–Gabriel L. Negretto, Associate Professor, Division of Political Studies, CIDE
Since the great revolutions of the late eighteenth century, the central principle of democratic constitutionalism has been that the people, as the supreme authority in a polity, is the only legitimate author of constitutions. This principle was enshrined in the theory of constituent power, according to which it is citizens and not government bodies who have the right to create and replace the constitution. Yet the vast majority of the world’s constitutions seem to contradict their democratic foundations by denying citizens the legal capacity to decide directly on the validity and content of the fundamental law. Most constitutions include a special procedure by which the legislative assembly can introduce amendments or partial revisions to the constitution. Some authorize the ordinary legislature to reform the constitution in its entirety, in practice providing legislators with the power to create a new constitution. Curiously, however, few constitutions allow citizens to propose reforms that could be approved in a popular vote and even fewer provide them with instruments to activate a process aimed at replacing the existing constitution.
This state of affairs creates a legal and political dilemma in any country where citizens seek to replace a democratic constitution by peaceful means. In the absence of established procedures, there are two basic alternatives (with possible mixed or hybrid routes). The first option is one of legal continuity and consists of amending the constitution currently in force to permit the legislature to convene a constituent assembly and regulate its election and central aspects of its working procedures. The second alternative is that of rupture and consists of breaking with the existing amendment procedures to consult the people themselves whether they authorize the replacement of the constitution through the election of a constituent assembly. Because several countries in Latin America are currently facing this constituent dilemma it is a timely moment to consider the lessons derived from recent experiences.
The legal continuity route was initially followed by Bolivia, where in 2004 the constitution was amended to allow Congress to convene a constituent assembly and regulate its internal procedures. Based on this reform, Congress passed a law in 2006 regulating the election of constituent assembly delegates, the decision-making process of the assembly—which required a two-thirds majority to pass the constitution, the relations between the constituent assembly and the Congress, and the final ratification of the constitution by referendum. The rupturist strategy was followed by Colombia in 1991, Venezuela in 1999, and Ecuador in 2008. In all these cases, the president convened a plebiscite—without constitutional authorization or forcing the interpretation of existing rules—so that citizens approve that an elected constituent assembly replace the constitution. Following this authorization, the constituent assembly enacted a new constitution by simple majority, subject in some cases (as in Venezuela and Ecuador) to popular ratification.
Because of its use of existing amendment procedures, the Bolivian path would seem to be less controversial from a legal point of view. However, it is not obvious that legislators can validly use an amendment process that originally admits only partial revisions to abolish the constitution. In fact, contemporary constitutional theory lacks the conceptual tools to evaluate these alternatives. The traditional doctrine of the constituent power was formulated during the French and American revolutions. The American case offered the example of a less dramatic break with the past than the French one. But in both instances it was assumed that constitution making occurs as a consequence of a revolution in which the old legal order is bound to collapse. More recent reincarnations of the constituent power doctrine occurred during a transition to democracy, in Western Europe after the Second World War, in Southern Europe and South America in the 1970s and 1980s, and in Eastern Europe after 1989. Some of these cases, particularly in Eastern Europe, show interesting examples of how to strike a balance between legal continuity and rupture. Yet there is no compelling theoretical reason why an authoritarian legal order should work as a constraint on a new democratic regime. It is far from clear what the institutional implications of the theory of the constituent power are when applied to constitutional replacements within an established democracy.
We can look at the problem from the point of view of democratic principles. The normative appeal of the legal-continuity approach is that it makes possible the organization of a constitution making process that promotes both direct citizen involvement and inclusion at the representative level. At the same time that citizens elect the assembly and ratify the constitution, qualified majority rules demand an inclusive agreement among political forces to regulate the process. However, this consensual process may have a built-in bias toward the status quo; conservative forces are likely to veto radical reforms. The multiple conflicts created by implementation of the two-thirds majority required to approve the new constitution in the Bolivian constituent assembly provide a vivid illustration of this problem. The rupturist option allows radical changes, but it opens up the possibility of a plebiscitary process that may exclude significant segments of society in the deliberation and negotiation of the new constitutional text. This risk was averted in Colombia thanks to the conciliatory attitude of the then President Gaviria, who did not use popular support for the new constitution to advance partisan purposes. Rather, he invited all political forces to decide the basic contents of the constitution as well as the election, procedures, and powers of the constituent assembly. But the plebiscitarian threat became a reality in Venezuela and Ecuador, where the president and his party used popular support for a new constitution to organize a process and design a constitution that would benefit the ruling party to the exclusion of any other.
To be sure, short-term partisan objectives would often weigh more than normative concerns in choosing between these alternatives. As the cases of Venezuela and Ecuador show, an ambitious popular president may opt for a legal break simply because he lacks sufficient legislative support to control the amendment process. Yet the legal and political dilemma of replacing a democratic constitution when the latter does not have an established procedure for this purpose exists independently of the motivations of strategic politicians. In all the instances mentioned above, the process of constitutional replacement was preceded by a widespread agreement among citizens and various sectors of the elite that the previous constitution had already failed as a legitimate and effective governance structure. A new constitutional theory is clearly needed to assess what is the proper course of action in this situation.
Suggested Citation: Gabriel L. Negretto, The Constituent Dilemma in Latin America, Int’l J. Const. L. Blog, Sept. 8, 2013, available at: http://www.iconnectblog.com/2013/09/the-constituent-dilemma-in-latin-america