Latin America’s Trend of Constitutional Amendments and Power Politics

Since the democratic transitions of the 1980s, most of the Latin American republics have reformed their constitutions at least once, some have done so several times. These reforms have either sought a redistribution of power between different political actors, or the perpetuation of power by certain politicians. The latter has been worryingly evident with a number populist leaders, who have added new clauses for re-election for presidency or abolished term limits and as a result directly abused democratic values.

Does this render the perpetrators of power politics tyrants? No. Mere opportunists? Yes.

Beginning in the 1990’s, articles that regulated and defined the rules for presidential re-election have been frequently reformed. Traditionally, direct re-election has been proscribed in Latin America, yet since 1992, ten countries have reformed their constitutions with regard to the rules governing presidential re-election. Three changed them twice, Colombia, Dominican Republic and Peru

Re- election rules have become less restrictive, changing from prohibited to not immediate or immediate re-election.

Historically, examples of constitutional amendment for direct benefit of the incumbent president exist in abundance, from Menem in Argentina, to Fujimori in Peru. Ecuador, Nicaragua, Panama and Paraguay constitute less well known examples.

In recent times, the vehemently populist leader, Hugo Chavez took heed to the advantages of power politics in 1998 and authorised immediate re-election. In December 2007, he experienced an unsuccessful referendum to remove term limits, but succeeded fourteen months later in eliminating term restrictions with 54.3 per cent of the public vote. He told the crowds after: “I ratify to you that I will not fail you, the people of Venezuela, the hopes of the people”. Did Chavez fail the people, or did he fail the sacredness of constitution?

Two popular presidents, Fernando Henrique Cardoso in Brazil and Álvaro Uribe in Colombia also secured their re- election after the reform of the constitution. Cardoso amended the constitution in 1997 and Uribe both in 1991 and 2005. Hipólito Mejía of the Dominican Republic followed in 2002, with less successful re-election bid.

Less prevalent but still as worrying, are the procedures of a constitutional reform that have been used to alter the power distribution by creating a new power centre in the form of a constitutional assembly. By claiming a higher democratic legitimacy than parliament, the constitutional assembly can try to replace parliament. Hugo Chavez brought forward this reform in 1998 and we have seen subsequent copies of it in Ecuador with Correa in 2007-2008 and Bolivia with Morales in 2006-2007.

Just last week up to half a million people take to the streets of Buenos Aires as Argentina’s biggest and noisiest demonstrations in a decade. One of the central qualms of the protestors was the possibility of their President, Christina Fernandez de Kirchner taking on a third-term through the well known Latin American process of constitutional amendment. One can bear witness to the historical trend and predict this likelihood.

Such acts of leaders are undeniably incompatible with democratic excellence. Configuring your constitution to expand and maintain your power is selfish, corrupt and inexcusable. Yet we must acknowledge the popular support for these new-radical populist leaders, they have won in many cases with landslide victories. Had their actions hindered democracy within their countries, we would have seen mass uprisings on a level more substantial to that which occurred.

Power politics is harmful to all those involved, save those wielding power, however democracy as a whole is not threatened in Latin America. To achieve a near-perfect democracy, the trend of constitutional amendment for presidential re-election must come to a halt, but after years of struggle and anticipation, one cannot deny the existence of tangible democratic values, they just have a little further to go.

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5 Comments Add yours

  1. manmade1988 says:

    Very interesting piece, but I disagree with some things.

    You say that the populist governments are re-writing constitutions – “add[ing] new clauses for re-election for presidency or abolish[ing] term limits” – and that by doing this they are “directly abus[ing] democratic values”. But the fact is that Chavez, for instance, who is among this group of populists, has not simply re-written the constitution at a whim. He’s taken the question to the public, who has spoken. (I know you mention this below too). To me this isn’t being an “opportunist”.

    Moreover, the “democratic transition” of the 1980s was definitely a step forward from the old bullshit, but “democratic” was more of a “paper” principle than a real one. I lived in Ecuador through the 1990s, and democracy was a joke. I could certainly be debated on this point by someone with more experience and years in the matter, because I was a kid then and my observations were limited though not inexistent; but my parents and entire family certainly would know. Of course I agree, however, with the fact that among these “re-writers” also exist opportunists, but I certainly don’t include Chavez, Correa and Morales among those (and there may be more, but at the moment escape me). It is a grave mistake to include Chavez and Correa and Morales in the same category (or breath) as Menem and Fujimori.

    You say that in 1998 Chavez “took heed to the advantages of power politics” and “immediately authorized re-election”. But that is misleading. He took the question to the people of whether or not they wanted a constitutional assembly to be convened with the purpose of rewriting the constitution, to which I think more than 80% or 90% voted yes. That’s not “immediately authoriz[ing] re-election”. Taking the question of constitutional amendment(s) once more to the people in 2007 and then being shut down on it by the majority and consequently not going through with those amendments – to me – is exemplary of what participative democracy entails. Taking the question once more in 2009 and getting a yes again shows the same thing. Every time change has had to be made, the people have directly participated. And yes, Constitutions are sacred; they are not divine.

    I don’t know very much about Brazil or Colombia, but I’m pretty sure that Uribe had nothing to do with the 1991 constitution re-writing/referendum. I may be wrong, but I couldn’t find that anywhere. And I don’t know if he was a “populist” president; he certainly was lauded by the higher echelons of society (even part of the middle class, I would say), but the lower/working classes, like always, got the shaft. And he certainly was a rabid attacker of FARC. But perhaps I’m mistakenly equating “populist” with “leftist” – either way, I would not include him with Chavez either.

    The Constitutional Assembly in Venezuela was elected by the people. Then they introduced amendments that were accepted by I think over 70%. Similar steps were taken in Ecuador and Bolivia. This is democracy not abuse of it.

    I don’t know much about Argentina either, though I have a friend who just returned to live there a few months ago after years of being away (here in Canada), so I could ask her to be sure. But I would bet my left testicle asserting that the people that took to the streets to demonstrate against the possibility of Kirchner being re-elected were the same kind of people that demonstrate and make noise against the possibility of president Chavez being re-elected: the minority; the higher echelons of society who know that with Socialist Policies in place, they stand to not win – notice I didn’t say stand to lose, because they don’t; it’s just that – as Venezuelans from both sides of the political spectrum told me when I was there – people before Chavez were used to do whatever the fuck they wanted, including exploiting the poor; now that Chavez is here, they can’t do that, and when they do, they must answer. In my opinion, those “protestors” are simply counter-revolutionaries. In other times they`d be executed…(and we can argue till we’re blue in the face whether or not “executions” of counter-revolutionaries constitute democracy…)

    I don`t see any of this as being “incompatible with democratic excellence”…perhaps incompatible with “representative democracy”, but certainly not with Participative Democracy. I think that in the second-last paragraph you contradict yourself. You open saying this about “incompatible with democratic excellence” but finish by pointing out that they have acquired these changes with “landslide victories” and that “had their actions hindered democracy within their countries, we would have seen mass uprisings on a level more substantial to that which occurred”. Meaning democracy has not been hindered.

    While it is arguable that power politics is harmful to those involved, we can differentiate between power politics and participative democracy. My grandmother, for instance, is of the idea that president Correa in Ecuador should just step back and not run for office for a third term, which is only doable after the amendment to the constitution. I constantly ask her why, citing the fact that over 60%-70% of the population is very much happy with him running for a third term. She simply answers that it is because “change is necessary”. I agree entirely, but we’re not yet in sync, her and I (or you, for that matter, I think). Change is absolutely necessary, but in eight years, truly revolutionary people such as Chavez, Correa and Morales cannot accomplish the radical change they are seeking; they cannot eradicate five centuries of corruption embedded in the very culture of the people overnight or even in 8 or 12 years. They need more time to continue doing what they are doing. And then they need to plant seeds for the next Revolutionary Leaders, because indeed they will have to step away sooner or later, either by death or end of term. But by that time they must have other REVOLUTIONARIES in line to continue their work. Not having them be eligible to run for office means only having the same old choices of interested oligarchies. Notice that they don’t just assume office (as in Cuba, with which I have no problem because there are many other mechanisms to spread democracy, albeit with their shortcomings – but that is for another time); they simply run for office, and then they are re-elected by, as you say, “landslide victories”, which speaks volumes about the PEOPLE’S wishes.

    These are my opinions. I very much like your paper. I just happen to disagree with some stuff.

    1. @manmade. Unfortunately, I disagree with a lot of what you said, but I’m going to only challenge you on one front, and that is your insistence that these constitutional reforms in Venezuela were, in fact, exercises that exemplify democracy.

      For example, many critics of Chavez say that the 2009 referendum was actually illegal according to Chavez’s own rules. He tried to abolish term limits in 2007, but it was categorically rejected. Now, according to article 345 of the Venezuelan constitution, it states that “a revised constitutional reform initiative may not be submitted during the same constitutional term of office of the National Assembly.” And article 340 says, “the purpose of an amendment is to add to or modify one or more articles of the Constitution, without altering the fundamental structure of the same.” In other words, eliminating term limits is not an amendment and he would have to wait another term in order to reform the term limit. But guess what? He would be out of power if he had to wait another term, thus probably killing the reform proposal altogether.

      Instead, he extensively used state resources on the Yes Campaign to try to get public support behind the reform. And if you’re a follower of American politics, you can easily see how money can influence referendum outcomes (like people in California voting AGAINST knowing what is inside the food they eat. Monsanto and company spent $55 million in ads to convince people to vote no). Money is important and Chavez has unlimited access to these resources, especially since oil is the main source of government revenue and the oil industry is tied to the state.

      So you can make the argument that the 2009 referendum was illegal and Chavez mobilized resources to convince the people to get behind it.

      Now that we can place the 2009 referendum in its proper historical context, can you say with absolute confidence that this was an exercise of participatory democracy or an exercise of brilliant Machiavellian calculation? And if you choose the former instead of the latter, I have no choice but to call you naive. It was great political calculation on Chavez’s part. Hands down.

      Now, a lot of other things that you said were also not within its proper context, but I won’t address it here because otherwise, this response would be way too long that nobody would read.

      1. manmade1988 says:

        Your choice of words is very interesting in this rebuttal…and misleading, too.

        Firstly, the “critics” that cited article 345 and 340 of the constitution were in fact opposition members. This is very significant because following Venezuelan politics closely, you can see that the opposition takes every opportunity to pull the trigger on whatever they think they can prove as inappropriate behavior from the president; in fact, they even conjure things out of the blue, as it has been proven time and time again (I’m not necessarily saying this is one of those times when they are conjuring, but it is important to know that that is the opposition’s main game). Now, you assert that “eliminating term limits is not an amendment [but a fundamental restructuring]…” of the constitution. It is certainly a valid opinion, but then you are omitting information as well…vital information! Chavez did not just go on to “use state resources” to get the people behind the reform.

        First and foremost, the matter was put before the Constitutional Chamber of the Supreme Tribunal of Justice of Venezuela, wherein it was decided (On February 3, 2009) that what Chavez was proposing was in fact an “amendment” and not a reform, and therefore could be introduced every year (not in violation of article 345). Secondly, it was also determined that the “amendment” would not in fact alter the structure of the Constitution (not in violation of article 340). What the judges stated was that the amendment would clarify the principle of “alternabilidad” (“changeability”), which deals with whether or not the same people are allowed to run for re-election to the same public office (article 6). Due to these decisions, I find it hard to deem the move “illegal” and, technically, it isn’t, since it was decided in the highest court of law.

        Now, there is an argument that could be made that the Supreme Court is riddled with “Chavistas” that were obviously not going to go against his decisions; someone (most likely members of the opposition and those that believe their lies) could even try to “prove” this by citing the fact that members of the Constitutional Chamber (7 judges) are elected by the members of the National Constituent Assembly, which is heavily dominated by people sympathetic to Chavez. They could even try to propose that what the judges did was “interpret” the constitution in a favourable light, so as to “modify or mutate the text of the constitution” (http://ilas.columbia.edu/images/uploads/workingpapers/Allan_Brewer-Carias-_Venezuela_2009_Referendum_on_Continuous_Re-Election,_Constitutional_Implications.pdf). But analyzing the political history of the country, the fact of the matter is that the election of those members of the National Constituent Assembly is made directly by the people (and that those members, for the most part, are members of the community and not necessarily politicians by career); further, it is a fact that the Venezuelan electoral system is among the best/fairest in the world; and if it is those members – elected by the people – that choose to place others that they believe will help further their cause – which is Chavez cause – in the Constitutional Chamber, then I support that move. It certainly is a move away from what has been happening in the country for the last five hundred years.

        As for the issue with the public campaigns (“Yes Campaign”), all I can say is that there is no other choice, at least in Venezuela, where the game is played like that. I heard a few days ago that in England the election campaigns run for something like three weeks before election only, and there certainly aren’t tv ads and all that B.S. flooding your senses. I certainly admire that, if it in fact is so. But in Venezuela, it isn’t so. In fact, the opposition (I believe it may have even been Capriles, but I don’t remember with certainty now), even bragged about how they are receiving Moral and Financial support from the United States to fund their own campaigns. Now, their campaigns are based on disinformation, on scandal, on hyperbole and even on flat-out lies (like for example the fact that Chavez is handing out weapons to people from poor areas to “arm them for the revolution,” which was a blatant lie; they also claimed – in their T.V. ads, part of their campaign – that Chavez is opening the doors of the prisons and letting out thousands of criminals, when the truth was that the Supreme Court had decided – due to new laws under Chavez – that petty thieves that had stolen a cellphone, for instance, and that had gone into jail as teenagers and spent up to a decade in jail supposedly awaiting trial but never getting it under the old corrupt system, had served their time/punishment and were free to go – none of that was explained in their expensive T.V. ads and cross-country campaigns). So in my opinion, Chavez and the PSUV Party simply has no choice but to also run T.V Ads and Campaigns to both disprove the lies and to prove all they’ve been doing, which is actually evident if someone is interested in looking. And they do it with internal resources, not with money from the Empire. The resources they receive from South American countries showing solidarity such as Cuba, for instance, did not go towards the campaigns – I don’t think, but I will not assert that.

        So, in my opinion, for the reasons I’ve stated, I don’t see the 2009 referendum as being illegal; and neither did the Constitutional Chamber of the Supreme Tribunal of Venezuela. Someone could perhaps intelligibly argue that I may be biased – a bit blindsided by my convictions…Perhaps, not I don`t believe it (but what biased person does?)…But naïve? – NEVER! To avoid naivete is why I debate, read, inform myself, etc…

        I love these types of debates, especially when the person seems to have a grasp on what they are talking about…such as yourself. If you have more you want to debate about, feel free to e-mail me, if this “comment” forum isn’t enough.

        Salud!

    2. Thank you for taking the time to write out your points, i’m glad to read them, to address your points:

      It is not the matter of “re-writing the constitution at a whim”, because whether it was done with a sudden or prolonged desire, it is still an amendment that is expanding and maintaining your power. Taking it to the public the first time is not opportunist – taking it to the public once and failing and then calling for a second referendum IS opportunism at its best.

      I definitely sympathise with your arguments on the democratisation process and whether it was really as effective as one would like to think, especially since you grew up in Ecuador during this era, i’m sure you can shed more light than me. However, my intention was not to categorise classical populist and neo-populist leaders such as Menem and Fujimori alongside new-radical populist leaders, Chavez, Correa &Morales. My point was addressing the “direct benefit” of constitutional amendment for their presidencies, not aligning them in any other way other than this commonly shared experience.

      Participatory democracy or power politics disguised as direct democracy? Why was he shut down the first time in December 2007? Why did he not accept the initial decision by his collective electorate? If your argument is that people participated, and thus the amendment was rendered democratically legitimate, my question is, why must the electorate participate twice in order to prove this? To me this is arrogance on Chavez’s part, he could not accept that the people declined his proposition to extent term limits the first time and so he built a better and more strategic campaign to ensure a second win. This does not completely destruct the participatory democracy aspect, but it is certainly indicative of power and politics, and we know this is a dangerous game to engage in.

      Uribe was involved in the 1991 constitutional amendment/re-writing- if not as actively as would constitute involvement to you- through his executive role and responsibility as head of state. Also, I did not state ‘populist’, but rather ‘popular’.

      The amendments may be compatible with democracy (arguable) in particular, direct democracy, but they are most certainly not compatible with democratic excellence. As you may know, it is one thing to achieve democracy in a state.. democratic excellence on the other hand.. is another story.

      I agree with you, 500 years of colonisation cannot be reversed in 14 years, or 8, Latin America has come so far, but it would be ridiculous to ignore that it has yet some way to go. However, acts of political reform to directly maintain, expand or centralise your power will, and should always, be deplorable, regardless of historical context. You must always remain on the side of the people, never side with the leaders, and it is rarely in the interests of the people to have a single leader for a long period of time.

  2. manmade1988 says:

    TYPE CORRECTION:
    Third last paragraph, I meant: “Latin American Countries, such as Cuba”…
    Second last paragraph, I meant: “Perhaps, not that I believe it…”

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