Constitutional Change and Transformation in Latin America PDF
Preview Constitutional Change and Transformation in Latin America
CONSTITUTIONAL CHANGE AND TRANSFORMATION IN LATIN AMERICA Over the past 30 years, Latin America has lived through an intense period of constitutional change. Some reforms have been limited in their design and impact, while others have been far-reaching transformations to basic structural features and fundamental rights. Scholars interested in the law and politics of constitutional change in Latin America are turning increasingly to comparative methodologies to expose the nature and scope of these changes, to uncover the motivations of political actors, to theorise how to better execute the procedures of constitutional reform, and to assess whether there should be any limitations on the power of constitutional amendment. In this collection, leading and emerging voices in Latin American constitutionalism explore the complexity of the vast topography of constitutional developments, experiments and perspectives in the region. This volume offers a deep understanding of modern constitutional change in Latin America and evaluates its implications for constitutionalism, democracy, human rights and the rule of law. ii Constitutional Change and Transformation in Latin America Edited by Richard Albert Carlos Bernal and Juliano Zaiden Benvindo HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2019 Copyright © The editors and contributors severally 2019 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. 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A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Albert, Richard (Law professor), editor. | Bernal Pulido, Carlos, editor. | Benvindo, Juliano Zaiden, editor. Title: Constitutional change and transformation in Latin America / edited by Richard Albert, Carlos Bernal and Juliano Zaiden Benvindo. Description: Oxford, UK ; Chicago, Illinois : Hart Publishing, 2019. | Includes bibliographical references and index. Identifiers: LCCN 2019007696 (print) | LCCN 2019009137 (ebook) | ISBN 9781509923519 (EPub) | ISBN 9781509923502 (hardback : alk. paper) Subjects: LCSH: Constitutional law—Latin America. Classification: LCC KG548 (ebook) | LCC KG548 .C664 2019 (print) | DDC 342.803—dc23 LC record available at https://lccn.loc.gov/2019007696 ISBN: HB: 978-1-50992-350-2 ePDF: 978-1-50992-352-6 ePub: 978-1-50992-351-9 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters. FOREWORD The Life and Death of Constitutions in Latin America: Constitutional Amendments, the Role of Courts and Democracy LUÍS ROBERTO BARROSO1 Richard Albert, Carlos Bernal and Juliano Zaiden Benvindo have assembled, in this book, some of the most representative names of contemporary Latin American constitutionalism. Their texts create a mosaic of distinct tones, convening analysis and thoughts on the institutional order of several countries, such as Bolivia, Brazil, Chile, Colombia, Ecuador and Mexico. The reader who is less familiar with Latin American reality must know that, despite the many common difficulties, it is not an easy task to crosscut the continent’s multifarious constitutional experiences to build a unified narrative. For this reason, one of the great merits of this book of exceptional theoretical quality is to establish a dialogue between scholars from different countries and conceptions. This is an achievement in itself, given that the interaction between Latin American jurists is much less common than one would suppose and desire. The following texts discuss various related themes, including the transition to democracy, the constitution-making process, constitutional reforms, the possibili- ties and limits of judicial review of constitutional amendments and the challenging consolidation of democracy in Latin America. The high quality texts of this book, as well as a constant dialogue with its editors, inspired the reflections that I make hereinafter, in an exchange that has brought me great benefit and intellectual pleasure. I am honoured by the invitation to preface this work. I. Some Common Vicissitudes of Latin American Constitutionalism Latin American constitutionalism has undergone several phases since the first half of the nineteenth century. Over these 200 years, amidst varied arrangements 1 Justice at the Brazilian Supreme Court. Professor of law, Rio de Janeiro State University. LLM, Yale Law School. Senior Fellow, Harvard Kennedy School. vi Foreword between conservatives and liberals, some factors have been ubiquitously present, influencing and conforming the continent’s multiple constitutional experiences. Among them, we can highlight: (i) Authoritarianism and institutional instability, manifested in civilian or military dictatorships, coups d’état and the permanent ghost of military intervention, as well as in hyperpresidentialism; (ii) Patrimo- nialism and corruption, consequences of the poor separation between the public and private spheres, one of the legacies of Iberian colonisation, and the anteced- ents of a culture of private appropriation of the state by extractive elites, of crony capitalism, and of the existence of structural and systemic corruption, omnipres- ent in Latin America; (iii) Social inequality, an indelible mark of Latin American societies, fostered during a long time by measures such as the requirement of minimum income to vote or the ban on political participation of illiterates. More recently, many constitutions included social rights in their texts, making the limits of their enforceability one of the most intricate issues of contemporary constitutional law. II. The Endurance of Constitutions in Latin America In a troubled history, many countries in the region experienced a high rate of demise in their constitutional orders, and currently live under very recent constitutions.2 This is the case of the Dominican Republic, which has had 31 constitutions (setting the world record in this matter), with the current one dating from 2015; of Venezuela, with 26 constitutional texts (the current one dating from 1999); and of Ecuador, with 20 constitutions (the current one dating from 2008). Brazil followed the Latin American fate and had eight constitu- tions, with its current one dating back to 1988. Colombia was not any different: it had nine constitutions and is currently governed by its 1991 charter. Chile had 10 different constitutions, and now lives under the 1980 constitution. In all, from independence until today, Latin American countries edited over 250 constitu- tions, in an inflation of short-lived texts. Comparatively, in North America and Europe the substitution rate of consti- tutions is, in general, significantly lower. Throughout its history, the US has had only one constitution (amended many times) and Canada has had two major texts. In Europe, countries like Belgium, Denmark, Netherlands and Italy have also been ruled by a single constitution. France, on the other hand, is the European country with the greater number of constitutional texts: 16 in total, although the current constitution, which dates back to 1958, has been in force for over 60 years. 2 See Jose Luis Cordeiro, Constitutions Around the World: A View from Latin America, lIDE Discussion Paper n 164. Foreword vii The project of a European Constitution did not become a reality. Although the lifespan of a constitution is not a safe indicator of success, it does directly affect the constitution’s ability to promote the objectives for which it has been enacted: the limitation of state power within the framework of the rule of law,3 and the protection of fundamental rights. Furthermore, if constitutions live at the mercy of political winds, citizens do not develop the indispensable constitutional sentiment that nourishes democracy. III. The Constitutional Amendment Power Constitutions, therefore, need to have a predisposition for permanence. Ideally, they regulate issues that, because of their relevance and transcendence, should be shielded from ordinary politics. The constitutionalisation of certain fundamen- tal decisions removes them from the influence of casual majorities. Nonetheless, constitutions are not eternal and cannot claim to be entirely immutable. Some flexibility is imperative for constitutional stability itself, in order to allow for the correction of eventual defects of the original text and for their adaptation to new realities. A generation cannot subordinate the next generations to its decisions. The dead cannot rule over the living.4 To survive and not succumb to time, there are formal and informal mech- anisms of constitutional change that guarantee the flexibility required to face new realities and social demands. Along with informal changes by means of interpretation (constitutional mutation),5 constitutional amendments arise as a necessary tool to preserve the durability of the constitution. Nonetheless, the freedom to amend the constitutional text, although through a more demanding procedure, can be used to radically change the document or to suppress its essen- tial rules and principles.6 The amendment power has, therefore, an ambivalent character: at the same time that it guarantees the Constitution’s survival, prevent- ing it from becoming obsolete, it can represent its death decree, because it may allow for structural changes of precepts that give the Constitution its meaning and identity. 3 Gabriel Negretto, The Durability of Constitutions in Changing Environments: Explaining Consti- tutional Replacements in Latin America. Working paper n 350, The Helen Kellogg Institute for International Studies. 4 See Thomas Paine, The Rights of Man (1969); Norman Dorsen, Michel Rosenfeld, András Sajó and Susanne Baer, Comparative Constitutionalism (2003). 5 Bruce Ackerman, We the People: Foundations (1995); Bruce Ackerman, We the People: Transforma- tions (1998); Georg Jellinek, Reforma y mutación de la Constitución (1991). 6 Ulrich K Preuss, ‘“The Implications of ‘Eternity Clauses”: The German Experience’ (2011) 44 Israel Law Review 429. viii Foreword IV. Preserving the Essential Core of Constitutions: Immutable Clauses The power to reform the Constitution should not be the power to deform it, by depriving it of its essential elements. In order to justify its maintenance, a constitu- tion must retain the essence of its original identity, the core political decisions and the fundamental values that justified its creation. In some countries, the Consti- tution’s essential core is protected by explicit material limits to the amendment power. The clauses protected by these limits are called the immutable or eternity clauses: they cannot be altered or affected in their essence, not even by a qualified majority. These restrictions on the majority rule can serve multiple functions.7 One of them is precisely to preserve essential constitutional provisions in light of history, tradition and local culture, especially of those more vulnerable to abuse.8 In Latin America, for example, it is not surprising that the ban on re-election of the chief executive is one of the most frequent immutable clauses in the region’s constitu- tions, seeking to avoid authoritarian abuses and ruptures by successive presidents. Several countries that did not protect the clause of non-re-election against amendments had their constitutions changed on this matter, such as Peru (1993), Argentina (1994), Brazil (1996), Venezuela (in 1999 and then in 2009) Colombia (2004), Ecuador (2008) and Bolivia (2009). Nonetheless, there is invariable tension between immutable clauses and democracy, to the extent that those clauses impose a significant limit on political majorities’ ability to govern. Because of this counter-majoritarian and potentially anti-democratic trait, immutable clauses must be strictly interpreted, without broadening their meaning and scope. Along these lines, the Venice Commission recommends that they be limited to the protection of the basic principles of demo- cratic order, and be interpreted and applied strictly and cautiously. The Brazilian Supreme Court has a precedent along these lines. In doctrine, and even in some countries’ practice (such as India and Colombia), it has already been argued that even without explicit immutable clauses, constitutional amendments cannot modify the text’s core, for that would entail the replacement of the constitution itself. V. Judicial Review of Constitutional Amendments The existence of immutable clauses does not necessarily mean that constitu- tional amendments will be subject to judicial review. In France, for example, 7 Richard Albert, Constitutional Handcuffs (2010) 42 Arizona State Law Journal 663; Yaniv Roznai, Unconstitutional Constitutional Amendments (2017). 8 ibid. Foreword ix on more than one occasion, the Constitutional Council has declared it has no jurisdiction to rule on the validity of constitutional amendments. In the US and in some European countries, despite the fact that judicial review of amendments is admissible, in practice there are no precedents. In countries like Austria, Bulgaria and the Czech Republic there have been cases, but they are exceptional and quite rare. In Latin America, circumstances are utterly different. With some frequency, the region’s Supreme Courts and Constitutional Courts have recognised their prerogative to review the constitutionality of amendments, invalidating them for formal and substantial reasons. That is to say: they recognised the existence of explicit or implicit substantial limits to the scope of reforms. Brazil has a handful of precedents. An emblematic example is that of Colombia. According to the coun- try’s constitution, the Constitutional Court’s jurisdiction is restricted to reviewing procedural errors in the genesis of amendments. Since 2003, however, the Court has been expanding its competence to review not only formal, but substantial, defects. The Court has stated that the power of constitutional reform does not amount to the full replacement of the constitution (substitution theory). The substitution theory has been applied in more than a dozen occasions, including the paradigmatic cases of Uribe’s re-elections.9 VI. Conclusion Time to move out of the way. Several intricate questions arise from the discus- sion on the scope, groundings and limits of constitutional change. The chapters contained in this volume advance multiple answers to these questions and have greatly enriched the literature on the matter. I am sure that the reader who dedicates his time to exploring the dense and thoughtful pages of this excellent collection will be enlightened by Latin American constitutional experiences and will be able to better understand some of the challenges the region faces in a plural, polarised and changing world, where the risks brought by authoritarianism, populism and tribalism cannot be neglected. 9 In 2005, the Court validated a constitutional amendment allowing for presidential re-election. However, it held unconstitutional an amendment that would authorise a third term, on grounds that it would violate the separation of powers clause and the democratic principle.
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