–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
Comments
6 responses to “The Constituent Dilemma in Latin America”
Very interesting post – my research argues that the American model is very different from the French constituent power model. In particular, American constitution-making was illegal (under the Articles of Confederation) but was grounded on the pre-existing institutional order (states in federal constitution-making; towns/counties in state constitution-making). The French model, of course, was not grounded on the pre-existing institutional. Thus, the American model might actually present a model that lies between the legal continuity approach and the rupture approach.
This American model therefore might offer some answers to the question you pose at the end of this post. It suggests that a new constitution can break with past constitutional legality but can be built on negotiations between pre-existing bodies. This might include negotiations between political parties in a round table setting, followed by parliamentary constitution-making and a referendum. This would avoid the problems of short term unilateralism (in the rupture model) and also overcome the status quo problems of the legal continuity model.
You are right: the American case does offer the example of a case that does not fit exactly within either the rupture or the continuity alternative. And in that sense I agree that one can look at the American precedent in the search of principles for a theory of constitutional change within a pre-existing legal order. Many authors have praised the American case precisely on the grounds that it managed to avoid the risk of placing the constituent power of the people in the “state of nature”, as in the French revolutionary experience. For similar purposes, as I mentioned in passing in the post, one can look at some Eastern European cases.
This said, it seems to me that several caveats are in order. First, it is not clear whether the difference between the American and the French cases derived from a different political reality or from a different conception of the constituent power. In many ways, the attempt to reach a balance between the old and the new order in America was simply an act of political prudence of reformers to prevent the reaction of the existing powers against the new constitution. Second, the American practice of the constituent power was never translated into a theory. Once the constitution was established, the dominant position was that of Madison, who was mainly concerned with constitutional stability and relegated the exercise of constituent power to a distant, foundational past. Finally, constitution making in America was part of a process of state-building and not of constitutional transformation within an existing state. For all these reasons, I believe that although one can look at the American historical precedent to build a theory of peaceful constitutional replacement within a constituted order, it is not apparent that there is a full American “model” that can be imitated.
Gabriel, you state the constituent dilemma very clearly. However, I believe the cases of Colombia and Venezuela offer something more for a possible construction of the theory you (and I, since this is the topic I’m working on for my dissertation) seek. In situations of rupture we can take a look at what the courts can do to prevent or increase the risk of an exclusionary constituent process controlled by authoritarian leaders and unchecked by the participation of a plurality of political forces. First, the fact that these constituent processes were initiated after the Supreme Courts of both countries ruled in favor of such course of action might ease a little the prevention with which some political forces might see the process. Of course, this implies that the participation of the courts should be perceived by the public as an exercise of their autonomy and independence. At this stage, the courts can be important in making sure that the election and constitution of the assembly makes room for ample participation. Second, these courts acted very differently despite their similar acceptance of the constituent processes. In Colombia, the Court decided to accept from the beginning that the constituent assembly could be subjected to no legal limitations. The Assembly was to be sovereign. So, in this case, Colombians were lucky to have Gaviria’s conciliatory attitude guide the process. They were also lucky that no party was able to control the assembly and that the parties abided to their original agreements, even though they were considered unconstitutional by the Court. But in Venezuela, where the context of rupture was more likely to lead towards a controlled assembly, the Court did try to limit the powers of the assembly and maintain the vitality of the constituted powers in order to prevent the authoritarian threat. The Court tried to maintain at all times that the assembly was limited by the existing constitution, the same one that -according to many- was liberally interpreted to allow the initiation of the process. But the Court failed, not only because Chavez and the Assembly were determined to ignore it, but also because many justices decided their futures would be better if they just took the side of the president. The Venezuelan Court, at the beginning, did manage to impose some very important restrictions on the process, but at the end it just gave up. So, I guess what I’m trying to say is that the strengths and weaknesses of judicial institutions might be central in processes of rupture, and that the constitutional theories they use to approach the situation have an important impact on the direction the process might end up taking. We should pay attention to these examples when the political circumstances do not make room for the path of legal continuity followed in Bolivia. Also, both Colombia and Venezuela now have rules of change that somehow dissolve the dilemma.
Nicolas, this is really interesting, and I think right on the money. The legal theory of “original constituent power” is a piece of the problem in Latin America I think. I am a bit more skeptical though of the possibility of judiciaries playing the key role in these moments. They are usually tough period for courts to maintain order. Had the Colombian Court, which was historically a powerful and well-regarded Court, tried to put real limits on the Assembly after being perceived as part of a “blocked society,” I think it too would have failed. And in Bolivia, where there were textual limits and especially a two-thirds clause, the court and congress managed to hold the Assembly to the bargain only barely and after incredible chaos.
I do think the rules of change point could be a significant shift in constitutional theory, although to me these rules are too open to manipulation in their current form. Regardless of whether as a theoretical matter existing constitutions can bind new ones, as a sociological matter putting clear rules of change in existing constitutional texts might help act as a regulation of manipulated constitutional replacements. It does seem to me, at any rate, that any new theory needs to focus on the process and the degree of consensus that is necessary to achieve constitutional replacement. As Gabriel says, there was a clear will to replace existing constitutions in Colombia, Venezuela, Ecuador, and Bolivia. What was lacking in most of those cases was anything like consensus on the shape of the new constitutional order.
I agree. It is doubtful that the courts will ever be able to control constituent processes through strict legal limitations. The judiciary remains a weak branch of power. This is more so when they rely on classical theories of original constituent power which are useful to give a democratic face to situations of rupture as the ones described by Gabriel, but that at the same time strip the courts of any grounds from which to contain the power of constituent assemblies. Perhaps the problem comes from an inadequate conception of democratic legitimacy that seems to be merely majoritarian, electoral, and that does not make room for notions of reflexive legitimacy in which the courts are seen as vehicles for a broader construction of the public interest (part of the problem in this regard is the counter-majoritarian objection to the role of courts, which I believe does more harm than good for the construction of stronger democracies in Latin America). I also agree that the new rules of changed established in the Colombian and Venezuelan constitutions are too open to manipulation. As an example we have the decisions of the Venezuelan TSJ regarding the referendum of 2007 and the unlimited reelection of the president in 2009. Though those are crass examples of a constitutional jurisprudence devised to favor the “leader”. Perhaps these new rules of change have been more democratically developed by the Colombian court, though neither Colombia nor Venezuela have yet attempted the route of a constituent assembly.
Nicolas, I think it is a good point to look at role of constitutional courts during processes of constitutional replacement within established democracies. And the analysis of this role should not be restricted to cases of rupture. In fact, since amending the amendment procedure might also be challenged on constitutional grounds, courts may play a role on whether political actors opt for one or the other alternative. But I tend to agree with David that one should not exaggerate the centrality of the role of constitutional courts during these highly political processes. For strategic reasons, it is important for reformers to have the authorization of the court to initiate the process. Bypassing the court altogether at the outset may be costly, particularly when other institutions (such as Congress) oppose convening a constituent assembly. But it is unlikely that constitutional courts would be successful in placing many restrictions on the future development of the constituent assembly. Also, I think it is important to note that although the Colombian and Venezuelan constitutional courts had a different view on the powers of the constituent assembly, they followed the same revolutionary theory of the constituent power to decide whether it was valid to convene a constituent assembly in the absence of an established procedure.
The adoption of rules for constitutional replacements in the cases of Colombia and Venezuela (among others in Latin America) solves the initial dilemma but opens a new set of political and legal problems. Not only because they are open to manipulation but also because the procedures are very different and create different kinds of incentives and restrictions for both constituted powers and citizens. These rules also open the door for the intriguing question of whether it is possible to have an unconstitutional constitution-making process.