On Abusive Constitutionalism: Two Critical Impulses

—Jorge González-Jácome, Universidad Javeriana, Bogotá, Colombia

The relationship between constitutionalism and authoritarianism is not simple. Some might argue that they are opposing concepts but a very suggestive article by David Landau has coined the term abusive constitutionalism to refer to the use of tools of constitutional amendment and constitutional replacement used by would-be autocrats to undermine the democratic order and perpetuate their own power. These mechanisms undermine “democracy” to the extent that they affect the possibility of holding fair elections where all parties are on equal ground to dispute power. Abusive constitutionalism has become more common in the last couple of decades. During the twentieth century, authoritarian leaders generally came from the military and used coup d’états as well as sheer force to rule their countries for many years. In Latin America, Pinochet comes to mind as the epitome of this type of old authoritarianism. Landau’s point is that the new authoritarianism is harder to detect because it does not use mechanisms that blatantly infringe the principles of liberal democracy; instead, abusive constitutionalism has a façade of legality because it uses constitutional means to achieve its goals.[1]

I believe the term is suggestive because it captures a set of facts that actually occur in the world today, especially in Latin America, the place where I am writing from. However, I would like to offer a mild criticism of the term in order to deepen the insights it provides. The criticisms are based on two impulses, building off of my own recent work and my current research agenda. The first impulse is “this is not new, there is a longer story to this picture.” The second one is “how ‘strange’ that the Global South is generally the site where this pejorative category is applied.”

1. The this-is-not-new impulse.  It is true that since the era of democratization and human rights that swept the political world after the late 1970s, military coup d’états have become less common. Since the 1990s, Latin America, which was the paradigmatic zone in this regard, has changed its political landscape. When the military stepped in as in Honduras in 2009, the rejection from the region through the OAS was swift and harsh. However, there is part of the new story that is not entirely a departure from traditional Latin American constitutional ideas, practice, and institutions.

Old style authoritarianism, taking Pinochet in Chile as the example, had a complex relationship with the Constitution in two different respects. First, the coup against Allende was justified using the constitutional jargon of states of exception which was an integral part of Latin America legal debate since the nineteenth century.[2] Second, one of the first debates after Pinochet took power was what to do with the 1925 Constitution. Thus Pinochet appointed a Comisión Constituyente that was staffed with some of the most prestigious jurists who initially discussed, among other things, the scope of emergency powers and whether the Junta had constituent power.[3] When one delves into the debates of the Comisión and even into Pinochet’s speeches, it is surprising how both included a rather sophisticated and complex discussion about the role of law in the new regime and the status of Constitutions.

Another example is the infamous Acordada from the Supreme Court in Argentina in 1930, through which the tribunal adapted a theory from administrative law –the de facto theory– to argue that courts were incapable of challenging the legitimacy of the new military government that ousted a civilian president. However, they would supervise whether the new regime was following the Constitution. The document apparently justified future coups insofar, but at the same time it was an assertion that once in power the incumbents were under and not above the Constitution. In 1966 and 1976 the military coups created a legal hierarchy to overcome the limitations of the Constitution by enacting two documents of constitutional hierarchy (the Acta and Estatuto) that limited the interpretation of the Argentine Constitution. But curiously, the Constitution was not formally abrogated.[4]

Thus, abusive constitutionalism might have a longer genealogy than what Landau suggests. Coups were coupled with complex discussions about constitutional status. What may have changed is the existence of a military coup, but the abuse of mechanisms of constitutional change, replacement or even interpretation has been in place in the region for a long time.

One might argue that my examples are actually ones of sham constitutionalism: the autocrats were not sincere and actually established a dual state to carry on disappearances, tortures and other heinous acts. That could be true, but the mere presence of constitutional discussions tells us that portions of the government had some sort of normative commitment toward constitutionalism and thus tried to use legal debate and interpretation. Under this perspective, abusive constitutionalism, at least in Latin America, is a long tradition that has to be explored more thoroughly from a historic perspective in order to understand its political edges.

2. The Global South impulse. A more complicated impulse about abusive constitutionalism is that it is a pejorative category built in the Global North to show how Constitutions in the South are not proper constitutionalism but actually a failed variant of the northern idea. Abusive constitutionalism expresses an instance of how law in Latin America fails and has to be changed with a liberal-progressive project that generally comes from the United States.[5] The discourse of the failed law of Latin America does not come exclusively from scholars of the Global North. It is also deployed by jurists from Latin America who use abstract categories to deal with political disagreements within their own societies. For instance, right wing jurists in Colombia repeatedly argued in the 1990s and early 2000s that the Constitutional Court should abstain from intervening in matters related with economic development. They argued that such decisions breached the principle of the separation of powers. However, what was really at stake in early decisions of the Court was a political disagreement of liberals with the social-progressive approach of the justices to socio-economic issues.[6] Categories such as the separation of powers or abusive constitutionalism may work not only to neutralize deeper political debates, but also to give an idea that the law of the periphery fails since it cannot embody liberal constitutionalism. Although part of me is sympathetic to this criticism I also believe that continuing manifestations of autocracy in Latin America are undesirable.

I am not sure how to move beyond this tension but here is an idea that I am exploring in my current research agenda on authoritarianism in South America after the 1990s. In a brilliant explanation of Latin American constitutionalism since independence, Argentine scholar Roberto Gargarella shows how one of the characteristics of constitutional debate in the region in the nineteenth century was the way in which thinkers bridged the debate about political and economic liberties, i.e. the Constitution and economics.[7] My sense is that abusiveness exists but that by focusing merely on constitutional structure and institutions as Landau does, one loses sights of the more complex projects that shape and are shaped by constitutional debate.

Accordingly, one of the deepest public debates in Latin America has been about economic development. The region transitioned from an ISI model to a market oriented one after the 1980s; from industrial protection and inward looking economies to global competition and export-led development. This transformation has been part of the public discussion since the debt crisis and it has shaped legal and political institutions throughout the region.[8] Political confrontation around this issue has shaped part of the public sphere in Latin America and political parties have positioned between those more convinced about the market oriented orthodoxy to those openly reluctant to adopt such models. The debate has divided the Latin American intelligentsia to the extent that politics today, the distinction between friend and enemy,[9] has a lot to do with where one is located on this spectrum.

If one brings in this political economy analysis to the debate about constitutionalism in the region, my sense is that the idea of abusiveness can be seen in different terms. Abusive constitutionalism might express, instead of a pejorative category, an unfinished debate in Latin America about the transition from inward looking economies to market oriented ones. Constitutions express temporarily who is winning this debate and abusive clauses show how each party tries to maintain power for a long time. Defeat at the polls might not simply be a routine alternation between centrist parties but actually a radical challenge that could change the course of history.

With these two impulses in mind, I believe that we can deepen the explanatory power of the concept of abusive constitutionalism in two directions. First, the notion is useful to understand that liberal constitutionalism is just one among different types of constitutionalism that have a deep-seated tradition and a relatively long genealogy that can be traced.[10] Second, the use of abusive constitutionalism may be a signal of how governments in deeply divided societies in Latin America, and the Global South in general, have understood the role of Constitutions in light of these regions’ dialectical relationship with global economic issues.

Suggested citation: Jorge González-Jácome, On Abusive Constitutionalism: Two Critical Impulses, Int’l J. Const. L. Blog, June 11, 2015, at: http://www.iconnectblog.com/2015/06/on-abusive-constitutionalism-two-critical-impulses/

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[1] David Landau, Abusive Constitutionalism, 47 U.C. DAVIS L. REV. 189 (2013).

[2] Jorge González-Jácome, Estados de Excepción y Democracia Liberal en América del Sur. Argentina, Chile y Colombia 1930 y 1990 (Bogotá: Editorial Universidad Javeriana, 2015) 170-201.

[3] Robert Barros, Constitutionalism and Dictatorship. Pinochet the Junta and the 1980 Constitution (New York: Cambridge University Press, 2002).

[4] González-Jácome, 65-68.

[5] Jorge Esquirol, Las Ficciones del Derecho Latinoamericano (Bogotá: Siglo del Hombre-Universidad de los Andes, 2014).

[6] This point is interestingly raised by: Helena Alviar García, “La búsqueda del progreso en la interpretación de la Constitución de 1991: el caso de la intervención de la Corte en la economía”in Daniel Bonilla & Manuel Iturralde (eds.), Hacia un Nuevo Derecho Constitucional (Bogotá: Universidad de los Andes, 2005).

[7] Roberto Gargarella, La Sala de Máquinas de la Constitución. Dos Siglos de Constitucionalismo en América Latina (1810-2010) (Buenos Aires: Katz, 2014).

[8] Luis Bértola & Jose Antonio Ocampo, El Desarrollo Económico de América Latina desde la Independencia (México: FCE, 2013) 242-312.

[9] Carl Schmitt, The Concept of the Political (Chicago: The University of Chicago Press, 2007).

[10] On Singaporean constitutional debates see: Mark, Tushnet, Authoritarian Constitutionalism (December 18, 2013). Harvard Public Law Working Paper No. 13-47. Available at SSRN: http://ssrn.com/abstract=2369518