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.

Dominicans of Haitian Origin: Foreigners in their native land

By Maribel Vásquez

Haitian sugar cane workers in the Dominican Republic / Photo credit: ElMarto / Foter.com / CC BY-NC-ND

Haitian sugar cane workers in the Dominican Republic / Photo credit: ElMarto / Foter.com / CC BY-NC-ND

Nearly three months after the Dominican Republic stripped residents born to unauthorized migrants of their Dominican citizenship, the Constitutional Tribunal’s controversial decision remains the source of high tensions in the country. The ruling expanded on a 2010 amendment to the Constitution stating that children born in the Dominican Republic must have at least one parent with legal residency to be eligible for Dominican citizenship. The court has now determined that the ruling can be applied retroactively to 1929 – in effect leaving three generations of immigrants’ children in legal limbo. At an estimated 200,000, Dominicans of Haitian descent are the largest affected group. In recent years, they have already been denied identity documents, and officials have refused to return copies of their birth certificates, arguing that such births occurred while their parents were “in transit” and therefore did not meet the criteria for Dominican nationality.

International criticism of the ruling was immediate. Many critics have called it racist. After visiting the Dominican Republic earlier this month, the Inter-American Commission on Human Rights (IACHR) released a highly critical report. The United Nations Higher Commission for Refugees (UNHCR) has also expressed concern that the court’s decision threatens to leave hundreds of thousands stateless. CARICOM has called on the Dominican Republic to “right this terrible wrong” and suspended its membership application. Caribbean leaders have expressed outrage.  Trinidad and Tobago’s Prime Minister, Kamla Persad-Bissessar, said the ruling created a “grave humanitarian situation,” and the former prime minister of Antigua and Barbuda, Lester Bird, said the ruling was “so absolutely racist that it’s almost pathetic.” The United States has kept an extremely low profile on the issue.

The tribulations of Haitians in the Dominican Republic date back to the country’s independence in 1844, after 22 years of Haitian occupation, during which tensions between Dominicans and Haitians were high. Since then, relations between the two peoples of Hispañiola have often been in turmoil, most notably when Dominican dictator Rafael Trujillo in 1937 issued orders that led to el corte – “the cutting” – that massacred over 30,000 Haitians along the border. The Constitutional Tribunal’s decision appears to reflect the tradition of anti-haitianismo that underlines Dominican national identity. It raises questions about the legal status of past political figures and surely excludes the living from political processes. Applied retroactively, for example, the ruling leaves former Santo Domingo mayor and three-time presidential candidate, José Francisco Peña Gómez stateless in death. While the prospect of another el corte is inconceivable for many of the now-stateless Dominicans of Haitian descent, incidents of violence against them have risen since the ruling – and activists have called the disenfranchisement of Haitian-Dominicans a “civil genocide.”