Latin America: The Spirit of Constitutionalism under Attack

By Maxwell Cameron*

Venezuela constitition

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.

Structural Reforms in Chile: Moving Forward in Midst of Political Crisis

By Claudia Heiss*

Bachelet Chile

Photo Credit: Chile Ayuda a Chile / Flickr / Creative Commons

Chilean President Michelle Bachelet has done well pushing her reform agenda despite a series of scandals regarding the illegal financing of political campaigns and abuse of power by her daughter-in-law.  Bachelet started with 58 percent support and the highest electoral margin of victory since Chile’s return to democracy in 1990.  Her New Majority coalition incorporated the Communist Party and replaced the Concertación, the center-left coalition defeated in 2010 at the end of her first period, and after 20 years in power.  Bachelet’s current program reflected a left-turn and an intention to correct perceived flaws of a transition criticized for assuming too many features of the model imposed by the dictatorship.  The program included a tax plan to finance education reform introducing free university in a commoditized market of superior education.  This project was the offspring of massive student protests in 2011.  Another proposal was to replace the dictatorship-era 1980 Constitution through an “institutional, democratic, and participatory” process.

The scandals have hurt Bachelet’s popularity – she ended her first term in 2010 with 80 percent support and is now at historical lows below 30 percent – undermined the legitimacy of the political parties and Congress, and prompted a surge of social mobilizations.  (Slower economic growth, owing to the low price of copper, has contributed to the government’s unpopularity.)  But the President has scored some big wins.  In addition to the tax and education reforms she sought, the government has achieved important advances in the direction of its political program:

  • In 2015, a proportional system replaced the Binomial electoral system, which severely distorted popular will in the election of representatives and granted veto power in Congress to the political heirs of the dictatorship.
  • The campaign finance scandals led to the recent approval of a “Probity Agenda,” including higher transparency, forbidding corporate donations to political campaigns, and establishing a new law to regulate political parties.
  • A bill to make the main regional authority, the Intendente, elective rather than appointed by the President – a major step toward decentralization – has passed the Senate.
  • The decriminalization of therapeutic abortion, currently punished in only five countries, was approved by the Chamber of Deputies.
  • Congress is in the final steps of approving a labor reform meant to increase the negotiating power of workers towards their employers.
  • A complex constitutional reform process was launched last year, and this month the government selected 216 “facilitators” to assist the process and initiated a series of local meetings to discuss constitutional principles, rights, duties, and institutions. The process, the first of its kind ever in Chile, will lead to a presidential proposal to be presented to Congress.

The road ahead will not be easy for President Bachelet and her allies.  The political climate is pessimistic, and China’s economic troubles suggest the commodity bubble is over – to the detriment of the Chilean economy.  While rejected by conservatives, the changes appear as insufficient to those who want more radical reforms.  The labor bill has been criticized by union leaders as not allowing enough collective bargaining, and the proposal for constitutional change falls short of a binding participatory process like a Constituent Assembly or a referendum would be.  Bachelet, however, has deftly channeled anger about the scandals into the constructive reforms of the Probity Agenda, and she changed the perception of what is achievable in Chile in terms of progressive political and social transformations.  While public opinion is currently harsh with the government and with political elites, her second term, which ends in 2018, could in the long run consolidate her legacy as an effective reformer even in the face of adversity.

April 14, 2016

*Claudia Heiss is Assistant Professor at Universidad de Chile’s Instituto de Asuntos Públicos and researcher at the Centre for Social Conflict and Cohesion Studies, COES.

Argentina’s Mid-term Elections: the beginning of the end for Cristina?

By Santiago Anria and Federico Fuchs *

Cristina Fernández mural Photo credit: CateIncBA / Foter / CC BY-NC-ND

Cristina Fernández mural Photo credit: CateIncBA / Foter / CC BY-NC-ND

Rising inflation, loss of confidence by the private sector, and lack of access to international credit markets make victory in Argentina’s mid-term elections on October 27 especially important for President Cristina Fernández – or else she will face the prospect of two years as a lame duck.  Her governing Front for Victory (FPV) faction of the Justicialist Party (PJ) seeks to protect its legislative majority.  (Half the seats of the lower chamber and a third of those in the upper chamber are at stake.)  Based on the results of the Open, Simultaneous and Obligatory Primaries (PASO) held on August 11, the FPV appears likely to lose some seats but still maintain a slight majority, considering that a number of the seats in dispute in the lower chamber correspond to districts in which it fared poorly in the 2009 elections.  Before her unexpected surgery last week, Fernández had been central to the electoral campaign, hand-picking and endorsing Lomas de Zamora Mayor Martín Insaurralde as the first deputy on the FPV’s list.  According to some surveys, previous adjustments to her communications strategy increased her approval ratings, and with her recovery from surgery expected to take a month, there is speculation that the FPV may win some additional “sympathy” votes.

The PASO primaries showed that the FPV lost in key electoral districts, including the city of Buenos Aires, and the provinces of Buenos Aires, Córdoba and Mendoza, but that it continues to be the only political force with national reach.  The opposition remains fragmented, but Sergio Massa, a former government ally and current mayor of Tigre (elected on the FPV ticket), has emerged as the key opponent in Buenos Aires province and as a likely presidential candidate for the 2015 elections.  He may challenge Daniel Scioli, who is the current governor of Buenos Aires and is, at least until now, backed by Fernández as her potential successor despite resistance from some factions within the FPV).  Massa’s Frente Renovador still has limited territorial reach, but he enjoys the support of the mainstream media, a branch of the General Confederation of Labor (CGT), the Church and, perhaps most importantly, a prominent group of mayors in Buenos Aires province.  He is trying to capture a more centrist vote, promising the “end of confrontational politics” and focusing on what he claims are the “real issues” affecting Argentines – corruption, citizen security and crime prevention, and inflation.

The results of the upcoming elections will define the options for the Fernández administration.  If the FPV fails to keep a solid majority in Congress, the issue of constitutional reform that would allow for reelection will be off the table, and Fernández will not be able to run for a third term.  In policy terms, negative results will increase pressure for economic adjustment and pro-business policies. Fernández and her predecessor, deceased husband Néstor Kirchner, have both proven their capacity to revamp their administrations after electoral defeat by defying such pressures and raising the stakes. But with defeat in the polls, and with a diminished force in Congress, it will be harder for her to maintain party discipline as the prospects for 2015 grow bleaker.  A lot also depends on how the opposition fares: a clear winner among them (most likely Massa) will become a clear challenger for 2015 and probably put even greater limits on any government strategy, whereas a still atomized opposition may give Fernández more leeway. The task ahead for the FPV will be to define and support a presidential candidate that can continue the Kirchnerista project. Performing well in the congressional elections will give Fernández more room to define this, or to at least block non-desired candidates.  We may be witnessing the beginning of the end for Cristina, but it is not clear whether any of the opposition candidates can force her to steer the Kirchnerista project in a new direction.  Not even the most plausible contender in the opposition (Massa) or the most likely successor in the FPV (Scioli) seems to have any meaningful change to offer. If both of them represent anything, it is Peronism’s ability to adapt in adverse times to stay in power. But that is nothing new in the history of Peronism.

* Santiago Anria and Federico Fuchs are graduate students in the Department of Political Science at the University of North Carolina at Chapel Hill.

Chilean Watershed?

 

Michelle Bachelet / Photo credit: OEA - OAS / Foter.com / CC BY-NC-ND

Michelle Bachelet / Photo credit: OEA – OAS / Foter.com / CC BY-NC-ND

Sunday’s presidential primaries in Chile – the country’s first ever –reaffirmed former President Michelle Bachelet’s leadership of Concertación and cleared the way for a faceoff in November between herself and the Conservative candidate, Economy Minister Pablo Longueira.  Bachelet trounced challengers within her center-left coalition, winning 74 percent of the primary vote, and seems poised to build on the astounding 81 percent approval rating she had in 2010 when her first term ended.  (Current President Sebastián Piñera’s approval rating now hovers around 40 percent, a two-year high for him.)  Conservative Longueira will have the advantage of Piñera’s incumbency, but his party’s somewhat weaker performance on Sunday – with about 27 percent of all votes cast – and his slim 3 percent margin within the coalition suggest a tough campaign ahead for him.  Most observers deem Longueira’s performance in Piñera’s cabinet to have been competent but unexciting, and they predict an easy Bachelet victory in November.

Whichever candidate wins, Chile faces an evolving set of challenges.  Its commodities-driven economy is slowing down, and a stubborn gap between rich and poor is fueling demands for tax and education reforms.  Chile is ranked the most unequal country of the 34-member Organization for Economic Cooperation and Development (OECD).  Widespread demonstrations by students, teachers and professors have been demanding free tuition from preschool through university, and key labor unions are increasingly joining these mobilizations for reform.  Accepting her primary victory on Sunday night, Bachelet said voters were motivated by a desire for tax and education reform as well as a new constitution to replace the one created under dictator Pinochet in 1980.  She has also said that if elected she will halt the controversial HydroAysén project, which would build five mega-dams on two of Chilean Patagonia’s rivers.  Despite this rhetorical shift leftward and her role as the leader of the Socialist Party, such statements are not expected to lead to significant policy shifts; Chilean observers say she will continue to hew closely to the market-friendly policies that helped make Chile one of the region’s most stable countries during her first term.

Bachelet’s and Longueira’s competition may fail to excite the electorate in November, when voting will not be obligatory for the first time, and low turnout could deprive the victor of the mandate needed to lead thorough change, an arguable requisite  to increase the credibility of democratic institutions.  Empowered by two years of protests, student leaders are not leaving things entirely up to political elites.  Many are also running for office and aspire to bring a new perspective and direction to reforms in Chile.  International attention has focused in recent weeks on popular mobilizations in Brazil, but as recently as last week, tens of thousands of Chileans marched through the streets of Santiago and other major cities, challenging the credibility of the existing political order.  Bachelet has made deals with some of the protest leaders – agreeing, for example, not to run a Concertación candidate against one of them in a congressional race – but their demands are unremitting and strategic, and the winner of the upcoming election faces  a real challenge in trying to satisfy them. 

Constitutions: End-State or National Dialogue?

By Todd Eisenstadt

Protestor holding the Constitution of Honduras. Photo credit: giggey / Foter.com / CC BY-NC

Protestor holding the Constitution of Honduras. Photo credit: giggey / Foter.com / CC BY-NC

The role of constitutions is evolving as deeply as the countries in which they are being written.  At least since 1787, constitutions have been pacts around which societal expectations converge – the written record of elite agreements on how things should be.  During the “Third Wave” of democratic transitions (since the 1970s), they were viewed as precursor “contracts” to founding elections.  But increasingly, constitutions are way stations rather than destinations.  The content and implementation of constitutions is of course important, but the politics surrounding them can, in some cases, be more important than the clauses and amendments contained therein.

In Bolivia, Ecuador, Venezuela, and perhaps, in the near future in Paraguay, constitutional moments seem to be taking on different meanings.  Optimism about constitutions as core elements of Third Wave democratization pacts is giving way to the 21st century reality of democratic backsliding, semi-authoritarianism, and hybrid regimes – making it all the more important to reconsider how to read constitutions and evaluate governments’ adherence to them.  These are not stale parchments, but living narratives which represent iterations in decades-long intra-elite bargaining efforts to stall Arab Spring-like social movements (regardless of whether they actually seek to create spaces for new political actors).  They represent societal gains – both real and symbolic, even with ephemeral institutional advances.  This may be especially true in new and developing democracies, which need government services, constitutions that improve fairness and equity, and implementation of those commitments.  Developed democracies fall short too, but in developing countries new to the art of promulgating democratic constitutions, these shortcomings are more transparent as they are less proficiently hidden from view.

We need an intellectual space where Madison’s Dilemma – how to empower citizens without overpowering political institutions with the tyranny that unruly majorities can bring – meets Hugo Chávez’ shadow.  Chávez, who was obsessed with linking the Boliviarian Union of nations via new trade agreements and political arrangements, sought to empower himself and his political allies in the guise of solomonic constitutional reform to consolidate democracy.  Observers have long criticized “window dressing institutions” in the electoral arena, as evident in studies of “electoral engineering” and “sham elections.” While “sham constitutions” – a phrase that may ring too loudly – require more subtlety and political craftsmanship, we do need to question the longstanding stylization of constitutions as the “last word” (literally) on a nation’s quality of democracy.  There is much to learn, and a conference held last week at American University by CLALS Affiliate Rob Albro, SIS Researcher Carl LeVan, and I, and sponsored by the Latin American Studies Association and the Mellon Foundation, made some headway in finding new ways to conceive of constitutions not as the “final word,” but only as the most recent one.

Honduras: Simmering Crisis

Porfirio Lobo and Hillary Clinton
US Embassy Guatemala
/ Foter.com / CC BY-NC-ND

Little good and lots of bad has transpired in Honduras since the night in June 2009 that an Army-backed coup d’état, orchestrated by the economic elites, ousted President Mel Zelaya and installed Roberto Micheletti as the de facto ruler.  Almost four years later, Honduras remains one of the places in the Americas where democracy is at permanent risk – where drug trafficking, corruption, impunity, private armies and feudal caudillos thrive in a climate of spiraling violence.  Honduras today is the most violent country in the Americas and last year was among the top three in the numbers of assassinated journalists.  Honduras also remains one of the poorest countries in the hemisphere.

President Porfirio “Pepe” Lobo lacked credibility from the moment he donned the presidential sash in January 2010 – the candidate who, by almost all accounts, would have lost the election had not the coup reversed that fate, clamped down on opposition media, and suspended many civil rights.  While Washington worked hard to gain OAS recognition of his government, Lobo offered no guarantees – to either Hondurans or foreigners – that he would reverse the ongoing activities of the Army and rapacious economic elites to undermine democratic institutions.

  • Timid attempts to show independence, such as a projected police reform, languished due to lack of political will and financial support.
  • Honduras’s doors opened ever wider to organized crime and corruption.  According to U.S. agencies, roughly 60 percent of the cocaine passing through Central America on its way to U.S. markets in 2011 went through Honduras.  (The Obama Administration funded a militarized drug interdiction program that sputtered after Honduran civilians were killed.)
  • Politically motivated murders by sicarios – reminiscent of 1980s death squads – skyrocketed.  Investigations were few, and prosecutions were nonexistent.
  • By the end of last year, Lobo was pointing fingers at his old allies in the Army, the elites, and even his own party, accusing them of trying to destabilize his government. He failed to pass constitutional reforms that he claimed would protect democracy.  General Romeo Vásquez Velásquez, the military commander during the coup, announced that he was running for president.
  • Honduras is facing one of the worst fiscal crises of its history – a significant landmark for the perennially mismanaged country.

In Washington none of this seems to raise red flags.  On the contrary, the ideological bent of statements from both the executive and legislative branches suggests satisfaction with the state of affairs in Honduras – and willingness to keep the crisis there unsolved.  Hillary Clinton´s State Department was, to say the least, shy when addressing the deteriorating situation of the Central American country.  In January, at Senator John Kerry’s confirmation hearing, Republican Senator Marco Rubio’s assertion that what happened in Honduras in 2009 wasn’t a coup went unchallenged – despite the overwhelming consensus otherwise throughout our hemisphere.  The first sign offered by Kerry as Secretary of State, however, gives room to expect at least a modest change in the narrative: on March 4th, the State Department gave one of eight International Women of Courage Awards to Julieta Castellanos, a respected human rights advocate and critic of corruption and impunity in Honduras.  This hint of a less ideological and a more strategic and humanistic approach to the unsolved Honduran question is welcome.

Mexico: A hard road for reforms

By Tom Long

Enrique Peña Nieto by Edgar Alberto Domínguez Cataño | Flickr | Creative Commons

Enrique Peña Nieto by Edgar Alberto Domínguez Cataño | Flickr | Creative Commons

During the campaign, Mexican President Enrique Peña Nieto proclaimed in thousands of advertisements, “Me comprometo y cumplo” – I make a promise and I keep it.  Offering a list of potentially transformative reforms – regulations, security, telecommunications, energy, and more – he began with one of the most intractable:  the struggling public education system.  In December, at his instigation, the Mexican congress passed a constitutional reform to create stricter standards for teachers and move hiring authority from the teachers’ union to the government.  Enough states had ratified the amendment by the end of February to make it law.  After years of stagnation and interest-group politics, education reform suddenly became politically expedient, passing with support from the PRI, PAN, and PRD.  Last week, the government put an exclamation point on the reform by arresting the teachers’ union boss, Elba Esther Gordillo, on charges of using her post for illicit gains surpassing $100 million.  A PRI apostate whose opposing alliance was credited with helping former President Felipe Calderón win his razor-thin victory in 2006, she was not just expendable, but an obstacle.

According to OECD education data, just 45 percent of Mexican students complete their secondary education, though the rate has improved over the last decade.  Mexico spends 3.7 percent of GDP on primary and secondary learning, — less than Chile, Argentina, and Brazil but in line with the OECD average.  Experts believe that Mexico’s educational  problems are largely political, not budgetary.  A full 97 percent of spending goes to salaries, feeding a teachers’ union that has a history of patronage and graft.  The problem has deep roots in the clientelistic structure through which the old PRI governed during its 70 years in power before losing in 2000 – and with which the PAN governments coexisted for 12 years.

The storyline shares certain similarities with PRI President Carlos Salinas’ sacking of the head of oil workers’ union in the 1990s, presaging limited reforms in that sector.  Peña Nieto probably intends the removal of the most visible representative of old-style patronage politics as a clear signal that the PRI will not bring back the bad old ways – despite the possible appearance of the firing and arrest being driven by revenge – but the reform legislation is widely seen as a positive step forward.  Rhetorically at least, the major parties have agreed to a multi-pronged effort for more reforms in the “Pact of Mexico.”  However, forging consensus on further reforms will be more difficult, as entrenched PRI politicians at the local level are already resisting many of the president’s proposals.  The PAN and PRD are already criticizing Peña Nieto for being too cozy with media barons and for handling telecommunications reform behind closed doors.  Security policies and proposed energy reforms are more contentious still.  Reforming other sectors will require going after harder targets than Gordillo and will pose greater tests of Peña Nieto’s ability to win votes in the Mexican Congress.