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.

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.