U.S. conservatives, Washington’s threats – ironically directed against the Administration’s “best friend” in Central America – will likely continue and relations will be strained, further persuading hardliners around Funes that moderation pays no dividends.
Posted by clalsstaff on July 20, 2012