Comparative constitutional law in Latin America 9781785369209, 1785369202

Citation preview

Comparative Constitutional Law in Latin America

Comparative Constitutional Law in Latin America

Edited by

Rosalind Dixon Professor of Law, University of New South Wales, Australia

Tom Ginsburg Leo Spitz Professor of International Law, University of Chicago Law School, USA

Cheltenham, UK + Northampton, MA, USA

© The Editors and Contributors Severally 2017 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA

A catalogue record for this book is available from the British Library

Library of Congress Control Number: 2016962579

This book is available electronically in the Law subject collection DOI 10.4337/9781785369216

ISBN 978 1 78536 920 9 (cased) ISBN 978 1 78536 921 6 (eBook) Typeset by Columns Design XML Ltd, Reading

Contents List of contributors Foreword Manuel Cepeda Espinosa 1. Comparative constitutional law in Latin America: an introduction Rosalind Dixon and Tom Ginsburg 2. Constitution making and constitutionalism in Latin America: the role of procedural rules Gabriel L. Negretto 3. Constitution making and constituent power Joel Colón-Ríos 4. A critical mapping of transitional justice in Latin America Lucas Lixinski 5. Constitutional revolution in the Andes? Zachary Elkins 6. The new “Bolivarian” Constitutions: a textual analysis Mark Tushnet 7. Looking beyond the Constitution: the social and ecological function of property Helena Alviar Garcia 8. Equality Roberto Gargarella 9. Modes of disestablishment in Latin America Julieta Lemaitre 10. Judicial role and the limits of constitutional convergence in Latin America David Landau 11. Ambitious constitutions: prominent courts Oscar Vilhena Vieira 12. Between power and submissiveness: constitutional adjudication in Latin America Raul A. Sanchez Urribarri 13. The institutional limits of Inter-American constitutionalism Alexandra Huneeus v

vii viii 1

17 57 87 108 126

153 176 198

227 253

276 300

vi

Comparative constitutional law in Latin America

14. The constitutional protection of economic and social rights in Latin America 325 Carlos Bernal 15. The “economic constitutions” of Latin America: between free markets and socioeconomic rights 343 Javier Couso Index

361

Contributors Helena Alviar Garcia, Universidad de los Andes, Colombia Carlos Bernal, Macquarie University, Australia Joel Colón-Ríos, Victoria University of Wellington, New Zealand Javier Couso, Universidad Diego Portales, Chile Rosalind Dixon, University of New South Wales, Australia Zachary Elkins, University of Texas at Austin, United States Roberto Gargarella, Christian Michelsen Institute, Norway Tom Ginsburg, University of Chicago, United States Alexandra Huneeus, University of Wisconsin, United States David Landau, Florida State University, United States Julieta Lemaitre, Universidad de los Andes, Colombia Lucas Lixinski, University of New South Wales, Australia Gabriel L. Negretto, Centro de Investigacion y Docencia Economicas, Mexico Raul A. Sanchez Urribarri, La Trobe University, Australia Mark Tushnet, Harvard University, United States Oscar Vilhena Vieira, University of Sao Paulo, Brazil

vii

Foreword Manuel Cepeda Espinosa Comparative constitutional law is a challenging endeavor. It is even more complex in Latin America, a region that appears homogeneous but in fact is institutionally very diverse and where the gap between law in the books and law in action is wide. Formally similar institutions have in fact different political status, constitutional significance and effective impact in each country. Rosalind Dixon and Tom Ginsburg should be praised, in the light of this diversity of real perceptions, actual functions and outcomes, for inviting the contributors to “take a more fine-grained and selective approach” and focus “in depth” on important “developments in a particular subset of countries.” Moreover, the contributors, carefully selected by the editors for their rigorous scholarship and acute insights, do illuminate the under-explored relationship between constitutionalism, politics, ideology and leadership. The context in each Latin American country has enormous weight in how institutions actually work as do key individuals holding office in the three branches of government. In some countries, ideological trends have also shaped not only the configuration of certain institutions, but also the actual functioning of previously designed ones. A general approach to the Latin American institutional landscape would be deceptive. The region is the land of so-called monarchical presidentialism, yet several presidents have been impeached by Congress quite often or have had to renounce the presidency due to the impact of effective checks and balances. Military dictatorships ruled over most of Latin American citizens until the third wave of democratization in the 1980s, yet a significant number of generals ended up being stripped of self-granted amnesties, tried and condemned after non-prosecutorial transitional justice mechanisms were pioneered in the Southern Cone of the continent and later censured by the Inter-American Court of Human Rights. Judicial power has been relatively weak and dependent on political upheavals, but judicial amparo, a very effective writ for the protection of rights, has flourished in the region and the courts have gradually become important autonomous players since the 1990s. Most societies in Latin America have been viii

Foreword

ix

alarmingly unequal, yet social rights are taken more seriously by courts than in most other regions of the world. Surprisingly, in a predominantly Catholic region, where ecclesiastical authorities were powerful and proactive actors in political controversies, there has been a process of disestablishment that has opened up spaces not only for religious pluralism, but more unexpectedly to the protection of rights in ways that contradict the position of the Catholic Church. Although most Latin American legal systems may be inscribed in the civil law tradition, each country has been a melting pot of competing legal influences not only from at least five European countries, but also from the United States common law tradition. Constitutions adopted since 1990 elude classification. Any attempt to fit them into well-known categories will end up in mixed labels which may embody a contradiction. Latin America is also a region of academically neglected institutional innovations. Amparo is the best known to a few experts, even though the significant differences within each country continue to be underestimated. Actio popularis in constitutional matters has been functioning for over a century in some countries. Abstract judicial review of legislation with erga omnes effects was practiced in a few countries before the Austrian Constitutional Court was created. Institutional innovations are not limited to the judicial branch. There are also interesting albeit unstable innovations concerning other branches of government. Some constitutions establish more than three branches of government or create certain organs which have autonomous constitutional status without being part of any traditional or new branch. Presidentialism is mixed with figures that are typical of parliamentary systems, without going as far as the French Fifth Republic Constitution. Electoral systems are rarely found in pure form and stable parties have been successfully challenged by political movements. The conception of rights is also peculiar. The sharp division between civil and political rights, on the one hand, and social, economic and cultural rights, on the other hand, is generally not accepted. Social rights have been constitutionally entrenched for almost a century and have been judicially interpreted and enforced with increasing strength, to the point that they have become in some countries the core of constitutional litigation. Thus, social and economic policies have been impacted in different degrees, in some cases with huge consequences, both intended and non-anticipated. Since private organizations fulfill important roles in access to social rights and services, constitutional rights can be enforced directly against private powers. Indigenous peoples’ rights have been recognized with a vision and scope that do not fit liberal constitutionalism. This has prompted clashes with powerful economic interests and

x

Comparative constitutional law in Latin America

empowered environmental movements in ways not envisaged by constitution makers. Courts have been imaginative in constructing arguments and remedies aimed at coping with stormy social, economic, political and cultural issues. Nevertheless, the Spanish language has kept these judicial creations invisible to the English-speaking academic community. The rising of the courts has not muted political actors who maintain a leading role in constitutional creation and transformation. Constitutions are frequently produced and amended. The region is a paradise for institutional designers. The interplay between constitution drafting and judicial constitutional interpretation has been overlooked since Latin America was simplistically associated with the notion of “paper constitutions.” This volume clearly demonstrates that Latin American constitutions bite. It also presents new perspectives to recurrent topics and debates which may enrich comparative constitutional law in other regions of the world, both in the Global South and the Global North. It would not surprise me if comparative constitutional law in Latin America were divided into “before and after” Rosalind Dixon’s and Tom Ginsburg’s breakthrough in editing this book.

1. Comparative constitutional law in Latin America: an introduction Rosalind Dixon and Tom Ginsburg Comparative constitutional law is a field that purports to be truly global in nature. Yet in recent years some scholars have suggested that the field suffers from a clear disciplinary bias or blind spot: it tends systematically to overlook the constitutional challenges and experiences of “the Global South” (Maldonado 2014, p 5). In economics, the Global South critique is generally understood to be a critique about the distribution of global wealth and resources: if the “North” is defined as North America, Western Europe and economically developed parts of East Asia, the North is then home to only 25 per cent of the world’s population, but controls 80 per cent of the world’s wealth. Ninety-five per cent of citizens living in the North have access to enough food, shelter and a functioning education system, whereas in the global “South” – i.e. Africa, Latin America, the Middle East and developing Asia – this figure is closer to 5 per cent. In constitutional law, the critique is somewhat different: it is that comparative constitutional law scholarship has tended to focus on the problems and challenges facing wealthy, consolidated constitutional democracies – i.e. challenges such as how best to balance commitments to individual rights and security, to respond to problems of reasonable disagreement in the context of the interpretation and enforcement of first-generation constitutional rights, or realize the claims of progressive generations to full social inclusion – while ignoring key challenges facing less wealthy and stable democracies, particularly those related to socioeconomic distribution (Maldonado 2014; Hirschl 2014). These challenges arise with different degrees of intensity in different parts of the Global South. In the last few decades, some parts of the Global South have enjoyed extended periods of democratic government, and economic growth and prosperity, while others have faced renewed threats of state failure, civil war, famine, public health crisis and rising 1

2

Comparative constitutional law in Latin America

inequality (Stokke and Tornquist 2013; Kahn 2016; Mitlin and Satterthwaite 2013; Pop-Eleches and Robertson 2015). Some countries within the Global South have also clearly received more attention from comparative constitutional scholars than others: as Ran Hirschl (2014) notes, countries in the Global South such as South Africa, India and Colombia have hardly been overlooked by comparative scholars working in the Global North (pp 220–1). Indeed, the experience of these countries has been the subject of a rich and vast array of work by comparative scholars in the last decade (Choudhry, Khosla and Mehta 2016; Issacharoff 2015; Tushnet and Khosla 2015; Khosla 2012; Roux 2013; Landau 2012; Dixon and Landau 2015; Landau and Dixon 2015; Young 2014; Young and Lemaitre 2013). It is still true, however, that in relative terms the experiences and challenges of many countries in the Global South have been underrepresented in comparative constitutional law scholarship. We were aware of this danger when we edited our first volume on Comparative Constitutional Law (2011), and proud that that volume included the work of numerous scholars working in, or originating from, the Global South (see e.g. Cheibub and Limongi 2011; Davis 2011). But inevitably, our own work suffered from the same flaws as other attempts to create a truly global survey of comparative constitutional developments: in its selection of both case studies and authors, it tended to give disproportionate space to North America and Europe, at the potential expense of Africa, Latin America, the Middle East and Asia. We have sought since then quite explicitly to address this deficit by following this initial global work with a more regionally focused companion volume on Comparative Constitutional Law in Asia (2014). We are delighted with the reception this work has received, and the way in which scholars working in Asia and elsewhere have responded to the attempt to provide a more nuanced picture of the full variety of comparative constitutional law experience worldwide, and particularly in countries that tend to be neglected by more traditional approaches to comparative constitutional law originating from the US and Europe. This volume, on Comparative Constitutional Law in Latin America, is in many ways simply the next chapter in this project – i.e. an attempt to develop a more complete, and truly global, approach to comparative constitutional law and legal studies. Our approach has been to pursue general themes – equality, judicial power, the organization of government – in a regional context, threading the needle between universalism and an approach that focuses only on single countries in isolation. A focus on Latin America is a logical “next step” in this project for a number of reasons. It is a continent of enormous demographic and

Comparative constitutional law in Latin America

3

economic importance: it has a population of over 600 million, and nominal GDP of 6 trillion dollars. It has close ties to the US and Australia, where our own work as scholars is grounded. And it is a continent with an extremely long and rich history of written constitutionalism. The combination of a large number of countries with long histories of independence, as well as periods of great instability, means that Latin America has produced roughly a third of all constitutions in independent nation-states since 1789. It is the region in which the amparo proceeding, a judicial remedy specifically conceived for the protection of constitutional rights against harms or threats inflicted by authorities on individuals, was developed (Brewer-Carias 2009, p 1), and in which courts have been increasingly called upon “to decide a litany of hot-button social, political, and economic questions” (Helmke and Rios-Figueroa 2011, p 1). In doing so, they have also often developed “creative arguments and solutions” which have gone “largely unnoticed in the English-speaking world” (GonzalezBertomeu and Gargarella 2016, p 1; see also Gargarella 2013, p vii). Latin American “social rights constitutionalism” has also made key contributions to the law, both in institutional and academic terms, with repercussions in other regions. As Rodriguez-Garavito (2015) has identified, by studying the Latin American experience, “former critics have come to embrace the idea of enforceable socio-economic rights and they have been incorporated into debates about US and European constitutional theory” (p 9). It is also the “home” or birthplace of the Global South critique in comparative constitutional law (Maldonado 2014). Of course, as with Asia, there are dangers to any kind of regionally based approach to comparative constitutional studies. Regions are themselves large and internally diverse, as is certainly true of both Asia and Latin America. Attempts to canvass constitutional developments across an entire region will thus often themselves suffer from the same flaws as truly global approaches to comparative constitutional scholarship: they will often overlook important, but understudied, countries and case studies, which tend to challenge rather than confirm existing constitutional understandings. The volume, however, explicitly invites contributors to take a more fine-grained and selective approach to constitutional developments within the region, and to focus in a more sustained, in-depth way on developments in a particular subset of countries. The result is also consistently a rich and illuminating – if not always regionally representative – set of insights. As one would both hope and expect, the project of broadening the comparative constitutional law canon has also evolved in a number of distinct ways, as it has been applied to and developed in a Latin

4

Comparative constitutional law in Latin America

American context. First, compared to Constitutional Law in Asia (2014), this volume on Latin America includes a far larger number of contributions from new authors, not part of our original 2011 volume. This reflects the increasing depth and richness of the field of comparative constitutional studies in the region: there are now so many talented scholars working on constitutionalism in Latin America, who have deep knowledge of both regional and global constitutional archetypes, patterns and developments, that it simply seemed wrong to overlook them in compiling the list of contributors to this volume. One might in fact say the same about constitutional scholarship on Asia. Comparative Constitutional Law in Asia (2014) was certainly deeply enriched by the dialogue that occurred during its preparation between scholars working in the US, Australia and Europe, and those situated in Asia (see Harding and Bui 2016). Since 2011, when this dialogue occurred, the number of scholars working on constitutional developments in countries across the globe has also rapidly and notably increased. Second, compared to prior volumes, this volume includes work by many more scholars who are critical or skeptical of the democratic constitutional project. Our 2011 volume includes numerous valuable contributions along these lines, including a wonderful chapter by Petter on the relationship between transnational and national governance in North America, with particular attention to the loss to meaningful democratic self-government created by NATO. This volume, however, goes much further in drawing on the work of scholars critical of liberal democratic constitutionalism. Helena Alviar Garcia, for instance, in analyzing the right to property in the region concludes that even quite left-leaning “social” and “dependista”-influenced approaches to constitutional property rights are limited in their capacity to promote economic redistribution in Latin America. Redistribution, she argues, is stalled by the coexistence of different definitions of property; the concentration of public resources for economic development plans that privilege a liberal classical view of growth, property and distribution; existing conflicts between access to land, the right to work and the right to develop enterprises, [and by] the contradictions between identities at the margins – indigenous groups, Afro-descendants and peasants – who may be provided with collective titles to property (p 154).

Javier Couso likewise suggests that, in the domain of socio-economic rights, the Latin American experience points to clear limits on the capacity of constitutions to achieve social and economic transformation, when implemented against a backdrop of the Washington consensus, or

Comparative constitutional law in Latin America

5

increasing global “neoliberalism” (p 12). Against this backdrop, Couso notes, the evidence from Latin America seems to be that “courts can achieve something in terms of individualized justice, nothing in terms of transforming the overall neoliberal model, and much in terms of raising consciousness regarding the injustices and other problems that the latter generates” (p 12). Similarly, in surveying the right to equality in the region, Roberto Gargarella argues that “[i]n spite of its strong declarations of constitutional rights, Latin America is the most unequal region in the world.” Part of the reason for this, he argues, is that contemporary constitutionalism “does not seem to recognize the peculiar place occupied by the ‘organic’ part of the Constitution,” and has thus focused too greatly on individual rights, at the expense of changes to this more structural aspect of the constitution – or what is ultimately the real “engine room” of political change (pp 12–14). One of the important questions we invite readers to reflect on as they engage with this work is whether this is the product of the distinctive critical legal training received by many leading Latin American constitutional scholars, or rather the product of some deeper failure or tension within democratic constitutionalism in the region. Another possibility is that it simply reveals tensions within any democratic constitutional project: the conflict between different aims and ideals on the part of different democratic actors will mean that any notion of “substantive” constitutional success in this context is an illusory ideal. Instead, success can only be measured in more procedural or institutional terms, whereby the focus is on whether constitutions help promote greater democratic consciousness, debate, dialogue and mobilization around issues of social, economic and political justice (cf Ginsburg and Huq 2016; Dixon and Roux forthcoming). Third, several of the chapters in this volume explore the relationship between constitutionalism and political thought or ideology, in ways that take the collection in a new direction compared to prior work on global constitutional patterns, and Asian constitutionalism. Couso, for example, considers how constitutions in many Latin American countries have been the site of a deep contest between social democratic and neoliberal ideas: he suggests that Latin America is in fact a highly valuable laboratory for studying “what happens when justiciable socioeconomic rights are inserted into a neoliberal economic system” (p 12). Chapters by Zachary Elkins and Mark Tushnet likewise explore, from somewhat different directions, the role of Bolivarian political thought and ideology on the evolution of constitutional government in the region. An important question raised by these contributions is thus how we should react, as comparative constitutional scholars and observers, to this

6

Comparative constitutional law in Latin America

nexus between constitutional law and political ideology: should we regard it, for example, as an authentic expression of the distinctive ideas and understandings of a particular people, at a given historical moment, and thus a welcome rejection of a more one-size-fits-all approach to democratic constitutionalism (cf Versteeg 2014)? Or should we see it as representing a far more deliberate, self-conscious attempt by certain political elites in Latin America to manufacture support for their regimes, in ways that are far more suspect from the perspective of a commitment to democracy (see e.g. Landau 2012; Dixon and Landau 2015). A final distinction is that, compared with other volumes, the approach in this one is more interdisciplinary. The contributions by Gabriel Negretto and Elkins, for example, examine constitution making and the Bolivarian texts from a political science perspective, using the lens of large-n or empirical constitutional analysis. Tushnet, while conducting a text-based analysis of various Bolivarian constitutions, uses a “word cloud” to determine the frequency of certain language in these constitutions: using this technology also finds that, despite some similarity in the participatory institutions these constitutions create and more standard liberal models of citizen participation, the language of these constitutions is quite distinctive in its emphasis on the notion of a “shared” model of governance (or in use of words such as “publíco, publíca and social”). And other contributions, such as those by Gargarella and Julieta Lemaitre, seamlessly integrate political, historical and legal analysis, while paying particular attention to the role of social movements as well as broader ideas and ideologies within the region. Beyond these distinctions, the chapters can be divided into four broad groups. A first group concerns constitutional formation and legitimacy. In his chapter on constitution making, Negretto reviews the general literature, both normative and empirical, on constitution making, and then tests various questions about the relationship between constitution-making procedures and constitutional endurance using a unique Latin American dataset; while Joel Colón-Ríos traces notions of constituent power in Latin America, focusing on historical examples of Venezuela (1811), Colombia (1886), Bolivia (1967), and Ecuador (2011). A second set looks at specific constitutional histories and models, with particular attention to the Bolivarian cases which have attracted a good deal of interest in recent years. Lucas Lixinski examines the crucial issue of transitional justice in the region, while Elkins and Tushnet focus on the Bolivarian cases: Elkins develops a set of tests to show that these constitutions are especially influential in terms of their style, perhaps even more than content, while Tushnet conducts a detailed textual

Comparative constitutional law in Latin America

7

analysis of these constitutions, to determine the extent to which they represent distinct models of non-liberal constitutionalism. A third set looks at specific constitutional rights and structural provisions. Alviar Garcia examines the right to property, in particular its social and ecological functions. Couso looks at other economic provisions of constitutions in the region, and in particular the connection between constitutional socio-economic rights guarantees and increasing global commitments to free-market policies. Gargarella traces the rise of substantive understandings of the right to equality in the region, but also its limits in terms of true social and economic transformation and redistribution. And a fourth set looks at courts and adjudicative techniques. David Landau’s chapter grapples with the role of constitutional courts in the region in the context of constitutional guarantees of socio-economic rights, and guarantees of same sex equality. Carlos Bernal focuses on how courts in the region approach the adjudication of social and economic rights. Raul Sanchez Urribarri reviews the comparative judicial politics literature and examines the factors that lead to judicialisation, focusing on the empowerment of constitutional courts within the region, while Oscar Vilhena Vieira cites theories of political insurance and hegemonic preservation as explanations for the rise of powerful courts in countries such as Colombia and Brazil (compare Ginsburg 2003; Hirschl 2007), as well as the important institutional differences between courts in the two countries. Alexandra Huneeus, in turn, looks at the role of the Inter-American Court of Human Rights in protecting human rights in the region, and both the power and limits of that role. Ultimately, we must leave for others to decide what a volume such as this can contribute to broader comparative constitutional thinking in scholarship, particularly in terms of the lines of new inquiry and analysis it invites or opens up. We note, however, several distinctive themes raised by the extremely rich and impressive contributions to this volume, in addition to those already discussed. First, the chapters highlight the importance of considering non-liberal constitutional models, as a potentially distinctive constitutional model. At the outset, Elkins shows that it is in fact meaningful to examine the constitutions of Venezuela (1999), Bolivia (2008) and Ecuador (2009) as a potentially Bolivarian model. He finds that, if one compares these constitutions to the full set of constitutions worldwide, across time, they are notably distinctive in their length: in fact, they are 20,000 words longer than they should be, controlling for regional and time-fixed effects (p 9). They also have strong textual similarities, particularly in the domain of individual rights: the three constitutions have very high textual

8

Comparative constitutional law in Latin America

similarities scores (p 14), and more rights in common than one would expect, given their shared temporal and geographic setting (p 15). Indeed, Elkins finds that “the effect of their being Bolivarian is even greater than the effect of these contextual” factors in predicting their scope (p 15). Tushnet then goes to engage in an even closer textual reading of these constitutions, to determine whether they are in fact evidence of a distinctive, non-liberal alternative to traditional constitutional models. Specifically, he focuses on the idea of these constitutions as “plurinational” (i.e. giving recognition to both non-indigenous and indigenous nations within the state, or the idea of multiple competing sovereignties), as one potential indicator that they have such a distinctive status. Ultimately, he concludes that all three constitutions are at once “traditional and new, liberal and pluri-national”, or in key ways glosses or improvements on, rather than true alternatives to, liberal constitutional models. If one examines the preamble to such constitutions, their general language and institutions, they clearly reflect both distinctive plurinational ideas about indigenous empowerment, recognition and the environment and traditional liberal ideas – about multiculturalism (p 15), a unified system of justice (in Venezuela and Bolivia) (p 20) and ordinary democratic mechanisms for citizen participation. But the focus on plurinationalism nonetheless helps expand our understanding on the global constitutional canon, and also of how new ideas and institutions are added to that canon: Tushnet notes the role of both Bolivarian political movements and internal processes of learning and borrowing, among these countries, as key forces driving the progressive evolution of plurinational constitutional ideas. Similarly, in examining constitutional property rights in the region, Alviar explores three distinctive conceptions of property rights, at least one of which in recent years is quite distinctive to Latin America: the liberal view of property, the “social view,” that sees property as serving a social function, which entails responsibilities for individual property holders; and a “dependista”-inspired view, which protects private property and caused a major redistribution of resources toward the state. At the same time, Alviar argues that the conflict between these different conceptions of property, and the gap between constitutional law on the books and in action in Latin America is itself a major obstacle to effective economic redistribution, or the redistribution of rural land. Via a focus on countries in the region, and particularly Colombia and Bolivia, she thus highlights both new models and understandings of property rights and new understandings of how these models can intersect or conflict, in ways that serve as an obstacle to economic and political change.

Comparative constitutional law in Latin America

9

In exploring the right to equality in the region, Gargarella likewise notes an important distinctive dimension to understandings of substantive equality within Latin America – i.e. the “limited” but nonetheless distinctly egalitarian reforms adopted in the last few decades giving indigenous groups a right to “consultation” in various contexts (pp 14–16). Gargarella also notes the consistent conflicts and difficulties with the implementation of this right, and the degree to which its implementation is limited by “neo-developmentalist” governments committed to the exploitation of natural resources, even over the objections of relevant indigenous communities (p 15). Drawing on the Latin American experience in this, and other contexts, he thus suggests that there is a pressing need for scholars of constitutional equality to devote greater attention to the “engine room” of constitutional change – i.e. the structural or organic, not simply rights-based dimensions to a constitution, even if what we are concerned about is primarily the realization of rights themselves. In this way, we believe that the volume serves as a powerful confirmation of the benefits of a “bottom up” approach to broadening the agenda for comparative constitutional law scholarship, drawing on a broad variety of comparative experiences – the capacity for a more truly global approach to comparative constitutional law to generate new lines of inquiry and analysis, by reference to the distinct challenges and problems facing constitutional systems outside the US and Europe. Equally, we believe that the volume confirms the benefits of a more “top down” approach to broadening comparative constitutional enquiry – i.e. the degree to which attention to a broader range of comparative case studies can refine our existing constitutional assumptions, categories and understandings. In examining different processes of constitution making in the region, for instance, Colón-Ríos notes two broad approaches to constitution making, or understandings of constituent power: first, the “constituent power of the nation” approach, and second, “constituent power of the people” approach. He also traces the dominance of the first approach in various actual processes of constitution making in the region, in Venezuela in 1811, Colombia in 1886 and Bolivia in 1967, and the rise of a second model in more recent processes of constitution making in Ecuador (2008). This, he suggests, can also be understood as further evidence for a more general global trend toward increased popular participation in processes of constitution making (p 19). At the same time, he notes that close attention to the Latin American experience in this context reveals the important ways in which the two models ultimately intersect or overlap: one notable example is the way in which

10

Comparative constitutional law in Latin America

the idea of the “constituent power of God” has played a role in both settings (pp 2, 19). Similarly, in analyzing processes of constitution making in 18 Latin American countries from 1900 to 2014, Negretto helps refine existing global constitutional understandings of the relationship between procedures for constitution making and various substantive outcome variables, such as the endurance of a constitution. First, Negretto constructs a new set of categories for comparing or “coding” different constitution-making procedures, which considers the legality of the process, the body charged with making a constitution, the rules governing representation in such a body, and procedures and requirements for citizen participation. Second, he surveys the different theoretical understandings of how procedural variables of this kind may contribute to the substantive “success” or endurance of a constitution, and goes on to test these different hypotheses by examining the empirical relationship between these variables and outcome measures, such as the absolute duration or endurance of a constitution, or its duration during competitive elections (p 14). Ultimately he finds that few procedural variables have any statistically significant effect on these outcomes (only legal continuity and the type of constituent body have any statistically significant effect, and one that is negative) (p 24). He thus concludes that while constitution-making procedures may matter for very short-term, political outcomes, they are unlikely to have sustained long-term impact. He also suggests that the correlation he does find is most likely due to the fact that the selection of procedural rules will often reflect “the preferences and relative bargaining power of constitution makers [at] the particular historical juncture that triggered the process,” and not the independent effect of those procedural rules themselves (p 28). In this way he also contributes an extremely important refinement to existing global studies of the relationship between constitutional procedures and endurance (cf Elkins, Ginsburg and Melton 2009). Lixinski, in examining models of transitional justice in the region, notes the degree to which the actual practice and implementation of such models inevitably overlaps and shifts over time. Moreover, he suggests that this is not simply the product of “learning” over time, or the consequence of Latin America having pioneered transitional justice experiments, but also the social and political power of various actors in different countries, influenced in part by the “global justice” movement. Lixinski also suggests the distinctive lessons from Latin America as to the ripple effects of choices about transitional justice on other, later, constitutional design choices.

Comparative constitutional law in Latin America

11

Huneeus, in examining the Inter-American Court of Human Rights and constitutionalism in the region, notes the quite different institutional scale and resources of the court, compared to both national counterparts and the European Court of Human Rights, and the puzzle this poses for explaining the court’s quite significant influence in the region. She notes, however, that the court has carefully calibrated its interventions in particular areas, so as to use doctrines (such as the doctrine of “conventionality control”) which directly enlist national courts in the region as partners in the process of implementing the Inter-American Convention. Attention to these patterns thus helps enrich and complicate existing global understandings of the relationship between regional and national courts. The Latin American experience may also offer new perspectives on long-standing debates about the legitimacy of supra-national forms of judicial review: while the Inter-American Court has been criticized for its active intervention in national politics, Huneeus suggests that the regional–national dialogue created by the conventionality control doctrine may provide an important answer to these objections. Alviar Garcia, in examining constitutional property in the region, focuses on the gap between law on the books and law in action – and identifying a range of practical obstacles to land redistribution, often hidden by more abstract, global accounts of the right to property of the kind developed by comparative constitutional scholars. Similarly, in examining patterns of church–state relationship in Latin America, Lemaitre identifies three broad models of disestablishment. These are, in decreasing order of hostility to some form of interrelationship of this kind, the anticlerical, laicidad and cooperation models. She also goes on to show how the way in which these different models play out in various countries in the region ultimately depends on “the paths of disestablishment in each national history, and on the results of the successive struggles over its meaning.” She thus encourages comparative constitutional scholars to adopt a more nuanced, sociologically grounded understanding of models of church–state relationship more generally; and further, to adopt an approach that is strongly gender conscious. One of the key distributive consequences of different models of church–state relationship in the region, she suggests, is in the domain of sexual and reproductive rights. It is also impossible to understand the struggles over these issues in different countries “without a thick description of the cultural context, rooted in 200 years of constitutional conflict over Church–State separation” (pp 4, 18–19), and understanding of the role played by transnational forces and ideas – i.e. the role of foreign courts, international organizations and the Catholic Church in particular (pp 17–20).

12

Comparative constitutional law in Latin America

Bernal, Landau, and Sanchez Urribarri, in turn, all grapple with global debates over convergence in constitutional law, using Latin America as an important additional test of these broader theories. Bernal, in his chapter on the constitutional protection of economic and social rights, notes the relatively high level of convergence in the substantive standard used by courts in the region in the adjudication of such claims, and in particular in the use of the “minimum core” doctrine in countries such as Colombia, Costa Rica and Brazil. He suggests that there are only two broad exceptions to this dominant trend: a greater reliance on a test of “proportionality” in Argentina, and a weaker or deferential approach in countries such as Venezuela, Bolivia, Nicaragua and Ecuador (pp 13–14). The explanation for this convergence toward a strong-form, minimumcore-based standard, Bernal further argues, is also clearly not that it is universally accepted by scholars and judges globally, or free from criticism. Indeed, he notes criticism of the standard, by a variety of scholars including one of us (Dixon 2007), and his own work seeking to develop an alternative proportionality-based approach. Instead, he suggests, the explanation is likely two-fold, and far more particular to the particular pattern of constitutionalism in Latin America, involving (i) the diffusion of constitutional ideas within the region, and the role of the Inter-American Court of Human Rights and encouraging a strong rather than weak approach to the enforcement of various rights, and (ii) both the need and opportunity for courts in countries such as Colombia, Costa Rica and Brazil to adopt an approach to social rights that attempts to “compensate for the predominance of the president and the deficit of political control by the Parliament” in the domain of social and economic policy (p 16). Conversely, drawing on case studies of both socio-economic rights enforcement and same-sex relationship recognition, Landau makes the point that superficial or textual convergence has not led to convergence in fact; even transnational cross-pollination of judicial doctrines and interpretive theories has not led to convergence at the level of outcome. Besides the usual local variables, he emphasizes differences in judges’ conception of their own role across the region as equally important to explaining this divergence at the level of substance outcomes. These conceptions, Landau suggests, may not be wholly immune to change – either over time, or as a product of deliberate legal and political attempts at reform – but they are clearly difficult to change, in ways that pose barriers to the rapid substantive diffusion of various constitutional ideas within the region. Similarly, in writing about constitutional courts in the region, both Sanchez Urribarri and Vieira note that only some countries in Latin

Comparative constitutional law in Latin America

13

America have witnessed the dominant global trend of increasingly powerful constitutional courts (see e.g. Tate and Vallinder 1995; Hirschl 2004). Countries such as Colombia and Costa Rica have clearly seen the rise of constitutional courts with what they call “a protagonist” or “super-court” role in the political life of their respective countries. But equally, other courts in the region have been much weaker or less significant as a force in democratic politics – either because they are controlled or perceived to be controlled by external political actors (such as in Ecuador under a Paraguayan Venezuela), or because they have chronic internal institutional weaknesses (e.g. Venezuela). In noting these patterns, Landau, Sanchez Urribarri and Vieira thus also make an important general point about the different levels at which constitutional convergence may or may not occur (see e.g. Law 2008; Tushnet 2009; Dixon and Posner 2011). Even superficial textual convergence, of the kind that exists in a number of areas in Latin American constitutions, may not lead to more substantive convergence in constitutional outcomes if there are sufficient differences across countries in institutional structures, or theories of various institutions’ role in enforcing those textual guarantees, or major differences in social and political conditions (Landau; Vieira). Further, they suggest that greater attention to the limits on substantive or deep convergence in courts’ role in the region has the potential to offer a number of important payoffs: attention to such differences, Landau argues, may actually help point us to the importance of locating judicial review, and its function, within the particular political context and challenges facing a country, rather than (simply) more universal theories of constitutional rights. Similarly, Sanchez Urribarri suggests that attention to weak, as well as strong, constitutional courts within the region can help us gain a better understanding of the mechanisms by which courts become weakened, or captured in this way, and thus also the potential pathways for future “improve[ment] in the quality of the judiciary in Latin America and beyond” (p 14). We do not expect this volume to be the only, or last, word on comparative constitutional law in Latin America. There are already numerous other monographs and edited collections, in English and Spanish, that complement this work, and that ideally should be read alongside it. We can also look forward in the near future to the publication of an even more comprehensive and encyclopedia-like treatment of constitutional law in the region, with the forthcoming publication of the Oxford Handbook of Comparative Constitutional Law in Latin America.

14

Comparative constitutional law in Latin America

Each volume of this kind, however, contributes in important ways to broadening and deepening existing conversations about comparative constitutional law and practice. By connecting this volume to earlier work on comparative constitutional patterns (Ginsburg and Dixon 2011; Dixon and Ginsburg 2014), we also believe that this volume makes a distinct and important contribution to that conversation.

REFERENCES Brewer-Carias, Allan R. 2009. Constitutional Protection of Human Rights in Latin America: A Comparative Study of Amparo Proceedings. Cambridge: Cambridge University Press. Cheibub, Jose Antonio and Fernando Limongi. 2011. “Legislative-Executive Relations.” In Comparative Constitutional Law, edited by Tom Ginsburg and Rosalind Dixon. Cheltenham: Edward Elgar Publishing. Choudhry, Sujit, Madhav Khosla and Pratap Bhanu Mehta (eds). 2016. The Oxford Handbook of the Indian Constitution. Oxford: Oxford University Press. Davis, Dennis M. 2011. “Socio-economic Rights: Has the Promise of Eradicating the Divide between First and Second Generation Rights Been Fulfilled?” In Comparative Constitutional Law, edited by Tom Ginsburg and Rosalind Dixon. Cheltenham: Edward Elgar Publishing. Dixon, Rosalind. 2007. “Creating Dialogue about Socioeconomic Rights: Strongv. Weak-Form Judicial Review Revisited.” International Journal of Constitutional Law 5: 391–418. Dixon, Rosalind and Eric Posner. 2011. “The Limits of Constitutional Convergence.” Chicago Journal of International Law 11(2): 399–423. Dixon, Rosalind and Tom Ginsburg (eds). 2014. Comparative Constitutional Law in Asia. Cheltenham: Edward Elgar Publishing. Dixon, Rosalind and David Landau. 2015. “Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment.” International Journal of Constitutional Law 13(3): 606–38. Dixon, Rosalind and Theunis Roux. Forthcoming. “Introduction.” In Constitutional Triumphs, Constitutional Disappointments: A Critical Assessment of the 1996 South African Constitution’s Local and International Influence, edited by Rosalind Dixon and Theunis Roux. Elkins, Zachary, Tom Ginsburg and James Melton. 2009. The Endurance of National Constitutions. Cambridge: Cambridge University Press. Gargarella, Roberto. 2013. Latin American Constitutionalism, 1810–2010: The Engine Room of the Constitution. Oxford: Oxford University Press. Ginsburg, Tom. 2003. Judicial Review in New Democracies: Constitutional Courts in Asian Cases. Cambridge: Cambridge University Press. Ginsburg, Tom and Rosalind Dixon (eds). 2011. Comparative Constitutional Law. Cheltenham: Edward Elgar Publishing. Ginsburg, Tom and Aziz Huq. 2016. Assessing Constitutional Performance. Cambridge: Cambridge University Press.

Comparative constitutional law in Latin America

15

Gonzalez-Bertomeu, Juan F. and Roberto Gargarella. 2016. “Introduction.” In The Latin American Casebook: Courts, Constitutions and Rights. London: Routledge. Harding, Andrew and Ngoc Son Bui. 2016. “Recent Work in Asian Constitutional Studies: A Review Essay.” Asian Journal of Comparative Law 11. Helmke, Gretchen and Julio Rios-Figueroa. 2011. “Introduction.” In Courts in Latin America, edited by Gretchen Helmke and Julio Rios-Figueroa. Cambridge: Cambridge University Press. Hirschl, Ran. 2004. Toward Juristocracy. Cambridge, MA: Harvard University Press. Hirschl, Ran. 2007. Towards Juristocracy: The Origins and Consequences of the New Constitutionalism. Cambridge, MA: Harvard University Press. Hirschl, Ran. 2014. Comparative Matters: The Renaissance of Comparative Constitutional Law. Oxford: Oxford University Press. Issacharoff, Samuel. 2015. Fragile Democracies: Contested Power in the Era of Constitutional Courts. Cambridge: Cambridge University Press. Kahn, Haroon A. 2016. The Idea of Good Governance and the Politics of the Global South: An Analysis of Its Effects. New York: Routledge. Khosla, Madhav. 2012. The Indian Constitution. Oxford: Oxford University Press. Landau, David. 2012. “The Reality of Social Rights Enforcement.” Harvard International Law Journal 53(1): 189–247. Landau, David and Rosalind Dixon. 2015. “Constraining Constitutional Change.” Wake Forest Law Review 50(4): 859–890. Law, David S. 2008. “Globalization and the Future of Constitutional Rights.” Northwestern University Law Review 102(3): 1277–1350. Maldonado, Daniel Bonilla. 2014. “Introduction: Toward a Constitutionalism of the Global South.” In Constitutionalism of the Global South: The Activist Tribunals of India, South Africa, and Colombia, edited by Daniel Bonilla Maldonado. Cambridge: Cambridge University Press. Mitlin, Diana and David Satterthwaite. 2013. Urban Poverty in the Global South: Scale and Nature. New York: Routledge. Pop-Eleches, Grigore and Graeme B Robertson. 2015. “Democracy and Regime Change in the Global South: Causes and Trends.” In The Oxford Handbook of Transformations of the State, edited by Stephan Leibfried et al. Oxford: Oxford University Press. Rodriguez-Garavito, Cesar. 2015. “Remapping Law and Society in Latin America: Visions and Topics for a New Legal Cartography.” In Law and Society in Latin America: A New Map, edited by Cesar Rodriguez-Garavito. London: Routledge. Roux, Theunis. 2013. The Politics of Principle: The First South African Constitutional Court, 1995–2005. Cambridge: Cambridge University Press. Stokke, Kristian and Olle Tornquist (eds). 2013. Democratization in the Global South: The Importance of Transformative Politics. Basingstoke: Palgrave Macmillan. Tate, C. Neal, and Torbjorn Vallinder (1995), The Global Expansion of Judicial Power. New York: NYU Press.

16

Comparative constitutional law in Latin America

Tushnet, Mark V. 2009. “The Inevitable Globalization of Constitutional Law.” Virginian Journal of International Law 49(4): 985–1006. Tushnet, Mark and Madhav Khosla (eds). 2015. Unstable Constitutionalism: Law and Politics in South Asia. Cambridge: Cambridge University Press. Versteeg, Mila. 2014. “Unpopular Constitutionalism.” Indiana Law Journal 89: 1133–1190. Young, Katharine G. 2014. “The Avoidance of Substance in Constitutional Rights.” Constitutional Court Review 5: 233–243. Young, Katharine G and Julieta Lemaitre. 2013. “The Comparative Fortunes of the Right to Health: Two Tales of Justiciability in Colombia and South Africa.” Harvard Human Rights Journal 26: 179–216.

2. Constitution making and constitutionalism in Latin America: the role of procedural rules Gabriel L. Negretto* The intuition that the constitution-making process matters for the design, durability, or enforcement of constitutions is widely held among policy experts and academics working on comparative constitutional law. If this intuition is correct, then the success of constitutionalism may crucially depend upon the initial selection of certain procedural features. Yet relatively few works have carefully examined the theoretical soundness of general hypotheses about the effects of procedural rules. Some of them make implausible assumptions about chains of causation, while others neglect the existence of potentially opposite effects on equally desirable outcomes. More generally, theories about process effects rarely consider the origins of procedural rules and their interaction with broader institutional configurations and changing contextual conditions. In this chapter, I will review four procedural features that have been important in the making of Latin American constitutions: the legal status of the process, the type of constitution-making body, the degree of elite representation, and the level of citizen involvement. I argue that while some of these features may correlate with relevant outcomes, it is unlikely that procedural rules have an independent causal effect. These rules reflect the distribution of preferences and bargaining power of constitution makers and the historical juncture that triggered the process. I also argue that the long-term success of a constitution depends on ever-evolving practices and interpretations whose connection with initial procedures becomes weaker over time. I provide evidence in support of * I would like to thank Rosalind Dixon and Tom Ginsburg, as well as the participants in the conference Comparative Constitutional Law in Latin America (University of New South Wales, Sydney, 3–4 August 2015) for their helpful comments on a previous version of this chapter. 17

18

Comparative constitutional law in Latin America

this argument based on the experience of constitution making in 18 Latin American countries from 1900 to 2014. The chapter starts with a historical overview of constitution-making processes in Latin America and discusses what procedural features have been important in different political contexts. The second section analyses some of the general hypotheses that have been proposed about the causal effects of procedural features. The third section examines the empirical support for these hypotheses and discusses the dubious status of procedural rules as independent variables. The chapter concludes by discussing why process choices are relevant at the time of creating a new constitution even though the success of the latter may not depend on these choices in the long run.

I. CONSTITUTION-MAKING PROCESSES IN LATIN AMERICA Debates about procedures have been central to the constitution-making experience of Latin America. During independence and throughout the nineteenth century, significant struggles took place about the rules of representation in the constitution-making body. Starting at the beginning of the twentieth century, both during transitions to democracy and within the context of existing democratic regimes, political and legal conflicts emerged about the role of the pre-existing constitution, the design of the constituent body, and the degree of citizen involvement in the process.1 Table 2.1 summarizes these features in the 83 constitution-making processes that took place in the region from 1900 to 2014.

1 Within authoritarian regimes, the role of pre-existing legality and the design of the constitution-making body were important matters but public debate about them was generally limited due to the hegemonic influence of the government on their design and implementation.

Constitution making and constitutionalism in Latin America

19

Table 2.1 Constitution-making procedures, Latin America 1900–2014 Country

New constitution

Use of pre-existing procedures (1)

Constituent assembly (2)

Inclusive representation (3)

Public consultation/ proposals (4)

Popular referendum (5)

Argentina

1949*

Yes

Yes

No (c)

No

No

1994*

Yes

Yes

Yes

No

No

1938

No

No (a)

No (d)

No

No

1945

No

No (a)

No (d)

No

No

1947

No

No (a)

No (d)

No

No

1961*

No

No (a)

No (c)

No

No No

Bolivia

Brazil

Chile

1967

No

No (a)

No (d)

No

2009*

Yes

Yes

Yes

Yes

Yes (e)

1934

No

No (b)

No (d)

No

No

1937

No

No (b)

No (d)

No

No

1946*

No

No (a)

No (c)

No

No

1967

No

No (a)

No (d)

No

No

1988*

Yes

No (a)

Yes

Yes

No

1925

No

No (b)

No (d)

No

Yes (e) Yes (e)

1980

No

No (b)

No (d)

No

Colombia

1991*

No

Yes

Yes

Yes

Yes (e)

Costa Rica

1917

No

No (a)

No (d)

No

No

1949*

No

Yes

No (c)

No

No

Dom. Rep.

1924

No

Yes

No (c)

No

No

1963*

Yes

No (a)

No (c)

No

No

1966*

No

No (a)

No (c)

No

No

1906

No

No (a)

No (d)

No

No

1929

No

No (a)

No (d)

No

No

1945*

No

No (a)

No (c)

No

No

1946*

No

No (a)

No (c)

No

No

1967

No

No (a)

Yes

No

No

1978

No

No (b)

No (d)

No

Yes (e)

1998*

Yes

Yes

Yes

No

Yes (f)

2008*

No

Yes

No (c)

Yes

Yes (g)

1939

No

No (a)

No (d)

No

No

1945

No

No (a)

No (d)

No

No

1950

No

No (a)

No (d)

No

No

1962

No

No (a)

No (d)

No

No

1983*

No

No (a)

Yes

Yes

No

Ecuador

El Salvador

20

Comparative constitutional law in Latin America

Table 2.1 (continued) Country

New constitution

Guatemala 1945*

Use of pre-existing procedures (1)

Constituent assembly (2)

Inclusive representation (3)

Public consultation/ proposals (4)

Popular referendum (5)

No

Yes

No (c)

No

No

1956

No

No (a)

No (d)

No

No

1965

No

No (a)

No (d)

No

No

1985*

No

Yes

Yes

No

No

1906

No

No (a)

No (d)

No

No

1924

No

Yes

No (d)

No

No

1936

No

No (a)

No (d)

No

No

1957*

No

No (a)

No (c)

No

No

1965

No

No (a)

No (c)

No

No

1982*

No

Yes

Yes

No

No

Mexico

1917

No

Yes

No (c)

No

No

Nicaragua

1905

No

No (a)

No (d)

No

No

1911

No

No (a)

No (d)

No

No

1939

No

No (a)

No (d)

No

No

1948

No

No (a)

No (d)

No

No

1950

No

No (a)

No (d)

No

No

1974

No

Yes

No (c)

No

No

1987*

No

No (a)

No (c)

Yes

No

1904

No

No (a)

No (c)

No

No

1941

No

No (b)

No (d)

No

Yes (e)

1946*

No

No (a)

Yes

No

No

1972

No

Yes

No (d)

No

No

1940

Yes

Yes

No (d)

No

Yes (e)

1967

No

Yes

No (d)

No

No

1992*

Yes

Yes

No (c)

No

No

1920

No

Yes

No (d)

No

No

1933

No

No (a)

No (d)

No

No

1979*

No

Yes

Yes

Yes

No

1993*

No

No (a)

No (c)

Yes

Yes (e)

1917*

Yes

Yes

Yes

No

Yes (e)

1934

No

Yes

No (d)

No

Yes (e)

1942*

Yes

No (a)

Yes

No

Yes (e)

1952*

Yes

No (a)

Yes

No

Yes (e)

1967*

Yes

No (a)

Yes

No

Yes (e)

Honduras

Panama

Paraguay

Peru

Uruguay

Constitution making and constitutionalism in Latin America

21

Country

New constitution

Use of pre-existing procedures (1)

Constituent assembly (2)

Inclusive representation (3)

Public consultation/ proposals (4)

Popular referendum (5)

Venezuela

1901

No

Yes

No (d)

No

No

1904

No

No (a)

No (d)

No

No

1909

No

No (a)

No (d)

No

No

1914

No

No (a)

No (d)

No

No

1922

No

No (a)

No (d)

No

No

1925

No

No (a)

No (d)

No

No

1928

Yes

No (a)

No (d)

No

No

1929

Yes

No (a)

No (d)

No

No

1931

Yes

No (a)

No (d)

No

No

1936

Yes

No (a)

No (d)

No

No

1945

Yes

No (a)

No (d)

No

No

1947*

No

Yes

No (c)

No

No

1953

No

Yes

No (d)

No

No

1961*

No

No (a)

No (c)

No

No

1999*

No

Yes

No (c)

Yes

Yes (g)

Total

83

17 (0.20)

26 (0.31)

15 (0.18)

9 (0.11)

16 (0.19)

Competitive

31

11 (0.35)

15 (0.48)

14 (0.45)

9 (0.29)

10 (0.32)

Notes: * Constitutions created and implemented under relatively competitive conditions, defined as conditions where elections took place, at least two independent parties competed for representative positions, and there was no evidence of open government control. (1) Whether the amendment procedure or the institutions established in the previous constitution were used to replace it. (2) Whether the CMB had the creation of a new constitution as its sole or main purpose. If it fulfilled legislative functions, it is coded as constituent assembly only if it lasted longer in its constituent than in its legislative role. (3) Whether the decision rule at the CMB, in interaction with the number of parties represented in it, required the participation of at least two independent parties to approve the constitution. (4) Whether ordinary citizens or civil society organizations were able to express their preferences about constitutional reform in public forums, hearings, or surveys, or were able to submit reform proposals to the drafting body. (5) Whether a referendum was held at the beginning or the end of the process, or both. (a) Constituent legislature. (b) Executive body. (c) One party. (d) Government control. (e) Ratification only. (f) Authorization only. (g) Ratification & authorization.

22

Comparative constitutional law in Latin America

A. The Legality of the Process It may seem paradoxical to evaluate a constitution-making process based on its legality. Constitutions are replaced when they fail to work as legitimate or effective governance structures so that breaking with the pre-existing legal order would appear to be necessary to provide a firm foundation to the new constitution (Kay 1987, 2011). This view is reflected in the traditional distinction between constitutional replacements and amendments. New constitutions are supposed to be created at the founding of a new state, during a transition to democracy, after a revolution, or following the breakdown of the previous legal order, as in a coup. For this reason, constitutional replacements imply a legal break with the past and are not supposed to be regulated by the pre-existing constitution. By contrast, amendments maintain the legal continuity of the constitution in force by making possible periodical adaptations based on its own procedures. In practice, however, this distinction is not always accurate. Whereas the procedural rules for making a new constitution are often created in an extra-legal way, in some cases they are provided by the constitution in force.2 In particular, about 20 per cent of constitutionmaking episodes in Latin America show some form of continuity between the old and the new legal order. This subset of cases goes up to 35 per cent if we look only at constitutions created under relatively competitive conditions. A few constitutions in the early decades of the twentieth century, several in the 1940s, and most between the late 1970s and early 1990s emerged from a process of transition to democracy. These processes have usually been regulated outside the existing constitutional order, either because the pre-authoritarian constitution was suspended or the constitution enacted by the dictatorial regime was not seen as a legitimate legal document. Procedural rules were established by negotiations between the outgoing authoritarian government and democratic opposition forces or by agreement between democratic parties alone. In some cases, however, existing amendment procedures (or a revised version of them) and institutions provided for by the constitution in force served as the basic legal framework to set in motion the constitution-making process. Historically, several constitutions in the region have foreseen the possibility of total or general reforms, which are different from partial reforms or amendments. Such were the cases of the constitutions of 2

See Klein and Sajó (2012) on the distinction between models of constitution making “ex-nihilo” and models of constitution making “by the rules” (pp 425–434).

Constitution making and constitutionalism in Latin America

23

Argentina (1853), El Salvador (1939), Guatemala (1945), Honduras (1894, 1936, 1965), Nicaragua (1893, 1905, 1911, 1950, 1974), Paraguay (1870, 1967), and Uruguay (1934, 1942, 1952, 1967). The provisions of these constitutions were eventually used to regulate the replacement of the existing constitution during the initial years of a transition to democracy in Argentina (1949), Paraguay (1992), and Uruguay (1942).3 Where the constitution in force did not regulate its replacement, in some cases the amendment procedure was amended to authorize the possibility of total reform. This happened, for instance, with the enactment of the 1917 Constitution of Uruguay or with the 1988 Constitution of Brazil. In a transition to democracy, preserving some degree of legal continuity may be part of a compromise between the outgoing authoritarian regime and democratic forces in order to make the process more predictable and changes less radical. This was the case of Brazil. Whereas the most progressive sectors of the Partido do Movimento Democrático Brasileiro (PMDB) wanted to replace the 1967 Constitution and enact a new democratic constitution in an independently elected constituent assembly, the military preferred keeping the 1967 Constitution through a series of amendments implemented by the legislature elected in 1982. As neither actor could impose its preferred option, a compromise was reached so an amendment to the 1967 Constitution would legalize the making of a new constitution by the existing Congress (Martínez Lara 1992; Rosenn 2010). In other cases, the military managed to impose a stronger form of legal continuity, namely the maintenance of an authoritarian constitution in amended form. Such was the case of Chile with the 1980 Constitution reformed in 1989, and the case of Panama with the 1972 Constitution reformed in 1983. If the necessity of a peaceful transfer of power may lead reformers to preserve some legal continuity in a transition to democracy, there may be stronger reasons to do so when constitutions are replaced within the context of already existing democratic regimes. Since the participation of constituted powers is usually crucial in these contexts, it is likely that they would demand some role by using the existing constitution (in its original or revised form) to regulate some basic aspects of the process. This may limit the ambition to mark a “new beginning” by appealing to the constituent power of the people, but it might also secure more inclusion and consensus at the elite level. In addition, a certain level of 3 In Guatemala and Honduras, although most constitutions were enacted without observing the existing amendment procedures, they did work as a model for some aspects of these processes, such as convening a constituent assembly rather than a constituent legislature for the purpose of a total reform.

24

Comparative constitutional law in Latin America

legal continuity may prevent a particular actor, such as a powerful executive, from using citizen participation to bypass other institutions and redistribute power in his own favor. Uruguay is one country whose constitution (which in this regard follows the model of the Swiss Constitution) has systematically been used to replace itself by legal means. Just as the 1942 Constitution was created following the procedures laid out in the 1934 Constitution, so were the 1952 and 1967 Constitutions enacted according to the regulations of the 1942 and 1952 Constitutions respectively. Something similar happened with the 1994 Constitution in Argentina. In other cases, such as in the making of the 2009 Bolivian Constitution and the 1998 Ecuadorean Constitution, the existing amendment procedure was amended or supplemented to give legal foundation to the process. After the forced resignation of Sánchez de Lozada in Bolivia in 2003, a consensus emerged among traditional and new political forces that the country needed a new constitution. The 1967 Bolivian Constitution, however, only allowed partial amendments. To channel the process in a legal manner, in February 2004 the Constitution was amended to make its total reform possible. It was based on this amendment that in 2006 the Bolivian Congress passed a law regulating the election of a constituent assembly to adopt a new constitution (Böhrt 2013). Although it did not amend the Constitution, Ecuador also used a strategy of relative legal continuity to enact a new Constitution in 1998. After the irregular impeachment of president Abdalá Bucaram, the new interim president, in agreement with Congress, convened a legal referendum asking for authorization to elect a constituent assembly (see Negretto 2013a). As a result of the popular support obtained in the referendum, Congress passed a transitory constitutional provision to regulate the election and tasks of the constituent assembly. In practical terms, although the existing amendment procedure was not formally amended, the addition of a transitory provision to the constitution had a similar effect. In both cases, the old constitution worked as a sort of interim or provisional legal framework to regulate the constituent process. Recent cases of constitutional replacement within an established democratic order show what alternatives remain when the constitution does not regulate its own replacement and the existing reform procedure is not amended or supplemented. Colombia offers a consensual model. At the end of the 1980s, the Colombian government decided that a new constitution was necessary to overcome the crisis the country was facing. However, unlike the cases of Bolivia in 2004 and Ecuador in 1997, the government did not choose to amend the amendment procedure or reach an agreement with Congress to provide a legal framework. After an

Constitution making and constitutionalism in Latin America

25

unofficial referendum held in March 1990 showed popular support for the election of a constituent assembly, President Barco issued a decree calling a new (this time official) referendum in the May presidential election. As voters again backed the election of a constituent assembly, on 2 August 1990, Partido Liberal (PL) president-elect Cesar Gaviria signed an agreement with the leaders of the main political forces on the procedures by which the constituent assembly would be elected and function (see Negretto 2013a). A different path was followed in the making of the 1999 Venezuelan Constitution and the 2008 Ecuadorean Constitution, in which the executive established procedural rules unilaterally, not only without amending the respective existing constitution, but also without a formal agreement with the legislature or with opposition parties. Article 246 of the 1961 Venezuelan Constitution envisaged a process of total reform under which Congress could enact a new constitution through a special procedure, which included submitting the amendment to popular ratification. In 1998 this article could not, however, be used as it was written because there was a widespread consensus that the existing Congress lacked the democratic credentials to adopt a new constitution. Those who favored a strategy of legal continuity proposed amending the amendment procedure (subject to popular ratification) to include the election of a constituent assembly in cases of total reform (see Brewer-Carías 2002). The newly elected president, however, was bent on provoking a confrontation with Congress and the traditional parties, so he decided to organize the process outside the existing Constitution, using the mechanism of referendum to legitimize the rupture (Viciano Pastor and Martínez Dalmau 2001). Something similar happened in Ecuador between 2007 and 2008, where the president broke with the previous constitution and bypassed the Congress and opposition parties in defining the rules of the process (Wray Reyes 2013). B. The Constitution-making Body Perhaps the most contested issue about the regulation of a constituent process is the design of the constitution-making body (CMB). A variety of formal and informal collective bodies may play a role in constitution making: constitutional commissions, round tables, national conferences, constituent assemblies, and constituent legislatures. The last two, however, are the most common instances where constitutional texts are deliberated, negotiated, and finally approved (see Ginsburg, Elkins, and

26

Comparative constitutional law in Latin America

Blount 2009).4 Executive bodies, in the form of presidential commissions or presidential advisory councils, have also worked as approval bodies, but they are usually observed during non-democratic periods. Constituent assemblies or conventions are collective bodies created to adopt or propose a new constitution.5 Given this special commission, these bodies are transitional in nature: they must be dissolved after completion of the task. Comparatively speaking, Latin American reformers have had a penchant for using constituent assemblies as CMBs.6 However, special conventions in the American sense of institutions created for the sole purpose of adopting or proposing a new constitution have been as rare in this region as in the rest of the world. The reason is simple. A convention exclusively devoted to the task of writing a constitution should only exist where an ordinary legislature or another government body is simultaneously responsible for enacting regular laws. Yet in the typical scenarios of constitution making, such as the foundation of a new state, a revolution, or a transition to democracy, there is often no legislature, or the one that existed was dissolved or ceased to function in a normal way. This means that unless an interim government is responsible for ordinary law making, even a convention whose main goal is to draft and approve a new constitution may be forced to legislate or exercise other government functions, albeit temporarily. During authoritarian years, electing or appointing a body called a “national constituent assembly” (Asamblea Nacional Constituyente) was a recurrent phenomenon in Latin America. This assembly would be responsible not only for writing a new constitution, but also for appointing the next constitutional president, who invariably was the dictator who had previously reached power through a coup. After enacting the constitution and appointing the new president, this assembly would almost always continue its tasks as an ordinary legislature. During 4 In an analysis of 411 episodes of constitutional replacement that took place around the world between 1789 and 2005, Ginsburg, Elkins, and Blount (2009, p 213) found that in the vast majority of cases, the approval body was either a constituent assembly (103 observations) or a constituent legislature (178 observations). 5 For the purposes of this work, and to remain close to the use of these terms in Latin America, I will refer to constituent assemblies or conventions interchangeably. For a distinction between the term “constitutional convention,” common in the American constitutional tradition, and “constituent assembly,” common in the French and Latin American legal traditions, see Elster (2006). 6 In a sample of 160 constitution-making episodes around the world from 1780 to 2012, Wheatley and Mendez (2013, p 29) find that 12 of the 23 events that used pure constituent assemblies were located in the Latin American region.

Constitution making and constitutionalism in Latin America

27

transitions to democracy, there have been several assemblies that doubled as constituent conventions and ordinary legislatures, or turned into regular legislatures after completing their constituent role. Pure constituent assemblies were formed during some transitions to democracy in the 1980s and have become more common in recent constitutional replacements within already existing democracies (Bejarano and Segura 2013). Yet even in some of these cases the constituent assembly provisionally absorbed (with or without previous authorization) legislative functions. Given that assemblies exclusively focused on constitutional matters tend to be infrequent, I have coded the approval body as a constituent assembly or convention when the latter was created for the sole or main purpose of adopting a new constitution and was dissolved afterwards. This coding includes a few cases in which the assembly’s central task was drafting a new constitution although it occasionally performed legislative activities or passed ordinary laws for a short period of time, until a new legislature was elected. Jon Elster (2006, 2013) has distinguished between pure constituent assemblies and three different types of mixed constitution-making bodies: mandated constituent legislatures, self-created constituent legislatures, and self-created legislating assemblies. All have existed in Latin America. Mandated constituent legislatures are bodies elected to pass a constitution first and then continue to work as ordinary legislatures. They have often been used during transitions to democracy; for example in Brazil (1946 and 1988), the Dominican Republic (1963 and 1966), Nicaragua (1987), or Venezuela (1961). Self-created constituent legislatures are ordinary legislatures that decide (without an electoral mandate and in the absence of constitutional authorization) to transform themselves into a constituent body. Most constitutions enacted in Bolivia during the twentieth century and in Venezuela from 1904 to 1925 were mixed bodies of this type. Self-created legislating assemblies are constituent assemblies that were supposed to dissolve after enacting a new constitution, but decided on their own authority to continue as ordinary legislatures. The 1934 constituent assembly of Brazil fits this category. Elster’s classification is not exhaustive, however. Another type of mixed body, which has existed in Latin America and elsewhere, is an ordinary legislature that can turn itself into a constituent body following a special procedure established in the existing constitution. In Uruguay, for instance, all constitutions since 1934 have authorized the legislature to propose and pass total reforms that would become new constitutions if

28

Comparative constitutional law in Latin America

they were ratified in a popular referendum.7 The Constitutions of 1942, 1952, and 1967 were enacted following these procedures. In these cases, the CMB could be called a constitutionally authorized constituent legislature. As shown in Table 2.1, 52 constitution-making processes in Latin America (63%) used mixed constitution-making bodies, usually some form of constituent legislature.8 The second largest group consists of 26 constituent assemblies, which represents about a third (31%) of the whole sample. Only five cases (6%) correspond to instances of executive constitution making. If we look at constitutions created and implemented under competitive conditions, almost half of the cases (48%) correspond to constituent assemblies and the rest (52%) to constituent legislatures. There are no cases of executive constitution making in this subset. C. Rules of Representation Rules of representation determine how inclusive or exclusive the composition of the CMB is. The main rules in this regard are the mechanisms for selecting its members and its quorum and voting rules. As I will argue, however, it is not the mere addition of these rules that determines the mode of representation but their actual interactive effects. Regardless of what rules we consider, representation in the constituent body has been limited during authoritarian years. This body was often elected in a non-competitive election or directly appointed by the executive to reflect the interests of authoritarian rulers. During democratic or at least competitive periods, most constituent assemblies and legislatures have been directly elected using some form of proportional representation (PR), which has been the prevalent method for electing collective bodies in Latin America since the early decades of the twentieth century (see Negretto 2013a). The degree of proportionality, however, can vary a great deal depending on the formula, the size of the 7

The 1942 Constitution derived from an initiative made by two-fifths of the whole legislature, the 1952 Constitution from agreement between the main parliamentary parties, and the 1967 Constitution from a text proposed by the Colorado and Nacional parties and passed by the legislature. 8 The most frequent form of constituent legislature has been the electorally mandated type (27), followed by self-created (16), and constitutionally authorized (9) ones. Except for one case (Brazil 1934), available historical information makes it impossible to distinguish between true self-created legislating assemblies and electorally mandated constituent legislatures. I have thus eliminated the former category and used the latter every time an assembly was elected to approve a new constitution but continued later as an ordinary legislature.

Constitution making and constitutionalism in Latin America

29

CMB, and the average magnitude of the districts from which delegates are elected. Taking these features into consideration, the 70-member constituent assembly elected in Colombia in December 1990 by a PR Hare formula using the whole country as a single national district counts as the most inclusive. By contrast, the 1966 Dominican Constitution was adopted by a 74-member constituent legislature elected by a PR D’Hondt formula in 27 districts with a low mean magnitude of 2.7. As a consequence, whereas a multiparty coalition was necessary to pass reforms in the Colombian constituent assembly, a single party had control over the constituent Congress in the Dominican Republic. In spite of the widespread use of PR, in some cases the CMB has been elected by majoritarian rules. A plurality formula (whose majoritarian effects were restricted only by the use of the so-called incomplete list) was used to elect the 1949 constituent assembly in Argentina. In Venezuela, the 1998 constituent assembly was elected by a personalized voting system that worked in fact as a plurality formula (see Neuman and McCoy 2001). In Bolivia, the 255-member constituent assembly of 2006–08 was elected using a mixed system with a strong majoritarian component (see Lehoucq 2008). Most delegates (210) were elected in 70 three-member districts, of which two would be allocated to the group obtaining a plurality of the vote and one to the second most voted group. The remaining 45 delegates were elected in 9 five-member districts by a fixed form of proportional allocation (two delegates to the majority list and one delegate for each of the three remaining lists). The use of these formulas led to predictable criticism and conflict between large and small parties because they were meant to favor the former and limit the diversity of political interests represented in the CMB. Although the elective method has been predominant, some democratic constituent assemblies have reserved seats for appointed members of particular groups. In Colombia, for instance, four seats were added in the constituent assembly for appointed members of guerrilla groups. Latin America has no experience with “citizen” assemblies, that is, assemblies where all or part of the delegates are ordinary citizens selected by lot. Most CMBs have had a partisan composition, meaning that delegates belong to and represent the interests and programs of particular political parties. In the last two decades, however, the number of elections allowing independent candidates to compete has increased. In addition, a recent but growing practice in the election of CMBs is the adoption of gender quotas to grant a more equitable distribution of seats between men and women. Another set of key procedural rules that affects the degree of representative pluralism in the CMB consists of the quorum and voting rules,

30

Comparative constitutional law in Latin America

particularly to approve the final text. Most CMBs in Latin America have required an absolute majority (50 per cent plus one) of the total membership to have a valid session. A similar rule has also been required for the approval of reforms in plenary sessions, although sometimes a simple majority (50 per cent plus one of those present and voting) was sufficient to make decisions. Qualified majority requirements have been rare. One example is perhaps the Bolivian constituent assembly, which, following a congressional law enacted in 2006, used a decision-making rule of two-thirds of the members present to approve the final constitutional text. Note, however, that this rule would impose a voting threshold higher than absolute majority only if there are no absentees from the voting session.9 In some cases, although only an absolute majority threshold was required for making final decisions, complementary procedures were adopted to reach an adequate level of consensus. In the 1991 Colombian constituent assembly, for instance, the three main political parties agreed to share the presidency of the assembly, and in addition they allowed members of minority parties to preside over different committees responsible for making proposals on different parts of the constitution (see Dugas 1993). One problem of taking these rules at face value and in isolation is that they may give the wrong impression about their actual effects. For instance, the real impact of the rules for electing a CMB depends not only on the electoral formula, but also on factors that are to some extent exogenous to it, such as the number of parties competing in the election, the number of voters who decide to participate, and the resources that each political group has been able to mobilize in favor of its proposals. These factors, in turn, determine who is elected and (if decision-making rules have not been externally imposed) the quorum and voting rules that the CMB adopts. Looking at the interaction of these effects gives a more accurate picture of how inclusive representation in the CMB was. I have taken into account the decision-making rule and the number of political organizations that won representation in the constituent body to determine how inclusive or exclusive its composition was. Using this perspective, I have defined as inclusive a CMB where an agreement between at least two independent political parties was necessary to approve the constitution. An exclusive CMB, by contrast, is one where a 9 For instance, in the controversial session of December 2007 the final draft of the Bolivian Constitution was approved article by article by two-thirds (109) of the 164 members present. Counted over the total membership, however, the proportion of delegates supporting the text was below 50 per cent.

Constitution making and constitutionalism in Latin America

31

single party or a government-controlled majority is able to adopt the constitution in a unilateral manner. A single party may have reached unilateral decision-making power through competitive or non-competitive elections. Government control, instead, invariably points to authoritarian situations in which the government appointed the members of the CMB or had strict control over their election. Using this conceptualization, Table 2.1 shows that inclusive CMBs represent just 18 per cent of the whole sample. However, they increase considerably, to 45 per cent, if we restrict the sample to competitive cases. D. Citizen Participation The involvement of citizens in constitutional change has widely diverse meanings. The basic form of citizen participation usually takes place through the popular election of the representatives who will propose or decide on the content of the revisions. Yet this is an indirect form of citizen involvement, via the representative process that elections activate. Popular participation usually alludes to more direct channels of citizen influence: formal or informal processes of public consultation (open meetings, participatory forums, hearings), the capacity to make proposals of constitutional reform, and the right to vote on the reforms approved by representatives. Citizen involvement in constitutional change may occur before or during the drafting process. These mechanisms usually take the form of public consultations. The use of public consultations in Latin America has been sporadic and less ambitious than in other regions of the world in terms of generating a national dialogue or including a wide variety of social and political groups. For instance, Latin American countries have not used anything like inclusive national conferences to discuss constitutional principles or promote public consultations. However, more restricted models of public consultation, such as hearings, focus groups, or public forums, can be found in the cases of Brazil (1987–88), Colombia (1990), Nicaragua (1986–87), and Peru (1978–79). Ordinary citizens and civil society organizations may also be involved during the drafting process by being allowed to introduce formal proposals of reform or make comments on preliminary drafts. Processes of this type took place, for instance, in Peru between 1978 and 1979, Brazil between 1986 and 1987, El Salvador in 1983, Nicaragua between 1985 and 1986, Colombia in 1991, Bolivia between 2007 and 2008, and Ecuador in 2008. As in the case of public consultations, the central idea of this form of citizen involvement is that constitution makers receive some input about the needs and preferences of ordinary citizens. In this

32

Comparative constitutional law in Latin America

case, however, participation is supposed to take a more proactive role. In Brazil, for instance, procedural rules allowed for the submission of popular amendments, which required gathering the signatures of more than 30,000 citizens. During the process, 122 reform proposals of this type were formally submitted to the constituent legislature. In the case of Nicaragua, 1,800 citizens submitted comments on the first draft of the constitution (see Miller 2010). One of the main criticisms of previous forms of citizen involvement is that they may work as information-gathering mechanisms without visible consequences in terms of the final decisions made by representatives (Blount 2011). It is not clear in what way the preferences expressed by citizens in participatory forums or in concrete reform proposals submitted to the CMB have an impact on the content of the final text. For this reason, the capacity of citizens to have direct influence over the adoption of a constitution or particular provisions usually takes the form of a referendum. Referendums, in turn, can be implemented at the beginning or at the end of the process, or both. A referendum held at the beginning of the process could be used to decide on particularly important issues. For instance, a referendum was held in 1997 in Ecuador to consult voters about a series of electoral reforms to be adopted later by the constituent assembly. In addition or instead of asking citizens to decide about specific issues, a referendum could also be used to authorize the replacement of the constitution or elect a constituent assembly when the latter is not regulated by the constitution in force. This type of referendum was implemented in Colombia in 1990, in Venezuela in 1998, and in Ecuador in 1997 and 2007. Debates about whether to implement a referendum to consult citizens before creating a new constitution have become important within democratic regimes that have no provisions for constitutional replacement. A more common form of referendum is that held to ratify or reject the proposed constitutional text. This type of referendum has been used in both authoritarian and democratic periods. Examples of the former were the referendums held to ratify the Chilean Constitutions of 1925 and 1980, the constitutional reform of 1983 in Panama, the 1940 Paraguayan Constitution, and the 1993 Peruvian Constitution. In these cases, the validity and transparency of the vote have usually been questioned and the referendum was generally regarded as an attempt to lend an appearance of democratic legitimacy to an essentially exclusionary process. Recent examples of ratification referendums have occurred in competitive years, as in Venezuela in 1999, Ecuador in 2008, and Bolivia in 2009. Yet

Constitution making and constitutionalism in Latin America

33

the democratic credentials of these referendums have also been questioned, particularly in the cases of Venezuela and Ecuador. The reason here is not so much the existence of direct government control or coercion over the vote, as in the authoritarian cases, as the power asymmetry between the dominant party and the opposition and the systematic exclusion of the latter during deliberations and negotiations of the text. Overall, experiences with citizen participation in constitution making have been limited in Latin America. As shown in Table 2.1, citizen participation took place in fewer than 20 per cent of all constitutionmaking episodes. A shared feature of public consultation and proposal submission processes is that most have taken place only recently, in the context of transitions to democracy or within existing democratic regimes. Although some referendums were held in authoritarian years, the use of constitutional referendums has also increased in recent decades. This is why most processes of citizen participation have occurred in the case of constitutions created under competitive conditions and represent larger percentages (29 and 32 per cent) within this subset.

II. LINKING PROCEDURAL RULES TO OUTCOMES Several scholars hold non-instrumental views about the value of procedural rules in constitution making. In this perspective, a particular set of procedures is derived from a normative point of view that usually takes popular sovereignty, democracy, or political autonomy as its point of departure (see Colón-Rios 2012). A less common, but also noninstrumental view evaluates the procedural rules of constitution making based on their ability to remove obstacles to rational decision making (see Elster 2012, 2013).10 Most analyses of constitution-making processes, however, do have an explicit or implicit instrumental view of procedural rules. Proponents of parliamentary constitution making, for instance, usually justify their position on the pragmatic need to include existing parties in the negotiations or prevent institutional conflicts between the ordinary legislature 10

According to Elster (2013), procedural rules should be designed with an eye to removing obstacles to good decisions without pursuing an ideal of what those decisions should be. In his view, this negative form of design is required because there are conflictive normative perspectives about what a good outcome is and even if we choose one of them, it is uncertain what institutions can reliably promote the chosen conception of goodness (p 3).

34

Comparative constitutional law in Latin America

and an independently elected convention (see Holmes and Sunstein 1995). Those who favor participatory processes of constitution making often postulate that citizen involvement would promote the inclusion of rights for social groups which had not up to then gained political protection or recognition (Samuels 2006). In fact, as will see, one can also find some implicit consequentialist arguments involved in noninstrumental perspectives. Several problems affect most general hypotheses about the causal effects of process choices. If we agree on what the relevant procedural features are to consider (not a trivial matter), the most important challenge is to single out an outcome or set of outcomes that can be observed and identified as a consequence of specific rules. Most theories about the impact of procedures presuppose some idea of “success” in constitution making, usually related to the core values of constitutionalism, such as limited government and rights protection, constitutional endurance, or constitutional enforcement. Yet these may be different and not always mutually consistent outcomes. At the most basic level, a successful constitution may be one whose design promotes the liberal ideal of limited government, usually through some scheme of separation of powers. Article 126 of the 1936 Soviet Constitution infamously granted the Communist party a leading role in the state, thus providing the legal foundation for the single party dictatorship that the Soviet system in fact was (see Ginsburg and Simpser 2014). Similarly, Article 182 of the 1967 Paraguayan Constitution provided the president with the prerogative to dissolve Congress if there were events that, according to the president’s interpretation, could endanger the normal functioning of the constitution. Clearly, a constitution containing provisions such as these could not fit any notion of success. Beyond the actual content of the formal text, however, a constitution must last a considerable time (exactly how much time may be controversial, though) in order to stabilize the expectations of citizens and elites about the actions of state actors. A constitution that is replaced a few years after being promulgated (or that is not implemented at all) can hardly count as a successful constitution. From this perspective, then, a constitution that has the “right” content must also endure in order to produce the beneficial effects associated with that content (see Elkins et al. 2009; Negretto 2012). Durability, however, is not the ultimate goal of constitutionalism. A constitution that lasts but does not matter cannot qualify as a successful constitution (Elster 1991). In a recent important book on the determinants of constitutional endurance, Elkins, Ginsburg, and Melton (2009, p 77)

Constitution making and constitutionalism in Latin America

35

consider that the maintenance of the constitution through amendments (or judicial interpretation) is in itself an act of enforcement. This view is debatable, however. Political actors can use existing amendment procedures to adapt the constitution even though its most basic provisions remain a dead letter. Several amendments were legally incorporated into the 1917 Mexican Constitution during the Partido Revolucionario Institucional (PRI) hegemony and into the 1924 Dominican Republic Constitution during the Trujillo era. Yet those constitutions were largely unenforced. Constitutional durability may be a necessary condition for constitutionalism but it is certainly not sufficient. Given the variety of phenomena associated with constitutionalism, it is quite possible that the same procedural rule or organizational form has in practice strictly opposite effects across equally relevant outcomes. For instance, removing the influence of institutional and group interests in a non-partisan constitutional convention may produce an impartial and balanced design in the distribution of powers between branches of government. This design could potentially strengthen governability and generate an adequate level of rights protection. At the same time, however, the same process may provide organized political elites with an incentive to resist a constitutional structure in which they had no influence, thus compromising its chances of future survival and enforcement (see Voigt 2004). One way to avoid this problem is to use democracy as the single or main dependent variable to evaluate the impact of procedures (see Carey 2009; Wheatley and Mendez 2013; Eisenstadt et al. 2015). Democracy may synthesize various notions of constitutional success into a single measure: if the constitution outlines some scheme of separation of powers and rights protection, it lasts a considerable time and is enforced, then we may end up having something close to a full constitutional democracy. The problem is that democracy itself has different components and not all of them relate to the authority and binding effects of the constitution. Most current notions and measurements of representative democracy give more emphasis to how representatives gain access to power through fair and competitive elections than to how they exercise power after being elected. Some gross violations of the constitution may be taken into account, but important variations in constitutional enforcement usually go unnoticed.11 Another possibility is limiting the notion of success to the specific needs of a particular society, as is the case of 11 Some well-known indexes of liberal democracy, such as Polity IV and Freedom House, do have some components related to the rule of law. These components, however, mix and aggregate several factors of a widely different nature.

36

Comparative constitutional law in Latin America

conflict reduction in divided societies (Widner 2008). This approach would certainly facilitate the analysis but it is likely to be useful for only a limited number of cases. I will not attempt to address all the possible dimensions of success in constitution making or exhaust the analysis of the tradeoffs among the different procedural rules that may be related to them. Instead, I will discuss how the procedural features described in the previous section have been causally linked to different outcomes and what the underlying logic of this association is. For the purposes of this discussion, I will concentrate mainly on the procedural options that have been salient in cases of democratic constitution making. A. Legal Continuity vs. Legal Break As I have already argued, some basic aspects of constitution-making processes implemented during a transition to democracy or within an already established democratic regime have used the constitution in force to create a sense of legal continuity. In either case, using existing procedures (or a revised version of them) implies deradicalizing the impact of constitutional change by incorporating institutions and groups of the old order into the making of the new constitution. This strategy may have an impact on the future stability of democracy or the durability of the constitution. Perhaps one of the most repeated lessons derived from the study of transitions to democracy in Latin America and elsewhere was that moderation and accommodation are needed to prevent authoritarian regression (see O’Donnell and Schmitter 1986). From this perspective, even though a radical break with authoritarian institutions might create a stronger sense of democratic legitimacy for the new order, it could also endanger its stability. Based on his analysis of historical and contemporary cases of constitution making, Arato (1995, p 226) has also suggested that preserving legal continuity in a transition to democracy is important both to provide security to the different actors involved and to signal to the population that constitution makers, as well as future rulers, are subject to the law. These arguments imply that using the amendment process to create a new constitution or even maintaining a reformed version of the existing constitution could enhance the survival of both the constitution and democracy. In the case of intra-democratic constitutional change, radical attempts at democratic re-foundation through constitutional rewrites have been linked to the breakdown or erosion of democracy. Although they do not focus on the problem of legal continuity per se, some authors (see

Constitution making and constitutionalism in Latin America

37

Levitsky and Loxton 2013) have argued that populist presidents may be tempted to use the creation of a new constitution as part of their plebiscitarian tactics to produce a constitutional crisis and concentrate power in their own hands. More explicitly, Brewer-Carías (2011) argues that breaking with the pre-existing legality was an essential component in President Chavez’s strategy to dismantle democracy in Venezuela. This literature would then suggest that using existing institutions and procedures to replace constitutions within a democratic regime favors the future preservation of representative institutions. One can also find opposite hypotheses. Viciano Pastor and Martínez Dalmau (2010) derive from the doctrine of the constituent power of the people that only a clean legal break with the past can create a constitution able to promote effective democratic transformations. In a similar vein, but based on the successful American experience with constitution making, Bruce Ackerman (1994) has argued that to have a firm foundation, new democracies should avoid using the existing amendment procedures to create a new legality. Unlike the other arguments, these hypotheses have no foundation in comparative empirical observations; they are the corollary of a normative principle or a lesson obtained from a single case. Opposite expectations may derive, no doubt, from different normative and causal assumptions about the effects of different procedural options. Contradictory hypotheses, however, are also related to the real tradeoffs involved in each strategy. Legal continuity may guarantee a peaceful transition at the cost of maintaining authoritarian structures that could undermine democracy in the long run. A clean legal break with the past may make possible deep constitutional transformations at the cost of creating severe political conflicts that can also erode democratic institutions. B. Constituent Assemblies vs. Constituent Legislatures The choice between using special conventions or constituent legislatures to approve a new constitution has been particularly important in transitions to democracy and in democratic contexts. Since special conventions are often irregular bodies, there is some elective affinity between a radical legal break in constitution making and choosing pure constituent bodies. Yet special conventions can be supported by arguments unrelated to their legal status. For instance, Jon Elster (2006) has proposed that “constitutions produced by conventions tend to have greater legitimacy and hence tend to enjoy greater stability” (p 185). The logic of this argument is that since a convention is elected for the specific task of

38

Comparative constitutional law in Latin America

writing a constitution it makes it possible to organize elections with a view to representing a variety of interests and programs rather than maximizing the representation of a particular group or ensuring stable governance, as might occur with constituent legislatures. For similar reasons, a special convention would provide voters with the opportunity to elect delegates based on their reform proposals and not on other considerations (Elster 2006, pp 186–189). Elster is better known, however, for his theory about the impact of constitution-making bodies on constitutional choice. In several works over the years (Elster 1995, 2006, 2012, 2013) he has argued that, just as an executive CMB would write an important role for itself in the constitution, so a constituent legislature would give a preponderant importance to the legislative branch at the expense of the executive and the judiciary. Elster portrays this outcome as undesirable because in his view personal, group, or institutional self-interest distort the impartial long-term perspective that constitution makers should have in mind when designing a constitution. Based on this perspective, one could also argue that an unbalanced distribution of powers may turn the constitution into an ineffective governance structure. The rationale behind these arguments is debatable. It is clear that a self-created constituent legislature could be deficient from the point of view of the democratic legitimacy of the constitution. Yet there is no reason why an electorally mandated constituent legislature could not be widely representative. At least in democratic contexts, securing diversity in representation is an important concern in the election of most constituent bodies in the contemporary world. This is why constituent assemblies and legislatures alike are usually elected using some form of PR. In addition, voters may also elect members of a constituent legislature on the basis of their positions on constitutional reform. This is the case when making a constitution is the first task of the legislature after being elected during a transition to democracy or when in a democratic regime the constitution authorizes the legislature to enact a total reform after a new election of its members. From the perspective of constitutional choice, the idea that a legislature would be tempted to benefit itself at the expense of other institutions is based on a dubious assumption about the influence of the institutional setting on constitution makers’ choices. In most democratic contexts, popular representation in both constituent assemblies and constituent legislatures is channeled through political parties. This means that the institutional preferences of constitution makers are more likely to be shaped by the concrete interests of their parties than by the abstract interest of the collective body in which they gather as representatives of

Constitution making and constitutionalism in Latin America

39

the people. As politicians, reformers tend to defend the institutional interests of their parties because doing so benefits them individually, by helping them to win office and have influence over important decisions. For this reason, constitution makers who have a partisan link with the legislature or the executive are prone to making constitutional choices that favor these branches regardless of whether the constituent body is a legislature, an executive commission, or a convention. To be sure, there is no doubt that involvement of the executive in constitutional design would produce strong executives. But this is only because in cases of executive constitution making in general, and in the context of presidential systems in particular, personal and institutional interests converge. Because the interests of existing institutions are usually represented through the parties that control or expect to control them, one way to induce impartiality in constitutional choice would be forbidding parties from participating in the constituent body. This would be the case of citizen conventions made up of randomly selected citizens or delegates elected on a non-partisan basis.12 This solution, however, would imply that removing the influence of group and institutional interests does not depend on the type of body per se, but on its composition. Another possibility is to allow political parties to field candidates for the election of delegates but postponing the implementation of the new constitution some time after it was adopted. This would increase the level of uncertainty of constitution makers as regards what institutions would benefit them most, thus inducing a more impartial constitutional design (see Elster 1995, 1997).13 However, if this impartial perspective effectively takes place it would derive from the delay in implementing the constitution, not from the nature of the constituent body. Sometimes considering different outcomes, other scholars have contradicted the supposed benefits derived from the use of constitutional conventions. Parlett (2012) and Landau (2013), for instance, have argued that parliaments are less likely than special conventions to be hijacked by a popular leader and his party, so the former may be safer for the maintenance of a democratic regime. Although the idea of these authors 12

One example of a convention entirely made up of randomly selected citizens was the assembly formed in 2003 in British Columbia, Canada, for the purpose of proposing an electoral reform. The 2010 Icelandic Constitutional Assembly illustrates the case of a pure constituent assembly made up of delegates elected on a non-partisan basis. See Renwick (2014). 13 Prohibiting constitution makers from competing in future elections may reduce the influence of their personal interests in constitutional choice but is not likely to prevent them from advancing the interests of their parties.

40

Comparative constitutional law in Latin America

is that constituent assemblies may be used to mask a unilateral attempt to redistribute power in the name of the people, they also imply that constituent assemblies are not immune to the influence of partisan interests. On the other hand, as Voigt (2004, pp 210–211) has noted, if the interests of relevant actors are not sufficiently taken into account during the drafting of a new constitution, in the future they may not have an incentive to act according to the rules laid down in the document. By implication, when legislators have an influence on the design of the constitution they may be more interested in its enforcement than if a special convention made it. The finding of recent empirical works that more detailed constitutions survive longer (see Hammons 1999; Elkins et al. 2009) would also suggest the hypothesis that legislatures might be better constituent bodies than special conventions. Being concerned with re-election, legislators are likely to pay more attention to the interests of the particular groups that support them than delegates of a special convention. If this is correct, then legislators may be more inclined to write longer and more detailed provisions into the constitution to show their constituents that their interests have been protected. These constituents, in turn, would have more incentives to support the constitution in the long run. C. Inclusive vs. Exclusive Processes The notion of “inclusiveness” in constitution making is widely used as a procedural feature associated with several relevant outcomes. Yet it is sometimes unclear what inclusion exactly means. The concept is often used to refer to both representative pluralism and citizen participation (see Voigt 2004; Carey 2009; Elkins et al. 2009), but these concepts should be differentiated. Inclusion refers to the range and diversity of the social and political interests that get a voice in the CMB, whereas citizen participation refers to citizens’ direct control and influence over the drafting and approval of the constitutional text. The problem of not making this distinction is not only that inclusion and participation point to different process variables, but also that they may on occasion be negatively related, thus making their actual effects uncertain. Inclusiveness has been associated with certain types of constitutional choices. For instance, according to Pozas-Loyo and Ríos-Figueroa (2010), whereas multilateral constitution-making bodies are likely to adopt power-sharing institutions, unilateral ones tend to opt for powerconcentrating designs. In particular, they argue that plural constitutionmaking bodies are likely to select institutions that strengthen the power and independence of the judiciary. The rationale of this hypothesis is that

Constitution making and constitutionalism in Latin America

41

in an inclusive constituent body weaker actors would have veto power to prevent the preferences of stronger actors from being adopted, so that only power-sharing arrangements would be acceptable. Carey (2009, p 160) has also proposed that inclusive constitution making should lead to more constraints on government authority. But by inclusion he means not the internal diversity of the CMB, but the number of actors involved in the drafting and approval of the constitution, including the participation of citizens at the ratification stage. The main problem with these hypotheses is that they do not take into account that in the presence of multiple actors the only way to arrive at decisions is usually by reaching a compromise between parties with opposite institutional preferences and unequal bargaining power. From this perspective, inclusive constituent bodies are more likely to combine power-concentrating and power-sharing institutions than to adopt a coherent power-sharing design. Using this logic, Negretto (2013a) has proposed that, in the context of presidential regimes, plural constitutionmaking bodies are likely to opt for hybrid designs that reduce the electoral and government powers of presidents while strengthening their powers in the law-making process. Perhaps the most often repeated hypothesis is the one that links inclusion to the durability of the constitution and the level of democracy (see Voigt 2004; Carey 2009). In this view, constitutions are more likely to endure and political liberties improve, as representation becomes more diverse and/or a larger number of citizens become involved in the process. While it is plausible that both representative diversity and popular participation may lead to durable constitutions and stronger democracies, it is not clear what the outcome would be if representation were restricted and popular participation were high or vice versa. Would a high level of citizen involvement offset the unilateral character of constitution making? Or is an elite-driven process preferable as long as all the relevant organized interests are included in constitutional deliberations and negotiations? D. Elite vs. Participatory Processes Properly speaking, a participatory process is one in which ordinary citizens themselves become involved in public consultations, proposal submissions, or referendums. Citizen participation in this sense has frequently been linked to constitutional choice. Carey (2009) proposes that the popular ratification of constitutions is likely to create more constraints on the executive. Several other authors (Ginsburg, Blount and Elkins 2008; Ginsburg, Elkins and Blount 2009; Voigt 2004) have argued

42

Comparative constitutional law in Latin America

that the use of popular referendums to ratify the constitution is likely to produce a text incorporating participatory institutions. This idea derives from the more general proposal, initially formulated by Elster (1995), that constitutional design would tend to mirror the structure of the constitution-making process. The most widely held hypothesis about citizen involvement is that it would increase constitutional durability, enforcement, or democracy. Although there are several formulations of the same hypothesis, they are all based on the idea that involvement of citizens in constitution making would make them perceive the constitution as their collective work and thus be more inclined to defend it (see Widner 2008, p 1519). Using a similar logic, Elkins et al. (2009) have argued that the election of the constituent body and popular ratification of the constitution (along with mechanisms of popular participation in the constitution) are likely to make constitutions more durable because these measures would invite participants to invest in their maintenance. Also building on the sense of collective “ownership” over the constitution that citizen involvement is supposed to create, Eisenstadt et al. (2015) argue that popular participation, particularly at the drafting stage, is likely to improve levels of democracy. Many problems affect these hypotheses. One general problem is that of distinguishing between genuine and window-dressing citizen participation. Dictators and democrats alike have used similar public participation procedures, which suggest that their effects derive from the intentions of designers and not from the formal aspects of the process. A second, and already mentioned problem is how citizen participation relates to representation. What should be the net expected effect of citizen involvement on constitutional choice, constitutional durability, or democracy when the process is participatory but exclusionary? There is also a concern with the temporal effect of participatory practices. Although popular participation may indeed generate a greater sense of legitimacy at the time of creating a new constitution, it is not clear how this effect persists over time. Popular support for a constitution may erode for reasons that are independent of the initial constitutional moment. As I will argue below, this is in fact a more general problem in the analysis of the long-term effects of many procedural rules.

III. THE DUBIOUS CAUSALITY OF PROCEDURAL RULES Given competing hypotheses and opposite predictions, many scholars have attempted to clarify this research agenda by performing empirical

Constitution making and constitutionalism in Latin America

43

tests. These tests present several methodological challenges. The most important is selecting a representative sample of constitution-making episodes in which the units of observation can be compared. For instance, authoritarian and democratic constitution-making processes do not seem to be homogeneous observations for the analysis of their effects. Procedures are more likely to matter as independent variables when the constitution is adopted in a relatively competitive environment; that is, when the CMB is elected and more than one party participates in the election. In the absence of these conditions, procedures are likely to be imposed to determine an outcome decided beforehand. The problem with this criterion is that the sample of cases tends to be small. In the case of Latin America, only 31 constitution-making episodes would fit the required condition even using a permissive notion of competitiveness, as that in which at least two independent parties competed for representative positions.14 The size of this sample is insufficient to attempt a complete multivariate regression analysis. Nevertheless, we can provide and analyze some descriptive data. In what follows, I show bivariate correlations between procedural variables and the differential values of some outcomes of interest before and after the enactment of the constitution.15 I also discuss the results (not shown) of regression analyses using the post-promulgation outcome as a dependent variable and the year of adoption and the lagged score of the dependent variable as controls.16 A. Constitutional Choice Table 2.2 describes the difference that a particular procedural form has when comparing post-promulgation and pre-promulgation scores of 14 One can make a case for including observations in which the constitution was adopted in an authoritarian process but implemented during competitive years for a significant portion of its life (10 or more years). With this criterion, however, the sample would increase only a little, from 31 to 39 observations. 15 All procedural rules are coded as dichotomous variables (0/1), except for popular participation, which has been coded as an ordinal variable, with a score of 0 when no citizen participation takes place, 1 when only one form of popular participation exists, and 2 when both public consultation (or proposal submission) processes and referendums were implemented. 16 Except for the analysis of the determinants of constitutional court powers, for which I used an ordered probit model, all the tests were based on simple linear regressions. In all cases robust standard errors clustered by country were used to control for correlation among observations within each country.

44

Comparative constitutional law in Latin America

presidential powers, constitutional court powers, and participatory institutions.17 I have excluded legal continuity from this analysis because there are no hypotheses linking this feature to outcomes of constitutional design. Table 2.2 Procedural rules and constitutional choice, Latin America 1900–2014 (a) Process

Constituent assembly Inclusive representation Citizen involvement

Constitutional Choice Presidential Powers (1) Legislative Nonlegislative 0.19 –0.26

Constitutional Court powers (2)

Participatory institutions (3)

0.16

0.37 **

0.33*

–0.09

0.08

0.16

0.19

0.27

–0.03 0.75***

Notes: *** p < 0.01; ** p < 0.05; * p < 0.1. (a) Correlations between process features and the difference of pre-promulgation and post-promulgation scores of presidential powers, constitutional court powers, and participatory institutions. (1) Index based on Negretto (2013a). (2) Index based on Ríos-Figueroa (2011). (3) Index based on Negretto (2013b).

If constituent legislatures are judges on their own cause, they should design constitutions in which the powers of the executive and the constitutional court are, on average, weaker than in a document adopted by special conventions. It turns out that compared to constituent legislatures, the use of conventions is positively associated with an increase in the legislative powers of presidents and the powers of constitutional courts. As Table 2.2 shows, however, the correlation is weak and not significant, meaning that choosing a special convention or a constituent legislature should not make any difference as regards the allocation of powers between the different branches of government. This finding is

17 See Negretto (2013a), Ríos-Figueroa (2011), and Negretto (2013b) for the coding of these variables.

Constitution making and constitutionalism in Latin America

45

consistent with that of Ginsburg, Elkins, and Blount (2009, p 213), who conclude, based on a much larger and cross-regional sample, that constituent legislatures do not seem to engage in institutional selfdealing. As I argued before, this negative finding is expected because it is the interests of the parties represented in the constituent body and not the nature of this body that determines the choices that reformers make. Results do not change if we consider the impact of constituent assemblies on the choice of presidential and constitutional court powers using a linear regression with the year of adoption of the constitution and the lagged score of the dependent variable as controls. Within the universe of competitive cases of constitution making, only constituent assemblies or legislatures worked as constituent bodies. If we use the full sample of 83 constitutions enacted in Latin America between 1900 and 2014 we can classify constitution-making bodies as constituent legislatures (0), constituent assemblies (1), and executive bodies (2). Using this coding, one can find a statistically significant difference (p < 0.05) between the first and the last category in the allocation of legislative powers. Specifically, executive constitution making is associated with much stronger executives in the legislative arena than is parliamentary constitution making. This is expected because, as I argued earlier, in the case of executives in a presidential regime there is no clear distinction between their personal and institutional interests. However, if we drop executive bodies from the comparison, there is no significant difference between constituent assemblies and constituent legislatures. The use of a special constituent body is significantly correlated with the incorporation of more participatory mechanisms in the constitution. This association makes sense because the election of a constituent assembly may be the component of a more participatory process and the latter, as we will see, is strongly associated with the adoption of participatory institutions. However, the impact of constituent assemblies is not statistically significant in a linear regression where we control for year of adoption and the lagged score of participatory institutions. Inclusive representation is positively and significantly associated with the legislative powers of presidents. Inclusiveness is also negatively correlated with the non-legislative powers of presidents and positively correlated with the powers of constitutional courts, although in neither case is the correlation significant. These results run counter to the idea that inclusive representation should consistently promote weaker presidents and stronger judiciaries and confirms Negretto’s (2013a) hypothesis and finding that multiparty constituent bodies tend to opt for hybrid

46

Comparative constitutional law in Latin America

designs mixing power-concentrating and power-sharing institutions. These results hold if we regress the different outcomes on the inclusiveness of the constituent body, controlling for year of adoption and the lagged score of the dependent variables.18 Citizen involvement in the drafting and approval stage of constitution making is positively, albeit weakly, correlated with the legislative and non-legislative powers of presidents. However, the impact of citizen involvement on the strengthening of the legislative powers of presidents turns out to be statistically significant if we run a linear regression using the year of adoption and the lagged score of the dependent variable as controls.19 This contradicts Carey’s hypothesis that popular participation should lead to more constraints on the executive power. At the same time, citizen involvement is positively and very significantly associated (p < 0.001) with the inclusion of more participatory mechanisms in the constitution. This result holds in a linear regression with controls for year of adoption and the lagged dependent variable, and confirms a similar finding by Ginsburg, Blount and Elkins (2008), and Ginsburg, Elkins and Blount (2009). B. Constitutional Durability Table 2.3 shows the difference that process features make when comparing the duration of each new constitution with the average duration of previous constitutions in force in the country since 1900. I use absolute duration and duration during competitive years. While not exactly a measure of constitutional enforcement, constitutional endurance during years of competitive elections may be a better way to capture a basic level of constitutional effectiveness than simply counting the age of the constitution since enactment.

18 The positive and statistically significant impact of inclusiveness on the legislative powers of presidents holds even if we add to the regression the type of constituent body and the level of popular participation in the process. 19 Moreover, this result holds even if we add to the regression the type of constituent body and its level of inclusiveness.

Constitution making and constitutionalism in Latin America

47

Table 2.3 Procedural rules and constitutional durability, Latin America 1900–2014 (a) Process

Duration Absolute (1)

Competitive (2)

Legal continuity

–0.34 *

–0.23

Constituent assembly

–0.37**

–0.18

Inclusive representation

–0.13

–0.08

Citizen involvement

–0.16

–0.28

Notes: (a) Correlations between process features and the duration of the new constitution compared with the average duration of previous constitutions in the country since 1900. (1) Number of years the constitution was in force since its enactment. (2) Number of years the constitution was in force since its enactment but only during years of competitive elections.

The results indicate that only legal continuity and the type of constituent body are significantly correlated with the absolute duration of the new constitution. The correlation is negative, however, suggesting that preserving legal continuity and using a constituent assembly tend to be associated with constitutions with a shorter lifespan. This association ceases to be significant when we consider the duration of the constitution during competitive years and also if we perform a regression controlling for year of adoption and the previous score of the dependent variable. The regression analysis also confirms the results in the rest of the variables, except for the negative impact of citizen involvement on duration (both absolute and competitive), which turns out to be statistically significant. These basic tests suggest that either no particular procedure enhances the durability of constitutions or that the choice of procedures does not make much of a difference for this outcome. To be sure, one problem with this analysis is that most of the recent constitutions enacted in Latin America are still in force. One should note, however, that for the 15 constitutions in the sample that were in force in 2014, 13 have already survived longer than the average life of constitutions in the respective country. What drives the negative correlations is the fact that, at least for the constitutions included in the sample, the presence of the selected process feature is associated with a shorter life span.

48

Comparative constitutional law in Latin America

C. Democracy Table 2.4 shows the difference that process features make when comparing the average level of democratization five years after and five years before the promulgation of the new constitution.20 In terms of the direction of change in the sample, 19 cases show a relative improvement, nine a relative deterioration, and three maintenance of the previous political conditions after the enactment of the new constitution. The only two variables that have a positive correlation with the levels of democratization after promulgation are the use of a constituent assembly and the inclusiveness of the CMB. The correlations are weak and not significant. However, if we run a regression with controls for year of adoption and the lagged score on the dependent variable, inclusiveness turns out to be positively and significantly associated with democratic improvement.21 Table 2.4 Procedural rules and democratization, Latin America, 1900–2014 (a) Process Legal continuity

Democracy (b) –0.14

Constituent assembly

0.04

Inclusive representation

0.12

Citizen involvement

–0.27

Notes: (a) Correlations between process features and the average level of democratization 5 years before and 5 years after the enactment of a new constitution. (b) Index based on Polity IV.

The preceding empirical analysis is purely descriptive and, of course, far from conclusive. One may think of using a different sample, expanding the database with comparable observations from other regions, adding several control variables, measuring conditional effects, and employing more sophisticated statistical methods. Yet there are strong theoretical reasons to doubt whether such efforts are really worthwhile. 20

Relative levels of democratization are based on the Polity IV index. This result holds if we add as variables legal continuity, the type of constitution making body, and popular participation. 21

Constitution making and constitutionalism in Latin America

49

Procedural rules generally derive from the preferences and relative bargaining power of constitution makers and from the particular conditions that trigger the process. When they produce discernible effects, it is always in interaction with variables that are contingent and exogenous to the process. Finally, even if we could isolate the unconditional and conditional effects of procedural rules, it is unclear how initial procedural conditions produce effects when one looks at long-term outcomes such as constitutional durability, enforcement, or democratization. The procedural features of constitution making are the product of a choice made under changing constraints. The preferences and relative bargaining power of constitution makers are sometimes sufficient to explain the choice of certain procedures, such as the degree of legal continuity with the previous legal order and the nature of the constituent body. In transitions to democracy, the balance of power between authoritarian elites and democratic forces usually determines the legal status of the process. If authoritarian rulers can credibly threaten to interrupt the democratization process, a radical break with the previous legal order is usually not an option. This explains why, when authoritarian rulers were strong at the beginning of a transition, the existing amendment process was used to replace the constitution, as in Brazil, or an amended version of the authoritarian constitution was kept, as in Chile or Panama. Something similar has happened in cases of intra-democratic constitutional change, where there is usually a conflict between new and old parties in terms of preserving the legality of the process (see Negretto 2015, 2016). When established parties were able to retain popular support and institutional influence at the time of deciding the organization of the process, legal continuity, or at least a negotiated break, was observed in cases such as Colombia (1991), Ecuador (1998), and Bolivia (2009). By contrast, when new parties gained the upper hand, a radical break took place, as in Venezuela (1999) and Ecuador (2008). In these cases, new parties and leaders also opted for special conventions that claimed sovereign power and absorbed legislative functions. A similar analysis applies to the inclusiveness of the process and the extent of popular participation. The rules to elect the constituent body and its internal decision rules tend to be inclusive when the relative power of the main actors with influence over the process is balanced. The 1942, 1952, and 1967 constituent legislatures in Uruguay were elected by PR in a national district in a context where the two main parties maintained a relatively equal distribution of seats in Congress. By contrast, election rules tend to be restrictive when a dominant party controls the process, as was the case of the Peronist Party during the making of the 1949 Argentine Constitution (see Negretto 2013a). When

50

Comparative constitutional law in Latin America

citizen involvement in constitution making is not mandated by the existing legal order, public consultations or referendums are usually implemented as a result of the programmatic commitment of the largest party with participatory democracy. This was the case of the PMDB in Brazil (1988), the Frente Sandinista de Liberación Nacional (FSLN) in Nicaragua (1987), the Movimiento V [Quinta] República (MVR) in Venezuela (1999), Alliance PAIS (AP) in Ecuador (2008), and Movimiento al Socialismo (MAS) in Bolivia (2009). The selection of procedural rules, however, is not always a matter of imposition or bargaining. It may on occasion be highly determined by the particular historical conditions that made the replacement of the constitution necessary in the first place. During the 1980s, political leaders of the main parties in Colombia agreed that the 1886 Constitution needed substantial revisions and that a series of amendments passed by the existing legislature were the appropriate mechanism for introducing these changes. By 1990, however, the same parties supported replacing the Constitution by means of an irregular constitutional convention. The reason for the shift could be found in the exceptional governance crisis the country was facing by the late 1980s, the low level of public trust in Congress, and the widespread social demand for convening a constituent assembly. As the Colombian case and the constitution-making process of Ecuador from 1997 to 1998 also illustrate, overcoming a governance crisis in which representative institutions have lost credibility may also require implementing unusual mechanisms of popular participation (see Negretto 2013a). The impact of procedural rules is also often conditional on factors that are exogenous to the process. Rules of representation illustrate the point. Shifting voter preferences may suddenly alter pre-existing patterns of partisan competition at the time of electing delegates to a CMB. The fact that no party was close to reaching a majority in the Colombian assembly was due not only to the adoption of an inclusive electoral formula, but also to the drastic decline in electoral support for the PL at the time of electing delegates. This decline, in turn, was due to deteriorating economic conditions.22 Although the incumbent president and his party had shown their willingness to deliberate and negotiate with all parties since the very beginning of the process, it is not clear that this predisposition would have been maintained had the government party obtained a larger share of seats in the assembly (Bejarano and Segura 2013). 22

See El Espectador, 10 December 1990.

Constitution making and constitutionalism in Latin America

51

An opposite example is perhaps the case of the Bolivian constitutionmaking process of 2006–09. The government party initially accepted a congressional law establishing that decisions in the constituent assembly should be made by two-thirds of the present members because at the time the law was passed MAS barely failed to reach a majority in both chambers of Congress. Given the subsequent attempts by this party to change or reinterpret that rule in a majoritarian direction, it is clear that it would have opted for a different decision rule had it won sufficient congressional seats to pass the law convening the assembly without the support of opposition forces. To be sure, one may find creative ways of testing for conditional effects and endogeneity. Yet a severe theoretical problem would remain, particularly when procedural rules are linked to long-term outcomes such as durability and enforcement of the constitution, or the level of democracy. As some recent analyses indicate, the durability of constitutions may be related to aspects of their content, such as the specificity of constitutional provisions or the flexibility of amendment procedures (Hammons 1999; Elkins et al. 2009; Negretto 2012). The content of the constitution, in turn, may be traced back to some features of the constitution-making process, such as the type of constituent body or its level of inclusion. However, constitutional durability is also likely to be a function of the performance of the constitution under changing conditions. Repeated constitutional crises, such as irregular transfers of power or extreme forms of executive–legislative conflict, may erode support for the constitution among the elite and citizens alike, thus triggering a process that leads to its replacement (see Negretto 2012). These crises need not be related to the procedural conditions under which the constitution originated. Similarly, a series of political corruption scandals or a deep economic crisis may affect support for democracy for reasons that have no relation to the foundational moments of the political regime. More generally, the authority of the constitution depends on everevolving practices and interpretations whose causal connection with the initial constitution-making process is likely to become weaker over time. We have several examples in Latin American constitutional history of constitutions that failed after being created under auspicious circumstances. In 1917 a regularly convened constituent assembly adopted a new constitution in Uruguay. No party won a majority in the assembly, the approval of the Constitution required an agreement between the two main parties, and the text was ratified in a popular referendum. Only 16 years later, however, the Constitution was irregularly suspended and replaced after a coup that took place in a context of violent factional

52

Comparative constitutional law in Latin America

conflict across and within parties. By contrast, some constitutions adopted under the “wrong” conditions have been remarkably successful. An executive commission appointed by a de facto government adopted the 1925 Chilean Constitution after it was ratified in a popular referendum of questionable validity. This Constitution, however, remained in force under competitive conditions for 39 years (1934–73), and provided the legal framework for one of the most successful democracies in the whole Latin American region. Support for the constitution may be clearly reinforced or weakened at different historical junctures depending on factors unconnected with the initial constitutional moment.

IV. CONCLUSIONS It may be misleading to think of the process features of constitution making as independent causal variables. The selection of procedural rules usually depends on the preferences and relative bargaining power of constitution makers or on the historical juncture that triggered the process. These factors, and not the formal aspects of the process, should then be considered the real force behind certain effects. In addition, even if we manage to control for endogeneity or test multiple interactions, it is unlikely that original procedures themselves have a persistent effect over time. Yet the general conclusion of this analysis is not that process choices are irrelevant. Selecting one particular procedure rather than another may matter for normative or strategic reasons that are likely to be extremely important at the time of drafting and adopting a constitution. In the short term and depending on the circumstances, choosing one particular procedural alternative over another may increase or decrease the legitimacy of the process, may benefit some actors more than others, or may stabilize or jeopardize a democratization process. Given these possibilities, there is also plenty of room to reflect on procedural rules in a conditional manner and on a case-by-case basis. A pure constituent assembly might be more appropriate than a constituent legislature if citizens have low levels of trust in legislators. However, convening a constituent Congress may prevent political instability and conflict when popular support for a constitutional convention is weak and powerful institutional actors are against it. All things being equal, an inclusive and participatory process should be preferred to an exclusive and elitist one. Yet in a political context of intense social division and strife, negotiations may have to be restricted to a few actors and direct citizen involvement be kept to a minimum. Citizen participation may

Constitution making and constitutionalism in Latin America

53

enhance the legitimacy of the constitution and promote democratization but only when it is not used to compensate for the exclusionary nature of the process. These options are and have been extremely important in the constitution-building experience of Latin America, even though we cannot directly attribute to them the relative success or failure of constitutions in the region.

REFERENCES Ackerman, Bruce. 1994. The Future of the Liberal Revolution. New Haven, CT: Yale University Press. Arato, Andrew. 1995. “Forms of Constitution-making and Theories of Democracy.” Cardozo Law Review 17(2): 191–232. Bejarano, Segura, Ana María and Renata Segura. 2013. “Asambleas Constituyentes y Democracia: Una Lectura Crítica del Nuevo Constitucionalismo en la Región Andina.” Colombia Internacional 79: 19–48. Blount, Justin. 2011. “Participation in Constitutional Design.” Pp. 38–56 in Comparative Constitutional Law, edited by Roxalind Dixon and Tom Ginsburg. Cheltenham, UK: Edward Elgar Publishing. Böhrt Irahola, Carlos. 2013. “El Proceso Constituyente Boliviano.” in Los Procesos Constituyentes Boliviano y Ecuatoriano: Analisis Comparativo y Prospectiva, edited by Carlos Böhrt Irahola and Norman Wray Reyes. Stockholm: IDEA International. Brewer-Carías, Allan. 2002. Golpe de Estado y proceso constituyente en Venezuela. Mexico: UNAM. Brewer-Carías, Allan. 2011. Dismantling Democracy in Venezuela: The Chávez Authoritarian Experiment. New York: Cambridge University Press. Carey, John. 2009. “Does it Matter How a Constitution is Created?” Pp. 155–177 in Is Democracy Exportable?, edited by Zoltan Barany and Robert G. Moser. New York: Cambridge University Press. Colón-Rios, Joel. 2012. Weak Constitutionalism. Democratic Legitimacy and the Question of Constituent Power. New York: Routledge. Dugas, John. 1993. La Constitución de 1991. ¿Un pacto político viable?. Bogotá: Departamento de Ciencia Política, Universidad de los Andes. El Espectador, 10 December 1990. Eisenstadt, Todd, Carl LeVan and Tofigh Maboudi. 2015. “When Talk Trumps Text: The Democratizing Effects of Deliberation during Constitution-making, 1974–2011.” American Political Science Review 103(3): 592–612. Elkins, Zachary, Tom Ginsburg and Justin Blount. 2008. “The Citizen as Founder: Public Participation in Constitutional Approval.” Temple Law Review 81(2): 361–382. Elkins, Zachary, Tom Ginsburg, and James Melton. 2009. The Endurance of National Constitutions. New York: Cambridge University Press.

54

Comparative constitutional law in Latin America

Elster, Jon. 1991. “Born to be Immortal: The Constitution-Making Process.” Cooley Lectures, University of Michigan Law School, 15–17 April (on file in University of Chicago Law Review). Elster, Jon. 1995. “Forces and Mechanisms in Constitution-Making.” Duke Law Review 45: 364–396. Elster, Jon. 1997. “Ways of Constitution-Making.” Pp. 123–142 in Democracy’s Victory and Crisis, edited by Axel Hadenius. Cambridge: Cambridge University Press. Elster, Jon. 2006. “Legislatures as Constituent Assemblies.” Pp. 181–197 in The Least Examined Branch. The Role of Legislatures in the Constitutional State, edited by Richard W. Bauman and Tsvi Kahana. New York: Cambridge University Press. Elster, Jon. 2012. “Clearing and Strengthening the Channels of ConstitutionMaking.” Pp. 15–30 in Comparative Constitutional Design, edited by Tom Ginsburg. New York: Cambridge University Press. Elster, Jon. 2013. Securities Against Misrule: Juries, Assemblies, Elections. New York: Cambridge University Press. Ginsburg, Tom, Justin Blount and Zachary Elkins. 2008. “The Citizen as Founder: Public Participation in Constitutional Approval.” Temple Law Review 81: 361–382. Ginsburg, Tom, Zachary Elkins and Justin Blount. 2009. “Does the Process of Constitution-Making Matter?” American Review of Law and Society 5: 201–223. Ginsburg, Tom and Alberto Simpser (eds). 2014. Authoritarian Constitutionmaking: The Role of the Military in Latin America. New York: Cambridge University Press. Hammons, Christopher W. 1999. “Was James Madison Wrong? Rethinking the American Preference for Short, Framework-Oriented Constitutions.” American Political Science Review 93(4): 837–849. Holmes, Stephen and Cass Sunstein. 1995. “The Politics of Constitutional Revision in Eastern Europe.” Pp. 275–306 in Responding to Imperfection: The Theory and Practice of Constitutional Amendment, edited by Sanford Levinson. Princeton, NJ: Princeton University Press. Landau, David. 2013. “Abusive Constitutionalism.” UC Davis Law Review 47: 1–58. Lehoucq, Fabrice. 2008. “Bolivia’s Constitutional Breakdown.” Journal of Democracy 19(2): 46–60. Levitsky, Steven and James Loxton. 2013. “Populism and Competitive Authoritarianism in the Andes.” Democratization 20(1): 116–117. Martínez-Lara, Javier. 1992. Building Democracy in Brazil: The Politics of Constitutional Change, 1985–95. Basingstoke: Macmillan Press. Kay, Richard. 1987. “The Illegality of the Constitution.” Constitutional Commentary 4: 57–80. Kay, Richard. 2011. “Constituent Authority.” American Journal of Comparative Law 59: 715–762.

Constitution making and constitutionalism in Latin America

55

Klein, Claude and Andràs Sajó. 2012. “Constitution-making: Process and Substance.” Pp. 419–441 in The Oxford Handbook of Comparative Constitutional Law, edited by Michel Rosenfeld and Andràs Sajó. London: Oxford University Press. Miller, Laurel E. 2010. “Designing Constitution-making Processes: Lessons from the Past, Questions for the Future.” Pp. 601–666 in Framing the State in Times of Transition, edited by Laurel E. Miller. Washington DC: US Institute of Peace. Negretto, Gabriel. 2012. “Replacing and Amending Constitutions. The Logic of Constitutional Change in Latin America.” Law and Society Review 46(4): 749–779. Negretto, Gabriel. 2013a. Making Constitutions: Presidents, Parties, and Institutional Choice in Latin America. New York: Cambridge University Press. Negretto, Gabriel. 2013b. “Party Dominance and Mechanisms of Popular Participation in Latin America.” Paper presented at the 2013 Latin American Studies Association Meeting, 29 May–1 June 2013. Negretto, Gabriel. 2015. “Procesos Constituyentes y Refundación Democrática: El Caso de Chile en Perspectiva Comparada.” Revista de Ciencia Política 31(1): 201–215. Negretto, Gabriel. 2016. “Constitution Making in Democratic Constitutional Orders: The Problem of Citizen Participation.” Pp. 21–40 in Let The People Rule? Direct Democracy in the Twenty-First Century, edited by Saskia Ruth, Yanina Welp, and Laurence Whitehead. University of Essex: ECPR Press. Neuman, Laura and Jennifer McCoy. 2001. Observing Political Change in Venezuela: The Bolivarian Constitution and 2000 Elections. Atlanta, GA: The Carter Center. O’Donnell, Guillermo and Philippe Schmitter. 1986. Transitions from Authoritarian Rule: Tentative Conclusions about Uncertain Democracies. Baltimore, MD: Johns Hopkins University Press. Parlett, William. 2012. “The Dangers of Popular Constitution-making.” Brooklyn Journal of International Law 8: 193. Pozas-Loyo, Andrea and Julio Ríos-Figueroa. 2010. “Enacting Constitutionalism. The Origins of Independent Judicial Institutions in Latin America.” Comparative Politics 42(3): 293–311. Renwick, Alan. 2014. After the Referendum: Options for a Constitutional Convention. London: The Constitution Society. Ríos-Figueroa, Julio. 2011. “Institutions for Constitutional Justice in Latin America.” Pp. 27–54 in Courts in Latin America, edited by Gretchen Helmke and Julio Rios-Figueroa. New York: Cambridge University Press. Rosenn, Keith S. 2010. “Conflict Resolution and Constitutionalism: The Making of the Brazilian Constitution.” Pp. 435–466 in Framing the State in Times of Transition, edited by Laurel E. Miller. Washington DC: US Institute of Peace. Samuels, Kristi. 2006. Constitution-Building Processes and Democratization: A Discussion of Twelve Case Studies. Stockholm: International IDEA. Viciano Pastor, Roberto and Rubén Martínez Dalmau. 2001. Cambio Político y Proceso Constituyente en Venezuela (1998–2000). Valencia: Tiranto Lo Blanch.

56

Comparative constitutional law in Latin America

Viciano Pastor, Roberto and Rubén Martínez Dalmau. 2010. “Los Procesos Constituyentes Latinoamericanos y el Nuevo Paradigma Constitucional.” Revista del Instituto de Ciencias Juridicas de Puebla 25: 7–29. Voigt, Stefan. 2004. “The Consequences of Popular Participation in Constitutional Choice: Towards a Comparative Analysis.” Pp. 199–229 in Deliberation and Decision: Economics, Constitutional Theory and Deliberative Democracy, edited by Anne van Aaken, Christian List and Christoph Luetge. Aldershot: Ashgate. Wheatley, Jonathan and Fernando Mendez. 2013. Patterns of Constitutional Design: The Role of Citizens and Elites in Constitution-Making. Aldershot: Ashgate. Widner, Jennifer. 2008. “Constitution Writing in Post-Conflict Settings: Overview.” William and Mary Law Review 49(4): 1513–1541. Wray Reyes, Norman. 2013. “El Proceso Constituyente Ecuatoriano.” Pp. 154–255 in Los Procesos Constituyentes Boliviano y Ecuatoriano: Analisis Comparativo y, edited by Carlos Böhrt Irahola and Norman Wray Reyes.

3. Constitution making and constituent power Joel Colón-Ríos* This chapter considers the ways in which constituent power has been understood and constructed at different moments of Latin American constitution-making history. It examines the extent to which various notions of constituent power are reflected in the mechanisms used for the creation of four constitutions. The emphasis will be on the formal rules governing the processes of constitutional creation and on the official constitutional discourse surrounding them (as reflected in statutes, decrees, records of the debates of the constitution-making bodies, and the writings of key constitutional actors). The four processes that will be studied are those that resulted in the Constitution of the Federal States of Venezuela (1811), the Political Constitution of Colombia (1886), the Political Constitution of the Republic of Bolivia (1967), and the Constitution of the Republic of Ecuador (2008).1 The constitution-making episodes that brought these constitutions into existence were characterised by changes in the way in which the nature and practical implications of the theory of constituent power were understood. While by no means fully representative, these four cases at the very least provide a panoramic view of the rich Latin American tradition of constitution making.

I. GOD, NATION, AND PEOPLE In the beginning, God was the constituent power. Those that first engaged in the theoretical discussion of the earthly power of creating a constitutional order operated under that premise. For instance, in his Defensor * Thanks to Jhonny Pabón for his research assistance and comments on previous drafts, as well as to Monique van Alphen Fyfe. 1 When relevant, the chapter will also refer to other constitution-making experiences in the region. 57

58

Comparative constitutional law in Latin America

Pacis (1324), Marsilio de Padua identified God as the ultimate (or remote) cause of all principates, citing John 19, Romans 13, and St. Augustine as authorities in support of that proposition (see generally Tierney 1982). He nevertheless maintained that “in most cases and almost everywhere [God] established these principates through the medium of human minds” (Marsilius 2006, p 44). Accordingly, “the efficient power to institute or elect a principate belongs to the legislator or the universal body of the citizens … and any correction of the principate – or even its deposition if that is necessary for the common advantage – likewise belongs to it” (Marsilius 2006, p 88). The idea of God having an ultimate constitution-making power was still very influential in the seventeenth century. In 1614, for example, Johannes Althusius (1995) (also relying on biblical sources) maintained that God had placed in the community “a power of disposing, prescribing, ordaining, administering, and constituting everything necessary and useful for the universal association” (p 70). Some supporters of absolute monarchy, such as Marc’Antonio De Dominis and Robert Filmer, contended that if those kinds of views were correct, “communities could not lawfully alter their form of government, but would be obliged to suffer democratic rule forever” (Sommerville 1999, p 26). The Spanish Jesuit Francisco Suarez (1970) provided an answer to that objection in 1613: all societies were at first democracies, but God did not prescribe any specific form of government, so the community was free to remain a democracy or to choose aristocracy or monarchy (see also Sommerville 1999; Tierney 1997). Similar ideas can be identified in the seventeenth-century English debate about the legitimacy of absolute monarchy. For example, in 1644, John Maxwell (1644) argued that “the efficient and constituent cause is God and the people is only the instrumental cause.” It was therefore not to the people, but to God, that Kings were ultimately responsible (cited in Rutherford 1644a, p 146). Against Maxwell’s view, Samuel Rutherford (the Scottish Presbyterian pastor) (1644b), insisted that God “hath given the power of government originally, not to one” but to “a society and to a multitude of little Churches” (p 340). Even if in a weaker or different form, medieval views about the nature and origins of political power persisted in the late eighteenth century.2 As Carl Schmitt (2007) has maintained, during this revolutionary period “the 2 And beyond the eighteenth century as well. For example, in an 1814 letter to John Taylor of Caroline, John Adams (1851) wrote that “the summa potestatis, the supreme, sovereign, absolute, and uncontrollable power, is placed by God and nature in the people, and they can never divest themselves of it.”

Constitution making and constituent power

59

aftereffects of the Christian theological images of God’s constituting power, despite all clarification, were still strong and vital” (p 126; see also Loughlin 2010). In fact, during the French Revolution, it was Emmanuel Sieyès, a Roman Catholic abbé, who famously attributed to the nation an unrestrained constituent power, the power to create an order ex nihilo and to recreate it at will. “The nation,” Sieyès (2003a) famously wrote, “exists prior to everything; it is the origin of everything. Its will is always legal. It is the law itself. Prior to the nation and above the nation there is only natural law” (p 136). It is therefore not difficult to agree with Heinrich Schneider (1995) when he states that “Sieyès the theologian [gave the] nation the traditional predicates of God” (p 38). Sieyès (2003a) nevertheless moved the ultimate locus of power away from both God and kings, defining the nation as “a body of associates living under a common law, represented by the same legislature, etc” (p 97). The nation, he maintained elsewhere, was to be found in “all the inhabitants” of the territory (2003a, p 140). That did not mean, however, that all the human beings subject to a juridical order should be part of the entity called to exercise the nation’s constituent power. Sieyès (2003a) was very clear that, even if the nation can potentially (and ideally) include every person inhabiting a particular territory, it must exclude those that did not contribute to the “public establishment.” The main example is what Sieyès (2003a) called the “caste of nobles,” a privileged and unproductive class, a class “foreign to the nation” (p 97; see also Sieyès 2003b). But Sieyès (2003a) also thought that in every society “there are individuals (all too many) whom infirmity, incapacity, incurable laziness, or the tide of moral dissolution have made strangers to all the activities involved in society” (p 97). In eighteenth-century France, Sieyès contended that only the representatives of the Third Estate, that is, those who represented the productive classes of society, could be seen as “true custodians of the national will.” “They alone,” he wrote, “can speak in the name of the whole Nation without error” (p 150). This conception is highly consistent with what I will call the principle of exclusion and the principle of representation. The principle of exclusion means that not everyone that will become subject to a constitution (such as ex-nobles and vagrants under Sieyès’s approach) should necessarily be allowed to participate in its creation. All constitution-making episodes are to different degrees consistent with this principle: numerous groups (non-propertied individuals, women, noncitizens, indigenous peoples, minors, etc.) have been formally (e.g. through the negation of rights of political participation) or informally (e.g. through social marginalization) prevented from taking part in the

60

Comparative constitutional law in Latin America

exercise of constituent power. The principle of representation means that constituent power can (and in the context of a large society must) be represented; that direct popular intervention is not necessary for the emergence of a legitimate constitution. For lack of a better phrase, I will call this the constituent power of the nation approach (an approach consistent with these two principles). In eighteenth-century France, it was exemplified by the National Constituent Assembly that adopted the Constitution of 1791 and, more recently, by those constitution-making episodes in which an ordinary legislature adopts a constitution without the direct participation of the people (as occurred in many European and Latin American countries during the twentieth century) (see generally Elster 2006). There is a second, less dominant, but increasingly influential approach. Under this view, constituent power must be exercised by the entire citizenry. Here, the emphasis is on finding a means for allowing the human beings that will become subject to the constitution to become its authors. Accordingly, this second approach requires institutions that are seen as providing significant opportunities for public participation, such as referendums, popular initiatives, and extra-parliamentary constitutionmaking bodies. Again, for lack of a better phrase, I will call this the constituent power of the people approach. Historically, this approach has been associated with (although is by no means identical to) the ideas of Jean-Jacques Rousseau.3 For Rousseau (1772), sovereignty (which he once defined as “the voice of God on earth”) did not lie in an abstract entity such as “the nation” but was shared among all citizens.4 Only an assembly of the entire citizenry, and never a representative body, could be trusted to adopt laws consistent with the general will (or, put in a different way, laws that promoted the common good of the society at issue) (Rousseau 1973).5 Rousseau (1973) thus famously stated that “[e]very law the people has not ratified in person is null and void” (p 263). 3 This is despite the fact that Rousseau is not generally seen as a theorist of constituent power but as a proponent of direct democracy (a political arrangement in which the separation between constituent and constituted power would be irrelevant). Compare Colón-Ríos (2016). 4 “Suppose the State is composed of ten thousand citizens … the Sovereign is to the subject as ten thousand to one, i.e. each member of the State has as his share only a ten-thousandth part of the sovereign authority, although he is wholly under its control” (Rousseau 1973, p 229). 5 The concept of the general will, according to Patrick Riley (1986), in earlier times was used to refer to the will of God.

Constitution making and constituent power

61

In the context of contemporary constitution-making, those ideas seem to have limited application. Even Rousseau (1772) recognized that in large societies all forms of law making would need to take place through an assembly in which only a small section of the citizenry sat. Nevertheless, as such an assembly could never represent the people’s sovereign power, it should never be allowed to adopt a constitution. The most it should be allowed to do is to present a proposal to the constituent subject. Moreover, since the members of the assembly are not true representatives, they should be bound to the instructions of their electors (Rousseau 1772). This approach thus rejects the principle of representation, operating under what we may call the principle of participation. This principle requires a constant search for new channels for direct citizen action and, at a minimum, it mandates that the entering into force of any constitution must be subject to popular ratification. In this sense, while the constituent power of the people approach may operate under a restrictive conception of the citizenry,6 the principle of participation tends to push it towards high degrees of political inclusion. One of the first manifestations of this approach was the adoption, by popular referendum, of the Jacobin Constitution of 1793 and, more recently, it is largely reflected in the Andean constitution-making episodes where the formal participation of ordinary citizens assumed an important role.7

II. ASSEMBLING CONSTITUENT POWER The notions of the constituent power of the nation and the constituent power of the people do not exist in a pure form. It would be difficult to find a process of constitution making that is fully captured by them. Nevertheless, looking at instances of constitutional creation through the lenses of these two notions can provide important insights about the processes themselves, as well as about the ways in which those in positions of influence conceived (or appeared to conceive) the nature of the constitution-making power. In this part of the chapter, I will examine the processes that led to the creation of four constitutions adopted over a 6 In fact, Rousseau himself did not advocate universal suffrage (see Rosenfeld 1987). In the context of the National Convention of 1793, Maximilien Robespierre seemed to exclude certain groups from his definition of “the people” (see Cobban 1946). 7 After the adoption of the French Constitutions of 1793 and 1795, there was a long hiatus in the practice of ratifying constitutions through referenda (see Pisarello 2014).

62

Comparative constitutional law in Latin America

span of almost 200 years: the Constitution of the Federal States of Venezuela (1811), the Political Constitution of Colombia (1886), the Political Constitution of the Republic of Bolivia (1967), and the Constitution of the Republic of Ecuador (2008). I will focus on the ways in which the choice of constitution-making mechanisms reflects what I have identified as the two main notions of constituent power (which have been influenced in important ways by the idea of God as an ultimate sovereign), and in the constitutional discourse surrounding those processes. A. The Purity of Constituent Power: The Making of the Venezuelan Constitution of 1811 The Venezuelan Constitution of 1811 was one of the first written constitutions adopted in the Spanish speaking world.8 Like most of the early nineteenth-century Latin American constitutions, its creation was accompanied by the birth of a new independent state. The historical process that led to its adoption is a long and complex one, and this is not the place to examine it in detail. Suffice to say that a key moment was the establishment of the Junta Suprema Conservadora de los Derechos de Fernando VII on 19 April 1810 after the Spanish governor of the Capitanía General de Venezuela was ousted (Brewer-Carías 2012). The Junta worked as a provisional government that was premised on the recognition of the deposed Spanish monarch. Convened by the Province of Caracas, it could not claim to represent the entire Capitanía (Reglamento para la elección y reunión de diputados que han de componer el Cuerpo Conservador de los Derechos del Sr. D. Fernando VII en las Provincias de Venezuela, 11 de junio de 1810, opening statements). Accordingly, the Junta decided to call a Constituent Congress formed of representatives from the different provinces with the purpose of creating a new pan-provincial constitutional order. Along the way, the Constituent Congress issued a formal declaration of independence from the Kingdom of Spain. The Constituent Congress was convened according to an Electoral Law adopted by the Junta, addressed to all the “inhabitants of Venezuela” (Reglamento, preamble). It required the preparation of a general census by a number of commissioners assisted by the Catholic priests of the different towns’ parishes. The census would specify each individual’s 8

The Constitution was adopted on 21 December 1811. The Acta de la Confederación de las Provincias Unidas de Nueva Granada was adopted on 27 November 1811.

Constitution making and constituent power

63

“age, status, fatherland, neighborhood, trade, condition, and whether he owns real or personal property” (Reglamento, Chapter I, Article 3). Once this census was completed, the commissioners were required to prepare a list of those neighbors with the right to vote for parish electors. This list was meant to exclude a number of groups: women, men younger than 25 years of age (unless they were married), those under criminal prosecution, vagrants, aliens, those that had public debts, and those that did not own a certain amount of property (Reglamento, Chapter I, Article 4). The list would then be signed by the relevant commissioners and priests, and neighbors would be notified of the number of electors that corresponded to their parish. This number was calculated on the basis of the entire population of the parish (i.e. electors also represented non-voting neighbors); this was done according to the general formula “one elector for each five hundred souls of any type” (almas de todas clases, Reglamento, Chapter I, Article 6). According to the Electoral Law, in order to be an elector, an individual did not have to reside in the neighborhood of the electing parish. It was sufficient for a candidate to live in the region to which the electing parish belonged, provided that attention was paid to the candidate’s “probity, enlightenment, and patriotism, and to other qualities contributing to the best performance of the delicate trust [that would be] deposited in him” (Reglamento, Chapter I, Article 12). Those individuals selected as parish electors then elected the deputies for the Constituent Congress. The Electoral Law was very demanding in terms of the qualities that aspiring deputies should have: a “good education, accredited conduct, talent, patriotic love, knowledge of the country, public acceptance” and other characteristics that would lead them to act with “honour and purity” (the law did not mention property, age or gender requirements with respect to potential deputies, presumably because only adult men belonging to a certain social class stood a chance of being elected) (Reglamento, Chapter II, Article 4). On the day of the election of the deputies, the Electoral Law mandated a special mass to the Holy Spirit in which “divine intervention” would be invoked as a means of aiding electors to make the correct choice (Reglamento, Chapter II, Articles 4 and 6). In total, 44 deputies were elected, 24 from the Province of Caracas (Gazeta de Caracas, 19 February 1811). These electoral rules had the explicit purpose of ensuring that not any citizen became a constitution maker. As Véronique Hébrard (2008) has noted, the rules operated under a “logic of absolute representation,” in which enlightened individuals “dedicated to the exercise of reason” were to create the “public opinion” of the “entire nation.” The Electoral Law thus reflected in important ways the constituent power of the nation

64

Comparative constitutional law in Latin America

approach: the nation could only speak through the voice of the deputies, and never through that of the well-intentioned but largely ignorant mass of the people. The principle of exclusion also seemed to be in full operation, as the effect of these electoral rules was that great masses of the population (i.e. those that did not own the required amount of property) would not be allowed to take part in the constitution-making process. At the same time, it exhibited a major religious element: local parishes and priests played an important role in a process that culminated with an appeal to the Holy Spirit. This was not merely a practical convenience: the role of the Catholic Church was considered important since priests had been exposed to the “teachings of Vitoria, Molina, and Suarez,” and with those thinkers, they would be expected to defend the popular origin of sovereignty (Hermann González 1991). These ideas were also reflected, albeit with certain interesting tensions, in the sessions of the Constituent Congress and in the resulting constitutional text. The deputies elected to the Constituent Congress were familiar with the views that emerged from both the French and American Revolutions.9 Among those deputies, Juan Germán Roscio deserves special mention. An experienced jurist in Caracas, Roscio participated in the rebellion of 1810 and, as a member of the Junta, he drafted the Electoral Law discussed above. He was elected to the Constituent Congress and played a major role in the drafting of both the Declaration of Independence and of the Constitution of 1811. Roscio’s political thought is summarized in his El Triunfo de la Libertad sobre el Despotismo (1817), where he narrates his “conversion” to the ideal of the sovereignty of the people. Most of the pages of El Triunfo attempt to show that the Bible provides no textual support for the divine right of kings. For Roscio (1817), “sovereignty has always been and will always be a natural attribute, inseparable from the people” (p 29). That idea, he claimed, was “a political and quasi-religious dogma” that was not only evident from the Bible but also reflected in books about “natural law” (Roscio 1817). Roscio does not explicitly refer to the author of any of those books, but at the very least Rousseau seemed to be one of them. For example, Roscio makes special reference to a particular book that scandalized him the first time he opened it. That book, he said, argued that each individual is a “little sovereign,” that together all individuals are the sovereign, and 9

According to Brewer-Carías (2012), they were particularly influenced by the works of Thomas Paine, which were translated and published in Spanish as early as 1810.

Constitution making and constituent power

65

that law was the expression of the “general will.”10 Nevertheless, during the debates at the Constituent Congress, Roscio qualified his enthusiasm for popular sovereignty: he seemed to have concluded (as Rousseau arguably did in Book II of the Social Contract), that “blind multitudes” were often unfit to become law makers (Rousseau 1973, p 211).11 This was exemplified during a discussion about whether the Constituent Congress had the authority to issue a declaration of independence in the absence of a popular mandate to do so. Manuel Vicente de Maya, deputy from the Province of Merida, forcefully argued that the deputies’ mandate was limited to that of creating a new constitution while remaining loyal to Fernando VII. A declaration of independence, Maya insisted, required an express authorization from the people, and he not only lacked that authorization but was instructed by his electors to vote against the separatist cause (Libro de Actas del Supremo Congreso de Venezuela 1959, p 156). Against Maya, Roscio argued that although it was true that the deputies had sworn loyalty to the king, that action had had the sole objective of appeasing the people; “despotism had made the multitude so stupid (embrutecida de tal manera) that it was prudent not to clash with its beliefs” (Libro de Actas, p 183). Echoing Roscio’s words, another deputy stated that “the mass believes that kings come from God, and [the king’s] prestige needs to be vanquished, as Mr. Roscio has very well said” (Libro de Actas, p 153). Somewhat counter-intuitively, it was also suggested that the people (regardless of how backwards their views could be) were sovereign and the Constituent Congress represented them; but that by virtue of that representation, the deputies “were without a doubt sovereign themselves” (Libro de Actas, p 149). Accordingly, any instructions contrary to what they thought beneficial to the people could be legitimately disregarded (Libro de Actas, p 172). Other deputies instead engaged in a teleological interpretation of the instructions, and argued that these had no other end than the common good (which would be promoted through independence) (Libro de Actas, pp 155, 174). In the end, the idea that a constituent body cannot be bound by citizen instructions (a view defended by Sieyès two decades earlier at the National Assembly (Forsyth 1987)) overwhelmingly prevailed. 10

There are good indications that Roscio had read the Social Contract by 1810. See, for example, his letter dated 29 June 1810 and addressed to Andrés Bello (Roscio 1953). 11 Rousseau’s solution to the problem of a multitude that lacks the necessary knowledge to give itself its first constitution, it is well known, was the figure of the Legislator.

66

Comparative constitutional law in Latin America

The dominance of the constituent power of the nation approach in the Constituent Congress is not surprising given the way this entity formally related to citizens. It is telling, for example, that although it was possible for citizens to present petitions to the Constituent Congress, this could only be done in an individual capacity and not on behalf of any group (and much less on behalf of the people) (Hébrard 2008; see also Constitution of 1811, Article 215). Only the Constituent Congress was authorized to express a general or public opinion. This attitude is also reflected in the constitutional text. Article 144 of the new Constitution, for example, stated that sovereignty lies “essentially and originally in the general mass of [the country’s] inhabitants,” but that it is to be exercised only through properly elected representatives. Similarly, and in an implicit reference to Rousseau, Article 149 expresses that “[t]he law is the expression of the general will or of the majority of the citizens,” but quickly moves to say, “as indicated by the legally constituted representative organ.” Not surprisingly, Article 135 placed the power of constitutional reform in the exclusive hands of federal and provincial legislators. B. Constituent Power and Civil War: The Making of the Colombian Constitution of 1886 Like most countries in the region, the territory now comprising Colombia has been the site of multiple constitution-making episodes. In 1821, for example, the Constitution of Gran Colombia was created (the new country comprising the territories of several current Latin American states, including Venezuela), with the ensuing government having Juan Germán Roscio serving as Simón Bolivar’s vice-president. New constitutions were later adopted in 1843, 1853, 1856, and 1863. The latter Constitution reflected the ideas of a faction of the Liberal Party (radicalliberals), and established a federal country, the United States of Colombia. During the nineteenth century, struggles between different elites led the country towards a number of civil wars (Uribe de Hincapié and López Lopera 2010). These conflicts were sometimes among states, sometimes intra-state and sometimes had a national character. For example, in 1876–77, a civil war took place largely as a result of an attempt by the government of Eustorgio Salgar (1870–72) to put in place a system of public, universal, and secular education, against the insistence by conservatives of an education system controlled by the Roman Catholic Church (Rausch 1993; see also Pabón Cadavid 2010). In 1883, Rafael Nuñez was elected President of the United States of Colombia with the support of the Conservative Party, an important

Constitution making and constituent power

67

milestone in the process commonly known as Regeneración. In 1884, a national civil war again brought conservatives and radical-liberals into confrontation. The latter were defeated, and President Nuñez declared that the “Constitution of 1863 has ceased to exist” (Arango 2002).12 Shortly afterwards, he issued a decree convoking a National Council of Delegates (Decreto No. 594 de 1885). The decree stated that after a period of anarchy, “the Nation has been saved by its own good sense and by the Divine Providence,” and that it was now necessary to establish a new constitutional regime. It also expressed that the “numerous and expressive manifestations” of Municipalities and individual citizens evidenced support for constitutional change, and that it was the President’s duty to formalize that support by facilitating the creation of new institutions. Accordingly, Nuñez requested the governments of the nine states to appoint two delegates each, which would then meet and deliberate about the terms under which the process of constitutional change would take place (Decreto No. 594, Article 2). In practice, Nuñez selected the 18 delegates, who sometimes lacked any connection with the states they represented (Melo 1989). The Council of Delegates proceeded to issue a document titled “Agreement on Constitutional Reform” (Acuerdo Sobre Reforma Constitucional, 30 November 1885), which established the basis of the future Constitution (for example, that the freedom of the press would be respected as long as it did not interfere with the social order, and that there would be an independent judiciary (Acuerdo, Chapter I, Articles 9 and 17)). Importantly, the Acuerdo stated that “sovereignty resides only and exclusively in the Nation, which will be denominated Republic of Colombia,” a statement that was taken to amount to a rejection of federalism (Acuerdo, Chapter I, Article 1). According to the document, the Council would “exercise the functions of a constituent body,” and the norms created by it, if approved by the Executive Power, would have “the permanent force of a Fundamental Charter or Constitution of the Republic” (Acuerdo, Chapter II, Article 1). Once the Constitution was adopted, the Acuerdo continued, the Council would exercise ordinary legislative functions and would elect the President and Vice-President of the Republic for the first constitutional period (Acuerdo, Chapter II, Article 2). But the Acuerdo also stated that it would become binding only 12 The Constitution of 1863 was thus derogated from in violation of its amendment rule (Article 92), which allowed its “total or partial reform” by the legislature (in a process that involved the unanimous vote of the Senate), and by a special convention convoked by congress at the request of the totality of the state legislatures.

68

Comparative constitutional law in Latin America

after being popularly ratified. Accordingly, the Executive Power was given the task of determining the ways in which the “will of the Nation” would be consulted (Acuerdo, Chapter II, Article 3). The Acuerdo was presented to President Nuñez by a special commission composed of three of the Council’s delegates, with a note that stated that it had been approved unanimously and that it “faithfully interpreted the national sentiment.” In response, Nuñez expressed his confidence that the document reflected “the necessities and desires of almost the totality of Colombians.” He then issued a decree according to which the Acuerdo would be “ratified by the Colombian people, as represented by the Municipalities or Councils of every district of the Republic” (Decreto No. 837, Article 1).13 The rules according to which the officials sitting in those entities were elected varied from state to state. A good example is provided by the state of Cundinamarca, in which the right to vote was limited to men older than 21 years of age (or younger men that were married), as long as they did not fall within some of the recognized exclusions, such as vagrancy (Constitución del Estado de Cundinamarca (Bogotá: Imprenta de la Nación, 1857), Articles 6–8). According to the decree, the Acuerdo would be read aloud in the relevant assembly, and with no debate, the representatives would be asked whether they ratified it, investing the Council with “all the powers it requests from the Nation” (Decreto No. 837, Article 6). Out of 619 Municipalities, 605 voted “Yes.”14 On 16 April 1886, the Federal Supreme Court validated the election, declaring that the Acuerdo had been “ratified by the national will” (Diario Oficial, República de Colombia, Año XXII, Bogotá, 21 de Abril de 1887, No. 6, 655, p 390). The Council of Delegates discussed a draft constitution written by Miguel Antonio Caro on the request of Nuñez (Saranyana 2008). It is therefore necessary to briefly discuss some of the political ideas of Caro, as well as those of another major figure in the Council, José María Samper. Caro was deeply religious, and this was reflected in the way he

13

Districts had one vote for each 1,000 inhabitants (Article 24). The Supreme Court of Justice was in charge of determining the legality of the electoral process (Decreto No. 837 de 1885 (5 de Diciembre), Article 28). Historians have shown that during the nineteenth century, electoral processes in the country were characterized by many irregularities. For example, in the election of 1875, Rafael Nuñez allegedly obtained 44,000 votes in the state of Bolivar (his opponent only receiving seven votes), a number that was higher than the total male population of the state (Bushnell 1994). 14

Constitution making and constituent power

69

understood political power (Saranyana 2008). He maintained that “to govern men is to serve God” and that God was the “supreme tutor and legislator of society” (Caro 1990, p 160). Even though he accepted that government should be based on the consent of the people, he was not entirely comfortable with the principle of popular sovereignty: sovereignty, as an unlimited political power, only belonged to God (Saranyana 2008). These ideas are reflected in the preamble of the Constitution of 1886 (“In the name of God, supreme fountain of all authority …”), and were also largely shared by Samper. In fact, Samper (1951) argued that one of the problems of the 1863 radical-liberal Constitution was that – unlike all of the other Colombian constitutions since 1821 – it “completely forgot the Divinity” (p 4). The people, he argued, were the “immediate and visible” fountain of political power, but the ultimate “Constituent Power” lay with God (Samper 1951, p 6). The constituent episode that took place in Colombia in 1885–86 had some features (but of course, not the deliberative and democratic qualities) of what has recently been called a “multi-stage” constitutionmaking process (see e.g. Arato 2012). In explaining the reasons behind this mode of proceeding, Samper (1951) maintained that the direct ratification of a constitution by the people was seen as not desirable given that the length and novel character of the document would rule out the possibility of an informed vote. Moreover, the drafting of such a document would at the very least take four or five months, and there was an urgent need to know the basic content of the country’s future fundamental law. The Council therefore decided to agree on a number of fundamental principles that would form the basis for the reorganization of the republic (the Acuerdo), and to submit those principles to popular ratification. This, Samper (1951) argued, allowed everyone to know what would be the “general and essential spirit of the constitutional changes,” and given the fact that the principles would be “brief and precise,” the people could better appreciate their meaning (pp 8–9). Since the Acuerdo was in fact ratified by the Municipalities and the Constitution was consistent with it, Samper (1951) argued, it was no exaggeration to say that the new Constitution itself had been popularly ratified. The process that led to the creation of the Colombian Constitution of 1886 reflected in many ways the constituent power of the nation approach. The initial appointment of the delegates, as well the ratification by Municipalities, were highly consistent with the principles of representation and exclusion, placing the constitution-making power with a number of representatives elected through a process in which an important part of the population was not allowed to participate. The Council spoke on behalf of the nation, not on behalf of the inhabitants of the

70

Comparative constitutional law in Latin America

nation’s territory. Moreover, as with the previously discussed Venezuelan experience, the constitution makers also operated under the strong influence of the earlier idea of God as an ultimate constituent power. This understanding of constituent power (and rejection of the principle of participation) is not surprising: this was a constitution born out of a civil war and created through a process led by a conservative nineteenthcentury movement; more direct forms of popular intervention were out of the question. However, when one looks at the debates in the Council of Delegates (at one point renamed National Constituent Council), a number of interesting tensions arose. One of the main issues revolved around Article 6 of the Acuerdo, which maintained that “[t]he Nation recognises that the Catholic religion is that of almost the totality of Colombians.” The draft constitution, in contrast, recognized Catholicism as the religion of “the Nation,” and the question arose as to whether this was consistent with Article 6 of the Acuerdo. Some of the delegates who thought that the answer to that question was “no” maintained that the powers of the Council were derived from the Acuerdo, so that delegates “lacked the unlimited power of reform that is generally attributed to constituent bodies” (Consejo Nacional Constituyente, Informe de una Comisión (Bogotá: 13 May 1886), p 144). Even if one were to agree with that view, Caro argued, the true meaning of Article 6 could only be ascertained by interpretation, and since that provision had been created by the Council, no entity was better positioned to interpret it (Informe, p 149). And for Caro, it was entirely appropriate for the new Constitution to identify a national religion (even if that religion was not in fact shared by everyone), since “the National Constituent Council has nothing to do with minorities, majorities, or with almost totalities” (Informe, p 159). The task of the Council, according to Caro, was to represent “a collective that is called Nation; it is in the name of the Nation, and not in the name of almost the totality of its inhabitants … that the entity that represents its sovereignty creates the law” (Informe, p 159). This does not mean that Caro advanced the idea that the Council was free to adopt any constitution it wanted. In fact, he described the Council as acting on an “imperative mandate” from the Nation, and there were certain fundamental decisions (such as the rejection of federalism) about which the Nation had spoken clearly, and any disobedience with respect to those decisions would amount to revolution (Informe, p 112). The idea, nevertheless, was that in identifying the will of the nation, the Council did not necessarily need to consult the actual human beings that composed it. This was perhaps best exemplified in the reasons behind the design of the new Constitution’s amendment rule. This rule provided that

Constitution making and constituent power

71

amendments were to be presented by an ordinary legislative majority, then debated and adopted by a supermajority in the next legislature (Constitution of 1886, Article 206). By adopting that rule, Samper (1951) explained, the Council aimed to protect the “fundamental principles of the State” by making constitutional changes relatively difficult, but not impossible to achieve. The latter approach was thought too dangerous, as it might result in future irregular attempts to alter the fundamental law (the Council ultimately failed to prevent that kind of event, as the adoption of the Constitution of 1991 showed).15 Interestingly, the Council rejected a proposal for an amendment rule according to which a simple legislative majority would propose an amendment that would then be submitted to ratification by the Municipalities. This process was similar to the one that led to the adoption of the Acuerdo and, for Samper (1951), it was consistent “with the principle that counsels that the will of the people is consulted.” However, he explained that the Council rejected it because it was not considered convenient to involve the Municipalities in “political issues” (p 499). Instead, the Council opted for an approach that avoided sudden reforms, requiring reformers to proceed in a “calm and correct” manner (Samper 1951, p 500). The appeal to “the people,” as represented by the Municipalities, was an exceptional measure required by the particular context in which the Constitution was adopted, and not a necessary element in constitution making. After all, what was essential was to adopt the constitution the nation deserved, not the constitution willed by the people. This understanding of constituent power has been present, to different extents, in much more recent constitution-making episodes. The creation of the Bolivian Constitution of 1967, discussed below, provides an example. C. Pacifying Constituent Power: The Making of the Bolivian Constitution of 1967 Since the adoption of the Constitution of 1826 by a “General Constituent Assembly,” Bolivia has had more than 10 new constitutions or significantly reformed ones.16 Unlike in 1826, constitution making in Bolivia has been characterised by ordinary legislatures that are granted (or that 15 For a discussion of the different failed attempts to reform the Constitution of 1886 and of the “irregular” process that led to the creation of the Constitution of 1991, see Ramírez Cleves (2005). 16 For a brief summary of Bolivia’s constitution-making history, see Chávez Reyes (2005).

72

Comparative constitutional law in Latin America

assume) constituent faculties. This form of constitution making is not unique to Bolivia and has been very influential throughout the region (three relatively recent examples being the adoption of the Venezuelan Constitution of 1961, the Nicaraguan Constitution of 1987, and the Brazilian Constitution of 1988).17 The Constitution of 1967 was the last Bolivian constitution adopted in this way. This was not, by any means, a democratic constitution-making process, but one led by a military regime seeking to legitimize itself through a popular election. The Constitution was born in a climate of violence, three years after the government of the Movimiento Revolucionario Nacionalista (MRN), which had been in power since the Revolution of 1952, was overthrown and a military junta installed. Although this constitution-making process has hardly been studied (Barragán and Roca 2005), the constitution that resulted from it remained in force in Bolivia (as amended) until the adoption of the Constitution of 2009 by a Constituent Assembly. Before discussing the process in detail, some background on the events that preceded it is necessary. In 1961, the Bolivian National Congress adopted a new constitution.18 This constitution reflected some of the achievements of the revolution of 1952 (such as universal suffrage,19 an agrarian reform, and the nationalization of mines) (Ticona Alejo 2004). In 1963, President Víctor Paz Estenssoro (founder of the MRN) announced his intention to seek a second term in office (Malloy 1970). The Constitution of 1961 was thus amended in order to allow for consecutive re-election. This resulted in important tensions in and outside the MRN, as it ran contrary to an old unwritten convention (common to many Latin American countries) that elites alternate the presidency (Malloy 1970). Shortly after Paz was re-elected and amidst a number of demonstrations and strikes, Bolivia’s Vice President, René Barrientos 17

For a complete list of “constituent legislatures” in the constitution-making history of the region, see Negretto in this volume. 18 See Ley de 15 de agosto de 1956, in which the National Congress expressed the need to adopt a new constitution and stated that, to achieve that task, it would operate “alternately as an Ordinary Congress and Constituent Assembly.” 19 Until then, literacy was a requirement for citizenship, and this resulted in the exclusion of an important part of the indigenous population from the political process (see Political Constitution of 1945, Article 44(3)). The revolution of 1952 did not put an end to the political and economic marginalization of the country’s indigenous peoples (a process that is arguably still under way). In fact, the policy of the MRN has been described as an attempt to “civilize” indigenous peoples, transforming them into peasants through different forms of cultural homogenization (see Ticona Alejo 2004; Rivera 1990).

Constitution making and constituent power

73

Ortuño, led a successful military coup (Malloy 1970). On 24 January 1965, a military junta presided over by Barrientos announced that “the Armed Forces of the Nation, after the acts of 2 and 4 November 1964, done in joint action with the people of which they are part, intend to constitutionalise the country as soon as possible” (Decreto Ley Num. 07032, 24 January 1965). It was also announced that a new Electoral Law would be prepared so that a new election could be held. The decree nevertheless stated that the “restoration of the democratic method” would only be possible if “universities, professional circles, political parties, labour organisations, teachers, peasants and, in the end, the whole people” made an effort to promote the objective of “pacifying our nation” (Decreto Ley Num. 07032). Two months later, the military government postponed the general election through a decree that denounced an attempt on the life of Barrientos (Decreto Ley Num. 07102, 26 March 1965). The election was finally scheduled for 31 October 1965 (under the system of universal suffrage adopted in 1952) (Decreto Ley Num. 7034, 24 January 1965). The formal announcement was accompanied by a decree that provided the basis for the constitutionmaking process that would lead to the adoption of the Constitution of 1967. “For twelve years,” the decree stated, “the overthrown regime implanted a one-party government through undemocratic practices and according to an Electoral Statute that offered no guarantees for the expression of the popular will” (Decreto Ley Num. 07139, 30 April 1965). One of the “fundamental purposes” of the “Restorative Revolution of 3 November,” the document assured, “was to return to the people the full exercise of its sovereignty to constitute the Powers of the State, through a free and truly democratic election” (Decreto Ley Num. 07139). In order to achieve that goal, a number of constitutional changes were needed. The decree thus stated that the new “National Congress will be comprised by representatives invested with a specific constituent faculty” (Decreto Ley Num. 07139, Article 2). The Congress would meet for 60 days, “with the only and exclusive object of adopting the necessary reforms to the Political Constitution of 1945, as reformed in 1947” (Decreto Ley Num. 07139, Article 2). After these 60 days, “its constituent mandate would end,” and “Senators and Deputies would continue their ordinary legislative functions.” This “constituent legislature” met for the first time in August 1966 and had 102 members (Barragán and Roca 2005, p 374). The political actors in charge of the process did not recognize the Constitution of 1961 as valid law, and the task of the National Congress was described as a reform to the Constitution that

74

Comparative constitutional law in Latin America

operated before 1952 (that is, the Constitution of 1945).20 The idea of the constituent legislature’s mandate as that of reforming rather than creating a new constitution was clearly expressed by Oscar Quiroga Terán, who, in the assembly’s first meeting, read a message from the military junta. “Among your duties,” expressed the junta, is that of “considering the reforms and amendments to be made to the Political Constitution currently in place” (H. Cámara de Diputados, Redactor, Tomo I, Agosto 1966, p 4). In its first session, however, the vice-president of the assembly, Luis Adolfo Siles Salinas, emphasized the need to create a new constitution so that “we go on history as a great Parliament” (Rodas Morales 2010, p 377). Despite its formal “constituent” character, the actual nature of the National Congress was somewhat ambiguous. Its “constituent power” was regulated by the decree of 30 April 1965, which determined its scope (i.e. the reform of the Political Constitution of 1945), and the period during which its constitution-making faculties could be exercised (i.e. 60 days). These limits suggest that the National Congress was not really a “constituent” but a constituted body. Nevertheless, none of those limits were respected: a new constitution was adopted on 2 February 1967; that is, more than a year after the election took place. Interestingly, the National Congress decided it would operate as a “Constituent Assembly” on Mondays, Wednesdays, and Fridays, and as an ordinary legislature on Tuesdays and Thursdays (although sometimes it transformed itself from a constituent to an ordinary legislature in the same day) (Rodas Morales 2010, p 377). Constituent power was thus treated in a highly technical fashion: it was seen as a special jurisdiction that could be transferred to a particular entity as long as the “correct” legal procedures were followed. This is why, during the third session of the assembly, a deputy was able to maintain that the Constitution of 1961 was “void, since it was not approved by a Constituent Assembly but by a constituted power,” without apparently realizing that the constitution-making body in which he sat was vulnerable to the same critique (Rodas Morales 2010, p 379). Adopted by ordinary representatives in the absence of direct popular intervention, the creation of the Constitution of 1967 seems to be an 20 In fact, one of the first decrees of the junta established the validity of the Constitution of 1945, as reformed in 1947, until a “Constituent Congress sanctions the new Political Constitution of the State.” The decree nevertheless established that the nationalization of the mines, the agrarian reform, and universal suffrage would be maintained (Decreto Ley No. 06949 (5 November 1964)). On 16 September 1966, the constituent legislature issued a resolution that confirmed the validity of the Constitution of 1945 as stated in the decree.

Constitution making and constituent power

75

exemplar of the idea of the constituent power of the nation: it operated under the principle of representation and given the degree of social marginalization (particularly with respect to the country’s indigenous peoples) and political repression in the country (particularly against the political Left and the labor movement), the process was also in important ways consistent with the principle of exclusion.21 At the same time, there was no effort to comply with what I identified above as the principle of participation: the main objective was that of “pacifying” the social movements and groups that challenged the authority of the military government so that a stable constitutional order could be created. Moreover, even though Bolivians knew that the Senators and Deputies elected in 1965 would be exercising constituent functions, this mode of proceeding was unilaterally decided by the government. The fact that the process took place in the context of a military regime is a good reminder of the “neutrality” of the constituent power of the nation approach: it can operate in a non-democratic context as long as there is an entity that political elites see as capable of speaking on behalf of the nation. Even though this constitution-making process was largely secular, the constitution that resulted from it had a strong religious component. It thus “recognise[d] and uph[e]ld the Catholic, Apostolic, and Roman religion” (even though unlike the Venezuelan Constitution of 1811, it protected freedom of worship) (Constitution of 1967, Article 3; Constitution of 1811, Article 1).22 The Constitution also stated that “sovereignty lies with the people,” but its Article 4 expressed that “the people neither deliberates nor govern without its representatives and the authorities created by law” (Articles 2 and 4). The Constitution’s amendment rule also reflected that approach: formal constitutional change was only possible through the actions of legislative supermajorities, and no direct popular intervention was required regardless of the importance of the changes at issue (Article 232). This rule was altered in 2004, when it was decided that the “total reform” of the Constitution could only be achieved by a Constituent Assembly, and Article 4 was altered so as to read: “The people deliberates and governs through its representatives and through the Constituent Assembly, the citizen legislative initiative and the referendum.” These changes represented an initial movement towards the 21

For a discussion of political repression during Barriento’s regime, see Webber (2011). 22 The Colombian Constitution of 1886 also recognized the official character of the Catholic religion, but did not attribute to it an exclusive character. For a discussion of the ways nineteenth-century Latin American constitutionalism was characterised by this approach to religious freedom, see Gargarella (2013).

76

Comparative constitutional law in Latin America

notion of the “constituent power of the people,” which operated in important ways during the creation of the Bolivian Constitution of 2009 and which was also largely exemplified in the recent constitution-making episode in Ecuador, discussed below. D. The Search for the Constituent People: The Adoption of the Constitution of Ecuador of 2008 The adoption of the Constitution of Ecuador in 2008 can be seen as a manifestation of a phenomenon that started in Colombia in the early 1990s. The Colombian Constitution of 1991 was created through an elected Constituent Assembly convened by referendum, a process that formally violated the amendment rule of the previous constitution (see Colón-Ríos 2012). It was nevertheless sanctioned by the Supreme Court of Justice, which understood it as amounting to a legally illimitable exercise of constituent power.23 The Constituent Assembly drafted the Constitution and adopted it without the need for further popular ratification, a mode of proceeding strongly consistent with the principle of representation. In fact, the Presidential Decree that led to the convocation of the Assembly stated that “[t]he members of the Assembly will represent the entire Nation and must vote consulting only justice and the common good” (Decree No. 1929, 24 August 1990). Nine years later, Venezuela’s constitution-making process followed a somewhat similar path (i.e. a formally extra-constitutional process eventually sanctioned by the courts). In terms of the ratification process, an important difference was that the Venezuelan Constituent Assembly was only authorized to draft a constitution that did not come into effect until ratified by a referendum. The making of the Ecuadorian Constitution of 2008 shared many of the features present in the Colombian and Venezuelan cases.24 In the 1990s, Ecuador experienced a time of high instability that reached one of 23 “Being the Nation the bearer of the original constituent power (constituyente primario) and having a sovereign power from which the other public powers emerge,” the Court expressed, “neither it is subject to any limits other than those imposed by itself, nor its acts can be revised by the constituted powers” (Opinion No. 138, 9 November 1990). 24 Ecuador, like most Latin American countries, has a long history of constitution making. See, e.g., Constitución Política del Año 1979, Decreto Supremo, Registro Oficial 800 de 27 de Marzo de 1979; Constitucion de 1967 (25 de mayo de 1967); Constitucion de 1945 (6 de marzo de 1945). See also Grijalva Jiménez (2012).

Constitution making and constituent power

77

its tipping points in 1997, when President Abdalá Bucaram was declared unfit to rule by Congress and a “National Assembly” to reform the Constitution was convened by referendum (an assembly that later declared itself “constituent”) (Congreso Nacional, R.O. No. 23 14-03-97; Decreto Ejecutivo No. 201 de 6 de abril de 1997; see also Andolina 2005). Ecuador’s indigenous movement (particularly the Confederación de Nacionalidades Indígenas del Ecuador) was essential in this process. The constitution that resulted described Ecuador as a pluricultural and multi-ethnic state, and was also characterised by significant advances in terms of cultural rights (see e.g. the Constitution of 1998, Articles 1, 3, 62–63). At the same time, however, it opened the door for a number of neoliberal economic reforms (Pisarello 2014). Not surprisingly, the new Constitution did not put an end to popular discontent, a process in which Rafael Correa slowly emerged as a major political figure. Correa became a presidential candidate under a new movement called Alianza País, and proposed a “Citizen Revolution” that would be accompanied by a constituent process (Pisarello 2014). Alianza País did not present any candidates to Congress, as the plan was for Correa to become President, dissolve Congress, and immediately call a new Constituent Assembly (Pisarello 2014). In the runoff election of November 2006, Correa was elected with 57 per cent of the vote. The Ecuadorian Constitution of 1998 did not provide for the convocation of a Constituent Assembly, so the assembly was convened through a referendum outside the established amendment rule (see Salgado Pesantes 2009). That is to say, in his first day in office, Correa issued a decree which asked the electors whether they approved “the convocation and installation of a Constituent Assembly of plenary powers, in conformity with the attached Electoral Statute, for the transformation of the institutional framework of the State and the creation of a new Constitution” (Decreto Ejecutivo No. 2, 15 de enero de 2007). In Congress, the decree was heavily criticized by some legislators, who insisted that that decree was “unconstitutional since it would lead to the reformation of the Political Charter, something that can only be done through Congress” (Statements of the President of the Committee of Constitutional Issues cited in Brewer-Carías 2007). Others were concerned that the Assembly would interfere with the legislative power (a fear that, as we will see shortly, was well founded) (Salgado Pesantes 2009). The decree’s preamble stated that the Constitution of 1998 had important defects: it weakened the government’s ability to regulate the economy and did not provide sufficient opportunities for citizen participation. It also expressed that the “Ecuadorian people is the only bearer of the constituent power” and that “the constituent power, by its own nature,

78

Comparative constitutional law in Latin America

its sovereign, non-delegable, and indivisible.” Moreover, it referred to Article 1 of the Constitution of 1998 (which stated that “sovereignty resides in the people”), to Article 21 of the Universal Declaration of Human Rights (which recognizes that “the will of the people shall be the basis of the authority of government”), as well as to Article 104(2) of the Constitution of 1998 (which attributed to the President the power to call a referendum on important national issues – cuestiones de trascendental importancia para el país) in support of the legitimacy of the constitutionmaking process that he was about to initiate.25 In its Article 3, the decree stated that the Supreme Electoral Tribunal (SET) would “organise, direct, supervise and guarantee” the necessary electoral events. In the exercise of that power, the SET issued a resolution which sanctioned the referendum on the convocation of a Constituent Assembly, scheduling it for 15 April 2007 (PLE-TSE-2-1-3-2007, Tribunal Supremo Electoral). Voting in the referendum was mandatory for all literate citizens 18 years or older, and optional for those citizens over 65 years of age that were illiterate (PLE-TSE-2-1-3-2007, Tribunal Supremo Electoral). According to the Electoral Statute mentioned above, a ratificatory referendum was also required at the end of the process (Estatuto de Elección, Instalación y Funcionamiento de la Asamblea Constituyente, Article 1). The Electoral Statute also sought to regulate important aspects of the internal functioning of the Assembly. For example, it established that the Assembly would operate for 180 days (which it could extend to a total of 240 days) (Article 2), and that it would be comprised of 130 delegates elected through a proportional system (100 corresponded to provincial electorates, 24 were elected nationwide, and 6 elected by Ecuadorians living overseas) (Articles 3 and 5). Article 6 of the statute expressed that in order to be eligible, candidates had to be Ecuadorian by birth and 20 years or older, and established a gender quota (which was partly responsible for the election of 40 women, a proportion much higher than that of previously elected bodies in the country) (see Pisarello 2014).26 The Electoral Statute also regulated the Assembly’s decision-making process: the entity would make its decisions by an absolute majority (Article 10). In April 2007, the initial referendum took place, and 81 per cent of those participating voted “yes” (Informe sobre 25

This process has been described by one of its main protagonists, Alberto Acosta (first President of the assembly) as “not necessarily legal,” yet legitimated by the Ecuadorian people (see “Tiempos Políticos y Procesos Democráticos,” Entrevista de Marta Harneker a Alberto Acosta, Ex Presidente de la Asamblea Constituyente de Ecuador, Rebelión (23 September 2010), p 8). 26 See “Tiempos Políticos y Procesos Democráticos,” supra note 25: 8–9.

Constitution making and constituent power

79

la Asamblea Constituyente de la República de Ecuador (Quito: Centro Carter, 2008)). Six months later, the Assembly’s members were elected, with Alianza País winning 80 of the 130 seats (Pisarello 2014).27 The Assembly met for the first time on 29 November 2007 in Montecristi and shortly after it issued a set of internal regulations (Reglamento de Funcionamiento de la Asamblea Constituyente, 12 December 2007) that were largely consistent with the Electoral Statute. The Reglamento provides important clues as to the ways in which the delegates understood their own power.28 The Constituent Assembly was said to “represent the popular sovereignty that resides in the people of Ecuador.” In the exercise of its “plenary powers,” the document stated, the Assembly could not only propose a new constitution to the people, but also issue “constituent mandates” (mandatos constituyentes) and ordinary laws (Reglamento de Funcionamiento, Articles 1 and 2). Any decision of the Assembly was described as not susceptible “of control or challenged by any constituted power” (Reglamento de Funcionamiento, Article 3). Nevertheless, after attributing to the Assembly an apparently absolute power (and using a language present in the Electoral Statute) (Estatuto de Elección, Article 1) the Reglamento maintained that it “would respect fundamental rights, while deepening their social and progressive content” (Reglamento de Funcionamiento, Article 3). The document also stated that the Assembly would make its decisions by an absolute majority, a rule also contained in the Electoral Statute (Estatuto de Elección, Article 10). These aspects of the Reglamento seems to describe a sovereign constitution-making body (an entity with “plenary powers” that by definition cannot be limited by law) that has decided to respect certain principles and rules, but that – as a parliament operating under the orthodox version of parliamentary sovereignty – remains permanently free to depart from them.29 In that respect, while this constitution-making 27

The electoral system eventually ratified by the SET was different from the one originally proposed by Correa. In fact, it has been suggested that under the original system, Alianza País would have obtained around 120 seats (out of 130), as opposed to the 80 seats (out of 130) that it eventually won. 28 For a detailed discussion of the assembly’s internal structure, see Informe sobre la Asamblea Constituyente de la República de Ecuador (Quito: Centro Carter, 2008). 29 This very point was discussed at length during the debate that preceded the adoption of the Reglamento (with some delegates insisting on the binding character of the Electoral Statute). Asamblea Constituyente, Acta 001 (29 November 2007).

80

Comparative constitutional law in Latin America

process (when compared to the ones discussed in the previous sections of this chapter) can be described as highly inclusive and participatory, it seems to share some important features with the idea that once a constituent body is convened, it becomes truly sovereign (as in the “constituent power of the nation” approach). This is even clearer in the Assembly’s very first mandato constituyente, which states that the assembly “assumes and exercises the constituent power with plenary powers” (Mandato Constituyente No. 1, 29 de noviembre de 2007, Article 1). Perhaps more tellingly, in that mandato constituyente the Assembly also ratified Correa as President of the Republic, and assumed “the attributes and duties of the Legislative Function” (therefore suspending Congress until the results of the ratificatory referendum were announced) (Mandato Constituyente, Articles 6–7). The latter decision led to the adoption of important pieces of legislation (six in total), an activity to which the Assembly devoted considerable energy, and which certainly differed from its main task: adopting a new constitution.30 This way of proceeding raises an important question from the perspective of the theory of constituent power. If an assembly is authorized by referendum to create a constitution that does not come into force until popularly ratified, where does its power to legislate, or to adopt “constituent mandates” come from? Why can it make legally binding decisions without the intervention of the people? The answer to those questions must be that, while in session, the assembly is the constituent power. That is to say, that by consenting to its convocation and electing its members, the people somehow transfer their unlimited political power to the assembly, only retaining the ability to reject or accept the proposed constitutional text at the end of the process. This idea was well expressed by delegate Hernánez Virgilio, who stated that the people’s sovereign power had been temporarily “transferred to the Constituent Assembly,” that this entity possessed a purely political and “supra-juridical” power, and (in a way reminiscent of one of Caro’s arguments with respect to the interpretation of the Acuerdo) that if there was a question about the 30 A similar phenomenon took place in Venezuela in 1999. See, e.g., Combellas (2003). In fact, the time devoted to the adoption of ordinary laws severely limited the Assembly’s ability to comply with the time limit established in the Electoral Statute. This situation eventually led to the resignation of Alberto Acosta as President of the Constituent Assembly, who argued that in order to provide adequate time for deliberation, the work of the Assembly should have been prolonged beyond the limit established in the Electoral Statute. See Informe, supra note 28, pp 27–28. For Acosta’s views of the merits and defects of the process, see “Tiempos Políticos y Procesos Democráticos,” supra note 25.

Constitution making and constituent power

81

meaning of the Electoral Statute, it was up to the Assembly to answer it (Asamblea Constituyente, Acta 001, 29 November 2007). In the Ecuadorian case, there is textual support for this approach: when the people authorized the convocation of the Constituent Assembly in the referendum, they explicitly granted it “plenary powers.”31 This mode of proceeding is in tension with the constituent power of the people approach, which would see the assembly merely as a means of proposing a constitution to a people that (for practical reasons) is unable to formulate one on its own. In contrast, an assembly of “plenary powers” is an assembly that effectively represents (and exercises) constituent power, an idea that we associated earlier with the constituent power of the nation approach. Despite this issue, it is undeniable that the constitution-making process was characterised by – arguably insufficient – attempts to put the principle of participation into practice. In fact, in one of the Assembly’s first sessions, the Assembly’s President, Alberto Acosta, stated that the new Constitution “would not be adopted by specialists,” but through a process that would provide ample opportunities for citizen involvement (Asamblea Constituyente). In contrast to the constitution-making bodies discussed in the previous sections, the Constituent Assembly of 2007 opened itself to different forms of popular intervention (even if they fell way short of the binding instructions defended by Rousseau).32 The participatory (and inclusive) character of the process was formally recognized by the Reglamento, which attributed the right to present proposals to the Assembly not only to its members, but “to social movements, to migrants, workers, indigenous, ethnic, class, trade, civic, and civil society groups, to the different institutions and organs of the State, and to any natural or juridical person, individually or collectively” (Reglamento de Funcionamiento, Article 23).33 The Constitution of 2008 was approved by 63 per cent of the electors in the ratificatory referendum (with a participation of 75 per cent). It is 31 Contrast this with the question Ecuadorian citizens were asked in 1997: “Are you in favour of calling a National Assembly with the exclusive purpose of reforming the Constitution of the Republic?” As translated in Andolina (2005). 32 In fact, the Assembly that drafted the Ecuadorian Constitution of 1998 met behind closed doors in a military complex: Informe, supra note 28, p 11. 33 Those proposals were then sent to the appropriate mesa constituyente where it would become part of its working documents. Reglamento, Article 24. For a discussion of the success of this mechanism to promote meaningful instances of direct popular participation, see Informe, supra note 28, pp 9–13. The Assembly was organized in 10 mesas constituyentes, each of which was composed of 13 delegates and was responsible for a particular topic. Informe, ibid, pp 9–10.

82

Comparative constitutional law in Latin America

characterised by important advances in terms of social and economic rights, as well as by novel institutional approaches, such as the recognition of the rights of nature and the adoption of the indigenous concept of Sumak Kawsay (the ability of these rights and institutions to actually improve the quality of social democracy is of course another issue) (Pisarello 2014). The Constitution also contemplates various mechanisms of direct democracy (such as the recall referendum) (Constitution of Ecuador 2008, Article 105) and presents a radical approach to constitutional change: its ordinary amendment rule is supplemented by the possibility of convening a Constituent Assembly activated by popular initiative (i.e. through the collection of signatures). This process (a version of which is also present in the new Venezuelan and Bolivian Constitutions) (Constitution of Venezuela 1999, Articles 347–348; Constitution of Bolivia 2009, Article 411), allows 12 per cent of the electorate to trigger a referendum on whether an elected Constituent Assembly should be convened to draft a new constitution to be popularly ratified (or rejected) (Constitution of Ecuador 2008, Article 444).34 In other words, the Constitution allows for its own replacement through a process that could take place at the margin (and with the opposition of) ordinary government. This is, in formal terms, the closest a national constitution has come to facilitating the future exercise of the constituent power of the people.

III. CONCLUSION Latin American constitution making, I have argued, has been characterised by two main approaches to the question of constituent power. Under the first approach, the power to create a new constitution is left in the hands of different elites: the idea is to adopt a constitution that serves the national interest (as understood by the political leaders of the day). Accordingly, it is characterised by non-inclusive constitution-making mechanisms or by legislatures that assume constituent functions. We saw important elements of that approach exemplified in some nineteenth- and twentieth-century Latin American constitution-making episodes. Under the second approach, the power to create a new constitution is attributed to the human beings that will become subject to it: they are free to adopt any constitution they consider appropriate. This approach mandates different instances of popular intervention, such as referendums and other 34 The Constitution also allows two-thirds of the legislature and, perhaps more problematically, the President, to trigger the initial referendum.

Constitution making and constituent power

83

forms of citizen involvement. The most recently adopted Latin American constitutions represent at least a partial move toward this ideal. I also showed that the idea of the “constituent power of God” has played a major role in Latin American constitution making, particularly during the nineteenth century. But it has not fully disappeared. In fact, the Bolivian Constitution of 2009 states in its Preamble: “We found Bolivia anew, fulfilling the mandate of our people, with the strength of our Pachamama and with gratefulness to God.”35

REFERENCES Althusius, Johannes. 1995 (1614). Politica: Politics Methodically St Forth and Illustrated with Sacred and Profane Examples. Indianapolis, in: Liberty Fund. Andolina, Robert. 2005. “The Sovereign and its Shadow: Constituent Assembly and Indigenous Movement in Ecuador.” Journal of Latin American Studies 35: 721–750. Arango, Rodolfo. 2002. “La Construcción de la Nacionalidad.” Pp. 125–153 in Miguel Antonio Caro y la cultura de su época, edited by Rubén Sierra Mejía. Bogotá: Universidad Nacional de Bogotá. Arato, Andrew. 2012. “Conventions, Constituent Assemblies, and Round Tables: Models, Principles and Elements of Democratic Constitution-Making.” Global Constitutionalism 1(1): 173–200. Barragán, Rossana and José Luis Roca. 2005. Regiones y Poder Constituyente en Bolivia: Una Historia de Pactos y Disputas. La Paz: IDH Bolivia. Brewer-Carías, Allan R. 2007. “El Inicio del Proceso Constituyente en Ecuador en 2007 y las Lecciones de la Experiencia Venezolana de 1999.” Iuris Dictio 14: 109–150. Brewer-Carías, Allan R. 2012. “Sobre el Inicio del Constitucionalismo en América Hispana en 1811, antes de la Sanción de la Constitución de Cádiz de 1812.” Pensamiento Constitucional 17: 45–78. Bushnell, David. 1994. “Las Elecciones en Colombia: Siglo XIX.” Revista Credencial Historia 50: 4–7. Caro, Miguel Antonio. 1990. Escritos Políticos. Primera Serie. Bogotá: Instituto Caro y Cuervo. Chávez Reyes, Silvia. 2005. “Las Asambleas Constituyentes en Bolivia.” Asamblea Constituyente. 4(1): 11–50. Cobban, Alfred. 1946. “The Political Ideas of Maximilien Robespierre during the Period of the Convention.” English Historical Review 61: 45–80. 35 A similar statement occurs in the Preamble to the Ecuadorian Constitution of 2008. The reference to God was apparently included in the Constitution at the insistence of President Correa. “Tiempos Políticos y Procesos Democráticos,” supra note 25, pp 20–21.

84

Comparative constitutional law in Latin America

Colón-Ríos, Joel. 2012. Weak Constitutionalism: Democratic Legitimacy and the Question of Constituent Power. London: Routledge. Colón-Ríos, Joel. 2016. “Rousseau, Theorist of Constituent Power.” Oxford Journal of Legal Studies 36: 1–24. Combellas, Ricardo. 2003. “El Proceso Constituyente y la Constitución de 1999.” Politeia 26: 100–113. Elster, Jon. 2006. “Legislatures as Constituent Assemblies.” Pp. 181–197 in The Least Examined Branch: The Role of Legislatures in the Constitutional State, edited by Richard W. Bauman and Tsvi Kahana. Cambridge: Cambridge University Press. Forsyth, Murray. 1987. Reason and Revolution: The Political Thought of Abbé Sieyes. Leicester: Leicester University Press. Gargarella, Roberto. 2013. Latin American Constitutionalism, 1810–2010: The Engine Room of the Constitution. Oxford: Oxford University Press. Grijalva Jiménez, Agustín. 2012. Constitucionalismo en Ecuador. Quito: Centro de Estudios y Difusión del Derecho Constitucional. Hébrard, Véronique. 2008. “Opinión Pública y Representación en el Congreso Constituyente de Venezuela (1811–1812).” Pp. 196–224 in Los Espacios Públicos en Iberoamérica, edited by François-Xavier Guerra. Mexico City: Centro de Estudios Mexicanos y Centroamericanos. Hermann González, S.J. 1991. “Conversación sobre la Iglesia en la crisis del siglo XIX.” Boletín CIHEV 3(6): 114. Cited by Ríos, Manuel Donís. 2012. “Los diputados de la provincia de Mérida al Supremo Congreso de Venezuela de 1811.” ACTUAL Investigación 71: 119–148. Loughlin, Martin. 2010. Foundations of Public Law. Oxford: Oxford University Press. Malloy, James M. 1970. Bolivia: The Uncompleted Revolution. Pittsburgh, PA: University of Pittsburgh Press. Marsilius of Padua. 2006 (1324). The Defender of Peace: The Defensor Pacis. Cambridge: Cambridge University Press. Maxwell John. 1644. Sacrosancta Regum Majestas (The Sacred and Royal Prerogative of Christian Kings). Pol. Pamphlet II. Oxford. Melo, Jorge Orlando. 1989. “La Constitución de 1886.” In Nueva Historia de Colombia, Vol III. Bogotá: Editorial Planeta. Pabón Cadavid, Jhonny Antonio. 2010. De los Privilegios a la Propiedad Intelectual: La Protección en Colombia a las Obras Literarias, Artísticas y Científicas en el Siglo XIX. Bogotá: Universidad Externado de Colombia. Pisarello, Gerardo. 2014. Procesos Constituyentes: Caminos para la Ruptura Democrática. Madrid: Editorial Trotta. Ramírez Cleves, Gonzalo. 2005. Limites a la Reforma Constitucional en Colombia. Bogotá: Universidad Externado de Colombia. Rausch, Jane M. 1993. La Educación durante el Federalismo. La Reforma Escolar de 1870. Bogotá: Instituto Caro y Cuervo, Universidad Pedagógica Nacional. Riley, Patrick. 1986. The General Will Before Rousseau: The Transformation of the Divine into the Civic. Princeton, NJ: Princeton University Press.

Constitution making and constituent power

85

Rivera, Silvia. 1990. “Democracia Liberal y Democracia del Ayllu: El Caso del Norte de Potosí.” Pp. 9–26 in El Difícil Camino Hacia la Democracia, edited by Carlos F Toranzo Roca. La Paz: IDILS. Rodas Morales, Hugo. 2010. Marcelo Quiroga Santa Cruz: 1931-1968. Bolivia: Plural editores. Citing “Constituyente y Congreso Sesionarán Alternadamente.” Periódico Presencia. 18 August 1966 and 23 August 1966. Roscio, Juan Germán. 1817. El Triunfo de la Libertad sobre el Despotismo: En la Confesión de un Pecador Arrepentido de sus Errores Políticos, y Dedicado a Desagraviar en esta Pate a la Religión Ofendida con el Sistema de la Tiranía. Philadelphia, PA. Roscio, Juan Germán. 1953. Obras Vol. 3. Caracas: Décima Conferencia Interamericana. Rosenfeld, David. 1987. “Rousseau’s Unanimous Contract and the Doctrine of Popular Sovereignty.” History of Political Thought 8: 83–111 Rousseau, Jean-Jacques. 1772. Considerations on the Government of Poland and on its Proposed Reformation. Zurich: ISN ETH Zurich. Rousseau, Jean-Jacques. 1973. The Social Contract. London: Everyman’s Library. Rutherford, Samuel. 1644a. Lex, Rex: The Law and the Prince. London: Printed for John Field. Rutherford, Samuel. 1644b. The Due Right of Presbyteries or, A Peaceable Plea, For the Government of the Church of Scotland. London: E Griffin. Salgado Pesantes, Hernán. 2009. “El Proceso Constituyente de Ecuador: Algunas Reflexiones.” Pp. 263–284 in Procesos Constituyentes Contemporáneos en América Latina: Tendencias y Perspectivas edited by José María Serna de la Garza. Mexico City: Universidad Nacional Autónoma de México. Samper, José María. 1951. Derecho Público Interno. Bogotá: Biblioteca Popular de la Cultura Colombiana, Ministerio de Educación. Saranyana, Josep-Ignasi. 2008. Teología en América Latina, Vol. II: De las Guerras de Independencia hasta Finales del Siglo XIV (1810–1899). Vervuert: Iberoamericana. Schmitt, Carl. 2007. Constitutional Theory. Durham, NC: Duke University Press. Schneider, Heinrich. 1995. “Patriotism and Nationalism.” Pp. 33–47 in Concilium: Religion and Nationalism, edited by John Coleman and Miklós Tomka. London: SCM. Sieyès, Emmanuel. 2003a. “What is the Third Estate?” Pp. 96–162 in Political Writings: Including the Debate between Sieyès and Tom Paine in 1791, edited by Michael Sonenscher. Indianapolis, IN: Hackett Publishing Company. Sieyès, Emmanuel. 2003b. “An Essay on Privileges.” Pp. 68–91 in Political Writings: Including the Debate between Sieyès and Tom Paine in 1791, edited by Michael Sonenscher. Indianapolis, IN: Hackett Publishing Company. Sommerville, JP. 1999. Royalists & Patriots, Politics and Ideology in England 1603–1640. London and New York: Longman. Suarez, Francisco. 1970 (1613). Defensa de la Fe Católica y Apostólica Contra los Errores del Anglicanismo. Madrid: Instituto de Estudios Políticos. Ticona Alejo, Esteban. 2004. “La Revolución Boliviana de 1952 y los Pueblos Indígenas.” Temas Sociales 25: 8–21.

86

Comparative constitutional law in Latin America

Tierney, Brian. 1982. Religion and the Growth of Constitutional Thought 1150–1650. Cambridge: Cambridge University Press. Tierney, Brian. 1997. The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law, 1150–1625. Atlanta, GA: Scholars Press for Emory University. Uribe de Hincapié, María Teresa and López Lopera, Liliana María. 2010. Las Palabras de la Guerra: Un Estudio sobre las Guerras Civiles en Colombia. Medellín: Carreta Editores and Instituto de Estudios Políticos, Universidad de Antioquia. Webber, Jeffrey R. 2011. Red October: Left-Indigenous Struggles in Modern Bolivia. Leiden: Brill.

4. A critical mapping of transitional justice in Latin America Lucas Lixinski* [a]s political documents often drafted in the wake of oppression, revolution and the arrival of new political orders, national constitutions frequently embody the desire of their drafters to distinguish the new order from the old. (Byrnes and Renshaw 2010, p. 465)

I. INTRODUCTION Constitutionalism plays an important part in transitional efforts, and increasingly transitional justice also influences perceptions of constitutionalism (Teitel 2011). But these efforts also tread an uneasy path between a past that needs atoning for, and a future that depends on a break with the past (Elias 2007). Latin America is a fertile terrain in which to look at these tensions playing out, given its early experience with transition, and the fairly prolific efforts of constitutional design in the region in the past few decades. The third wave of democratization across Latin America triggered what is today known as “transitional justice.” Before the Berlin Wall fell and Eastern Europe was redemocratized, there was Latin America; before the end of the apartheid regime in South Africa, there was Latin America. To be sure, to try to think of Latin America as a homogeneous region is superficial at best, and essentializing at worst (Collins, Balardini and Burt 2013), but even Latin American Constitutions have in the past included references to a shared Latin American identity (Carpizo 2006), so for the sake of argument I will refer to the region as a collection of countries with some shared experiences (Iberian colonialism, the prevalence of Catholicism and dictatorial pasts immediately come to mind). * I am very thankful to the participants in the “Comparative Constitutional Law in Latin America” workshop for their input, particularly Wojciech Sadurski, Rosalind Dixon, Paola Bergallo and Helena Alviar. All errors remain my own. 87

88

Comparative constitutional law in Latin America

The history of Latin American constitutionalism is one influenced by Iberian (monarchical and quasi-Absolutist) constitutionalism and the ideals of the French and American Revolutions of the eighteenth century. As a result, much of the nineteenth-century history of Latin American constitutionalism shies away from words like “democracy” (seen as too revolutionary, precisely because of the Iberian monarchical tradition), and in a way helps foster a culture of very strong executive branches, leading up to a succession of coups-d’état and dictatorships throughout most of the history of the countries in the region (Gros Espiell 2002). The dictatorships in the second half of the twentieth century were not the first ones for most if not all countries of the region affected in that period, but hopefully they will have been the last. This chapter focuses on those dictatorships, and the transition from them. While a number of authors have explored multiple aspects of transition in Latin America and in specific countries in the region, there does not seem to have been an attempt at broader mapping of the experience of transition in the region. This chapter aims at addressing that gap. I do not have a major normative claim about what transitional justice in Latin America should or should not do, or be seen as doing. Rather, my intervention consists of mapping approaches to transitional justice across the region from the perspectives of specific responses to transition and constitutional design strategies that have ripple effects beyond transition. This mapping suggests that there is at least one element of what could be named a “distinctive” Latin American approach to transitional justice, namely the focus on retributive justice (or what I refer to below as “investigate-prosecute-punish”) at the expense of other approaches. Another possible element is the mutability of transitional justice strategies within each country in the region and across the region, as most countries have adopted a number of different strategies (often concurrently). This mutability is often discussed as being a consequence of Latin America having pioneered transitional justice experiments, but that seems to oversimplify the narrative, and I would instead suggest that mutability is a characteristic of the Latin American experience that can be explained not only by experimentalism, but also (and perhaps primarily) by changes in social and political power of certain key actors, influenced by the rise of “global justice.” I am not under the illusion that I will be able to successfully summarize and systematize the experience of so many countries within the confines of this chapter. Rather, I will draw certain archetypes and use a number of countries to thicken and color my description. What follows will consider Latin American experiences from two different perspectives: (1) specific models of transition in dealing with the past;

A critical mapping of transitional justice in Latin America

89

and (2) ripple effects of transitional justice strategies that affected constitutional design beyond transition.

II. MODELS OF TRANSITION IN DEALING WITH THE PAST The literature referring to transitional justice in Latin America overwhelmingly focuses on judicial responses to transition. But Latin American countries have experimented with multiple models, and these coexist in a number of countries in the region at the same time. Similarly, experiences and models come and go over time, and the experience seems more cyclical than any typology could suggest. What follows below is a rather artificial typology of transitional justice responses, and it is important to bear in mind that no single country employs only one type of response. In Latin America, many countries underwent transition as part of a “pact of the elites,” which allowed for a transition away from the dictatorial government, but not so far as to fundamentally threaten the status quo (Mezzetti 2002). But the matter of who gets to be a part of these elites is altogether different. Excessive military participation leads to wider compromises in transition, whereas strong civil society participation early on generally seems to foster more strategies targeted at prosecutions. Similarly, lack of participation of the military establishment can make the transitional enterprise fragile or altogether impossible, whereas low civil society participation can lead to challenges to the transitional process down the road. All of these strategies are closely connected to economic development, not only as part of a program for the future, but also the economic status of the country at the moment of transition (Mezzetti 2002). This is so even if the economy is largely neglected in debates about transitional justice (Miller 2008; Alviar Garcia 2017), much like the role of the law in shaping culture and memorialization during transition (Lixinski 2015). And, to add to this mix, actors external to the countries experiencing transition can have a deep impact on transitional justice strategies, not only in fostering them (like the UN’s role in the Guatemalan process), but also challenging them several years afterwards (like the InterAmerican Court of Human Rights). The trajectory of transitional justice closely mirrors the rise of “global justice,” and is by and large the same story, hence the push from international institutions for more judicial accountability. In Africa, for instance, Teitel (2011) has suggested that “the commitment to the International Criminal Court and its punitive

90

Comparative constitutional law in Latin America

reach [influenced] the contemporary understanding of the constitutional self on the African continent” (p 63). In Latin America, it is the Inter-American Court that has played this role. The balance of influence among the different actors plays an important role in how transitional justice is strategized and implemented, and in the models that follow. There are many tools in the transitional justice kit, including prosecutions, truth mechanisms, vetting and dismissals, reparations, and even tools coming from the peace-building field (Sharp 2015). According to the UN, “transitional justice consists of both judicial and non-judicial processes and mechanisms, including prosecution initiatives, facilitating initiatives in respect of the right to truth, delivering reparations, institutional reform and national consultations” (United Nations 2010, p 2). Much of the literature on transitional justice is focused on these models, and some of them are typical of specific regions. Vetting and dismissals, for instance, seem to be specifically Eastern European phenomena (Rosenberg 1996). One must bear in mind that the phenomena this section addresses are somewhat limited, at least inasmuch as they do not always fit the mould of transitional processes that do not necessarily aspire to transition towards liberal democratic government (Sharp 2015). But they are the thrust of what has happened in Latin America, and this section will look at three responses. Connecting all of them is a sense of progression towards the third approach identified below (“investigateprosecute-punish”), at the expense of other models and goals of transition. Reactions to each of these models are different in different countries, and can even be seen in the different behavior of stock markets when certain measures (say, amnesties or trials) have been announced or implemented by governments (Olsen, Reiter and Wiebelhaus-Brahm 2011). A. Clean-slate Transition Amnesties are the mechanism of choice in states seeking to clean the slate and promote a break with the past by simply ignoring it. This mechanism has been adopted at one point or another in 16 out of the 19 Latin American countries that underwent transition, with some countries employing more than one type of amnesty law. Brazil is the only country that has not subsequently undertaken human rights trials (Sikkink and Booth Walling 2007). In Brazil, the military continued exercising influence in the transitional process (which was, after all, mandated by the military rulers). Not much was done in the drafting of the post-dictatorial 1988 Constitution to

A critical mapping of transitional justice in Latin America

91

enhance civilian control over the military for instance (Santos 2004; Coelho 2011). Power brokering among the elites has been a core part of the transitional process in Brazil, and the core reason why the military agreed on Tancredo Neves as the civilian president to lead the transitional efforts (even though he ultimately died right before taking office) (Coelho 2011). Because of this military influence, Brazil is perhaps the archetype of this model. Referred to by some as an “obstinate amnesties” model (Lessa et al. 2014), Brazil has issued amnesties in the aftermath of its military dictatorship and by and large refused to look back. Even though the current President of Brazil was in fact a victim of the dictatorial government (having even been tortured), the posture of the government is to keep the amnesty law in place, despite pressure from civil society and even the Inter-American Court (Abrão and Torelly 2012), and instead to create a truth commission and other financial compensation mechanisms (see generally Torelly 2012). The amnesty law in Brazil initially received widespread support from both the right and the left, especially because for the left it meant the release of political prisoners (Lessa et al. 2014; Torelly 2012). It is largely seen by its defenders not as a mechanism to avoid accountability, but as a process to clean the slate and allow the country to move together towards a shared future, instead of focusing on the painful past. Some have even pointed at the influence of religious (Catholic) sentiment in upholding the amnesty law despite challenges and pressures. One of the Brazilian Supreme Court justices, in his opinion on the constitutionality challenge, said that “amnesty is an all-embracing act of love, shaped by the quest for peaceful coexistence among citizens” (Justice Marco Aurélio in ADPF 153/2008, cited in Coelho 2011, p 224). And generally, the Brazilian Supreme Court’s opinion has been that “the amnesty law resulted from a political agreement generally supported by Brazilian civil society” (Tang 2015, p 4). This position contrasts with self-amnesties in other countries in Latin America, and makes the law more legitimate. As a result, the Brazilian amnesty law is a fundamental pillar of the current democratic and constitutional order in Brazil (Tang 2015). This resistance has even withstood a challenge before the InterAmerican Court, in Case of Gomes Lund et al. (“Guerrilha do Araguaia”) v Brazil (2010) IACtHR Ser C 219.1 A challenge to the constitutionality of the amnesty law had failed just a few months before 1 On the influence of the Inter-American Court generally, see Huneeus in this volume.

92

Comparative constitutional law in Latin America

the Inter-American Court’s decision, and the official position of the Brazilian government has been to uphold its own domestic ruling, and to write off the Inter-American Court’s decision as a “minor foreign affairs dispute” (Tang 2015, p 2). It seems that some of the Brazilian Supreme Court justices are open to revisiting the constitutionality challenge, though, provided there is a substantial change to the composition of the Court (Tang 2015). Most advocates in the field of transitional justice disagree with the possibility of amnesties promoting successful transitions, and focus on the impunity facet (but see Veçoso 2017). Even from a constitutional technique standpoint, it has been said that underpinning a constitutional system with a law that pre-dates, and is hierarchically inferior to, the current Constitution would have the effect of inverting the hierarchy of legal rules and allow the Constitution to be held hostage to infraconstitutional legislation (Tang 2015). Similarly in Chile, there was initially an amnesty law, but loopholes have been exploited. This has occurred with the aid of external triggers, particularly the judgment of the Inter-American Court in Case of Almonacid Arellano et al. v Chile (2006) IACtHR Ser C 154, but also efforts in foreign domestic courts, discussed below. As a result, the law has largely been eroded, paving the way for prosecutions. B. Moral Reparations and Broader Policy Programs A number of measures exist in this realm. The most common measures are truth commissions, but other measures have also been implemented across Latin America. In Guatemala, for instance, a National Program of Reparations (Programa Nacional de Resarcimiento) was created in 2003 (with a mandate at least until 2016) to promote individual reparations. The measures it can order include: the “dignification” of victims, cultural reparations (particularly relevant considering that many of the victims in Guatemala are indigenous groups, and there have been investigations into, and proof of, genocide against indigenous peoples in Guatemala), psychological rehabilitation, material damages and economic reparations (Martínez Barahona, Gutiérrez Salazar and Rincón Fonseca 2012). In Colombia, land titling (particularly for women) has also been advocated as a transitional justice measure, in light of the conflict creating large numbers of internally displaced persons (Meertens and Zambrano 2012). And significant amounts of money have also been dedicated to the payment of reparations and compensation to victims of the armed conflict, alongside the creation of specific memory sites (Nussio, Rettberg and Ugarriza 2015). In Peru, financial compensation is

A critical mapping of transitional justice in Latin America

93

also available to victims of the conflict, but the programs available to government officials (civil servants, armed forces and police personnel) are far more generous than those available to peasants and the general population, thus perpetuating the subordination of the peasant class (Garcia-Godos 2008). Brazil has also adopted financial compensation laws (Torelly 2012). These models of financial compensation can be read as partly bringing the economic back into transitional justice (Miller 2008), which is otherwise crowded out by the focus on criminal prosecutions. Local memorials and shrines are also part of transitional justice strategies, such as monuments to disappeared persons erected in Uruguay. There, particularly, popular spaces for memorialization have contributed to the redefinition of historical memory, and the revitalization of folk festivals not only served as a means to mobilize civil society, but was in itself a strategy for coping with the past. Uruguay’s civil society also helped with promoting bottom-up processes of social mobilization, through the celebration of Uruguayan folk culture in local music and food festivals. These social festivals served as means to revive popular organization forms, and allow renewed engagement outside state structures, which had been largely dismantled during the dictatorial government (Roniger 2012). Similarly, Argentina and Chile have also engaged in a number of policies concerning memorialization. But there is a lot of diversity in the design and implementation of those policies, and a series of political factors (eg, whether it is the first or last year of that government’s mandate, the electoral calendar, anniversaries of major events, the ideology of presidents or the majority of parliament) influence these choices, perhaps more than the direct pressure and activity of civil society in these countries (even though they are voters, too, so their opinions affect the political process). Financial reparations have also been explored in those countries, with Argentina largely issuing reparations in the form of compensation, whereas Chile opted for a model of pensions instead (Solís Delgadillo 2012). Truth commissions, a strategy first developed in Latin American countries in the 1980s, are a big part of moral reparations strategies (Roht-Arriaza 1998). They were an alternative to blanket amnesties, but still for the most part promoted a means to deal with the past without necessarily promoting prosecutions. Anita Isaacs (2010) observed that the “truth commission’s shine has also dulled somewhat over time, as its goals prove stubbornly elusive … observers have noted the difficulties of producing an authoritative record and relying on truth to entrench peace, democracy and reconciliation” (p 252).

94

Comparative constitutional law in Latin America

Guatemala’s initial strategies in the realm of transitional justice were more focused on the truth and other measures of reparations. The 1999 report of the Clarification Commission, called “Guatemala: Memory of Silence,” produced evidence about atrocities being perpetrated by both the government and the guerrillas, but did not advocate prosecutions. Rather, much like the South African Truth and Reconciliation Commission, the objective was simply to establish a historical record of the previous regime, creating the conditions for people to have closure and move ahead together as a new nation (Garrett 2010). The report’s lead author, Archbishop Gerardi, was murdered two days after the report was published, and replaced in the Commission by Ríos Montt’s (one of the most brutal dictators in the country’s civil war) brother, who then went on to denounce the Commission as a sham (Martínez Barahona, Gutiérrez Salazar and Rincón Fonseca 2012). In general, the Guatemalan case reveals how politicized and polarizing these truth-seeking efforts can be: even though the report was widely praised by external observers for its technical accuracy, it by and large disregarded the fraught politics behind its fact-finding missions and writing (Isaacs 2010). One must also take into account the role of church groups in countries like Chile and Guatemala (Lessa et al. 2014). In fact, “[l]ocal faith-based actors have been resilient to pressure for conformity and have instead played a pivotal role in adapting international accountability norms and embedding them” (Boesenecker and Vinjamuri 2011, p 345). The Guatemalan situation is also noteworthy, at least in that some of the leading efforts in the creation of truth-seeking initiatives in that country are led by religious organizations. Their efforts culminated in the Recovery of Historical Memory project, and worked as a response to the official truth-seeking efforts, which were seen as “self-serving to its framers and insensitive to civilian victim-survivors” (Isaacs 2010, p 259). Several factors influence the success of these groups. One of them may be their history of resistance, including activism against the authoritarian regime as it was the ruling power, because it tends to enhance the organization’s ability to mobilize media, and its international and domestic links (Lessa et al. 2014). For instance, in Paraguay, church groups in particular have been active in denouncing the dictatorship since the mid-1970s, and have thereby played a crucial role in the aftermath of transition as well (Stabili 2012). In Chile, the interaction between civil society actors and the media has helped shift the support basis of the military, and promote change in the military’s attitude towards transition (Bakiner 2010). And in Colombia, the law requires that civil society organizations be heard in the design of

A critical mapping of transitional justice in Latin America

95

transitional justice programs. Around 3,000 organizations currently participate in the debate in Colombia (Nussio, Rettberg and Ugarriza 2015). In El Salvador, there was also a truth commission, composed entirely of foreigners, highlighting the importance of external actors in lending legitimacy to transitional measures. Its report, published in March 1993, was vital not only as a historical exercise, but also in ensuring that the ruling elites of the dictatorial period, still very active in national politics, were decidedly ousted (Martínez Barahona, Gutiérrez Salazar and Rincón Fonseca 2012). This anecdote shows that even non-prosecutorial efforts can still have positive impacts on transition. Likewise, Paraguay instituted a “Truth and Justice Commission” in 2003, even if that was only after many years of trying the clean-slate approach (Stroessner’s dictatorship ended in 1989, after 35 years). So, much like Brazil (and to some extent Chile), Paraguay has reluctantly moved from a model of full amnesties and lack of public acknowledgement to one that at least tries to come to terms with the dictatorial past through a history-writing exercise (on Paraguay, Stabili 2012; on Chile, Bakiner 2010). Something noteworthy about the Paraguayan situation is that it was the logistical centre for the Plan Cóndor, and therefore a hub for the design and implementation of many dictatorships across South America. The archives of the Plan Cóndor are still in Paraguay (Stabili 2012). This fact makes narrating the Paraguayan story important also to other truth-telling mechanisms across the region. Civil society pressure was instrumental in the creation of the Paraguayan Truth and Justice Commission, as those groups felt that the sole discovery of the Plan Cóndor archives was not sufficient to atone for the past, and that the voices of victims also needed to be heard. The Inter-American Commission also played a role, by holding public hearings on the human rights situation in Paraguay and subsequently recommending that Paraguay create such a Commission. The Commission was created with a mandate to look not only at the 35 years of the Stroessner regime, but also at the 14 years since the end of that regime and the creation of the Commission, during which endemic corruption and the continuing presence of high-ranked authorities of the Stroessner regime still affected Paraguayan civil and political life. Hearings were held all around Paraguay, and even in Buenos Aires, considered the capital of the Paraguayan exile (Stabili 2012). In Peru, the Peruvian Truth and Reconciliation Commission has been praised for its focus on victims, as opposed to a state-sponsored narrative. But this approach was not without problems, as it created watertight categories of victims and perpetrators that did not, for instance, allow a

96

Comparative constitutional law in Latin America

guerrilla member killed in combat to be considered a victim. It allowed members of the military of peasants engaged in self-defense against the guerrillas to be categorized as victims, and thus the Commission clearly created an official narrative of “good guys versus bad guys,” a narrative that can be subsequently enshrined in the law and other official narratives of the Peruvian state (Garcia-Godos 2008). Similarly in Colombia, this duality of victims and perpetrators allowed for politicized uses of impunity in a way that is corruptive of the transitional process, and distorts the focus towards (potential) criminal prosecutions, instead of addressing the root causes of the initial conflict (Alviar Garcia 2017). Sometimes, truth-seeking efforts can also be the fuel for prosecutions. In Argentina, the Commission on the Disappearance of Persons has been used to collect legal evidence for the prosecution of perpetrators (Crenzel 2008). But prosecutions in themselves tend to pursue different objectives. The next subsection looks at that mechanism in more detail. C. Investigate-Prosecute-Punish Prosecutions are certainly the trend across Latin America. Much of this momentum has to do with the influence of international human rights law, and particularly the Inter-American system (Engle 2012, 2015), which is related to the rise of “global justice” as an international movement (Teitel 2014), or the turn to criminal law in human rights (Engle 2015). A number of countries that started with measures falling short of prosecutions have since embraced this mechanism (most notably Argentina, Chile and Guatemala). This mechanism usually comes under the formula of “investigate-prosecute-punish” in the remedies ordered by the Inter-American Court and the language of international human rights law, which has been key in shaping this form of transitional justice. These cases (or the order to investigate-prosecute-punish) triggered abroad happen not only in the Inter-American human rights system, but also in courts in Spain, the United Kingdom and the United States. Spanish and United Kingdom courts have been used with respect to Augusto Pinochet and the Chilean situation. Rulings and action by international fora (particularly judicial) can be important tools in pursuing transitional justice objectives. For instance, it is widely documented that it was only when a Spanish judge sought the extradition of Augusto Pinochet from the United Kingdom that the notion of prosecutions in Chile was really jumpstarted (Lessa et al. 2014). The arrest of Pinochet led more broadly to the military rethinking their initial attitude of denial in the transitional processes, and to (however reluctantly) cooperation with judicial and other efforts (Bakiner 2010). Spanish courts have also

A critical mapping of transitional justice in Latin America

97

been used with respect to Guatemala, in a case led by the Nobel laureate Rigoberta Menchú. And US courts have been used with respect to atrocities in Peru and Guatemala, to name but two (Davis 2014). In Argentina and Chile, it would seem that politics around memory and transition have been mostly influenced by internal, rather than external, actors. But external actors have been essential to promoting policies with respect to justice and judicialization of the dictatorial past (Solís Delgadillo 2012). The same happened in El Salvador and Guatemala, where external actors were necessary to allow civil society groups to get judicial pronouncements on violations outside the official structures of the perpetrating state, thus shaming it to revisit its stance (Davis 2014). Civil society groups have also been important in pushing for prosecutions and accountability. The Mothers of the Plaza de Mayo in Argentina are perhaps one of the most prominent examples, and their contribution, in particular, highlights the role that gender can often play in transitional justice contexts. To be sure, I do not wish to reinforce the idea that women are equated with peace and transition, and men with war and violence, as there have been a number of women involved in guerrilla groups fighting against the dictatorships, but gender-based organizations have in fact been significant in the transition process in countries like Argentina, Colombia and Peru. These organizations have often relied on advances in feminist social movements in terms of mobilization and activism strategies, but it is difficult to characterize groups like the Mothers of the Plaza de Mayo as pursuing feminist agendas. Church groups have also to a limited extent been involved in prosecution efforts, even if their most important contribution seems to be to truth-seeking efforts (discussed above). In Uruguay, civil society pressure has been instrumental to triggering international action that ultimately led to dismantling the amnesty regime in Uruguay and paving the way for prosecutions. Their persistent demands over time are an often underacknowledged variable in transitional justice efforts. In Uruguay, civil society persistently challenged the amnesty law (or “Expiry Law”, as it is officially known), through mobilizing referenda, demonstrations, and even the movement that led to finding the Gelman child, which became the subject of the case before the Inter-American Court that put the final nail in the Expiry Law’s coffin (Burt, Amilivia and Lessa 2013). Prosecutions are not just a contemporary strategy of transitional justice, and have been attempted even in the initial years of redemocratization in Latin America. In Argentina, in particular, trials of the military leaders were seen as an inevitable strategy in the early post-dictatorship governments. Trials became the preferred way to break with the past, even above the impending need to draft a new Constitution for the

98

Comparative constitutional law in Latin America

country (which became a secondary consideration). Alfonsin, the first president elected in the redemocratized country, ran initially on a platform of constitutional drafting, but soon had to also make military trials a core part of his campaign, as a symbol of rejection of authoritarianism and of actual subjugation of wrongdoers to the rule of law. Soon after the first trials concluded, though, amnesty laws were put in place, and trials were only revived several decades later, with the 2005 judgment of the Argentinean Supreme Court in the Simón case (Elias 2007). Declining influence of the military, and generational changes therein, play a role in paving the way to prosecutions. In Chile, for instance, the military has played a central role in the transitional process, and still is a key variable to be considered. Generational changes within the military are a key factor in the advancement of the transitional justice project in Chile (alongside changes in civil society and international pressure), testifying to the staying power of the military establishment in Chilean politics and society (Bakiner 2010). In Uruguay, too, it was also generational changes that in part allowed civil society to ultimately dismantle a lot of those elite pacts in favor of prosecutions and other alternative means of transitional justice (Roniger 2012). Overall, “absent a dramatic defeat of an authoritarian regime and its armed forces, reform efforts that do not engage and bargain with the military directly often fail to achieve long-term compliance and improvements in human rights practices” (Kyle and Reiter 2013, p 375). The situation in Guatemala challenges some of these assumptions, though. In fact, in Guatemala it was a military coup that ended the dictatorial government of Ríos Montt. As such, the military played the role of facilitator of the transitional process (Martínez Barahona, Gutiérrez Salazar and Rincón Fonseca 2012). But the important point remains that the military’s presence is a significant factor to take into account when pursuing prosecutions, alongside local civil society and international bodies. All of those factors seem to increasingly push towards prosecutions as a means to achieve transitional justice goals. But there are many critics of the push towards prosecutions in the context of transition. For one, prosecutions of abusers immediately after transition are only really possible when the previous regime totally collapses, which creates a whole other set of problems that may be more urgent (Garrett 2010; Elias 2007). For instance, when it comes to the military, its elimination can create a vacuum that is incompatible with transitional justice’s focus on strengthening (instead of challenging) the state and its structures (Balint, Evans and McMillan 2014). Secondly, when prosecutions happen, they also tend to be highly selective and to

A critical mapping of transitional justice in Latin America

99

frustrate a project of wider justice (they are in a sense still victors’ justice) (Garrett 2010; Elias 2007). Thirdly, the focus on investigateprosecute-punish takes attention away from other initiatives on the ground that can be more effective in the specific context (Veçoso 2017). Also importantly, the reliance on criminalization seems to move away from the origins of the human rights movement that fuels these efforts. The anti-politics of the movement, in particular, seems to open the way for prosecution of state and non-state actors alike. That way, it would seem that the focus on criminalization, if deployed equally against all sides of the previous conflict, can in fact be a means to move past the sense of victors’ justice. One of the problems with that, of course, is that it also disregards the fact that the crimes of guerrilla fighters were for the most part only instigated by the oppressive acts of dictatorial governments, and thus erases the “never again” message and potential of transitional justice, by not allowing the justice project to be used as a means to dismantle structures that have led to dictatorships to begin with. Or, if those structures are dismantled, they are dismantled alongside the structures that could occupy the power vacuum (Engle 2012). Transitional justice, then, in blurring the lines between victims and perpetrators, and involving a growing number of stakeholders, seems to favor precisely a push towards judicial accountability, as the political stakes get muddled and drowned by the cacophony of voices. The retributivist approach of “investigate-prosecute-punish” to some extent sets a number of traps for the transitional experience, making it paradoxically apolitical in a politically charged situation.

III. CONSTITUTIONAL RESPONSES BEYOND DIRECTLY DEALING WITH THE PAST In designing post-dictatorial Constitutions, countries across the region have deployed a number of strategies. Often they have looked at comparative and international (particularly human rights) law in the design and implementation of their new Constitutions. Argentina has also looked at one of its early Constitutions (1853), which pre-dated the long periods of instability in the country throughout the twentieth century, as a model upon which to base its new post-dictatorship Constitution in the 1980s. Even though actual analyses of the old constitutional text were scarce, public rhetoric was filled with passionate endorsements of the old text as a “venerable historic document” behind which the entire nation could rally. Soon-to-become President Alfonsin even referred to that text in his electoral campaign as a “secular prayer” (Elias 2007). But not all

100

Comparative constitutional law in Latin America

countries have adopted new Constitutions as part of transitional processes. Colombia is an example of a country that is undergoing transition without adopting a new Constitution, and that has created tensions in figuring out how to interpret a Constitution in a way that is both consistent and allows for the break that is characteristic of transitional processes (for an in-depth discussion, see Bernal-Pulido 2014). Constitutionalism as a product of transition is not always focused on separation of powers and political structures, and is also increasingly concerned with accountability (Teitel 2011). As a result, a number of specific constitutional structures shared among Latin American countries, such as the amparo remedy, aim at providing means of promoting accountability of state authorities. Some other structures have come about in modern constitutionalism as direct responses to transitional justice. The creation of ombudsman offices in many countries in the region is one such instance, according to Carpizo (2006). Venezuela under Hugo Chávez, for instance, created an ombudsman office directly as a transitional justice mechanism (Acuña and Valverde 2014). The same can be said of the strict regulation of the declaration of states of emergency that can warrant derogation from fundamental rights and other guarantees (even if some of this regulation can also be attributable to the American Convention on Human Rights, particularly Article 27 on “Suspension of Guarantees”) (Rolla 2012). But that mechanism is not sufficiently spread across the region to warrant systematic analysis. Rather, in what follows I will focus on two specific examples of constitutional design features triggered by transition, but that have impacts ranging far beyond the transitional justice project. The first mechanism is a more structural one (judicial independence); the second is a specific remedy that has come about as a reaction against dictatorial regimes (habeas data). A. Structural Impacts: Judicial Independence The judiciary has played an important role in the transitional process in Latin America. Because political institutions failed and allowed for the rise of dictatorial governments, in the aftermath faith was deposited in the judiciary as an apolitical institution, capable of upholding constitutional values in spite of the government of the day (Skaar 2011). Some of this has been reflected in the creation of the Ministerio Público, particularly as an autonomous entity vis-à-vis the other branches of government, whose primary function is to represent the people before the judiciary (Carpizo 2006). Electoral courts, or the judicial control of the democratic process, are also an important feature of attempts to protect democratic values in a number of countries (Hernández 2003; Rolla

A critical mapping of transitional justice in Latin America

101

2012), particularly in that they can protect a transition away from a single- or dual-party system (which is a façade behind which many dictatorial governments, such as the ones in Brazil and Mexico, have hidden) towards a multi-party system (Orozco Henríquez 2006). Judicial reforms are particularly aimed at increasing judicial independence, and stemming corruption. But results may not always be positive. In Guatemala, for instance, the 1996 “Agreement on the Strengthening of Civilian Power and on the Role of the Armed Forces in a Democratic Society” indicated that one of the key structural weaknesses of the Guatemalan state was its judiciary. However, judicial reform was hindered by an excessive focus on external technical aspects, including overreliance on indicators and external expertise at the expense of bottom-up solutions. The problems of lack of independence and corruption in the system were not addressed, according to Zunino (2011), by the fiat of external bodies, as their initiatives in many ways only reproduced the problems they sought to resolve. The experience of enhancing judicial independence is not all negative, though. In countries like El Salvador (Martínez Barahona, Gutiérrez Salazar and Rincón Fonseca 2012), Peru, Argentina, Bolivia and Chile, there is a strong correlation between raising guarantees of judicial independence in the aftermath of transition and an increased number of prosecutions of alleged perpetrators of human rights abuses during dictatorial periods. Particularly, constitutional reforms targeted at judicial independence have increased this propensity because of greater independence from the executive branch, and also internally within the judiciary, which has become less hierarchical in those countries. Because of the lessened hierarchy, lower-court judges can more successfully pursue prosecutions (Skaar 2012). These judges can be new judges who have not been trained under the dictatorial government, and are thus less invested in upholding that status quo; or judges who were around during the dictatorships, but were held back from being promoted to higher instances because of their pro-human rights leanings. In Peru, the consequences of a weak judiciary were felt in a challenge to the amnesty law. The Peruvian Supreme Court ruled that the judiciary did not have the power to decide on the legality of an amnesty law because to do so would violate the principle of separation of powers (Melo 2009). Subsequently, that judgment became the object of the Inter-American Court’s decision in Case of Barrios Altos v Peru (2001) IACtHR Ser C 87, which is a landmark judgment striking down amnesty laws as a transitional justice mechanism.

102

Comparative constitutional law in Latin America

B. Fundamental Rights and Specific Constitutional Remedies: Habeas Data Extensive codifications of fundamental rights can be seen as a response to a dictatorial government, as a means of guaranteeing a wider array of specific rights against the state (Rolla 2012). In countries like Brazil, the parts of the Constitution protecting fundamental rights and the democratic form of state are even protected against amendment that can lower those guarantees, according to the terms of the Constitution (what are popularly known as cláusulas pétreas, or, roughly, clauses set in stone). More specifically, the Brazilian Constitution of 1988 states the following: Article 60. The Constitution may be amended … Paragraph 1. The Constitution shall not be amended while federal intervention, a state of defense or a state of siege is in force. … Paragraph 4. No proposal of amendment shall be considered which is aimed at abolishing: I – the federative form of State; II – the direct, secret, universal and periodic vote; III – the separation of the Government Powers; IV – individual rights and guarantees.

This response in the area of fundamental rights, which often also implies giving higher constitutional status to human rights norms from international instruments can also lead to the creation of new remedies. The remedy of habeas data is inspired by the habeas corpus, but, instead of it being a writ to free a person, it is a writ to release information about someone. It can also be used to rectify information about a person held in public records. In the context of dictatorial governments that kept extensive files on anyone considered “subversive,” and considering those “subversive elements” were also often considered criminals (or even terrorists) by the government, the right to access and rectify information held by the government is vital in overcoming stigma left by the dictatorship on individual persons. Also, this writ can lead to access to important information to help locate disappeared persons. It is often seen as a corollary of the right to truth, such as in the Mexican context (Orozco Henríquez 2006). The Brazilian Constitution of 1988 created this remedy as part of Article 5, which lists fundamental individual rights: All persons are equal before the law, without any distinction whatsoever, Brazilians and foreigners residing in the country being ensured of inviolability of the right to life, to liberty, to equality, to security and to property, on the following terms: … LXXII – habeas data shall be granted: a) to ensure the knowledge of information related to the person of the petitioner, contained in records or data banks of government agencies or of agencies of a public

A critical mapping of transitional justice in Latin America

103

character; b) for the correction of data, when the petitioner does not prefer to do so through a confidential process, either judicial or administrative; …

This right was subsequently incorporated in the Constitutions of several countries, including Paraguay, Peru, Argentina, Ecuador and Bolivia (Carpizo 2006; Stabili 2012). Ironically, in Brazil this right was later curtailed by legislation that attempted to permanently classify documents related to certain government actions during the military dictatorship (Melo 2009), but those laws were themselves overturned in late 2011, when President Rousseff signed laws on access to information and the creation of the Truth and Reconciliation Commission on the same day. These laws are influenced by the findings of the Inter-American Court against Brazil (Davis 2014).

IV. CONCLUDING REMARKS Constitutional responses to transition, much like other features of contemporary Latin American constitutionalism, are contingent on a number of features. These include the relationship to the Catholic Church, the uneasy position of elites (largely military) and their continuing presence within domestic politics, and the influence of external actors, as means of enhancing the legitimacy of the new arrangements, and of circumventing some of the entrenched local powers. Transitional justice also operates in tension with constitutional design, at least to the extent the former is backward looking, and the latter strives to bring in the future. This tension partly accounts for the multiplicity of responses, and why constitutional texts themselves do not often deal with transition. But, despite the primary focus on prosecutions as a mechanism in transitional justice, there are also mechanisms built into Constitutions that are products of the transitional moment, and have effects far beyond dealing with the remnants of the past, and can put societies emerging from transition on a good footing for the future. It seems that a few ideas can be deduced from mapping out the Latin American experience. First, the Latin American experience and project tends to overemphasize criminal justice solutions, often at the expense of other approaches. Secondly, the transitional justice project in Latin America often overlooks ripple effects of its own mechanisms beyond transition, as it is a project focused primarily on the past, whereas Constitutions drawn in the aftermath of dictatorship are necessarily forward looking. Thirdly, the rise of (military) dictatorships in Latin America in the twentieth century was largely fuelled by right-wing

104

Comparative constitutional law in Latin America

politics, and often as a means to prevent the rise of left-wing politicians to power. Consequently, the right-wing character of authoritarianism in Latin America has shaped transitional justice differently from the Eastern European experience (where the dictatorial governments were Socialist governments), influenced particularly by the continued presence of the military in political life in a number of countries. Fourthly, the global justice project seems to have found particularly fertile ground in the Latin American experience with atrocities, and imprinted its preference for prosecutions at the expense of other alternatives. Fifthly, this focus tends to neglect the economic, the political and the cultural in transition, shifting focus away from restorative justice and keeping efforts rooted in a retributive model which is only reinforced by reforms aimed at increasing judicial independence in the region. But it may be that the transitional project in Latin America is its own worst enemy.

REFERENCES Abrão, Paulo and Marcelo Torelly. 2012. “Resistance to Change: Brazil’s Persistent Amnesty and Its Alternatives for Truth and Justice.” Pp. 152–181 in Amnesty in the Age of Human Rights Accountability: Comparative and International Perspectives, edited by Francesca Lessa and Leigh A. Payne. Cambridge: Cambridge University Press. Acuña, Rodrigo and Estela Valverde. 2014. “Can the Bolivarian Experiment Implement Transitional Justice in Venezuela?” Macquarie Law Journal 13: 129–146. Alviar Garcia, Helena. Forthcoming 2017. “The Political Uses of Impunity: The Case of Colombia.” In Anti-Impunity and the Human Rights Agenda, edited by Karen Engle, Zinaida Miller and D.M. Davis. Cambridge: Cambridge University Press. Bakiner, Onur. 2010. “From Denial to Reluctant Dialogue: The Chilean Military’s Confrontation with Human Rights.” International Journal of Transitional Justice 4: 47–66. Balint, Jennifer, Julie Evans and Nesam McMillan. 2014. “Rethinking Transitional Justice, Redressing Indigenous Harm: A New Conceptual Approach.” International Journal of Transitional Justice 8: 194–216. Bernal-Pulido, Carlos. 2014. “Transitional Justice Within the Framework of a Permanent Constitution: The Case Study of the Legal Framework for Peace in Colombia.” Cambridge Journal of International and Comparative Law 3(4): 1136–1163. Boesenecker, Aaron P. and Leslie Vinjamuri. 2011. “Lost in Translation? Civil Society, Faith-Based Organizations and the Negotiation of International Norms.” International Journal of Transitional Justice 5: 345–365.

A critical mapping of transitional justice in Latin America

105

Burt, Jo-Marie, Gabriela Fried Amilivia and Francesca Lessa. 2013. “Civil Society and the Resurgent Struggle against Impunity in Uruguay (1986– 2012).” International Journal of Transitional Justice 7: 306–327. Byrnes, Andrew and Catherine Renshaw. 2010. “Within the State.” Pp. 498–517 in International Human Rights Law, edited by Daniel Moeckll, Sangeeta Shah and Sandesh Sivakumara. Oxford: Oxford University Press. Carpizo, Jorge. 2006. “Derecho Constitucional Latinoamericano y Comparado.” Anuario Iberoamericano de Justicia Constitucional 10: 73–108. Coelho, Mario Drummond. 2011. “Transitional Justice in Brazil: From Military Rule to a New Constitutional Order.” University Relations International Brasilia 9(2): 207–237. Collins, Cath, Lorena Balardini and Jo-Marie Burt. 2013. “Mapping Perpetrator Prosecutions in Latin America.” International Journal of Transitional Justice 7: 8–28. Crenzel, Emilio. 2008. “Argentina’s National Commission on the Disappearance of Persons: Contributions to Transitional Justice.” International Journal of Transitional Justice 2: 173–191. Davis, Jeffrey. 2014. Seeking Human Rights Justice in Latin America: Truth, Extra-Territorial Courts, and the Process of Justice. Cambridge: Cambridge University Press. Elias, Jose Sebastian. 2007. “Constitutional Changes, Transitional Justice, and Legitimacy: The Life and Death of Argentina’s ‘Amnesty’ Laws.” Yale Law School Student Scholarship Papers 57. Engle, Karen. 2012. “Self-Critique, (Anti) Politics and Criminalization: Reflections on the History and Trajectory of the Human Rights Movement.” Pp. 41–73 in New Approaches to International Law: The European and the American Experiences, edited by JM Beneyto and D. Kennedy. Leiden: TMC Asser Press. Engle, Karen. 2015. “Anti-Impunity and the Turn to Criminal Law in Human Rights.” Cornell Law Review 100: 1069–1127. Garcia-Godos, Jemima. 2008. “Victim Reparations in the Peruvian Truth Commission and the Challenge of Historical Interpretation.” International Journal of Transitional Justice 2: 63–82. Garrett, Stephen A. 2010. “Models of Transitional Justice: A Comparative Analysis.” Paper presented at the Annual Convention of the International Studies Association, Los Angeles (manuscript on file). Gros Espiell, Héctor. 2002. “El Constitucionalism Lationoamericano y la Codificación en el Siglo XIX.” Anuario Iberoamericano de Justicia Constitucional 6: 143–175. Hernández, Antonio Maria. 2003. “Reflexiones sobre la Situación Actual y Perspectivas de los Sistemas Políticos y Constitucionales de América Latina.” Anuario Iberoamericano de Justicia Constitucional 7: 295–313. Isaacs, Anita. 2010. “At War with the Past? The Politics of Truth Seeking in Guatemala.” International Journal of Transitional Justice 4: 251–274. Kyle, Brett J. and Andrew G. Reiter. 2013. “Militarized Justice in New Democracies: Explaining the Process of Military Court Reform in Latin America.” Law & Society Review 47(2): 375–407.

106

Comparative constitutional law in Latin America

Lessa, Francesca, Tricia D. Olsen, Leigh A. Payne, Gabriel Pereira and Andrew G. Reiter. 2014. “Overcoming Impunity: Pathways to Accountability in Latin America.” International Journal of Transitional Justice 8: 75–98. Lixinski, Lucas. 2015. “Cultural Heritage Law and Transitional Justice: Lessons from South Africa.” International Journal of Transitional Justice 9(2): 278–296. Martínez Barahona, Elena, Martha Liliana Gutiérrez Salazar and Liliana Rincón Fonseca. 2012. “Impunidad en El Salvador y Guatemala: ‘De la Locura a la Esperanza: ¿Nunca Más?’” América Latina Hoy 61: 101–136. Meertens, Donny and Margarita Zambrano. 2012. “Citizenship Deferred: The Politics of Victimhood, Land Restitution and Gender Justice in the Colombian (Post?) Conflict.” International Journal of Transitional Justice 4: 189–206. Melo, Carolina de Campos. 2009. “Transitional Justice in South America: The Role of the Inter-American Court of Human Rights.” Revista CEJIL 4(5): 83–92. Mezzetti, Luca. 2002. “Transiciones Constitucionales y Consolidación de la Democracia en los Albores del Siglo XXI.” Anuario Iberoamericano de Justicia Constitucional 6: 323–337. Miller, Zinaida. 2008. “Effects of Invisibility: In Search of the ‘Economic’ in Transitional Justice.” International Journal of Transitional Justice 2: 266–291. Nussio, Enzo, Angelika Rettberg and Juan E. Ugarriza. 2015. “Victims, Nonvictims and Their Opinions on Transitional Justice: Findings from the Colombian Case.” International Journal of Transitional Justice 9(2): 336–354. Olsen, Tricia D., Andrew G. Reiter and Eric Wiebelhaus-Brahm. 2011. “Taking Stock: Transitional Justice and Market Effects in Latin America.” Journal of Human Rights 10(4): 521–543. Orozco Henríquez, Jesús. 2006. “La Suprema Corte de Justicia de la Nación a Partir de 1995 y el Nuevo Orden Constitucional.” Anuario Iberoamericano de Justicia Constitucional 10: 281–302. Roht-Arriaza, Naomi. 1998. “Truth Commissions and Amnesties in Latin America: The Second Generation.” American Society of International Law Proceedings 92: 313–316. Rolla, Giancarlo. 2012. “La Evolución del Constitucionalismo en América Latina y la Originalidad de las Experiencias de Justicia Constitucional.” Anuario Iberoamericano de Justicia Constitucional 16: 329–351. Roniger, Luis. 2012. “La Sacralización del Consenso Nacional y las Pugnas por la Memoria Histórica y la Justicia en el Uruguay Postdictatorial.” América Latina Hoy 61: 51–78. Rosenberg, Tina. 1996. The Haunted Land: Facing Europe’s Ghosts after Communism. New York: Vintage Press. Santos, Maria Helena de Castro. 2004. “The Brazilian Military in PostDemocratic Transition.” Revista Fuerzas Armadas y Sociedad 18(3–4): 115–146. Sharp, Dustin N. 2015. “Emancipating Transitional Justice from the Bonds of the Paradigmatic Transition.” International Journal of Transitional Justice 9: 150–169. Sikkink, Kathryn and Carrie Booth Walling. 2007. “The Impact of Human Rights Trials in Latin America.” Journal of Peace Research 44(4): 427–445.

A critical mapping of transitional justice in Latin America

107

Skaar, Elin. 2011. Judicial Independence and Human Rights in Latin America: Violations, Politics and Prosecutions. London: Palgrave Macmillan. Skaar, Elin. 2012. “Puede la Independencia Judicial Explicar la Justicia Postransicional?” América Latina Hoy 61: 15–49. Solís Delgadillo, Juan Mario. 2012. “El Peso Político del Pasado: Factores que Inciden en la Formulación de las Políticas de la Memoria en Argentina y Chile.” América Latina Hoy 61: 163–206. Stabili, Maria Rosaria. 2012. “Opareí: La Justicia de Transición en Paraguay.” América Latina Hoy 61: 137–162. Tang, Yi Shin. 2015. “International Justice through Domestic Courts: Challenges in Brazil’s Judicial Review of the Amnesty Law.” International Journal of Transitional Justice 9(2): 259–277. Teitel, Ruti. 2011. “Transitional Justice and the Transformation of Constitutionalism.” Pp. 57–76 in Comparative Constitutional Law, edited by Tom Ginsburg and Rosalind Dixon. Cheltenham: Edward Elgar Publishing. Teitel, Ruti. 2014. Globalizing Transitional Justice: Contemporary Essays. Oxford: Oxford University Press. Torelly, Marcelo. 2012. Justiça de Transição e Estado Constitucional de Direito: Perspectiva Teórico-Comparativa e Análise do Caso Brasileiro. Belo Horizonte: Fórum. United Nations. 2010. Guidance Note of the Secretary-General – United Nations Approach to Transitional Justice. Veçoso, Fabia Fernandes Carvalho. Forthcoming 2017. “Whose Exceptionalism? Debating the Inter-American View on Amnesty and the Brazilian Case.” In Anti-Impunity and the Human Rights Agenda, edited by Karen Engle, Zinaida Miller and D.M. Davis. Cambridge: Cambridge University Press. Zunino, Marcos. 2011. “Releasing Transitional Justice from the Technical Asylum: Judicial Reform in Guatemala seen through Technē and Phronēsis.” International Journal of Transitional Justice 5: 99–118.

5. Constitutional revolution in the Andes? Zachary Elkins* I. INTRODUCTION: OLD WINE IN NEW BOTTLES? Constitutional revision – in most countries, at least – is about as inevitable as death and taxes. Historical data puts the expected lifespan of a constitution at 19 years, and the rate of amendment at one every two years (Elkins, Ginsburg, and Melton 2009). The frequency of constitutional replacement is highest in Latin America, though the rate varies across the region. Ecuador, Venezuela, and Bolivia are among the most prolific drafters in Latin America. Each has replaced its constitution, on average, every seven years or so. Certainly, not all of the “new” constitutions from these three countries, or any other, are worthy of a new name. Some are minor retreads of the preceding constitution; some, especially in cases of protracted “reversion wars,” are reactionary replicas of constitutions from the distant or near distant past. These retread cases portray constitutional design as a fairly derivative art form, with true originals few and far between. And so it would be understandable if scholars and citizens were to greet new constitutional offerings with indifference, especially from these three Andean countries. Enter Evo Morales (Bolivia), Hugo Chavez (Venezuela), and Rafael Correa (Ecuador), whose commissioned constitutions are the subject of considerable interest and even excitement in some quarters. These leaders have been part of a notable and concerted move to the left in Latin America (the “pink tide,” as some would have it). Scholars have noted not only a shift from the market-based policies that had begun to describe * Thanks to Kurt Weyland, Wendy Hunter, Dan Brinks, Ken Greene, Henry Dietz, Steve Levitsky, and Diana Kapiszewski for comments, and to the National Science Foundation for support for producing the data cited herein. As usual, my gratitude to Tom Ginsburg and James Melton, my partners at the Comparative Constitutions Project, for a decade of collaboration. 108

Constitutional revolution in the Andes?

109

1990’s Latin America, but also a shift in form. Bolivia and Ecuador are thought to follow the “Bolivarian”1 model set out by Chavez, of direct, plebiscitary politics, as against the model of more indirect, “liberal” democracy that had characterized Latin American polities for most of the last 200 years (Weyland, Madrid, and Hunter 2010). The Bolivarian constitutions have a reputation for novelty, in part because they are tinged with something of a revolutionary spirit. At least I think they have such a reputation. It may be worth reviewing how, exactly, public commentators view these reforms, since such characterizations may not be widely shared. The New York Times, at least, described these constitutions as “sweeping” (Bolivia), “novel” (Ecuador), and “revolutionary” (Venezuela). Figure 5.1 sets the rather inclusionary scene in Bolivia well enough. Another indication of something different was the starkly polarized reaction among citizens in these countries. Consider two reactions from Bolivia, which are probably representative of similar remarks in the other Bolivarian republics: “Bolivia, little by little, is shutting itself off from the world,” said Gonzalo Chávez, a Harvard-educated economist at the Catholic University of La Paz. “With my humble vote, I am creating a little bit of hope for my children,” said Ismael Pocoaca, 42, a construction worker who voted Sunday morning at the Chuquiago Marka School here in this city of slums on the windswept plain overlooking the capital, La Paz (Romero 2009).

Part of the marketing of these new, perhaps transformational, ideas comes from the authors of the texts themselves, or at least the Presidents that commissioned the texts. Of course, one would expect leaders to speak grandly of their creations, but there seems to be something even more dramatic in their presentation of these constitutions. Here is Correa addressing supporters in Guayaquil following the overwhelming passage of the Ecuadorian charter: “Today Ecuador has decided on a new nation. The old structures are defeated. This confirms the citizens’ revolution” (Partlow and Kuffner 2008). This revolutionary view is shared by Evo Morales, whose new constitution represents the culmination of a campaign to incorporate indigenous Bolivians, once and for all, into the governance of the country. As he put it the day after the referendum approving the constitution: “After 500 years, we have retaken the Plaza Murillo!” Plaza Murillo is the central square in La Paz, which was off-limits to indigenas until 1950. And for 1 Chavez was accustomed to referencing the Latin American founding figure, Simon Bolívar, to describe his approach.

110

Comparative constitutional law in Latin America

Hugo Chavez, the 1999 Venezuelan constitution signaled nothing less than the onset of the “Fifth Republic” in the country’s history. These pronouncements seem to be more than simply the bluster of a new President bent on concentrating power in the executive branch, though that shift may well be a significant part of what is new. Rather, some of the signature, or at least celebrated, elements of the new constitutions suggest real innovation. The Bolivian constitution takes a dramatic plurinational approach, with no fewer than 36 official languages and the requirement that public services accommodate at least one indigenous language. It also creates a “fourth” branch of government, which is composed of the elected – not appointed – members of public bodies. The Venezuelan constitution, of course, includes not four but five branches, as well as a significant number of avenues for direct democracy, and a new name for the country. Ecuador’s signature contributions are no less exciting: their constitution is the first to grant rights to nature itself.

Source:

Enrique Castro-Mendivil/Reuters.

Figure 5.1 A plurinational Bolivia: an Aymara citizen votes in the 2009 Referendum All this to recall the reputedly transcendental nature of these Bolivarian republics. But there is reason to think that the Bolivarian rhetoric is not empty. Indeed, real state action – whether as new forms of citizen participation or starkly different approaches to the management of the

Constitutional revolution in the Andes?

111

economy – suggests a profound departure from business as usual. Bolivarianism undoubtedly represents something new on the scene of the third-wave democracies, a scene previously dominated by what we might summarize crudely as liberal democracy. But how new? And, more generally, how should we think about, and assess, the novelty of constitutional shifts? The Bolivarian texts have not been ignored, and we do have some read on their contents. Mark Tushnet (this volume), for example, finds the new constitutions to be a curious mix of traditionalism and radicalism. Actually, Tushnet’s analysis – which is more interpretive and textual – makes for useful companion to the analysis below, which is pitched at a higher level of generality. Regardless, what is enlightening substantively – and, as it happens, analytically convenient – is that the scope of any reform will likely be reflected in the Bolivarian constitution. The Bolivarians, like reformers before them, have sought to etch their ideas directly into written higher law, not through some alternative mode (e.g., informal changes or new interpretations of law). But the Bolivarians’ focus on higher law is perhaps sharper and more intense than that of their predecessors. Indeed, constitutionalism has been the central and first leg of what has become the Bolivarian script. All three Bolivarian leaders launched constitutional revision almost immediately upon taking office. Ironically, Hugo Chavez announced his plans to rewrite the 1961 Venezuelan constitution only minutes after he took the oath of office – an oath to preserve and protect the country’s constitution! In his inauguration speech, Chavez proclaimed that “the Constitution, and with it the ill-fated political system to which it gave birth 40 years ago, has to die. It is going to die, señores! Accept it!”

II. UNDERSTANDING CONSTITUTIONAL TRANSFORMATION A. The R Word These sound like big changes indeed. But are they really? And compared to what? We hear of “constitutional revolutions” in other places, but as Gary Jacobsohn (2014) reminds us, this concept has been stretched to the point of breaking. How about the post-apartheid South African document? The New Deal changes in the U.S.? Brazil in 1988? Jacobsohn introduces some very helpful definitional clarity, albeit with his own conceptual predilections. Jacobsohn (2014: 3) defines constitutional revolution as a “paradigmatic displacement, however achieved, in the

112

Comparative constitutional law in Latin America

conceptual prism through which constitutionalism is experienced in a given polity.” For Jacobsohn, then, a revolution is more about the substance of change and less about the mode or abruptness of it. That understanding suits my purposes here well enough, since I am focused on content. However, it is worth noting that the Bolivarian changes were also abrupt, which might satisfy other readers who expect such in their “revolutions.” I myself prefer my “revolutions” to be short, sharp shocks, maybe something akin to the idea of punctuated equilibrium (Collier and Collier 1991). But there is no reason to be hung up on these concepts here. I am mostly concerned with assessing the scope of transformation associated with changes in the constitutional text, and I do not (yet) have evidence about whether these changes will persist or, whether they have fundamentally reshaped actors’ worldview. Time will tell. B. The Research Question(s), Restated We begin, then, with the proposition that the Bolivarian constitutions are new and different – radically so, perhaps. But who knows whether that is true? The reality is that very few of us – citizens or scholars – are in the habit of reading and interpreting constitutions. High court justices, some legislators (maybe), and their staffs and litigants (certainly) constitute the rather limited readership of these texts. This is an understandable state of affairs, and perhaps an altogether healthy ordering of personal priorities. But the inattention is unfortunate, in part because constitutions are not like other inscrutable contracts or mammoth pieces of ordinary legislation; rather, constitutions are generally plain-spoken documents that are meant to be read by non-lawyers and non-wonks. I, for one, have come to appreciate this simplicity, and other aspects of the constitutional literary form, over the last 10 years. Since 2004, I have been involved in a systematic reading of constitutions, and lots of them – actually, nearly all of them. The sample in our Comparative Constitutions Project (CCP), my collaboration with Tom Ginsburg and James Melton, at this point includes almost 780 of the 846 constitutional systems that have come into force since 1789, along with most of the amendments to these systems. (For excruciating detail on the project, visit the project website at comparativeconstitutionsproject.org.) Reading constitutions can answer some very basic empirical questions about which we would otherwise resort to hand-waving and conjecture. Let us assume that we can measure something I will call the scope of constitutional reform, defined as the degree to which a constitutional reform departs from preceding constitutional systems.

Constitutional revolution in the Andes?

113

A general question that follows has to do with the distribution of the scope of reform across time and space. On average, do constitutions change much when leaders sit down to rewrite them? And then, what conditions are associated with varying degrees of change? This focus on the overall scope of change leads to some more granular questions about constitutional “inventory:” what core ideas and topics do constitutions generally contain, anyway? Which ideas and topics are less prevalent in constitutions? How have constitutional inventories changed over time and what passes for “innovative” over the last 200 years? Note, that this line of questioning suggests both a cross-sectional comparison (i.e., which constitutional ideas are new and different compared with extant models?) as well as a within-country comparison (i.e., which constitutions break new ground compared with constitutional trajectories within countries?). C. Conceptualizing Constitutions As a practical matter, we can begin to explore these questions and describe over-time and over-space differences with data from the CCP, which records the content of constitutions since 1789. But before we do so, a note here is in order regarding the unit of analysis in the CCP and the concept of a constitution, which can be a point of some pique in some quarters. First, the focus is on written constitutions, and not the constitutional order, the latter of which can include any number of important elements of higher law such as judicial interpretations, important ordinary law, and norms. Such is the power of the script of modernity that nearly every country has now adopted something it calls the “Constitution” or the “Basic Law.” Second, the analysis is of “new” or “replaced” constitutions, defined as revisions in which the leaders work outside the amendment process to replace a constitution. In this sense, the United States constitution replaced the Articles of Confederation, in that the founders ignored the Articles’ amendment procedure, which would have required unanimous consent from the state delegations, something that was politically impossible. Obviously, incremental (and even not so incremental) reform can occur through the standard amendment process, identified in the constitution. The focus, in this study, is on changes that actors and historians characterize and proclaim as more significant and more disruptive: complete revisions. I recognize that replacement and amendment can entail both large and small changes; some amendments (such as those to the Korean constitution) can be far-reaching, some replacements (such as many of those in the history of the Dominican Republic) can be relatively minor. Still, both of those cases are exceptional.

114

Comparative constitutional law in Latin America

III. BOLIVARIAN CONSTITUTIONS ARE LONG – VERY LONG The data in the CCP covers nuanced choices about institutional design, so it may seem odd to begin with a mundane element of style. Nevertheless, word count – that preoccupation of writers everywhere – can tell us a great deal about the scope of reform. If the Bolivarian constitutions represent something of a structural break, we should expect an abrupt shift in the length of the constitution. Of course, word counts can be meaningless. A constitution can shift course 180 degrees using the same number of words as its predecessor; likewise, authors with different styles but similar tastes in institutions can pen documents with radically different lengths but identical structures. But in the case of the Bolivarians, I suspect that word count is meaningful. The Bolivarians have in mind a rather expansive and inclusive view of democracy, which would seem to require a more expansive and inclusive constitution. New rights and new branches of government require added description, especially if they are to be safeguarded against unsympathetic governments and courts in the future. In short, continuity in the size of the Andean constitutions would lead me to be skeptical of the transformative nature of these reforms. Figure 5.2 charts the word count of constitutions in the series from each country. Note that the CCP sample includes every constitution in the three series except for one – the 1836 constitution of Bolivia. The other 17 Bolivian constitutions are included as are all 22 and 23 from Venezuela and Ecuador, respectively. Just to clarify again, the CCP data also includes “amendments” to these constitutions, but we leave aside for now those reforms – which are typically, but not always, more incremental. The data show anything but continuity. Prior to their Bolivarian “moment,” the size of the constitutions in the three countries hovers at something close to the historical average for constitutions across the world with a noticeably sharp increase since the 1960s. Figure 5.3 depicts the growth in constitutions in Latin America since their birth in the early 1800s. Constitutions are now much longer, but the Bolivarians seem to be at the top of the distribution. In our sample of 677 “new” constitutions since 1789, the mean word count is 13,270. By contrast, the Bolivarian texts are three to four times as large. The Bolivian and Venezuelan documents weigh in at around 40,000 words, with the Ecuadorian one coming in at a whopping 54,000, making it the 12th longest constitution ever written. These are long texts.

Constitutional revolution in the Andes?

115

0

20

40

60

Venezuela

1850

1900

1950

2000

1950

2000

1950

2000

20

40

60

Bolivia

0

Words (in 1000’s)

1800

1800

1850

1900

0

20

40

60

Ecuador

1800

1850

1900

Year

Figure 5.2 Number of words in Andean constitutions But of course, it could be this size is mostly a sign of the times. After all, constitutional “girth” has been on a secular incline for the last 200 years, with a noticeably sharp increase since the 1960s. So are the Bolivarians exceptional? Here’s one quick test. I regress word count on year and year-squared (to capture the nonlinearity of the recent surge) as well as a dummy variable for the three Bolivarian texts. The equation is estimated with a random-effects model, which picks up within-unit and across-unit variation and helps to account for the trajectory of each country. Even controlling for the era and country trajectory, these Bolivarian texts are unusually long – about 20,000 words longer than they should be (b=19.57 – dependent variable is in 1000s of words) (see Table 5.1).

Comparative constitutional law in Latin America

BRA

60000

116

ECU

40000

BOL VEN

DOM GUA URU PAR CHL MEX SAL HON

20000 0

Number of words

COL

HAI PER PAN COS VEN URU SUR PAN ARG ECU PAR

GUA

CUB SUR NIC

BRA CHL CUB HON DOM COL BOL NIC PER MEX COS SAL HAI

ARG

Last

First

Note:

“Contemporary” = c.2014.

Figure 5.3 Length of first and contemporary constitutions in Latin America Table 5.1 Predicting word counts in constitutions Variable

b

se

Bolivarian

19.57

3.65

Year

-2.45

0.39

Year-squared

.0007

.0001

2269.99

377.69

Constant N (countries)

202

N (constitutions)

673

R-squared

0.16

Constitutional revolution in the Andes?

117

IV. MOLD-BREAKING VERSUS MOLD-PRESERVING So, Bolivarian constitutions are more verbose than their predecessors. This may not be surprising, and it may not mean anything. Hugo Chavez would regularly speak for hours on his Sunday call-in show “Aló Presidente.” Presidents Correa and Morales have followed suit with their own shows as well, by the way. But did these Presidents (or, more to the point, their constitutions) say anything different from what their predecessors did? A. Constitutional Similarity My approach to these questions is to construct a measure of the similarity in content between any two constitutions at their birth (year of enactment). Several considerations arise in building such a measure. The first involves the ingredients of the measure. CCP records almost 600 characteristics of constitutions, and so we are faced with the delicate task of selecting the attributes with which to construct the measure. Further, while we can compare whether two constitutions make the same choices on any given list of provisions, we can also compare more simply whether two constitutions address the same issues (something I’ve called inventory similarity). Both alternatives have their advantages. The analysis in this chapter focuses on the former and, in particular, similarity in rights provisions, which is reputedly the area of greatest innovation by the Bolivarians. Though I note Roberto Gargarella’s (2013) reminder that changes in rights can be ineffectual unless accompanied by changes in the “engine room” (structure). A measure of rights similarity digs deeply into the actual choices of designers, not just the themes or topics that they cover. One could conceivably build an even more comprehensive measure of content similarity that includes items having to do with a wider range of institutional choices, including the more structural components of governance. However, any measure of the similarity of institutional choice depends upon the assumption that the basic institutional structure is similar – or at least comparable – across constitutions. Such a measure also depends on the comparability of what is included in constitutions – that is, inventory similarity. So, for example, it would be challenging to compare the choice of electoral system for the legislature since not all constitutions include a legislature and, of those that do, only some 30 percent specify the selection method in any detail (leaving aside the issue of comparing unicameral to bicameral legislatures). By contrast, rights are nearly universal in constitutions and represent a fairly discrete and

118

Comparative constitutional law in Latin America

structure-free set of binary choices along which to make comparisons of content. For example, each Latin American constitution in our sample provides for at least some rights; the question is which ones. I calculate a simple measure of rights similarity by summing the number of rights on which any two constitutions agree (that is, that they both omit or include the right) and dividing by the number of rights in the set (70). Accordingly, two cases score a 0 if they do not match on a single right and a 1 if they match on every right. The number is thus the proportion of items that “match.” I calculate this measure of similarity for our sample of 677 of the 836 constitutions in the universe, and each of their peers. The result is a matrix with some 228,826 unique constitutional dyads (one score for each of the 677 constitutions and its 676 counterparts). The scores across these dyads have a mean of 0.64 (s.d. = 0.11) and range from 0.10 to 1.0. But what do these similarity scores tell us about constitutional innovation? B. Something New, Something Borrowed, Something Else? I begin with some analysis of basic patterns of similarity across constitutions. Not surprisingly, the most similar pairs typically involve constitutions from the same country. This is especially true with some of the more prolific constitution producers from Latin America, such as Venezuela and the Dominican Republic, some of whose pairs of constitutions exhibit similarity scores as high as 1.0 – i.e., their rights provisions are identical. The sample in question is fairly heterogeneous and a multivariate analysis of these dyads provides a sense of some basic patterns. Table 5.2 reports the results of an OLS (ordinary least squares) regression on the inventory similarity measure for two models. For presentation purposes, I have rescaled the similarity measure to range from 0 to 100, instead of 0 to 1. The first model includes a set of dummy variables that equal 1 if a dyad includes constitutions from the same region, for each of eight geographic regions. We might think of this variable as an approximation of the spatial lag that diffusion researchers often employ. That is, it tests for regional clustering. I also include dummy variables for selected regions, which allows us to test whether within-region similarity differs across regions (i.e., do Latin American constitutions cluster together more so than African ones). In the case of constitutions prior to 1946, the sample (and universe) is composed largely of constitutions from Western Europe and Latin America, although another 30 percent of the sample comes from the remaining regions. The first model specification also

Constitutional revolution in the Andes?

119

Table 5.2 Predicting rights similarity (full sample) Rights similarity

Rights similarity

Difference in years (100s)

–3.21 [0.05]

–3.39 [0.05]

Same region

2.28 [0.07]

1.56 [0.10]

Same country

6.98 [0.27]

6.77 [0.27]

Proximate

1.63 [0.06]

1.64 [0.06]

Latin America Dyad

1.10 [0.12]

European Dyad

5.44 [0.30]

USA-Latin American Dyad

3.08 [0.79]

European-Latin American Dyad

1.65 [0.11]

Constant

64.57

64.53

[0.05]

[0.05]

R2

0.03

0.04

N

194,376

194,376

includes two basic controls. First, given the serial nature of constitutions within countries as well as the distinct possibility of generation effects, we control for dyads of constitutions from the same country and, respectively, the absolute value of the difference in the years in which two constitutions were enacted. We also control for within-country constitutions that follow each other in the sequence (“proximate” constitutions); constitutions that are not predicted very well by their predecessor should be considered transformative. The results of the first model suggest that constitutions from the same country are more similar by 6.98 points, an effect three times that of the same-region dyad (b = 2.28), which makes sense (The dependent variable, to remind, is rescaled to range from 0 to 100). The era variable has predictable effects, at least in their direction: constitutions separated

120

Comparative constitutional law in Latin America

by 100 years are about 3 points less similar on average (b = –3.21). The magnitude of this effect is somewhat comparable to that of region. Constitutions that are separated by 100 years are less similar by the same amount as those from the same region are similar. Regardless, these effects make for useful benchmarks by which to understand the effects discussed momentarily. The omnibus same-region variable showed a strong effect, but it could be, as we hypothesize, that these effects vary by region thus yielding an attenuated aggregate effect. To dig more deeply, the second specification includes dummy variables for each of the Latin American and European dyads, respectively, as well as dummy variables for U.S.–Latin American dyads and U.S.–European dyads, thus facilitating tests of some basic expectations about channels of influence/affinity. We see some evidence that, at least with respect to rights provision, the influence of the U.S. constitution is strong (b = 3.08), especially compared to the very moderate similarity within Latin America (b = 1.10) and European-Latin American similarity (b = 1.65). The strongest regional effect here is the intra-European one (b = 5.44), which is almost as big as the same-country effect. These are interesting patterns, worth pursuing, but I leave them aside for now to attend to the Bolivarians. C. Were the Bolivarians Transformational? The reader will note that the measure described above lends itself to an interesting within-country comparison. The “proximate” variable captured the degree to which a new constitution is similar to its predecessor. Those that are not similar to their predecessor can be understood as potentially iconoclastic, or at least likely to be iconoclastic. (It could be, of course, that they are not similar to their predecessor but very similar to a previous constitution – something for which we can test presently.) In Figure 5.4, I have plotted the proximate similarities (similarity to predecessor) for each constitution in each of the three Boliviarian series. The horizontal line indicates the mean similarity for any two constitutions in the full sample. Focus on Venezuela, the first of the Bolivarian documents. We see a series of constitutions in the early part of the 20th century that appear to have been almost identical to one another with respect to rights. By contrast, the interwar (1936) and post-war Venezuelan constitutions (1947, 1953, and 1961) break new ground, as we would expect (especially for the post-war constitutions, for which the Universal Declaration of Human Rights set a new agenda). But even by these standards, the 1999 constitution is transformational. Indeed its similarity to the 1961 constitution is equal to the mean similarity of the full sample.

Constitutional revolution in the Andes?

121

.7 .6 .5

1900 1950 Bolivia

2000

.5

.6

.7

.8

.9

1

1850

1900 1950 Ecuador

2000

1850

1900

2000

.8

.9

1

1850

.5

.6

.7

Similarity between new and prior Constitution

.8

.9

1

Venezuela

1950

Year N.B. y=64 line marks the mean similarity across the full sample

Figure 5.4 Similarity to status quo constitution That is, the 1999 is as similar to the 1961 constitution as is the average constitutional dyad from across the world across the last 200 years! Clearly, it represents a new direction. The Bolivian constitution of 2009 shows a similar pattern, while that of Ecuador is different, but so too are some of its immediate predecessors. Ecuador is a more complicated case, since its leaders wrote no fewer than four constitutions in the 1990s. Certainly, the process of constitutional development in each of these series deserves more careful tracing, something I dog-ear for someone’s future analysis.

V. BIRDS OF A FEATHER? Thus far I have been speaking of the Bolivarian constitutions as a single phenomenon. But is it the case that the three constitutions are cut from the same cloth? We can conjecture, and probably substantiate, that the

122

Comparative constitutional law in Latin America

authors drew inspiration from one another or at least that they were drawing from the same set of ideas. Indeed, that seems to be the case. Their similarity scores (0.73, 0.77, 0.81) are a full standard deviation (0.11), and sometimes more, above the mean (0.64) for the rights similarity measure. But of course, these high scores are not unusual. We saw in the analysis above that a strong predictor of constitutional content is the year and region of the constitution’s birth. But even within modern Latin American constitutions, the Bolivarians stand apart. For example the highly influential and highly expansive Brazilian constitution – one that one might expect to dovetail with that of the Bolivarians – actually shows comparably less resemblance to the three (except to some degree to Bolivia). Similarity to the 1988 Brazilian constitution is 0.67, 069, and 0.75 for the Venezuelan, Ecuadorian, and Bolivian texts, respectively. We can separate the regional and temporal effects more systematically, of course. In Table 5.3, I predict the similarity between each of the three constitutions and 623 constitutions from across the world since 1789 (separate equations for each of the three Bolivarian countries). Again, these are dyadic predictions of similarity controlling for (a) the absolute value of the difference in the years of their drafting, (b) whether the target constitution is from Latin America, (c) whether the constitutions are part of the country’s series, and (d) whether the two countries are Bolivarian, our variable of interest here. The analysis, I should emphasize, is different from the more aggregate analysis above. The question here is not whether Latin American constitutions are more similar to one another, but whether each Bolivarian constitution is similar to other Latin American constitutions, as against constitutions from other regions. Similarly, the analysis answers whether each Bolivarian is similar to contemporaneous constitutions, not whether all contemporaneous constitutions are similar. The results show that, for Bolivarians, era and region certainly matter. Constitutions written 100 years earlier are between 15 and 19 points less similar to the Bolivarian one. Also, the Bolivarian constitutions are roughly 10 points more similar to Latin American constitutions than they are to those in other regions. Interestingly, the Bolivarian effect is even greater than the regional effect (b = 17, in the Venezuelan equation). In other words, (1) the three constitutions share more rights than we would expect even given their shared temporal and geographic setting, and (2) the effect of their being Bolivarian is even greater than the effect of these contextual effects.

Constitutional revolution in the Andes?

123

Table 5.3 Predicting the similarity to (and among) the Bolivarian constitutions Bolivia

Venezuela

Ecuador

Difference in years (100s)

–15.54 [0.77]

–17.00 [0.87]

–19.12 [0.83]

Same country

1.80 [2.46]

4.75 [2.45]

5.31 [2.35]

Same region

8.51 [0.89]

10.57 [1.02]

9.49 [0.98]

Bolivarian

13.07 [6.74]

17.26 [7.61]

13.38 [7.33]

Constant

58.19 [0.62]

48.78 [0.65]

55.42 [0.67]

0.41 623

0.40 623

0.47 623

R2 N

VI. CONCLUSION AND DISCUSSION What, exactly, is at stake here? First, it seems to me that one of the most important questions to which Latin Americanists working in the postthird-wave era must respond is how, exactly, to characterize the reforms of the neo-Bolivarians. Do these republics, which seem novel, constitute something new on the institutional map of Latin America? I am not quite yet in the position to write the constitutional story of the Bolivarian revolution. Only some of the pieces are in place. However, the data I present here suggests (to me at least) that talk of “fifth republics” and “revolutions” is not entirely overblown. Still, more digging will qualify the answer and reveal conditional wrinkles as well as subtle and intriguing ironies. However, to the extent that we can take what the Bolivarians have written into higher law seriously, we are witnessing one of the most significant twists in the institutional trajectory of these countries. What do we know so far? First, that the Bolivarian authors have taken remarkable license with respect to constitutional style. The mold of the sparse “framework” constitution is now broken. Bolivarian drafters have tripled the size of their country’s higher law. We also know that this increase, though consistent with the trend in modern constitutions, lies

124

Comparative constitutional law in Latin America

very much above the regression line. Moreover, this increase in size is undoubtedly meaningful, to the extent that more words means more rights, more agencies, and more domains under the state’s jurisdiction (but see below). Whether drafters in these countries will revert to the framework contracts of the past is another question. Obviously, any stability will depend upon the lifespan of the Bolivarian document and the degree to which stakeholders and ancillary institutions adapt to its components. At a minimum, we can expect that the power of inertia and institutional socialization will lock in some of the constitution’s elements. A second thing we know is that the Bolivarian constitutions do indeed break from the past in what they provide substantively. I suggested a way to explore this question systematically – through a cross-national, crosstemporal study of the similarity in content across constitutions. One could devise a variety of metrics and I suggested two versions that capture slightly different dimensions of change. In the spirit of incremental analysis, I have analyzed one of these metrics: the similarity in the rights portfolio between constitutions in the year of their drafting. My sense is that an analysis of rights captures, in a highly cross-contextually comparable manner, something fundamental about constitutions. In this sense, the Bolivarians have broken new ground, at least when compared with their prior rights trajectory. The reader will likely raise a concern about written constitutions. Should we take what the Bolivarians say in their founding documents seriously? The answer is probably “yes,” for several reasons. One, the Bolivarians are committed constitutionalists, which means that their hopes and aspirations are built into the constitution. Two, it matters less that their aspirations do not all come to fruition, at least in the near term. Rome was not built in a day and neither will be the institutional landscape of the Andes. Constitutions, almost by definition, take time to take root. The 1917 Mexican constitution wasn’t recognizable in the political behavior of Mexican officials until 1940 at the earliest. Suffice it to say that maturation is part of the constitutional process. Three, even if the ideas of the Bolivarians do not fully take shape in some form of implementing legislation or rule-making, the genie will be out of the bottle. Ideas are powerful and, once crystallized in a constitutional document, will not evaporate quickly. No one should mistake de jure law for de facto law but nor should we ignore an important and systematic statement of a reformer’s intentions. But the concern about written constitutions is just one of many, I suspect. Surely there is more to do in order to convince ourselves of the new wine in the new bottles and to discover some of the intricacies in the making of the wine.

Constitutional revolution in the Andes?

125

REFERENCES Collier, Ruth and David Collier. 1991. Shaping the Political Arena: Critical Junctures, the Labor Movement, and Regime Dynamics in Latin America. Princeton, NJ: Princeton University Press. Elkins, Zachary, Tom Ginsburg, and James Melton. 2009. The Endurance of National Constitutions. Cambridge: Cambridge University Press. Gargarella, Roberto. 2013. Latin American Constitutionalism, 1810–2010: The Engine Room of the Constitution. Oxford: Oxford University Press. Jacobsohn, Gary. J. 2014. “Theorizing the Constitutional Revolution.” Journal of Law and Courts, 2(1): 1–32. Partlow, Joshua and Stephan Kuffner. 2008. “Voters in Ecuador Approve Constitution.” Washington Post. September 29, 2008. Romero, Simon. 2009. “Bolivians Ratify New Constitution.” New York Times, January 25, 2009. Weyland, Kurt, Madrid, Raul L. and Hunter, Wendy. Eds. 2010. Leftist Governments in Latin America: Successes and Shortcomings. Cambridge: Cambridge University Press.

6. The new “Bolivarian” Constitutions: a textual analysis Mark Tushnet Venezuela (1999), Bolivia (2008), and Ecuador (2009) have adopted new Constitutions over the past decade and a half. They are often grouped together as Bolivarian Constitutions. Venezuela is officially the Bolivarian Republic of Venezuela, Bolivár’s name is inscribed in that of Bolivia, invocations of Bolivár are common in Ecuador, and Bolivár has historically been an important figure in the rhetoric of nationalism in all three nations. This chapter offers a preliminary textual analysis of the Constitutions, attempting to identify what, if anything, they share and how, if at all, they differ from earlier Constitutions.1 The Bolivian Constitution’s preamble asserts that the Bolivian people “leave behind us the colonial, republican and neoliberal state.” The phrasing suggests a temporal succession, and it seems clearly accurate to say that the classical colonial state has been left behind, though one might raise questions about the persistence of neo-colonialism. What, though, of the republican and liberal/neoliberal state? Is Bolivia, as characterized by its new Constitution, a non-liberal state of some sort? What of Venezuela and Ecuador? Elkins (this volume) shows that the Bolivarian Constitutions are indeed distinctive, at least among Latin American Constitutions. They are long, even by Latin American standards, and perhaps that length is needed to ensure that the Constitutions do indeed break with the past. Elkins also shows that the Bolivarian Constitutions resemble each other, at least along some dimensions, more than they do other Latin American Constitutions. Again, the thought that they embody a break with the past 1 I have worked with English translations of the Constitutions. For the Venezuelan Constitution, I used the version available at Constitute, constitutionproject.org; for the others I used the versions in Oxford Constitutions of the World, http://oxcon.oup.law.com. Occasionally I referred to the Spanish originals to clarify ambiguities in the translations.

126

The new “Bolivarian” Constitutions

127

gets some support. Here, I offer a preliminary sketch of what might be truly different about these Constitutions. A key qualification is required at the outset: Textual analysis can get us somewhere, but it cannot tell us what the textual provisions actually mean in the political, economic, and social settings where they apply. Broadly worded rights-guarantees might be interpreted narrowly, for example, in light of other textual provisions that, in other national systems, would not be regarded as having any bearing on the guarantees’ interpretation. Similarly with power-conferring provisions: Seemingly narrow grants of power might be given quite expansive – and libertythreatening – interpretations that a purely textual analysis would not reveal. Constitutional guarantees of judicial independence may be hollow depending on the actual configuration of power relations between the courts and other political institutions. One common characteristic might be that these constitutions are “plurinational,” as the Bolivian Constitution puts it. Is a plurinational state necessarily a non-liberal one, for example, because it recognizes the possibility that some of the “nations” that compose it will not be liberal internally? A related way of describing the plurinational state evokes older intellectual traditions and treats the new Constitutions as vehicles for the transformation of subjects, primarily the region’s indigenous peoples, into citizens.2 On that description, the new Bolivarian Constitutions are improvements on, not alternatives to, liberal Constitutions. My analysis of the three Constitutions suggests that they are simultaneously traditional and new, liberal and plurinational, with the Venezuelan Constitution more traditional and liberal than the Bolivian and Ecuadorian. The conclusion about Venezuela might seem surprising because its Constitution was the product of Hugo Chávez’s regime, often described as radical and strongly non-liberal. I suggest several reasons for the Venezuelan Constitution’s traditionalism. Indigenous people are a smaller proportion of Venezuela’s population than of Bolivia’s and Ecuador’s. The international and regional political context in the late 1990s was different from, and more neoliberal than, that around 2009– 10. And, when the Venezuelan Constitution was adopted, Chávez was somewhat constrained by the breadth of the coalition he led. Finally,

2

The usual reference for the idea that Constitutions can instantiate the transformation of subjects into citizens is Arendt (1963), which uses the example of the French Revolution.

128

Comparative constitutional law in Latin America

Venezuela’s was the first of the new Constitutions, and the authors of the later Constitutions could learn from the Venezuelan experience what they distinctively wanted to do.

I. BOLIVARIAN DISTINCTIVENESS? – PLURINATIONALISM, INDIGENOUS PEOPLES, AND PRESIDENTIALISM A. The New Constitutions’ Preambles Commonly, constitutional preambles have limited legal but large cultural significance, identifying for readers and citizens what the Constitution’s authors regard as its central purposes. The only way effectively to analyze the new Bolivarian Constitutions’ preambles is to present them verbatim, then isolate some features. 1. Venezuela The people of Venezuela, exercising their powers of creation and invoking the protection of God, the historic example of our Liberator Simon Bolivar and the heroism and sacrifice of our aboriginal ancestors and the forerunners and founders of a free and sovereign nation; to the supreme end of reshaping the Republic to establish a democratic, participatory and self-reliant, multiethnic and multicultural society in a just, federal and decentralized State that embodies the values of freedom, independence, peace, solidarity, the common good, the nation’s territorial integrity, comity and the rule of law for this and future generations; guarantees the right to life, work, learning, education, social justice and equality, without discrimination or subordination of any kind; promotes peaceful cooperation among nations and furthers and strengthens Latin American integration in accordance with the principle of nonintervention and national self-determination of the people, the universal and indivisible guarantee of human rights, the democratization of international society, nuclear disarmament, ecological balance and environmental resources as the common and inalienable heritage of humanity; exercising their innate power through their representatives comprising the National Constituent Assembly, by their freely cast vote and in a democratic Referendum, hereby ordain the following:

Much in this is relatively standard in modern Constitutions. As do many preambles, the Venezuelan refers to history and in particular to sacrifice, though one hears a hint of a new state of things in the specific reference

The new “Bolivarian” Constitutions

129

to sacrifices made by “our aboriginal ancestors.”3 References to international human rights are also conventional. Somewhat less conventional is the explicit characterization of the nation as “multiethnic and multicultural,” although those concepts too are embedded in many modern Constitutions. Similarly innovative are what can be called the international dimensions of the preamble, and specifically the commitment to “Latin American integration in accordance with the principle of nonintervention.” This presumably reflects issues associated with US interventions in Latin America, coupled with recent developments in regional integration. The references to “nuclear disarmament” and “ecological balance” are distinctively modern, but not distinctively Latin American or “Bolivarian.” The preamble to the Venezuelan Constitution, then, is modern but does not otherwise stand out from the crowd of constitutional preambles. This may be the first indication – both textually and analytically – that the Venezuelan Constitution of 1999 may not be distinctively Bolivarian even though the political movement that generated it had parallels in Bolivia and Ecuador, whose Constitutions reflect a politics that lies beneath the surface of the Venezuelan Constitution. 2. Bolivia In ancient times mountains arose, rivers moved, and lakes were formed. Our Amazonia, our swamps, our highlands, and our plains and valleys were covered with greenery and flowers. We populated this sacred Mother Earth with different faces, and since that time we have understood the plurality that exists in all things and in our diversity as human beings and cultures. Thus, our peoples were formed, and we never knew racism until we were subjected to it during the terrible times of colonialism. We, the Bolivian people, of plural composition, from the depths of history, inspired by the struggles of the past, by the anti-colonial indigenous uprising, and in independence, by the popular struggles of liberation, by the indigenous, social and labor marches, by the Water and October wars, by the struggles for land and territory, construct a new State in memory of our martyrs. A State based on respect and equality for all, on principles of sovereignty, dignity, interdependence, solidarity, harmony, and equity in the distribution 3 Compare the preamble to the 1937 Irish Constitution, which referred to “our fathers through centuries of trial” and “[g]ratefully remember[ed] their heroic and unremitting struggle to regain the rightful independence of our nation.” To similar effect, though more floridly, see the preamble to the Constitution of Iraq (2005).

130

Comparative constitutional law in Latin America

and redistribution of the social wealth, where the search for a good life predominates; based on respect for the economic, social, juridical, political and cultural pluralism of the inhabitants of this land; and on collective coexistence with access to water, work, education, health and housing for all. We have left the colonial, republican and neo-liberal State in the past. We take on the historic challenge of collectively constructing a Unified Social State of Pluri-National Communitarian law, which includes and articulates the goal of advancing toward a democratic, productive, peace-loving and peaceful Bolivia, committed to the full development and free determination of the peoples. We women and men, through the Constituent Assembly (Asamblea Constituyente) and with power originating from the people, demonstrate our commitment to the unity and integrity of the country. We found Bolivia anew, fulfilling the mandate of our people, with the strength of our Pachamama and with gratefulness to God. Honor and glory to the martyrs of the heroic constituent and liberating effort, who have made this new history possible.

The first paragraph of this preamble is poetic in its description of the nation’s deep ecological history. And, indeed, the preamble is strongly historical in its orientation, pervaded with references to “the depths of history,” “the battles of the past [and] the indigenous uprising against colonial rule,” “leav[ing] behind the colonial, republican and neocolonial State,” and more. The reason appears to be a desire on the drafters’ part to signal a break with the past, a commitment to something that goes beyond liberalism. After references to “our peoples,” “diversity as beings and cultures,” and “plural composition,” it is hardly surprising to find the new state founded by the Constitution described as “plurinational [and] communitarian.” The preamble accurately reflects the Constitution’s self-designation as that of “the Pluri-National State of Bolivia.” 3. Ecuador We, women and men, the sovereign people of Ecuador RECOGNIZING our millennial roots, forged by women and men from various peoples, CELEBRATING nature, the Pacha Mama (Mother Earth), of which we are a part and which is vital to our existence, INVOKING the name of God and recognizing our diverse forms of religion and spirituality, CALLING UPON the wisdom of all the cultures which enrich us as a society, AS HEIRS to social liberation struggles against all forms of domination and

The new “Bolivarian” Constitutions

131

colonialism AND with a profound commitment to the present and to the future, Decide to build A new form of public coexistence, in diversity and in harmony with nature, to achieve the good way of living, the sumak kawsay; A society that respects, in all its dimensions, the dignity of individuals and community groups; A democratic country, committed to Latin American integration – the dream of Bolívar and Alfaro – , peace and solidarity with all peoples of the Earth; And, exercising our sovereign powers, in Ciudad Alfaro, Montecristi, province of Manabí, we bestow upon ourselves the present [alternative translation, adopt the following]: Constitution of the Republic of Ecuador

This preamble taken as a whole is an example of the species “poetic preambles,” not only in its visual formatting, but in its content as well. It sets a mood for understanding what follows, but even less than the other Bolivarian preambles (and preambles generally) is it suitable as a basis for influencing the Constitution’s interpretation as law. Perhaps the reference to “the good way of living” might support deference to exercises of legislative power purporting to advance that way of living, though the substantive provisions themselves, which make the same references, strongly suggest such deference. Notably, the first substantive chapter on rights, which is a standard list of modern social welfare rights, is headed “Rights of the Good Way of Living” (Title II, Chapter Two). Relatedly, when the Constitutional Plurinational Court of Bolivia considered the constitutional status of fetuses, it referred to its Constitution’s preamble and reference to Pachamama in a survey of the ideas about life and death in indigenous communities (Decision 0206/2104). Yet, this survey does not seem in principle different from the historical survey in Roe v Wade, 410 US 113 (1973), of the law of abortion in Western societies, a survey that the US Supreme Court did not link to specific constitutional texts. What leaps out of the preamble’s words, though, is the constitutional commitment to deep pluralism: “women and men from different peoples,” “our diverse forms of religion and spirituality,” “all the cultures which enrich us as a society.” The Ecuadorian Constitution does not have to use the terms “multinational” or “plurinational”; its commitment to deep pluralism is expressed more directly. Finally, the preamble has a more revolutionary tone than the others. The “good way of living” is to be a “new form of living together as citizens.”

132

Comparative constitutional law in Latin America

4. Some observations about the preambles collectively The Venezuelan and Bolivian preambles are verbose, not atypically for Latin American Constitutions generally. Some of the formulations in all three resonate with formulations found in other Constitutions. So, for example, the alternative translation of the Ecuadorian “we bestow upon ourselves” the Constitution reminds one of the preamble to the 1937 Irish Constitution: “hereby adopt, enact, and give to ourselves this Constitution.” Similarly, evoking historical experience is common in preambles, although of course the specifics of the experiences described vary across nations. And, overall, the Venezuelan preamble is reasonably generic, with only a hint of national distinctiveness beyond the references to national history. Even its reference to a “multiethnic and multicultural society” has a more traditional cast than does the Bolivian preamble’s use of “plurinational.” The Bolivian and Ecuadorian preambles are rather different from the Venezuelan – autochthonous, one might say. Distinctive national experience is both deeply entrenched in them, and openly expressed. One might miss the significance of the Bolivian reference to “the search for the good life,” but the term – in its non-English version, “teko kavi” – is one of the “ethical [and] moral principles of the plural society” (Article 8).4 The Ecuadorian preamble similarly refers to “the good way of living,” here too presented in Quechua as “sumak kawsay,” and the phrase occurs 23 additional times in the Constitution’s text. Further, both the Bolivian and Ecuadorian preambles refer to “Pacha Mama” (the Aymara and Quechua word for, roughly, Mother Earth), which is not translated in the Spanish version of the document published by the Ecuadorian Constituent Assembly. And, finally, both preambles self-consciously describe the new Constitutions as breaking with the past and setting forth on a new path beyond traditional liberalism. These distinctive formulations might well become important parts of political discourse entirely independent of their effect on judicial interpretation. A comparative parallel might be found in a statement made about the insertion of non-justiciable principles of public policy in the Irish Constitution of 1937, that the inclusion of the principles might provide a guide for, and a standard of criticism of, members of the legislature and the executive. So too with “the good way of living.” Once again, we see how the relatively early Venezuelan Constitution is closer to traditional models than the later, more Bolivarian ones. 4

Other such goals are discussed in Section I.B below.

The new “Bolivarian” Constitutions

133

B. Plurinationality and the Role of Indigenous Peoples Silvina Ramirez and Nahuel Maisley identify three “waves” of constitutional treatment of Latin America’s indigenous peoples. The first came in the 1980s, and consisted of recognition of the existence of diverse indigenous cultures, set within generally liberal Constitutions. The second occurred during the 1990s and placed “multiculturalism” in the Constitutions. Finally, the Bolivarian Constitutions transformed multiculturalism into plurinationalism, which Ramirez and Maisley (2016) define as “a set of nations which coexist in the same geopolitical space as the state,” recognizing “more ambitious” rights and “pretend[ing] to leave the classic state model behind … .” (pp 387–9). More precisely, plurinationalism simultaneously recognizes “nations” at a level “below” that of the nation-state, and insists that citizens of those nations are also citizens of the nation-state. The task for plurinationalism as political theory and as a formula for institutional design is to harmonize the two quite different kinds of nations, in a way that goes beyond what has become a relatively desiccated tradition of federalism. One might read the Venezuelan Constitution as falling between the poles of the concept of multiculturalism, familiar in 1999, and plurinationalism, an emerging concept at that time. The Venezuelan Constitution’s chapter on “culture and educational rights” (Title III, Chapter VI) generally refers to “culture” generically, as in its provision that the state will guarantee “the protection and preservation, enrichment, conservation and restoration of the cultural tangible and intangible heritage and the historic memories of the nation” (Article 99, emphasis added). Article 100 gives the “folk cultures comprising the national identity of Venezuela … special attention,” with “respect for intercultural relations under the principle of equality of cultures.” “[C]ultural plans, programs and activities” are to receive incentives and support. Textually, though, nothing tightly links such plans to the folk cultures, and it would be easy to read the provision as dealing with a national culture that is an agglomeration of more distinct local cultures. Spanish is declared the “official language,” but the “use of native languages also has official status for native peoples, and must be respected throughout the territory of the Republic, as constituting part of the cultural heritage of the Nation and humanity” (Article 9). A separate chapter, though, deals with the “Rights of Native People” (Title III, Chapter VIII). The first of its eight Articles “recognizes the existence of native peoples and communities” (Article 119). The national executive, “with the participation of the native peoples,” is to “guarantee collective ownership of their lands.” Next, the state’s “[e]xploitation of

134

Comparative constitutional law in Latin America

the natural resources in native habitats shall be carried out without harming the cultural, social and economic integrity of such habitats,” again with consultation with the native communities (Article 120). Article 121 guarantees “the right to maintain and develop their … cultural entity, world view, values, spirituality and holy places,” which might – though it need not – provide greater protection than that accorded to general rights of a similar sort. In addition, the Article says that “the native peoples … have the right to their own education, and an education system of an intercultural and bilingual nature, taking into account their special social and cultural characteristics, values and traditions.” They also have “the right to a full health system that takes into consideration their practices and cultures,” including “traditional medicine … subject to principles of bioethics” (Article 122). Article 123 asserts, “Native peoples have the right to maintain and promote their own economic practices based on reciprocity, solidarity and exchange,” and Article 124 protects “[c]ollective intellectual property rights in the knowledge, technologies and innovations of native peoples” and prohibits patents “on this ancestral knowledge.” The two final provisions on the rights of native peoples deal with political participation and the national state. Political participation is protected, but not otherwise singled out. And Article 126 concludes the chapter by stating that “[n]ative peoples, as cultures with ancestral roots, are part of the Nation, the State and the Venezuelan people, which is one, sovereign and indivisible.” So, in Venezuela, indigenous people are written into the Constitution, but are generally treated as “ordinary” Venezuelans. There are a few provisions singling out aspects of native culture for distinctive treatment, such as the provision dealing with patents, and the Constitution reserves three seats in the National Assembly for the “native peoples” (Article 186). Overall, though, in Ramirez and Maisley’s (2016) terms, the Venezuelan Constitution recognizes indigenous peoples and perhaps accepts that Venezuela is a multicultural nation. This is more than occurs in classically liberal Constitutions, but is hardly a breakthrough into plurinationalism. The Bolivian Constitution is formally that of “the Pluri-National State of Bolivia,” and plurinationalism, both as a set of principles and as a set of institutions, does indeed pervade the document. Its very first provision describes Bolivia as “a unitary, social, plurinational communitarian state, … founded on the basis of plurality and political, economic, legal, cultural and linguistic pluralism, within the integrating process of the country” (Article 1). The next refers to “the pre-colonial existence of the indigenous originary peasant nations and peoples,” and guarantees “their free determination, … [and] the recognition of their institutions” (Article

The new “Bolivarian” Constitutions

135

2). The provision on language identifies 37 official languages, Spanish and “all of the languages of the indigenous originary peasant nations and peoples” (Article 5(I)). Among the “ethic[al]-moral principles of the plural society” are “don’t be lazy, don’t be a liar nor a thief”; “live well”; “harmonious life”; “good life”; “land without evil”; and “noble path,” all in indigenous languages (Article 8(I)). The Bolivian Constitution gives the rights of indigenous peoples a prominent place. The fourth chapter on rights – following only the general provisions, the enumeration of fundamental rights, and the guarantees of classical civil and political rights – deals extensively with them. After defining the relevant group as “the whole group of human beings which share a cultural identity, language, historical tradition, institutions, relation to territory, and cosmovisions, and whose existence predates the Spanish colonial invasion,” Article 30 lists 18 specific rights. The list begins with the right “[t]o exist freely,” and then ranges from a classical right to participate in state institutions and to a right to autonomous territorial administration, and to a right to be consulted “every time legislative or administrative measures which are likely to affect them are being envisaged,” particularly in connection with nonrenewable natural resources, to more obviously cultural rights: to cultural identity, including “their own cosmovision,” to “collective tilling of lands and territories,” to “have their traditional knowledge, traditional medicine … and clothing valued, respected and promoted,” to “collective intellectual property of their knowledge and sciences,” and to a health system “that respects their cosmovision and traditional practices.” The title on rights also includes a chapter on education, interculturality and cultural rights. Article 86 requires that “the spirituality” of the indigenous peoples be recognized. A chapter on “cultures” includes the observation that indigenous cultures, “reservoirs of values, knowledge, spirituality and cosmovisions,” are “a source of strength.” On a rather concrete level, the state is instructed to protect “the intangible rights” of the indigenous peoples “through its intellectual property registration” system. The foregoing provisions show how the Constitution adopts principles associated with indigenous peoples. Other provisions deal with institutions, to the same effect. An overarching provision provides that democracy will be exercised in several forms, one of which is “communitarian … on the basis of the special norms and procedures of the indigenous originary peasant nations and peoples” (Article 11(II)(3)). Later we find institutions with formal names of the Plurinational Constitutional Court (Title III, Sixth Chapter) and the Plurinational Electoral Commission (Title IV, First Chapter). The provisions on the judicial

136

Comparative constitutional law in Latin America

power include three dealing with “originary peasant jurisdiction,” which “is based on the specific bond linking the individuals who are members of the corresponding indigenous originary peasant nation or people to each other” (Article 191(I)), and has the structure associated with traditional millet judicial systems, with jurisdiction over members of the community and applying to “the legal relations and factual situations which occur or produce effects within the jurisdiction of the indigenous originary peasant nation or people” (Article 191(II)(3)). In the political system, the Chamber of Deputies has special indigenous constituencies, to be defined by the electoral commission (Article 146 (VII)). Though in general political parties must be internally democratic, political “organizations of indigenous originary peasant nations and peoples may elect their candidates in accordance with their own norms of communitarian democracy,” and appear to be exempt from the requirement imposed on other parties that they must “guarantee equal participation of men and women” (because that requirement is applicable to “citizens groups and political parties,” whereas other provisions refer to those entities as well as organizations of indigenous peoples) (Articles 209(I)–(III)). The foregoing merely sketches some of the many constitutional provisions dealing with the place of indigenous peoples in the Bolivian Constitution. As noted, they play a role in connection with both rights and institutions. Perhaps the clearest indication of the Constitution’s commitment to plurinationalism is found in Article 98, which states, “Cultural diversity forms part of the essential foundation of the Plurinational Communitarian State. Interculturality is the instrument of cohesion and harmonious and balanced conviviality among all peoples and nations.” This is the most explicit account in all three Bolivarian Constitutions of the connection between plurinationalism and national unity. The Ecuadorian Constitution is especially interesting because plurinationalism is baked into its entire being, yet there are relatively few provisions dealing specifically with indigenous peoples. Spanish is the official language, supplemental with Kichwa and Shuar as “official languages of intercultural relations,” with “other ancestral languages” for “official use for the indigenous peoples in the areas where they live” (Article 2). In some ways resembling the Venezuelan Constitution, Article 56 describes “[i]ndigenous communities, peoples and nations, the Afro-Ecuadorian people, the back-country people of the inland coastal region, and communes” as part of “the single and indivisible Ecuadorian

The new “Bolivarian” Constitutions

137

State.” The following article enumerates 21 “collective rights” of indigenous peoples, many nearly identical to those in the Bolivian Constitution; Articles 58 and 59 provide much more briefly for collective rights of Afro-Ecuadorians and the coastal back-country people. Some of the specific rights guaranteed to indigenous peoples are rights against discrimination and for reparations, and the right to “free prior informed consultation … on the plans and programs” dealing with nonrenewable resources on their lands (Article 57(7)). The communities have a right to unalienable ownership of ancestral lands (Articles 57(4)–(5)). They have the right to “uphold, protect and develop collective knowledge … [and] the genetic resources that contain biological diversity,” and to practice “traditional” medicine, and the “appropriation of their knowledge, innovations, and practices are forbidden” (Article 57(12)). In addition, there are numerous provisions specifically identifying native communities as holders of classical political rights. Article 57 also gives indigenous communities the right to “create, develop, apply and practice their own legal system or customary law,” which cannot, however, “infringe constitutional rights, especially those of women, children and adolescents” (Article 57(10)). Article 171 restates and supplements this by stating that “the decisions of indigenous jurisdiction are [to be] observed by public institutions and authorities,” with statutes to be enacted that would coordinate “indigenous jurisdiction and regular jurisdiction.” Finally, several provisions dealing with “organization of the territory” authorize the creation of geographically based governments that will be “governed by the principles of interculturalism and plurinationalism, and in accordance with collective rights” (Article 257). This is one of three provisions in which the term “plurinationalism” or cognates occur. One of the others defines Ecuadorian nationality as “a political bond between individuals and the State, without detriment to their belonging to any of the other indigenous nations that coexist in plurinational Ecuador” (Article 6). The third gives the state the responsibility to protect the “cultural heritage,” including archeological, “the collective memory and the set of values … that constitute the plurinational, pluricultural, and multiethnic identity of Ecuador” (Article 380(1)). These provisions clearly create a thicker acknowledgement of indigenous peoples than, for example, the Venezuelan Constitution, but equally clearly are less obviously plurinational at the institutional level than those of the Bolivian Constitution. In contrast to the numerous Bolivian institutions with specifically indigenous components, for example, the only Ecuadorian one is the indigenous system of justice. As

138

Comparative constitutional law in Latin America

with Bolivia, one might see in the latter something like a traditional millet system in which subcommunities apply law specific to those communities, as in family law and property law, integrated with the “regular” courts into a single judicial system. Yet, it would be deeply misleading to see the Ecuadorian Constitution as “less” plurinational than the Bolivian one. The reason is the central role of “the good way of living system” in the Ecuadorian Constitution. The Constitution devotes more than 70 of its 444 permanent provisions to that system. The opening sentence of the Title on the system is: “The national system of social inclusion and equity is an articulated and coordinated set of systems, institutions, policies, norms, programs and services that ensure the exercise, guarantee, and enforceability of the rights enshrined in the Constitution and the achievement of the development plan” (Article 340). It continues by listing the “sectors” within the system: education, health, social security, risk management, physical education and sports, habitat and housing, culture, information and communication, the enjoyment of leisure, science and technology, population, human security, and (somewhat anti-climactically) transportation. Those, though, are only the sectors described in the chapter on “inclusion and equity.” Chapter Two of the same Title deals with biodiversity and natural resources, including ecosystems, soil, water, and the “biosphere, urban ecology, and alternative sources of energy” (Title VII, Chapter Two, Section Seven). The details of these provisions are unimportant for present purposes. What matters is their organic connection to the basic principles laid out in the Constitution’s preamble, which is plurinational at heart. To quote the relevant clause again: “A new form of living together as citizens, in diversity and in harmony with nature, to realize the good way of living, the sumak kawsay.” The Ecuadorian Constitution, then, is animated by plurinationalism. It is interesting, then, that unlike the Bolivian one, it is not institutionally organized in a distinctively plurinational way. One can speculate that the drafters’ assumption was that citizens committed to plurinational principles would endorse them in their capacity as citizens without requiring that the principles be institutionally embodied. That, though, is only speculation. C. Innovations in Public Participation Consistent with the idea that the new Bolivarian Constitutions aim at transforming subjects into citizens, they contain many institutions encouraging public participation in law-making and enforcement. The Venezuelan Constitution summarizes these mechanisms in Article 70:

The new “Bolivarian” Constitutions

139

Participation and involvement of people in the exercise of their sovereignty in political affairs can be manifested by: voting to fill public offices, referendum, consultation of public opinion, mandate revocation, legislative, constitutional and constituent initiative, open forums and meetings of citizens whose decisions shall be binding among others; and in social and economic affairs: citizen service organs, selfmanagement, co-management, cooperatives in all forms, including those of a financial nature, savings funds, community enterprises, and other forms of association guided by the values of mutual cooperation and solidarity.

Similarly, Article 11 of the Bolivian Constitution asserts: II. Democracy is exercised in the following forms, which shall be developed by law: 1.

2. 3.

Direct and participatory, through referendum, citizen legislative initiative, revocation of terms of office, assembly, councils and prior consultation. … Representative, by means of the election of representatives by universal, direct and secret vote. … Communal, by means of the election, designation or nomination of the authorities and representatives pursuant to the norms and procedures of the native indigenous nations and peoples, among others … .

None of these institutions are distinctive in themselves, but in the aggregate they give the Constitutions a strongly participatory flavor. One can see a quite modest hint of the new Constitutions’ commitment to participation in governance through a word cloud. When created out of the English translations, a word cloud shows that the word “share” appears more than others, indeed more frequently even than the word “law.” “Share,” though, can be the translation of numerous Spanish originals, including the Spanish word referring to shares in a corporation. When disaggregated, “share” nonetheless serves as the translation for words such as “publíco,” “social,” and “pública,” at a quite high rate. And, similar words appear rarely in, for example, the United States Constitution and the Canadian Charter of Rights and Freedoms.5 This suggests that participatory ideas infuse the Bolivarian Constitutions even when specific institutions of participation fall well within standard models.

5

I thank Erik Bumgartner of the Harvard Law School Library for creating the word clouds, and Agustin Barroilhet, a graduate student at Georgetown University Law Center, for analyzing the Spanish originals.

140

Comparative constitutional law in Latin America

D. A Striking Absence The new Bolivarian Constitutions emerged from political movements with charismatic leaders – Hugo Chávez, Evo Morales, and Rafael Correa – who served as the first presidents under those Constitutions. One might have expected that “their” Constitutions would have given presidents quite extensive powers. Strikingly, with two exceptions, they do not. The exceptions are Article 236(18) of the Venezuelan Constitution, which authorizes the president “[t]o formulate the National Development Plan and, subject to approval in advance from the National Assembly, direct” its implementation, and Article 147 of the Ecuadorian Constitution, which similarly refers to a power to propose a National Development Plan. Though the Venezuelan provision appears to give the president a large role in economic planning and enforcement, the Constitution itself does not specify what the National Development Plan is, and so it would appear that even this power is not one that necessarily gives the president a large role in the economy. The Ecuadorian provision, though, does have some real bite, because Article 148 gives the president the power to dissolve the National Assembly “if it repeatedly without justification obstructs implementation” of the National Development Plan. Provisions for declaring emergencies are well within standard models. The Venezuelan chapter on “state of exception,” for example, distinguishes among states of alarm, economic emergency, and internal or external “commotion” (Article 338); allows the president to declare such states for 30, 60, and 90 days respectively, with possible extensions of the same length with approval of the National Assembly; and requires approval of the National Assembly for the underlying declaration within eight days. The Bolivian Constitution authorizes the president to declare a state of emergency, with legislative approval required within 72 hours (Article 138), and bans suspension of “fundamental rights, the right to due process, the right to information or the rights of the persons deprived of liberty” (Article 137). Article 166 of the Ecuadorian Constitution requires the president to notify the National Assembly and the Constitutional Court within 48 hours of declaring an emergency; the former has the power to end the state of emergency at any time, and the latter is charged with monitoring it (Article 436(8)). States of emergency can last for 60 days, with a 30-day renewal possible. Explicit formal provisions dealing with emergencies are often ignored in practice, even when they provide for independent judicial review of declarations of emergency. Grijalva, Guerra, and Martinez (2016) criticize the Ecuadorian Constitutional Court’s performance since 2010 on

The new “Bolivarian” Constitutions

141

this score, for example. Yet, similar criticisms can be levied against the actual implementation of formal guarantees against the abuse of emergency powers in many nations; the Bolivarian Constitutions do not stand out among others for allowing abuses in practice. The largely conventional treatment of presidential power does not mean, of course, that the new Constitutions block the emergence of hyperpresidentialism. The lists of presidential powers are quite extensive, and they are not limited, in any obvious ways, by other provisions. Here too, though, they resemble many other Constitutions: They enable hyperpresidentialism but do not require it. Is there a puzzle here? Perhaps not. Comparing the Bolivarian Constitutions to other Constitutions indicates that they do not give presidents substantially more power, relative to legislatures, than do other Constitutions. An alternative comparison would be to the prior Constitutions of Venezuela, Bolivia, and Ecuador. Informed observers appear to agree that the new Constitutions do create presidencies that are more powerful than had existed in those nations. When inserted into a political culture that might have been built around relatively weak presidencies, a presidency with “ordinary” powers – measured by worldwide standards – might become hyperpresidential simply through the exercise of those ordinary powers. More speculatively, perhaps we can understand the new Constitutions’ provisions on presidential power as a form of insurance. Their drafters’ concern – and specifically, the concern of the charismatic leaders – is not with exercise of presidential power here and now. When the Constitutions were adopted, the presidents all had more than enough support in the legislature to act as they chose – to be hyperpresidential without constitutional compulsion. The concern instead is with what happens next, and in particular when (or if) the current president is succeeded by someone drawn from the current opposition. Leaders at the time the Constitutions were adopted did not want such successors to be able to rely on a hyperpresidential Constitution. (The insurance strategy does have a downside, perhaps illustrated by problems encountered by Nicolás Maduro, Chávez’s immediate successor. Lacking both Chávez’s charisma and constitutional guarantees of hyperpresidentialism, Maduro appears to have struggled to continue the Chávista revolution, forcing him to press quite hard on, and perhaps to exceed, constitutional limitations on presidential power.)

142

Comparative constitutional law in Latin America

II. “NEW” CONSTITUTIONS AND LEARNING Contemporary Constitution drafting occurs after many other Constitutions have already been written and analyzed. Indeed, it is not uncommon for Constitution drafters to consult other Constitutions as they search for both general concepts and specific formulations to use in their own Constitutions. By examining other Constitutions, drafters can learn of things to do and of things to avoid (although it is sometimes difficult to see from an examination of text alone the latter effect). A. Learning at the Level of Detail The new Bolivarian Constitutions illustrate constitutional learning. A small but telling example is Article 168(1) of the Ecuadorian Constitution, dealing with judicial independence: “The bodies of the Judicial Function shall benefit from both internal and external independence.” The distinction between internal and external independence emerged as scholars examined the concept of judicial independence and discovered wide variations, for example in the extent to which judicial budgets were controlled by non-judicial bodies and in the mechanisms for disciplining judges for gross misconduct like accepting bribes. (For an overview of some of the variations, see Lee (2011).) Another example of constitutional learning involves constitutional provisions dealing with equality. Twentieth-century Constitutions contained general equality clauses. Experience showed that a general equality clause might be inadequate to deal with the various problems of inequality posed by different “classes” such as women, the poor, indigenous people, sexual minorities, and of course many more. Constitutions began to enumerate protected classes in more detail, but then Constitution drafters realized that the constitutional system had to deal with what might be thought of as “residual” problems – classes as to which discrimination was real but which were left out of the enumeration. Sometimes they delegated to the courts the resolution of problems associated with residual classes. And sometimes they attempted to draft constitutional language that would, at least conceptually, eliminate the problem of such classes. Article 11(2) of the Ecuadorian Constitution may illustrate the endpoint of this development. It begins with a general equality guarantee: “All persons are equal and shall enjoy the same rights, duties and opportunities.” Then comes a long list of protected classes: “No one shall be discriminated against for reasons of ethnic belonging, place of birth, age, sex, gender identity, cultural identity, civil status, language, religion,

The new “Bolivarian” Constitutions

143

ideology, political affiliation, legal record, socio-economic condition, migratory status, sexual orientation, health status, HIV carrier, disability, physical difference.” Each of these classes is the precipitate of experience, sometimes within Ecuador, sometimes in other nations where courts have had to deal with claims under either general equality clauses or the residual equality clause. Finally, recognizing that the enumeration is inevitably incomplete, Article 11(2) has its own residual clause: “any other distinguishing feature, whether personal or collective, temporary or permanent, which might be aimed at or result in the diminishment or annulment of recognition, enjoyment or exercise of rights.” Notably, the residual clause covers both discriminatory intent (“aimed at”) and disparate impact (“results in”). All of this rests on decades of jurisprudence in Latin America and elsewhere grappling with problems of discrimination. Learning has occurred in connection with phenomena closely related to other classical liberal rights. In the most general terms, drafters of liberal Constitutions identified the rights that ought be protected at the constitutional level by reflecting upon experience, which can somewhat arbitrarily be divided into two dimensions. One is the experience that power holders often punished those who engaged in some activities that Constitution drafters believed ought to have been free from sanction. The second is the experience that ordinary political means – elections, in particular – were inadequate to ensure that abuses be kept to a tolerable level. There is no reason to believe that classical liberal rights are the only ones that can be identified by invoking the lessons of experience. So, for example, Chapter III of the Venezuelan Constitution deals with “Civil Rights,” and – taking into account the general verbosity of that Constitution – is basically a standard list of modern rights. Article 45, the Chapter’s third, deals with a “new” civil right on the model of earlier ones, prohibiting “public authorities,” including civilian and military officials, “from effecting, permitting or tolerating the forced disappearance of persons.”6 The learning that generates new constitutional rights is of course tied to particular experiences. Forced disappearances were an important feature of authoritarian rule in Latin America, so the existence of constitutional provisions dealing with such disappearances is no surprise. 6

To the same effect, see Article 15(4) of the Bolivian Constitution, located in its chapter on “Fundamental Rights”: “No person may be subjected to forced disappearance for any cause or in any circumstance.”

144

Comparative constitutional law in Latin America

But, forced disappearances have not been either universal in nor confined to Latin America. Perhaps, then, these novel rights-provisions will become part of the standard list of rights that twenty-first-century Constitutions guarantee. B. Learning at the Level of Structure Constitutional learning has occurred not only in connection with specific rights, but also in connection with government structures overall. Again putting the point most broadly, classical liberal Constitutions had a tripartite structure, with legislative, executive, and judicial branches. Those branches were thought to operate in conjunction – not necessarily cooperatively, but interacting in ways that promoted good governance overall. So, for example, courts could monitor executive actions through administrative review. Administrative review was subject to legislative control either in the small, as when a legislature affirmatively approved executive actions, or in the large, through privative clauses depriving the courts of the power of administrative review with respect to some topics. In one important tradition, that of parliamentary supremacy, this arrangement advanced good governance when legislatures were sufficiently attentive to the values promoted by constitutionalism. A similar tradition underlay what has come to be called “political constitutionalism,” in which the courts’ power of constitutional review was either absent or sharply restricted. Twentieth-century experience led many constitutionalists to believe that the optimistic predicate of parliamentary sovereignty was unjustified. As a result, they created reasonably robust systems of constitutional review. To function well, these systems had to guarantee judicial independence as well. Experience led many Constitution drafters to conclude that the tripartite structure was no longer adequate for a complex, modern state. In particular, courts were not always adequate forums for monitoring certain kinds of executive and legislative abuse. Self-interested legislators and executive officials could use their offices to perpetuate themselves in power in ways that even courts with the power of constitutional review found difficult to control. A standard example is the manipulation of district boundaries, or gerrymandering. Gerrymandering and analogous practices might be described as the result of “too much” capacity in the legislative and executive branches, with the courts unable to reduce the level. Another kind of problem results from “too little” government capacity. Here the core example is government corruption, but another example is bureaucratic entrenchment and resistance to control even by legislators and high-level executive officials. Judges can do something to

The new “Bolivarian” Constitutions

145

deal with corruption, but often they lack either the investigative tools or the special knowledge that is required to identify, much less reduce, corruption. Legislatures could of course create anti-corruption agencies, ombuds offices, and electoral and boundary commissions, and these could do something in the way of promoting good governance. Yet, one lesson of the displacement of parliamentary supremacy with robust constitutional review might be that legislative efforts to remedy either excessive or inadequate government capacity may be ineffective.7 Late twentiethcentury Constitution drafters often concluded that they should constitutionalize an additional set of institutions – a fourth or fifth branch – to deal with these problems. Chapter 9 of the South African Constitution gives them the convenient name, institutions to “support[] constitutional democracy.” The Bolivian Constitution describes these institutions as having the “functions of control, defense of society and defense of the state” (Title V); in Ecuador they are the repositories of the “transparency and social control function” (Title Four, Chapter Five). The constitutionalization of these institutions is an example of constitutional learning on the level of structure. The central issue in designing these institutions is guaranteeing their independence from the political institutions that they are tasked with monitoring. The model of independent courts is of course available, but courts and these institutions differ importantly in the criteria they are to apply. Courts apply “the law,” which even in legal realist cultures, and even more so in legal formalist ones, is thought to have some reasonably determinate dimensions. The institutions supporting democracy, in contrast, must apply more nebulous criteria like “electoral fairness” and “transparency.” Consider the Venezuelan Constitution, where legislative terms are five years, with the possibility of unlimited re-election (Article 192). Judges on the Supreme Tribunal of Justice serve a nonrenewable 12-year term. A Justices must be a “jurist of recognized competence” with at least 15 years of experience, and be “recognized as an honorable citizen” (Article 263). They are proposed by the Judicial Nominations Committee. That committee is composed of “representatives of the various sections of society,” pursuant to statutory regulations (Article 270). The Committee 7

One important consideration here is the party structure. Again putting the point in general terms, political systems in which one party is dominant – which is, at present, the case in the Bolivarian republics – are likely to have “excessive” government capacity, while systems with many parties, particularly weak parties or parties organized around personalities rather than programs, are likely to have inadequate capacity.

146

Comparative constitutional law in Latin America

“pre-selects” candidates, then submits the names to the Citizen Power, also described as the Republican Ethics Council. That Council consists of the People’s Defender, the General Prosecutor, and the General Comptroller – notably, the heads of three of the institutions supporting democracy (Article 273). The Citizen Power in turn forwards the names it chooses to the National Assembly (Article 264). Turn to the People’s Defender, who serves for a single, nonrenewable seven-year term. The Defender must have “manifest and proven competence in the field of human rights, and must meet with such requirements as to honesty, ethics and morality as may be established by law” (Article 280). The selection process begins with an Evaluating Committee, “made up of a group of representatives from various sectors of society,” which, after holding public proceedings, comes up with three candidates. Those names go to the National Assembly, which must choose one, by a two-thirds vote, within 30 days (if it does not, the three names are submitted to a public referendum for choice) (Article 279). Similar requirements apply to the heads of the other institutions supporting democracy. The National Electoral Council has an understandably different composition. Its five members too serve for seven years. They are to “hav[e] no ties to organizations for political purposes” (Article 296). Three members are nominated by civil society, one by law schools and political science departments, and one by the Citizen Power. Their terms are staggered, with three chosen at the beginning of the legislature’s term and two selected halfway through the term. The variations in institutional design respond to differences in function. Judges and the Public Defender, for example, are thought to have expertise in their fields, whereas the members of the Electoral Council must be politically independent. The shorter terms for the heads of the institutions supporting democracy than for judges may of course result from a calculation that the political risks these institutions pose mean that they must be held under a tighter rein than courts, though worldwide experience suggests that the calculation might well go the other way. The shorter terms might also reflect a judgment that judges should be in some sense “more” independent than the heads of the other institutions; even so, their terms exceed that of the legislature (five years) and that of the president (six years). Embedded in these larger institutional features are smaller ones that also signal the presence of constitutional learning. An example is a small feature in the Ecuadorian Constitution’s effort to control corruption. The Comptroller General is authorized to pursue inquiries into “cover-ups or uses of fronts” when there is substantial evidence of those phenomena, by requesting financial statements “from third parties linked to” public

The new “Bolivarian” Constitutions

147

officials (Article 231, para. 3; testaferrismo is the original translated as “cover-ups or uses of fronts”). The provision rather clearly responds to difficulties anti-corruption inquiries have sometimes encountered when the public officials who are the subject of those inquiries have used third parties and similar techniques to conceal their receipt of bribes and the like. The institutions supporting democracy have emerged as features of good constitutional design relatively recently. The parameters of good design are reasonably clear: The institutions should be both independent of the political organs and to some degree accountable to them, and probably to a somewhat greater degree than courts are accountable because of the fuzzier standards these institutions are to apply. Though design details can vary rather widely, the presence of these new institutions in the Bolivarian Constitutions is now typical rather than distinctive among new Constitutions. C. An Ambiguous Case – Novel Rights It is now conventional to identify three generations of rights, each with its own historical background and conceptual structure. Here is a grossly simplified sketch. As expounded in Karl Marx’s classic essay “On the Jewish Question” (1844), political and civil rights, the first generation, resulted from the concessions aristocrats had to make to the bourgeoisie, and they were immunities of individuals from government action coupled with guarantees of some degree of participation in making public policy. Economic and social rights, the second generation, resulted from the mobilization of the working class (and the response of established elites that the working class challenged), and they were guarantees of affirmative governmental action directed at individual recipients. The third generation is something of a grab-bag, including linguistic, cultural, and environmental rights. Their historical origin is mostly in anti-colonial movements for self-determination, though here the history is particularly complex. And their conceptual structure is mostly that the rights are inherently collective and cannot be reduced to rights held by individuals, or to duties to individuals. This is obviously true of language and cultural rights, as suggested in the discussion of the place of indigenous peoples in the Bolivarian Constitutions, but is less so of environmental rights. Here the Venezuelan and Ecuadorian Constitutions offer an instructive contrast. After stating that “each generation” has the “right and duty … to protect and maintain the environment for its own benefit and that of the world of the future,” Article 127 of the Venezuelan Constitution continues, “Everyone has the right, individually and collectively, to enjoy a

148

Comparative constitutional law in Latin America

safe, healthful and ecologically balanced life and environment.” Despite the reference to a “collective” right, this provision is most naturally read to guarantee rights of individuals in environmental quality,8 not the rights of nature as such. (For this distinction, see, e.g., Cho and Pedersen 2013; May and Daly 2015, pp 255–7 (discussing “right of nature”).) The parallel Ecuadorian provision is quite different. Its heading is “Rights of Nature” (Title II, Chapter Seven, emphasis added). Article 71 begins, “Nature … where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycle, structure, functions and evolutionary processes.” Article 74, the last in the chapter, does give “[p]ersons, communities, people, and nations … the right to benefit from the environment and the natural wealth enabling them to enjoy the good way of living,” but that supplements the rights of nature in itself. Here the Constitution confers standing comprehensively, on “[a]ll persons, communities, peoples and nations.” James R. May and Erin Daly (2015) observe that this approach, which they call “biocentric” as distinguished from the more common anthropocentric approach, is unique globally (p 71). Rules of standing of course affect the actual implementation of environmental rights no matter how those rights are conceptualized, but as a general matter the three Bolivarian Constitutions do provide for generous standing, particularly when rules of “private” standing are coupled with the authority given to offices in the fifth branch. As suggested earlier, the first of the new Bolivarian Constitutions, the Venezuelan, is a less striking departure from existing ones than its successors. Yet, it is worth emphasizing that all three Constitutions pay attention to the environment in ways that older Constitutions do not. They do so partly because of timing and learning, but also because of the importance of extractive natural resource industries in the region and, probably even more, because of the impact such industries have on the territories historically occupied by indigenous peoples. The Constitutions recognize environmental rights, then, at least in part as part of the plurinational project.

8 I take the referent of “its own benefit” to be “each generation” rather than “the environment,” but it might be to the latter.

The new “Bolivarian” Constitutions

149

III. THE STRUCTURE OF RIGHTS – PROGRAMMATIC, ASPIRATIONAL, AND ENFORCEABLE The Bolivarian Constitutions’ provisions dealing with rights are extensive and detailed, but in general their protections fit well within the classical liberal and social democratic traditions with respect to liberal and socio-economic rights. An important question about social democratic Constitutions, and now about Constitutions with extensive protections for third-generation rights, is the extent to which their distinctive guarantees are judicially enforceable as are classical liberal rights, or are instead aspirational or programmatic, Carl Schmitt’s term for them. Sometimes constitutional texts alone come close to resolving that question, as in the 1937 Irish Constitution’s provision stating that its social democratic provisions “shall not be cognisable by any Court” (Article 45), although we now know that some features textually stated to be unenforceable occasionally leach into judicial enforceability. The last 100 of the Bolivian Constitution’s provisions describe the nation’s economic structure in ways that can only be understood as programmatic overall. So, for example, Article 337 provides that the state “shall promote and protect communitarian tourism with the objective of benefiting urban and rural communities and the indigenous originary peasant nations and peoples where this activity takes place.” One can imagine courts entertaining claims that specific tourist-promotion activities violated the implicit restriction here, that the activities benefit the communities, but clearly the provision’s core is about general programs. The same can be said of many similar provisions in all three Constitutions. According to Article 320 of the Venezuelan Constitution, for example, the state “shall promote and defend economic stability … and see to monetary and price stability …” The “shall” here, as in many similar provisions, could be interpreted to make the provision judicially enforceable, so that a court might find unconstitutional an economic program on the ground that it will not advance price stability. Such an interpretation, one suspects, is unlikely, though there will undoubtedly be a judicial impulse to encourage the adoption of legislation implementing some programmatic rights. Yet, many provisions – perhaps best described as lying on the border between first- and second-generation rights – are more ambiguous with respect to judicial enforceability. A small example is Article 336 of the Ecuadorian Constitution, providing that the state “shall encourage and safeguard fair trade as a means of access to quality goods and services, minimizing the distortions of middlemen and promoting sustainability.”

150

Comparative constitutional law in Latin America

Part of this could be taken to be a reasonably traditional ban on state-enforced protectionism or state support for rent-seeking regulations. Articles 330 and 331 look like guarantees of non-discrimination based on disability and gender, but are phrased in ways that seemingly require affirmative governmental actions. The former provides that “[t]he State and employers shall implement social services and provide special assistance to facilitate” the activities of workers with disabilities, and the latter “guarantee[s] … equal access to employment … [and] equitable pay …” The question of judicial enforceability is inextricably connected to questions about who, if anyone, is in a position to initiate constitutional challenges. The Venezuelan Constitution does not address standing directly, but both the Bolivian and Ecuadorian Constitutions specify that constitutional rights are “directly and immediately enforce[able]” and “fully actionable” (Ecuador, Article 11(3)) or “directly applicable” (Bolivia, Article 109). The Bolivian Constitution’s chapter on legal remedies identifies six specific remedies: the action in defense of liberty, the action of constitutional protection, the action of protection of privacy, the action of unconstitutionality, the action of compliance, and the popular action. Each has its own standing rules. A person who faces a threat to liberty has standing to file the action in defense of liberty, for example. More extensive standing is granted under the other provisions. The action of constitutional protection can be filed “by the person allegedly affected, by another person acting on his/her behalf with sufficient power of representation, or by the respective [public] authority” (Article 129(I)). The action of unconstitutionality can be filed by “[a]ny individual or collective entity affected by a legal provision that is contrary to the Constitution” (Article 132). And, most extensively, the popular action, which deals with acts or omissions “which violate or threaten to violate collective rights and interests related to state assets, … public health, the environment and other interests of similar nature,” may be filed “by any person, on her/his own behalf or in the name of a collective entity” and must be brought by the Public Ministry or Ombudsman “when they learn about these acts in the exercise of their functions” (Articles 135, 136). There is undoubtedly some tension between the seemingly aspirational or programmatic nature of provisions such as those dealing with the “good way of living system” and the identification of a quite extensive list of socio-economic and cultural rights, on the one hand, and the assertion that all rights are directly enforceable, on the other. The texts themselves do not resolve that tension, though on their face they appear to incline the Bolivarian Constitutions in the direction of more substantial

The new “Bolivarian” Constitutions

151

judicial enforcement than has occurred elsewhere (even elsewhere in Latin America).

IV. CONCLUSION As indicated at the outset of this chapter, examining constitutional texts in isolation from their interpretation and implementation can tell us something about the vision embodied “in” the texts, but cannot tell us what they actually mean or do in practice. Several themes do emerge from examining the texts of the Bolivarian Constitutions, though. The first is that the Venezuelan Constitution is actually quite a bit less distinctive, relative to the world’s Constitutions, than those of Bolivia and Ecuador. The reason may well be constitutional – in this case, regional constitutional – learning. Wholly apart from the specific and stressful circumstances under which they operated, the drafters of the Venezuelan Constitution had little upon which to model “Bolivarian” innovations. Their successors in Bolivia and Ecuador could reflect upon not only their domestic constitutional circumstances, but also those that had emerged in the region since 1999. Second, the Constitutions’ emphasis on plurinationalism is both distinctive and interesting. Plurinationalism is embodied in both principles and institutions, much more in the former than the latter. Perhaps, though, learning once again will have some effects as, or if, other nations reflect upon how the Bolivarian Constitutions implement plurinationalism, and we may see more institutional innovation elsewhere. Finally, at a minimum, but perhaps most important, it does seem as if we can describe Bolivarian constitutionalism as a distinctive form of constitutionalism, simultaneously limited to a specific region and reaching for a more general vision of plurinationalism.

REFERENCES Arendt, Hannah. 1963. On Revolution. New York: Viking Press. Cho, Hong Sik and Ole W. Pedersen. 2013. “Environmental Rights and Future Generations.” Pp. 401–12 in Routledge Handbook of Constitutional Law, edited by Mark Tushnet, Thomas Fleiner and Cheryl Saunders. London: Routledge. Grijalva, Agustin, Elsa Guerra and Dunia Martinez. 2016. “Constitutional Limits on the Power of the Executive.” Pp. 209–226 in The Latin American Casebook: Courts, Rights, and the Constitution, edited by Roberto Gargarella and Juan Gonzalez-Bertomeu. Farnham, UK: Ashgate Publishing.

152

Comparative constitutional law in Latin America

Lee, H.P., editor. 2011. Judiciaries in Comparative Perspective. New York: Cambridge University Press. May, James R. and Erin Daly. 2015. Global Environmental Constitutionalism. New York: Cambridge University Press. Ramirez, Silvina and Nahuel Maisley. 2016. “The Protection of the Rights of Indigenous Peoples.” Pp. 189–208 in The Latin American Casebook: Courts, Rights, and the Constitution, edited by Roberto Gargarella and Juan GonzalezBertomeu. Farnham, UK: Ashgate Publishing.

7. Looking beyond the Constitution: the social and ecological function of property Helena Alviar Garcia* In Pedro Páramo, Juan Rulfo’s extraordinary novel about land concentration, lawlessness plays an important role. In a scene where Pedro and his administrator Fulgor Sedano are discussing the limits on his latifundio, the Media Luna, the following exchange occurs: “Next week, I want you to go over to see Aldrete. Tell him to check his fences. He is on Media Luna land.” “He did a good job measuring the boundary lines. I can vouch for this.” “Well, tell him he made a mistake. That he didn’t figure right. If necessary, tear down the fences.” “And the law?” “What law, Fulgor? From now on, we’re the law. Do you have any hardasses working on the Media Luna?” “Well, there’s one or two.” “Send them over to do business with Aldrete. You draw up a complaint accusing him of squatting on our land, or whatever occurs to you. And remind him that Lucas Páramo is dead. And that from now on he’ll be dealing with me.” (Rulfo 1994, p 44).

I have always been taken by this exchange. The whole novel beautifully depicts how land concentration has occurred in the region: by pure force, by ignoring the law, on the margins of legality. This gap between the law in the books and law in action or the absence of state power and the * The author wishes to thank Emilio Lehoucq Mazuera, for his invaluable research assistance in the production of this chapter. 153

154

Comparative constitutional law in Latin America

existence of ruthless landowners has been a major explanation of how resource inequality has evolved in Latin America. Along with this explanation, there have been other interpretations of how the concentration of rural property occurs and how to solve it. Very broadly speaking, in the region three other theoretical explanations coexist. First, there is the liberal view that understands this problem as one of a lack of modernization and the nonexistence of market institutions necessary for adequate resource distribution. The solution for this theoretical approach is the formalization of the classical individual right to property. Then, there is the social angle, which centers the issue of distribution upon the state and redefines property not as an individual absolute right, but as a social function that entails responsibilities. Finally, there is the Dependendista-inspired analysis that critiques private property, calling for a major redistribution of resources from the individuals to the nation state. All of these theoretical approaches have had important constitutional and legal developments in different Latin American countries. Many legal academics and activists have placed their faith in the Constitution and the Constitutional Court to transform the distribution of resources in countries around the region. My recent intellectual project has been to understand the limitations that constitutional law and its interpretation by judges have had. As I celebrate the creativity and progressiveness of many rulings, my objective is to determine why this is only part of the story. In my opinion, redistribution is stalled by the coexistence of different definitions of property; the concentration of public resources for economic development plans that privilege a liberal classical view of growth, property and distribution; existing conflicts between access to land, the right to work and the right to develop enterprises, as well as the contradictions between identities at the margins – indigenous groups, Afro-descendants and peasants – who may be provided with collective titles to property. The objective of this chapter will be to discuss and analyze the limitations I have described above. In order to do so, it will be divided into five sections. In the first one I will briefly outline the constitutional, judicial legal development of the social and ecological function of property in the Colombian context. Second, I will present how different definitions of property coexist and which one has been privileged by technocrats, creating the concentration of public spending not on the social or ecological function but on an individualist view of property. In the third section, I describe a case that pictures the contradictions between diverse definitions, development projects and identities. Then, I

Looking beyond the Constitution

155

briefly describe the Bolivian constitutional approach to property and its limitations. Finally, I provide some conclusions.

I. CONSTITUTIONAL, JUDICIAL AND LEGAL DEVELOPMENTS OF THE SOCIAL AND ECOLOGICAL FUNCTION The right to private property in Colombia, established in the 1887 Civil Code, was an individual and absolute one that allowed arbitrary actions of the owner. According to mainstream classical civil law professors, private property is the free, total and absolute domain a person has over means of production, goods produced, intellectual property and labor translated into wages. As a consequence, property provides a natural and absolute right to freely manage, transmit and use these goods. However, this view has been contested both by academics and policy makers who acknowledge that its absolute nature has to be understood in relationship to the rights of others, questions of social justice, sustainable economic development and collective property titles for indigenous groups, Afrodescendants and peasants. In 1936, the concept of the social function of property was included for the first time in the Constitution through an amendment.1 This vision of property was also established in agrarian and urban reform laws. As contested as it was, the individual classical notion of private property has persisted in the Civil Code. The social function of property was reiterated in the Constitution of 1991. As I will briefly describe in the following paragraphs, the Colombian Constitutional Court gave it an expansive and generous interpretation. In one of its first and fundamental rulings on this matter, the Constitutional Court studied the legality of the extinction of property rights when mining titles had not been publicly registered. This ruling is important for the purpose of this chapter because it clearly establishes that the social function is not an afterthought: It is essential to the core of the right to property. In addition, it places the limitation as a negotiation between private means of production and social justice: With the purpose of fully understanding the sense of the term, it is important to note that the social function is not an external element to property. It is fully integrated to its structure. The obligations, duties and limitations it introduces are part of its core. … The social function as an expression of the 1

For more on this constitutional reform and its evolution see Alviar (2011).

156

Comparative constitutional law in Latin America

solidarity principle and the equation of various interests in conflict, it is a general clause that may only be understood in a specific economic and social historical context, and must be specified by the Legislator who is the essential mediator of social conflict … the social function formula intervenes between the interest of the private means of production and those derived from social justice and equality (Ruling C-006 of 1993, MP Eduardo Cifuentes Muñoz, consideration 14).

Two years later, in Ruling C-595 of 1995, the term “arbitrarily” was removed from the definition of property established in Article 669 of the Civil Code. According to the Court, one of the consequences of the social function of property is the imposition of duties and obligations to owners: The social function of property is incorporated in order to impose to the owner obligations in favor of society. In other words, the social dimension of the obligations limits individual exercise, according to Leon Duguit’s concept of the function of property. In the case of rural state lands (tierras baldías rurales) the social function is materialized through the duty of exploiting them economically and using them exclusively for agricultural activities … in other words, the social function of property means that the right to property must be exercised in such a way that it does not harm but benefit society, using it according to collective needs and respecting the rights of others (Ruling C-595 of 1995, MP Carlos Gaviria Díaz, consideration h).

The Court has also expressly related the social function of property to solidarity values. In Ruling C-189 of 1996 it stated: “The Court has stated in several of its decisions that the social function of property is linked to the principles of solidarity as well as the prevalence of society’s welfare. Ultimately it forces the owner to contribute to the achievement of public goals, thereby transcending the merely individual sphere” (Ruling C-306 of 2013, MP Nilson Pinilla Pinilla, consideration 4.2). Nevertheless, the Court has also established that the limitation is not absolute. As a matter of fact, many rulings on the subject present a tension between a progressive, expansive view of the social function, redefining the right to property, and a more conservative one. According to this second view, although the social function of property can potentially restrict individual property rights, minimum levels of enjoyment must be protected – the “core” of private property. This conservative perspective, illustrated in the following quotations, begs the question whether the “social” is doing any work at all: … When establishing the concept of the social function, the legislator may impose on the owner a series of restrictions on property rights for the sake of

Looking beyond the Constitution

157

preserving social interests, these limitations must always respect the core of the right itself: a minimum level of enjoyment, the possibility to sell it and obtain economic benefits in order to protect the existence of private property (Ruling T-427 of 1998, MP Alejandro Martínez Caballero, consideration C.3).

This conservative view has coexisted with more progressive ones. For example, in Ruling C-006 of 1993, two years after the creation of the Court, it stated: Legal limits on the right to property cannot diminish the institution of property, which must be protected in all cases. Property is expressly guaranteed in the Constitution. In addition, it is linked with economic liberty, which is also protected as the base of the economic system (Articles 333 and 150-21 of the Constitution). Therefore, legal regulation must leave a sphere, even if it is reduced and conditioned, which permits the satisfaction of the private interest and the adoption of concrete possibilities of action by the owner … This irreducible core, guaranteed by the Constitution, refers to the minimum level that the enjoyment and disposition powers may objectively have in order to allow the owner to extract the economic utility of property … (Ruling C-006 of 1993, MP Eduardo Cifuentes Muñoz, consideration 14).

In sum, this ambiguity regarding the scope and progressiveness of the social function of property has persisted in many Court opinions.2 Since its first rulings, its case law has been characterized by this tension between an expansive view and a narrow one, between the redefinition of the right to property and the maintenance of a classical concept marginally supplemented by a social function. Some academics have defended the work of the Court stating that it has redefined the right to property in Colombia because it has not only imposed duties upon the owner or established external constraints on its core, but also defined property as a set of duties and limitations (Villegas del Castillo 2004, p 50). Nevertheless, I think the Court has been more ambivalent than clearly committed to the social function of property. As I have argued in previous work (Alviar 2014), I am cautious regarding the over-celebration of the distribution of resources led by courts. Although the Constitutional Court has developed a set of progressive rulings, it is important to highlight internal tensions within case law. 2

See the Rulings C-491 of 2002 (MP Marco Gerardo Monroy Cabra), C-133 of 2009 (MP Jaime Araújo Rentería), and C-306 of 2013 (MP Nilson Pinilla Pinilla).

158

Comparative constitutional law in Latin America

Along with the social function, Article 58 of the Colombian Constitution limits property with an ecological function. Although not as developed jurisprudentially as the social function, there are some rulings worth noting. Specifically, the Court has described the restriction as the prohibition of indiscriminately exploiting natural resources. In Ruling C-189 of 2006, on the constitutionality of a law that prohibited the sale of private properties within areas designated as National Natural Parks, the Court declared: Regarding the ecological function of property, it can be said that its inclusion in the Constitution is an achievement which intends to face the problems raised by the indiscriminate exploitation of private goods in conditions that go against the protection of a healthy environment – a collective right that society should protect (Colombian Constitution Articles 79–80).

In this sense, as this Court has said before, the establishment of the ecological function situates the environment as a limit to the exercise of private property, which in turn enshrines what this Tribunal has defined as the “ecologization of property” (Ruling C-189 of 2006, MP Rodrigo Escobar Gill, consideration 6). The Court relates the protection of the environment with the rights of future generations. In Ruling C-126 of 1998, it stated: Recently, an “ecologization” of private property has taken place, this has significant consequences because now the owner should not only respect the rights of the other members of the society (social function of property) but also his or her powers are limited by the rights of future generations, determined by the ecological function of property and the idea of sustainable development. Therefore, the legal system can impose greater restrictions upon the appropriation of natural resources or the owners of these, bringing as a consequence that the very notion of private property undergoes major changes (Ruling C-126 of 1998, MP Alejandro Martínez Caballero, consideration 36).

The ecological function of property, as the social function, opens also a possibility for imposing duties and obligations on owners, but now in connection with the protection of the environment and natural resources. Notwithstanding the promise of allowing limitations, the Court has also established that the essential core of private property must be preserved. In Ruling C-189 of 2006, quoted above, the Court established: In order to achieve sustainable development, this Court has admitted that, based on the ecological function established in Article 58 of the Constitution, limits or conditions that restrict the exercise of private property may be imposed, as long as said restrictions are reasonable and proportional in such a

Looking beyond the Constitution

159

way that they do not affect the essential core of the right (Ruling C-189 of 2006, MP Rodrigo Escobar Gil, consideration 7).

In addition to including the social and ecological functions of property, and in that line of thought, Article 58 also establishes that the state has the duty of promoting associative and collective forms of property.3 The Constitutional Court has been clear in highlighting the importance of the collective aspect of the social function of property: The social function is, on the one hand, the meaning of moderating and restricting the scope of property rights, while on the other hand, it involves other types of property. [T]here is no doubt that in the Constitution individualistic theory is discarded and its exercise is given a highly social content, which allows the law to impose limitations, in order for it to serve the community interests and social solidarity. (Ruling C-595 of 1999, MP Carlos Gaviria, considerations 2.b and 2.c).

The right to collective property was initially associated with indigenous communities and depended upon their definition as collective subjects of rights, altering the individual notion of right holder that is typical to classical liberal regimes. In this sense, the Constitutional Court has considered that indigenous communities have fundamental rights, and that such rights are not the same as those of either each one of their members or the sum of all of them.4 Therefore, collective property refers to the fact that a community, represented by autonomously chosen 3 “Private property and other rights acquired pursuant to civil laws shall be guaranteed and may not be ignored or infringed by posterior laws. When, because of the application of a law issued based on public utility social interest, a conflict between individual rights and the necessity recognized by such a law is raised, the private interest must yield to the public or social interest. Property is a social function that implies obligations. As such, it has an inherent ecological function. The State will protect and promote associative and solidary forms of property.” 4 Colombian Constitutional Court, Ruling T-380 of 1993, MP. Eduardo Cifuentes Muñoz, consideration 8. (“The fundamental rights of indigenous communities must not be confused with collective rights of others human groups. The indigenous community is a collective subject, and not only a mere addition of individual subjects that share the same diffuse or collective rights or interests (CP art. 88).”). See more recently Colombian Constitutional Court, Ruling T-514 of 2009, MP Luis Ernesto Vargas Silva, consideration b.2. (“(i) [I]ndigenous communities are subjects of fundamental rights; (ii) those rights are neither the same as the individual rights of each one of their members, nor to the addition of these”).

160

Comparative constitutional law in Latin America

traditional authorities, holds property rights over their lands, which are “imprescriptible, inalienable, and indefeasible.”5 The 1991 Constitution, which identifies Colombia as a multi-ethnic, pluri-cultural nation, recognized and outlined the framework for collective territorial rights for ethnic groups.6 For the first time it opened up a space for Afro-Colombians to claim property over a specific plot of land as an ethnic group.7 This recognition was established in transitory Article 55, which stated that the government had to create a law that recognized this right for Afro-Colombian communities. This was later developed through Law 70 of 1993.8 5 Colombian Constitution. Article 63: “Public estates, natural parks, communal lands of ethnic groups, indigenous reservations, the archeological patrimony of the Nation, and all those assets determined by the law, are inalienable, imprescriptible, and indefeasible.” 6 On the one hand, regarding the recognition of Colombia as a pluri-cultural Nation, Article 7 of the Constitution establishes that “[t]he State recognizes and protects the ethnic and cultural diversity of the Colombian Nation.” Also, Article 8 states that “[i]t is an obligation of the State and every person to protect the cultural and natural assets of the Nation.” Additionally, Article 68 guarantees that “[m]embers of ethnic groups shall have a right to a formation that respects and develops their cultural identity.” On the other hand, the collective territorial rights of ethnic groups are recognized in Articles 58 and 63 of the Constitution (quoted in footnotes 11 and 14). 7 Article Transitory 55 of the Constitution states as follows: Within the two years following the entry into force of this Constitution, the Congress shall issue, after investigation by a special commission created by the Government to this end, a law which grants to the black communities that have occupied vacant land in rural areas adjoining the rivers of the Pacific Basin, in accordance with their traditional production practices, the right to collective property of the areas that will be demarcated by the same law. In the special commission referred to in the preceding paragraph shall participate in each case elected representatives of the communities involved. The recognized properties will only be sold under the terms established by the law. The same law will establish mechanisms for the protection of the cultural identity and rights of these communities, and to promote their economic and social development. Paragraph 1. The provisions of this Article shall apply to other areas of the country that have similar conditions, by the same procedure, and previous studies and the favorable opinion of the special commission provided here. 8 Article 1 of the law states the following: This law aims to recognize the black communities that have occupied vacant lands in rural areas adjoining the rivers of the Pacific Basin, in accordance

Looking beyond the Constitution

161

Under this law, and in compliance with the social and ecological function of property, Afro-Colombian communities have been recognized with the right to collective ownership of public lands. A long debate, including mobilizations by black communities (Arjona 1997, p 44), preceded the law. Interestingly, the debate leading up to the formulation of Law 70 required the black community to pledge similarities with indigenous peoples, which already had collective property rights (Engle 2010, pp. 230–33). In this sense, the discussion turned on the relationship of the black culture with their land.9 As a consequence, the law defines collective occupation by black communities as “the historical and ancestral settling of the black communities on lands for their collective use, which constitute their habitat, and over which they today develop their traditional production practices” (Law 70 of 1993, Article 2.6). In addition, Law 70 recognizes Afro-Colombian populations as ethnic groups,10 and recognizes their territorial rights in the Pacific Basin, in the form of collective territories. It also creates a form of self-government in the Community Councils for Afro-Colombian communities.11 Since the with their traditional production practices, the right to collective property, according to the provisions of the following articles. It also aims to establish mechanisms for the protection of cultural identity and the rights of black communities in Colombia as an ethnic group and promote their economic and social development, in order to ensure that these communities get real conditions of equal opportunities in relation to the rest of the Colombian society. According to the provisions of paragraph 1o. of the provisional article 55 of the Constitution, this law will also apply to the vacant, rural and coastal areas that have come to be occupied by black communities with traditional production practices in other areas of the country and meet the requirements of this law. 9 This can be seen in the minutes of the meetings of the Special Commission mentioned in Transitory Article 55 of the Constitution. See Engle (2010, p 229). See also Republic of Colombia, Ministry of Justice and Law (1995) pp 30–31. 10 Black communities are defined as “the group of families of AfroColombian descent who have their own culture, a shared history and have their own traditions and customs within the urban–rural divide, which demonstrate and maintain awareness of an identity that distinguish them from other ethnic groups” (Law 70 of 1993, Article 2.5). 11 Article 5 of Law 70 of 1993 states the following: To receive the right to collective property of allocable land, each community will form a Community Council as a form of internal administration, whose requirements will be determined by the regulations issued by the Government.

162

Comparative constitutional law in Latin America

law was issued, Afro-Colombian communities have been awarded collective titles.12 In Colombian legislation Afro-Colombian and indigenous communities have special rights over the lands they inhabit based in their spiritual and cultural attachment to their ancestral lands or territories.13 However, due to the displacement the Afro-Colombian community has suffered over many years, it has been difficult for them to create the connection with their land. The Constitutional Court has addressed this issue: Although ethnic minorities tend to maintain a relationship with their ancestral territories, which usually affects their survival, the fact that the AfroColombian population has been affected by the phenomenon of forced displacement and the institutional failure in the protection of their right to collective property, prevents ethnic identity to maintain a connection with their territories (Ruling T-576/14, MP Luis Ernesto Vargas Silva, consideration 3.40).

Although not as consistently or strongly, the Court has also defended peasants’ access to land. In Ruling 644 of 2012, the Court declared the unconstitutionality of several articles of Law 1450 of 2011 – National In addition to those provided by the governmental regulations, these are functions of the Community Councils: define and assign areas within the allotted land; ensure the conservation and protection of collective property rights, the preservation of cultural identity, and the use and conservation of natural resources; choose the legal representative of the respective community as a legal person, and act as feasible conciliators in conciliating internal conflicts. 12 The first six titles were granted in 1996 to six different Community Councils located in the Municipality of Riosucio, Department of Chocó. Since then, up to 2011, 158 titles had been granted to several communities. It is interesting to note that the granting increased up to 2001, and then decreased up to 2011, arriving at almost the same point at which it had started in 1996. The Departments in which most titles have been granted are Chocó, Nariño, Antioquia and Cauca. See Arango (n.d., pp 6–7). 13 See, for instance, Colombian Constitutional Court, Ruling T-379 of 2014, MP. Jorge Ignacio Pretelt Chaljub, consideration 2.3.1.1. (“It must firstly be said that the right to collective property of indigenous and tribal peoples emanates from their right to their territories, which has a much broader content. Indigenous and tribal peoples have a special relation to their lands, because frequently their traditions and rites are related to their territories, given that they have a sacred character or a spiritual meaning, in addition to the fact that an important part of their physical existence and as a culturally differentiated group depends on them.”)

Looking beyond the Constitution

163

Development Plan 2010–2014 – which modified and added some elements to Law 160 of 1994. The analyzed articles allowed the sale and supply of properties that had been originally allocated as part of the state-led land distribution programs (either the adjudication of public land “baldíos” or acquired through state subsidies), as long as the buyer guaranteed that the land would be used for agricultural or forestry development.14 The ruling emphasized that the social function of property effectively means that private interest must yield to public interest. As a consequence, several articles were declared unconstitutional. The Court described them as regressive measures that led to land concentration: Articles 60, 61 and 62 of the Law 1450 – the 2010–2014 Development Plan – are unconstitutional because they are regressive with respect to the mechanisms of protection guaranteed by the State in order to ensure the constitutional mandates regarding the right of access to ownership of rural workers and related rights such as the right to continue living in rural areas, access to housing, financial, technical and scientific state support from the State in order to increase land productivity (Ruling C-644 of 2012, MP Adriana Maria Guillen Arango, consideration 6.4).

As will be developed in the following section, these progressive laws and rulings defending the rights of peasants to land, the protection of the environment through the ecological function, and the adjudication of collective property rights coexist with a classical liberal concept of property which is the prevalent one among policy makers and technocrats.

II. A CLASSICAL VIEW OF PROPERTY THAT IS STILL VERY MUCH ALIVE Most Colombian technocrats – those working in the Ministry of Agriculture as well as leading economic policy advisors – have a classical and 14

Particularly, Article 60 stated that “At the request of the person concerned, acts or contracts under which a natural or juridical person acquires or receives the input of lands that were originally adjudicated as vacant land or acquired through the integral subsidy of land may be authorized, even if as a result of it properties whose area exceeds that fixed by the INCODER for Familial Agricultural Units UAF are consolidated, provided that the lands covered by the applicant are linked to a proposed agricultural or forestry development project that justifies the operation.”

164

Comparative constitutional law in Latin America

formalist definition of property which is privileged in economic development policies and seems to ignore the constitutional, legal and judicial developments. This is important for this text because most public resources are assigned according to this view. In addition, the classical view has recently been strengthened by the boom in formalization programs set forth by ideas of economic development that have been influenced by Hernando de Soto (2000). Several public entities have been developing formalization programs. On the one hand, the Ministry of Agriculture and Rural Development, the entity in charge of designing and setting in place policies related to the rural sector, has pushed forward a classical, formalist vision of property. The Land and Rural Development Law Proposal set forth in 2010 is an interesting example of this vision. Although it mentions the issue of land redistribution twice (in the whole Bill),15 this is not the principal purpose of the proposal. On the contrary, the policy is completely concentrated on formal titling. Instead of centering its policies on unequal or lack of access to land, the executive branch understands the solution of agrarian problems as centered upon the lack of formal titles, which in turn affects the adequate development of the market. There is a constant concern about the dangers of informality (Ministry of Agriculture and Rural Development 2011, pp 203–04; Restrepo and Bernal 2014, pp 124, 132–33). In addition, the Colombian Institute for Rural Development (INCODER), another essential public entity in charge of developing programs that guarantee access to land, has weakened its goal of redistributing rural property and has strengthened land titling and property formalization programs.16 In this same line of thought, influential policy advisors define property in very classical terms based on the civil law formalist definition of property as title and the very specific way in which property may be acquired (Gáfaro, Ibáñez and Zarruk 2012, p 10);. they explain the dangers of informality to economic efficiency and the consequent benefits

15 Particularly, it appears as one of the guiding principles for the provision of public services in rural areas and in Article 193, within the regulation of land policy for ethnic minorities, as the purpose of land allocation decisions taken when properties given to said minorities are illegally leased or sold. 16 In this sense, its “Corporate Strategic Plan” states as one of its primary goals “to promote access to land and to strengthen property rights,” understood as land titling and property formalization. INCODER, 2013, pp. 19, 25.

Looking beyond the Constitution

165

of formalization. Particularly, they argue that “[l]and titles allow the exclusion of other agents’ use and affect therefore the efficient allocation of resources, the distribution of wealth, the welfare of the population, and the development of markets” (Gáfaro, Ibáñez and Zarruk 2012, p 5). “By reducing the risk of expropriation, [formality] creates incentives to invest in land and allocates productive resources that were previously assigned to protecting property over the land” (Gáfaro, Ibáñez and Zarruk 2012, p 5).

III. THE DARK CONSEQUENCES OF THESE CONTRADICTIONS: THE CASE OF CURVARADÓ AND JIGUAMIANDÓ17 In order to provide a contemporary example of how these contradictions take place, in this section I will describe what has happened in a region of Colombia. The Jiguamiandó and the Curvaradó River Basins in the Chocó Department (Alfonso et al. 2011, pp 47–65) are situated in the west of the country, and have been the target of war for territorial control by armed actors in the Colombian conflict due to their geographical location, low population density and lack of state institutions in the areas (Presidency of Colombia 2007). During 1996 and 1997, paramilitaries and members of the Colombian armed forces violently displaced18 Afro-Colombian communities that inhabited the region. These systematic acts of violence reached their peak in 1998 with the occupation of their territory by palm tree and livestock companies, which allied themselves with paramilitary groups both of whom contributed to deprive these communities of their land (El Tiempo 2013). Palm tree cultivation expanded from 2002, and this expansion in in accordance with a government policy that supported this crop.19 These companies have also generated negative environmental impacts on the territory.20 17 Taken from http://www.pbi-colombia.org/fileadmin/user_files/projects/ colombia/files/press_kits/111215_Curba_esp_web.pdf. 18 It is believed that approximately 4,000 people left the area for other towns, practically emptying the territory (Salinas 2011). 19 Among many legal rules that protect palm production there is Law 939 of 2004. This law creates incentives for the “production and marketing of biofuels of vegetable or animal origin for use in diesel engines,” which are mainly produced with palm tree oil. The law was followed by Decree 1970 of 2005, which “partially regulates [the application of] Law 939 of 2004”; Decree 76 of

166

Comparative constitutional law in Latin America

As a matter of fact, in 2000 the Colombian Institute for Agrarian Reform (INCORA in Spanish) granted the population two collective property titles through Resolutions 280921 and 2801,22 both to Community Councils composed of families living in areas surrounding the

2005, “whereby errors of the Law 939 of 2004 are corrected”; and Resolution 00351 of August 10, 2005 issued by the Ministry of Agriculture and Rural Development, which provides tax incentives for new palm tree plantations. In addition, the National Development Plan of 2006–2010 established palm crops as one of the governmental “productive bets.” 20 Ombudsman’s Office. Resolution 39 of 2005 (“The establishment of palm plantations in the region, mainly in the collective territory of Curvaradó, has generated great environmental, cultural and social impacts derived from the infrastructure works that have been built: network of roads, drainage canals, bridges and cables (pulleys). Likewise, there have been changes in land use, deforestation, drying and diversion of water sources. In general, the native forest of bio-geographical Chocó, which has been considered one of the most bio-diverse ecosystems on the planet, but also one of the most fragile, has been impacted”: p 4). 21 By which an area of 46,084 Has, 0050 m2 was awarded. http://axecali.tripod.com/cepac/tablatituloscolectivos.htm. According to the INCORA (Resolution 02809 of 2000, Official Journal of Colombia, February 26, 2001), “[t]he request for qualification here formulated, meets every one of the requirements in Articles 4 and following of Law 70 of 1993 and 17 to 28 of Decree 1745 of 1995, since the object of the processing areas are vacant, rural, and costal lands, which are being occupied and exploited in historical and ancestral form by the applicant black community, with traditional production practices consistent with their culture, traditions and customs.” 22 By which an area of 54,973 Has, 8366 m2 was awarded. http://axecali.tripod.com/cepac/tablatituloscolectivos.htm. According to the INCORA (Resolution 02801 of 2000, Official Journal of Colombia, February 25, 2001), “[t]he request for qualification here formulated, meets every one of the requirements in Articles 4 and following of Law 70 of 1993 and 17 to 28 of Decree 1745 of 1995, since the object of the processing areas are vacant, rural, and costal lands, which are being occupied and exploited in historical and ancestral form by the applicant black community, with traditional production practices consistent with their culture, traditions and customs. In short, the lands to be adjudicated to the Black Community organized in the River Jiguaminadó Community Council, are collectively vacant lands occupied by this community, are located in the Jiguamiandó River Basin in the municipality of Riosucio, Chocó Department, and have an area of fifty-four thousand nine hundred seventy-three acres with eight thousand three hundred sixty eight square meters (54,973 Ha 8368 m2), according to the survey prepared by the Incora and approved by the Technical Commission of Law 70 of 1993.”

Looking beyond the Constitution

167

rivers Curvaradó and Jiguamiandó.23 The people that had been displaced decided to return home, but in doing so they found that their land was covered in palm plantations that belonged to private companies (Alfonso et al. 2011, p 52). Since the title was granted, the Afro-descendant community has been the object of all kinds of attacks. Shortly after being given the collective titles, paramilitaries raided the region, murdering members of the Curvaradó and Jiguamiandó communities, displacing countless individuals (Comision Intereclesial de Justicia 2005, p 57). Due to the fact that these communities did not receive government support after the displacement, they sought the assistance of international organizations for protection. Since 2003, and on many occasions, the Inter-American Commission on Human Rights (IACHR) of the Organization of American States has granted provisional measures to the Communities of Curvaradó and Jiguamiandó.24 After the precautionary protection measures issued by the IACHR, some state entities spoke 23 Amid violent attacks, the Afro-descendant communities from Jiguamiandó and Curvaradó worked for their collective titles over their ancestral lands, as well as for the recognition of the Community Councils as their maximum authority, all of which is established in Law 70 of 1993. 24 Inter American Court of Human Rights, Resolution of March 6, 2003, Provisional Measures required by the Inter-American Commission of Human Rights regarding the Republic of Colombia. Case of the communities of Jiguamiandó and Curbaradó. http://www.corteidh.or.cr/docs/medidas/Jiguamiando_se_ 01.pdf; Inter-American Court of Human Rights, Resolution of November 17, 2004, Provisional Measures regarding the Republic of Colombia. Case of the communities of Jiguamiandó and Curbaradó. http://www.corteidh.or.cr/docs/medidas/ Jiguamiando_se_02.pdf; Inter-American Court of Human Rights, Resolution of March 15, 2005, Provisional Measures regarding the Republic of Colombia. Case of the communities of Jiguamiandó and Curbaradó. http://www.corteidh.or.cr/docs/ medidas/jiguamiando_se_03.pdf; Inter-American Court of Human Rights, Resolution of February 7, 2006, Provisional Measures regarding the Republic of Colombia. Case of the communities of Jiguamiandó and Curbaradó. http:// www.corteidh.or.cr/docs/medidas/jiguamiando_se_04.pdf; Inter-American Court of Human Rights, Resolution of December 17, 2007, Provisional Measures regarding the Republic of Colombia. Issue regarding the communities of Jiguamiandó and Curbaradó. http://www.corteidh.or.cr/docs/medidas/jiguamiando_se_05.pdf; InterAmerican Court of Human Rights, Resolution of February 5, 2008, Provisional Measures regarding the Republic of Colombia. Issue regarding the communities of Jiguamiandó and Curbaradó. http://www.corteidh.or.cr/docs/medidas/ jiguamiando_se_06.pdf; Inter-American Court of Human Rights, Resolution of November 17, 2009, Provisional Measures regarding the Republic of Colombia. Issue regarding the communities of Jiguamiandó and Curbaradó. http:// www.corteidh.or.cr/docs/medidas/jiguamiando_se_08.pdf.

168

Comparative constitutional law in Latin America

about the severity of the problem occurring in the region. The Ombudsman’s Office was the first one to issue several resolutions aimed at protecting these communities, which remained under attack.25 Later, in 2009, the Constitutional Court examined the situation faced by Afrodescendant communities in relation to their forced displacement, ordering the government to adopt without delay the measures instructed by the IACHR (Decision 005 of 2009, MP Manuel Jose Cepeda Espinosa). The same year, the Court reiterated the importance of adopting urgent precautionary measures to protect the population belonging to the Community Council of Curvaradó River Basin (Decision 222 of 2009, MP Luis Ernesto Vargas Silva). While it is true that some local and transnational institutions such as the Constitutional Court and the Ombudsman’s Office, as well as the IACHR, have acted to protect the communities, there are competing views in the executive branch. The government has given several incentives to the production of biofuels, and not coincidentally, the palm tree cultivation in Jiguamiandó and Curvaradó has expanded since 2002, which coincides with the governmental policy supporting this crop. Among many legal rules that protect palm production there is Law 939 of 2004. This law creates incentives for the “production and marketing of biofuels of vegetable or animal origin for use in diesel engines,” which are mainly produced from palm trees. The law was followed by Decree 1970 of 2005, which “partially regulates [the application of] Law 939 of 2004”; Decree 76 of 2005, “whereby errors of the Law 939 of 2004 are corrected”; and Resolution 00351 of August 10, 2005 issued by the Ministry of Agriculture and Rural Development, which provides tax incentives for new palm tree plantations. In addition, the National Development Plan of 2006–2010 established palm crops as one of the governmental “productive bets.”26 In addition to conflicts between meager resources assigned to redistribution through the social function and the many economic development policies that create incentives for palm production that requires land concentration, there are clashes of identities at the margins. After a ruling of the Administrative Court of Chocó ordering the palm growers to 25 Resolution 025 of 2012 about massive violations of human rights and forced displacement in the region; resolution 39 of 2005 to urge the institutions responsible for assisting the displaced population, to implement the necessary measures to suspend the palm crops and punish those who have violated the law; measures. 26 Available at: https://colaboracion.dnp.gov.co/CDT/PND/PND_Tomo_1. pdf.

Looking beyond the Constitution

169

suspend their activities,27 they continued with their normal operations, relying on the workforce of groups of people that were as powerless as those who had the collective title (Defensoría delegada para la evaluación de riesgos de la población civil como consecuencia del conflicto armado, Informe de Riesgo No. 031-09 A.I., Diciembre 31 de 2009, p 17). This process of repopulation has provided much more complexity to the problem: there is a conflict between two identities at the margins, namely the black communities that own the land and the newly formed communities that are also at the margins, but do not share the same interests of the black communities that have property rights (INCODER, Caracterización jurídica y saneamiento de los territorios colectivos de Curvaradó y Jiguamiandó, Bogotá, Julio 12 de 2012, p 40). As this section demonstrates, granting collective title is far from being enough when competing views of property, who should have access to it, and economic development goals, are involved.

IV. THE CASE OF BOLIVIA In line with what I stated in the introduction, my main objective in this chapter is to propose an alternative understanding of the structural difficulties faced by progressive reforms aimed at redistributing rural property. At different historical periods, legal scholars and activists have placed their faith in constitutional reforms and adjudication to transform inequality within societies in the Global South. My aim is to lay out the limitations within the same legal regimes that restrain the social function of property. One of the limitations is surfaced by the coexistence of different definitions of property within a local legal system. Therefore, the coexistence of different definitions of property will allow actors to privilege either the classical individualist or a social solidaristic interpretation according to their own political objectives. In order to further illustrate this insight, I will give an example that comes from the Bolivian legal setting. In 2009 Bolivia adopted a new Constitution that has been celebrated as a progressive, leftist Constitution. In Boaventura de Sousa Santos’s (2010) words, both the Bolivian and Ecuadorean Constitutions are examples of “transformative constitutionalism” (pp 71–72). According to de Sousa Santos: 27 Available at: http://www.setianworks.net/indepazHome/attachments/370_ SENTENCIA%20CURVARAD%C3%93.pdf.

170

Comparative constitutional law in Latin America

At the end of the last decade, Bolivia and Ecuador were the two Latin American countries that underwent deeper constitutional transformations during political demonstrations staged by indigenous movements and other social movements and popular organizations. It is not surprising, therefore, that the constitutions of both countries contain embryos of a paradigmatic transformation of the modern law and state, to the point of being legitimate to speak of a process of political, social, economic and cultural re-foundation (de Sousa Santos 2012, p 13).

In terms of the definition of property, the Bolivian case provides an interesting definition. First, as in the case of Colombia, it establishes the social function of property. Basically, Articles 56 and 393 guarantee the right to property as long as it serves a social function. But the Bolivian Constitution, in its Article 397, also develops further the social function of it. In fact, it clearly states that land should belong to those who work on it: “Work is the fundamental means by which agrarian property is acquired and maintained. Properties must be used to serve a social purpose or a social economic purpose in order to safeguard the right to them, depending on the nature of the property.” There is an even more radical difference from the Colombian case. The Bolivian Constitution is completely influenced by the Dependentista view. According to this view, Third World countries must guard themselves against asymmetric terms of trade between countries, protecting local production. Also, this view strongly links growth and redistribution. Based on a critique of capitalism and the market, it promotes state intervention in land distribution, thus placing the peasantry at the center of politics. Agricultural production must ensure food security, and this should not be done through global integration (Alviar 2016). This ideological influence can be clearly traced in Articles 262 and 393–404 of the Bolivian Constitution. Article 262 prohibits the ownership of property by foreigners in an area 50 kilometers from the border.28 28

Article 262 states as follows: I. The fifty kilometers from the borderline constitute the border zone security. No foreign person, individual or company, may acquire property in this space, directly or indirectly, nor possess any property right in the waters, soil or subsoil, except in the case of state necessity declared by express law approved by two-thirds of the Pluri-National Legislative Assembly. The property or the possession affected in the event of non compliance with this prohibition shall pass to the benefit of the State, without any indemnification. II. The border zone security is subject to a special legal, economic, administrative and security regime, oriented to promote and prioritize its development and to the guarantee of the integrity of the State.

Looking beyond the Constitution

171

Also, Articles 394 and 395 create incentives for small properties and communitarian or collective ones, through tax exemptions and indivisibility provisions (Article 39429) and redistribution policies (Article 39530). Following this same line of thought, Article 396 mandates direct state intervention in the land market, and forbids the acquisition of state land

29

Article 394 states as follows: I. Individual agrarian property is classified as small, medium and business, according to the surface area, the production, and the development criteria. Its maximum and minimum dimensions, characteristics and forms of conversion shall be regulated by law. Legally acquired rights by individual owners, whose piece of land is inside rural native indigenous territories, are guaranteed. II. The small property is indivisible; it constitutes a family asset that cannot be attached, and it is not subject to agrarian property taxes. The indivisibility does not affect the right of hereditary succession under conditions established by law. III. The State recognizes, protects and guarantees communitarian or collective property, which includes rural native indigenous territory, native, intercultural communities and rural communities. Collective property is indivisible, may not be subject to prescription or attachment, is inalienable and irreversible, and it is not subject to agrarian property taxes. Communities can be owners, recognizing the complementary character of collective and individual rights, respecting the territorial unity in common. 30 Article 395 states as follows: I. The lands that are taken over shall be given to rural native indigenous peoples, intercultural indigenous communities, Afro-Bolivian and rural communities, which do not possess them or have insufficient lands, in accordance with state policy concerned with the ecological and geographic realities, as well as the population, social, cultural and economic necessities. The endowment shall be carried out according to the policies of sustainable rural development and the right of women to access, distribution and redistribution of land, without discrimination based on civil status or marital union. II. Double endowment, the purchase and sale, and exchange and donation of lands delivered by endowment are prohibited. III. Since it is contrary to the collective interest, the obtaining of income generated by the speculative use of the land is prohibited.

172

Comparative constitutional law in Latin America

by foreigners.31 Article 398 even includes mention of class struggle and accordingly prohibits latifundia and double title.32 Notwithstanding these progressive constitutional provisions, there are a range of difficulties within the legal system that greatly limit the redistributive thrust of the constitutional provisions. First of all, it is absolutely impossible to completely replace existing neoliberal policies. According to Jeffery Webber (2009) in his text about the persistence of neoliberalism in Bolivia: “The Morales administration shows a considerable degree of continuity with the inherited neoliberal model. The economic framework of the new government takes for granted, and therefore depoliticizes, most of the foundation precepts of neoliberal economic management” (p 105). On the other hand, there is a clear tension between the individual conceptions of property rights and a collective understanding of them. As a matter of fact, neoliberal reforms related to property formalization have produced some political opportunities for the rural movement (Haarstad and Andersson 2009), and the Bolivian Landless Peasant Movement has struggled between the romance of collectivism and the reality of individualism (Fabricant 2010). Returning to the objective of this section, the Bolivian case provides us with an alternative of a different property regime, with potentially

31

Article 396 states as follows: I. The State shall regulate the land market, preventing the accumulation of surface areas greater than that recognized by law, as well as its division into surfaces areas less than that established for small property. II. Foreigners may not acquire lands of the State under any title whatsoever. 32 According to Article 399, “[t]he surface areas exceeding those that fulfill the Social Economic Function shall be expropriated. The double title set forth in the prior article refers to the double endowments processed before the ex-National Council of Agrarian Reform, CNRA. The prohibition of double endowment is not applied to legally acquired rights of third parties.” Article 398 states as follows: “Latifundio and double title are prohibited because they are contrary to the collective interest and development of the country. Latifundio is understood to mean the non-productive holding of land; the land that does not fulfill a social economic function; the exploitation of land that applies a system of servitude, quasi-slavery and slavery in labor relations; or the property that surpasses the maximum surface area established in the law. In no case may the maximum surface exceed five thousand hectares.”

Looking beyond the Constitution

173

different distributional outcomes. This alternative definition still encounters difficulties such as the tensions between the collective and the individual.

V. FINAL THOUGHTS As I stated in the introduction, this chapter intended to delineate the limitations that progressive constitutional provisions encounter within a single nation state. This approach calls for a more nuanced and detailed understanding of the different layers that compose a legal system, with all the contradictions and competing theoretical political views it contains. The ultimate goal is to understand how these clashes are structurally reducing the thrust of existing redistributive possibilities. As both the Colombian and Bolivian cases show, legal academics as well as activists and politicians have placed their faith in constitutional provisions and judges to improve the redistribution of resources. Nevertheless, there are multiple legal limitations that structurally determine the possibilities of constitutional provisions and judicial interpretation. In Colombia, redistribution is slowed down because of the coexistence of different definitions of property; the concentration of public resources for economic development plans that privilege a liberal classical view of growth, property and distribution, as well as existing conflicts between access to land. In the case of Bolivia, redistribution is slowed down by the path dependence of neoliberal policies along with the contradictions between the need for individual title and the more socialist definition of property. In addition, the studies presented here invite us to take law seriously. Taking law seriously means thickly describing the context in which a specific policy is set in place. This thick description draws on historical accounts, institutional structure and judicial interpretation as well as constitutional, legal and regulatory frameworks. It is my ultimate goal that the set of tools I am proposing here and the style of analysis these cases illustrate will help us understand the places where there is friction that properly limits the redistributive possibilities of law.

REFERENCES Alfonso, Tatiana, Libia Grueso, Magnolia Prada and Yamile Salinas (authors), and Julieta Lemaitre (compilator). 2011. Derechos enterrados. Comunidades étnicas y campesinas en Colombia, nueve casos de estudio. Ediciones Uniandes.

174

Comparative constitutional law in Latin America

Alviar Garcia, Helena. 2011. “The Unending Quest for Land: the Tale of Broken Constitutional Promises.” Texas Law Review 89(7): 1895–1914. Alviar Garcia, Helena. 2014. “Distribution of Resources Led By Courts. A Few Words of Caution.” Pp. 67–84 in Social and Economic Rights in Theory and Practice: Critical Inquiries, edited by Helena Alviar Garcia, Karl Klare and Lucy A Williams. New York: Routledge. Alviar, Helena. 2016. “La Discusión en Torno a la Política de Desarrollo Agrario: ¿Perspectivas Encontradas? ¿Nuevas Soluciones?” in Nuevas perspectivas jurídicas para la paz. Ediciones Uniandes. Arango, Johana Herrera. “Cifras, lugares y temporalidades para entender el Giro Territorial.” Observatorio de Territorios Étnicos, 6–7. Available at: http:// etnoterritorios.org/apc-aa-files/d2189931b0f3b7fa37ab663a062fb165/giro_ territorial.pdf. Arjona, Mónica Pérez. 1997. “Participación de la comunidad negra del Chocó en el marco de la Ley 70 de 1993.” Grade dissertation for the degree of political scientist. School of Political Science, Universidad de los Andes. Comisión Intereclesial de Justicia y Paz and Banco de Datos del Cinep. 2005. “La Tramoya Derechos Humanos y Palma Aceitera Curvaradó y Jiguamiandó.” Caso Tipo 5. de Soto, Hernando. 2000. The Mystery of Capital. Why Capitalism Triumphs in the West and Fails Everywhere Else. New York: Basic Books. de Sousa Santos, Boaventura. 2010. Refundación del Estado en América Latina. Perspectivas desde una epistemología del Sur. IIDS and Programa Democracia y Transformación Global 2010. de Sousa Santos, Boaventura. 2012. “Cuando los excluidos tienen derecho: justicia indígena, plurinacionalidad e interculturalidad.” Pp. 11–48 in Justicia indígena, plurinacionalidad e interculturalidad en Bolivia, edited by Boaventura de Sousa Santos and José Luis Exeni Rodríguez. Abya Yala and Fundación Rosa Luxemburg. El Tiempo. “Colombia gana ‘round’ en la Corte Interamericana.” El Tiempo (Bogotá, July 2, 2013). Available at: http://www.eltiempo.com/archivo/ documento/CMS-12904792. Engle, Karen. 2010. The Elusive Promise of Indigenous Development: Rights, Culture, Strategy. Durham, NC and London: Duke University Press. Fabricant, Nicole. 2010. “Between the Romance of Collectivism and the Reality of Individualism: Ayllu Rhetoric in Bolivia’s Landless Peasant Movement.” Latin American Perspectives 37(4): 88–107. Gáfaro, Margarita, Ana María Ibáñez and David Zarruk. 2012. “Equidad y eficiencia rural en Colombia: una discusión de políticas para el acceso a la tierra.” Documentos CEDE 38. Bogota: Universidad de Los Andes-Cede. Haarstad, Havard and Vibeke Andersson. 2009. “Backlash Reconsidered: Neoliberalism and Popular Mobilization in Bolivia.” Latin American Politics and Society 51(4): 1–28. INCODER. 2013. Plan Estratégico Institucional 2013–2014. Bogota. Ministry of Agriculture and Rural Development. 2011. Política integral de tierras: un viraje trascendental en la restitución y formalización de la propiedad agraria. Villegas Editores. Presidency of Colombia. 2007. Human Rights Observatory.

Looking beyond the Constitution

175

Republic of Colombia, Ministry of Justice and Law. 1995. “Alcances y resultados de la Ley 70 de 1993: investigación sobre negritudes. Resumen ejecutivo.” Serie Documentos 14. Restrepo, Juan Camilo and Andrés Bernal. 2014. La cuestión agraria: tierra y posconflicto en Colombia. Penguin Random House. Rulfo, Juan. 1994. Pedro Páramo. Mexico: Grove Press. Salinas, Yamile. 2011. “El caso de Jiguamiandó y Curvaradó: ¿estrategia criminal vinculada a un modelo de desarrollo económico?” La Silla Vacía (Bogotá, 19 March 2011). Available at: http://lasillavacia.com/historia-invitado/22660/ yamile-salinas-abdala/el-caso-de-jiguamiando-y-curvarado-estrategia-criminal. Villegas del Castillo, Catalina. 2004. “Análisis del derecho de propiedad a propósito de la jurisprudencia de la Corte Constitucional: ¿hacia una redefinición del derecho de propiedad?” Monografía de grado para obtar al título de abogada, Universidad de los Andes. Available at: http://instituto deestudiosurbanos.info/dmdocuments/cendocieu/Especializacion_Mercados/ Documentos_Cursos/Analisis_Derecho_Propiedad-Villegas_Catalina-2004.pdf. Webber, Jeffery R. 2009. “From Naked Barbarism to Barbarism with Benefits: Neoliberal Capitalism, Natural Gas Policy, and the Evo Morales Government in Bolivia.” Pp. 105–119 in Post-Neoliberalism in the Americas, edited by Laura MacDonald and Arne Ruckert. Basingstoke: Palgrave Macmillan. Yrigoyen, Fajardo and Raquel Zonia 2011. “Derecho y jurisdicción indígena en la historia constitucional.” In El derecho en América Latina: los retos del siglo XXI., edited by César Rodríguez Garavito. Buenos Aires: Siglo XXI.

8. Equality Roberto Gargarella I. INTRODUCTION For different reasons and in different ways, the value of equality has always occupied a central place in modern constitutionalism. The assumption according to which the Constitution is a “compact between equals” – society’s basic social contract – seems to be at the very core of any Constitution. It is, in fact, the main assumption that gives sense to the idea of having a Constitution: we decide to organize our common life together, assuming that none of us is in the position to tell all of the rest what to do. The Constitution assumes our equal moral dignity. Manifesting this implicit assumption about our basic equal dignity, which has been present since the birth of modern constitutionalism, most constitutions explicitly assume a firm and explicit commitment to the principle of equality. Remarkably, two of the main, foundational documents of modern constitutionalism (both enormously influential in Latin America), namely the US Declaration of Independence and the French Déclaration des droits de l’homme et du citoyen of 1789, openly affirmed a principle of equality, from their very first sentences. This can be seen in the former’s notion that it was “self-evident” that “all men” were “created equal”; and in the latter’s commitment to the principles of freedom, equality and fraternity. Article 1 of the Declaration of Rights states: “Men are born and remain free and equal in rights.” These declarations represented a significant breakdown with respect to what until then was the common assumption among the dominant elite, namely that human beings were unequal by nature. The American and French Revolutions symbolized, then, the coming of a new moral paradigm, which was transformed into the starting point of modern constitutionalism. This new paradigm was defined by the ideas of natural rights and equality among all human beings.1 1 In different ways, it was promoted by diverse philosophers, from Thomas Hobbes (who considered that all human beings had basically identical capacities

176

Equality

177

Moreover, most contemporary constitutions include explicit references, of different kind and intensity, to the principle of equality. Just to mention a few relevant and different examples: the US Constitution dedicates its 14th Amendment to an Equal Protection Clause; the German 1949 Constitution reserves its Article 3 to the idea of equality before the law (it states: “(1) All persons are equal before the law. (2) Men and women have equal rights. (3) No one may be prejudiced or favored because of his sex, his parentage, his race, his language, his homeland and origin, his faith or his religious or political opinions”); the Mexican Constitution maintains, in its Article 1, that “all individuals shall be entitled to the privileges and immunities granted by this Constitution,” and also that discrimination based on ethnical or national origin as well as discrimination based on gender, age, disabilities of any kind, social status, health condition, religious opinions, preferences of any kind, civil status or on any other reason which attempts against human dignity and which is directed to either cancel or restrain the individuals’ privileges and immunities, shall be prohibited.

II. EQUALITY IN THE HISTORY OF LATIN AMERICA’S CONSTITUTIONALISM – THE BEGINNING OF CONSTITUTIONALISM AND FORMAL EQUALITY Latin American constitutions have gradually adhered to a robust notion of equality. At the beginning of constitutionalism (in Latin America, around 1810 and the independence years), most constitutions (simply) expressed an adhesion to formal equality. With the passing of time, this initial commitment – we shall see – would become transformed into a strong commitment to substantive equality. During this initial period, Latin American constitutionalism – rightly or wrongly, for good and bad reasons – was mainly dedicated to solving another crucial problem, which was the problem of consolidating order. The region had lived for centuries under the political and economic dominance of Spain and Portugal and, after the independence period to harm each other, which made them equal in rights), to Immanuel Kant and his categorical imperative, which presumed the equal moral worth of every human being. The writings of Locke and Rousseau were also enormously influential in Europe and in the Americas, and helped spread the ideas of natural law and equality.

178

Comparative constitutional law in Latin America

(around 1810), Latin American countries tried, first, to affirm their self-government, and then to escape from the risks of “anarchy and tyranny.” Not surprisingly, most of the constitutions that emerged during those early years had, as their main goal, that of responding to the needs of the independence war. In any case, the question of equality also emerged during those years, particularly in the light of the dire forms of oppression that had characterized the region, for centuries. These extreme situations of inequality included the presence of slaves; the domination of aboriginal groups in Latin America, who were cruelly exploited in mitas and yanaconazgos; the denial of fundamental rights to women; the deprivation of all political rights to the poor, etc. The way in which the principle of equality was initially incorporated into Latin American constitutions was through initiatives usually associated with formal or legal equality. Formal equality expresses a specific conception or understanding of equality, which has played an enormously relevant role in our modern public life. Originally, Aristotle formulated the idea of formal equality in his Nicomachean Ethics, where he canonically stated that “like cases should be treated alike.” From the perspective of formal equality, the fact that army officers or members of the church received special legal protections and public benefits represented an insult to the idea of equality; no reason existed to give them what was denied to others. This same bias explains the hostility that many of the “founders” – many of them with liberal credentials – showed towards class or racial privileges. In contrast with the benefits resulting from such privileges, they asserted that nobody had to receive better or worse public treatment because of the name he carried or the color of his skin. Their individualist assumptions moved them to fight not only the privileges of groups such as the church or the military, but also those “advantages” seemingly enjoyed by the some aboriginal groups. This explains, for example, the liberals’ hostility towards the existence of communal and indivisible lands in the hands of aboriginals. Let me provide some examples of these initiatives in favor of formal equality. For instance, the first Venezuelan Constitution of 1811 not only abolished the most prominent, existing legal privileges of the Church and the Army – the special fueros – but also proclaimed legal equality between all races. Another very early and significant attempt at establishing legal equality appeared in Argentina, through the work of the “Asamblea del año XIII.” The Assembly discussed three different constitutional projects and recommended numerous reforms aimed at securing basic freedoms and legal equality. These reforms included, among other

Equality

179

things, a law of free birth, the abolition of the mitas and yanaconazgos, through which Native Americans were forced to work on behalf of state, church or private citizens, and the suppression of all titles of nobility. The new measures also prohibited the use of instruments of torture, abolished the Inquisition and accepted the public expression of other faiths than Catholicism. Through its work, the Assembly made a fundamental contribution to the abolition of all types of privilege, individual or collective, and of monopolies. In Colombia, the adoption of legal equality became one of the fundamental issues in the discussion between liberals and conservatives. Vice-President Santander undoubtedly favored this fight for legal equality, partly because of his devout “Benthamism.” Utilitarianism recommended the abolition of all privileges; the maximization of each individual’s happiness was incompatible with the persistence of artificial distinctions and therefore with the still vast powers of the church. Santander’s reformist policies were also reflected in the adoption of the “Plan of Studies of Gran Colombia,” which favored the diffusion of utilitarian ideas through the educational system, triggering a severe confrontation between the government and the church. The Constitutions of 1853, 1858 and 1863 also largely contributed to enforcing the liberals’ commitment to individualist principles. In Mexico, these disputes were even more intense. In particular, during the first half of the century, both José Mora and Vice-President Gómez Farías, sometimes even in spite of themselves, made a substantial contribution to this fight against privilege. Mora criticized the privileges of the Church not only because of his utilitarian philosophy, but also after his analyses of the national economy: most of the country’s property was stagnant or unused because it was in the hands of the church. In addition, the church’s advantages contradicted the 1824 Constitution, while its overwhelming influence over the educational system blocked the circulation of new ideas. Mora argued for similar ideas in his analysis of the military’s advantages:2 he recognized, for example, that a large army would absorb too many people, who would then be unable to contribute to the development of the country. A large army, in addition, constituted a source of permanent disputes, something that obviously contradicted Mexico’s need for peace and institutional stability (see, eg, Fowler 1966, 2 Also, Mora was one of Bolivar’s most ardent critics. He asserted the Latin Americans had been fighting not for their independence but for their liberty and that they would achieve too little if they replaced Spanish dominion with the oppression of Bolívar. In addition, he was a severe critic of Iturbide and his extreme powers. See Mora (1963).

180

Comparative constitutional law in Latin America

pp 189–209). While in power, Gómez Farías tried to enforce some of these criteria. Gómez Farías, as we know, made significant efforts to restrict the power of the military and reduce the number of its members. However, President Santa Anna, who had left Gómez Farías in control of the presidency of the country, did not accept these types of initiatives and assumed power again in order to put a definite end to these reforms. Concerning political rights, Latin American countries established severe restrictions during the initial decades after the independence, which they began to lift gradually.3 The gradual broadening of voting rights in the region (Argentina 1912; Brazil 1891; Colombia 1853; Uruguay 1918) did not imply, at the beginning, the adoption of universal suffrage: for decades, suffrage was still limited, in the law and/or in the legal practice in different ways, and affecting different groups. In particular, formal equality between men and women continued to be violated, in spite of the activism of the women’s rights movement around the world. Changes were adopted slowly: in Latin America, a majority of countries had granted equal voting rights to women by the mid-20th century. Argentina did so in 1947; Brazil in 1934; Colombia in 1954; Costa Rica in 1949; Ecuador in 1929; El Salvador in 1961; Nicaragua in 1955; Paraguay in 1961; Uruguay in 1932; and Venezuela in 1946. 3 These limitations were of a different nature, ranging from the suppression of existing assemblies (such as the Cabildos), or the inclusion of literacy or economic requirements (as a precondition to vote), to the direct use of force (practices that were all too common during those years). Restrictions to the political participation of women, slaves or infants were also very common, like those that affected single people or domestic servants (Ternavasio 2002). On occasion, the place of residence, nationality and ethnic origin were also taken as reasons for political exclusion. Restrictions were even stronger for becoming an active citizen, that is, to able to run for elections. Here, we find limitations according to age, income, property and capacity, directed at guaranteeing the election of the “noted” people (see, eg, Sábato and Lettieri 2003). Moreover, the establishment of indirect elections was also a way of limiting the political rights of the majority. According to Elías Palti, indirect elections became a means for transforming suffrage into “a mechanism for the selection of the best,” which in fact transformed representative government into an “elective aristocracy” (Palti 2007, p 206) (original emphasis). Finally, the non-mandatory character of suffrage and, more significantly, its public or non-secret character, also worked against large popular participation in elections: most people were too afraid of exposing their political preferences in public, which opened the space for sanctions coming from their employers or political adversaries (particularly so at a time when political violence was extended). In the end, those limitations caused basic political rights to become concentrated, during long decades, in a small minority of the population.

Equality

181

Having reached this point, let me add a final comment with regard to legal equality. In spite of the enormous influence and historical importance of this understanding of equality, formal equality seems a problematic approach. Formal equality seems to take the status quo as given and, consequently, it tends to reject state “interventionism” as an impermissible breach of neutrality. More precisely, formal equality appears to take the existing social situation as “natural” and for that reason “just,” as soon as the state does not engage in any active program of open discrimination against particular groups. The problem with these assumptions are multiple, beginning with the fact that status quo is the result of multiple state actions; it is not a “neutral” situation, but rather one in which certain groups were usually improperly benefited (as a consequence of those state actions); and is not just, but rather a situation that implied the state unduly enforcing the domination and exploitation of some groups by some other groups. Afro-Americans, the poor, women, aboriginal groups, political dissidents, atheists, people with alternative sexual preferences, and ethnic minorities were usually among the groups that were seriously affected in their fundamental interests for reasons that were out of their control. However, a state that puts its force in support of such status quo is then taken as the “neutral” one (Holmes and Sunstein 1999). In part at least, these problems explain the gradual emergence of more robust approaches to the ideal of equality.

III. THE SECOND PERIOD OF LATIN AMERICAN CONSTITUTIONALISM AND EQUALITY OF OPPORTUNITY The second, “foundational period” of Latin constitutionalism (1850– 1910) was crucially important because it was during those years (particularly, between 1850 and 1880) when most countries established the basic matrix that – still today – defines their organization of powers. In those years, the dominant elites decided that – having ensured the consolidation of the independence – it was now necessary to concentrate energies in the promotion of economic growth. During this second period, Latin America produced some of its most important and influential constitutions, including those of Argentina, 1853; Mexico, 1857; Colombia, 1886; and Brazil, 1891. The strength demonstrated by these constitutions and the stability they acquired are signs of how adapted they were to their times and, in addition, of the solid pact behind them: for the first time, the constitutions were built

182

Comparative constitutional law in Latin America

upon a deep, substantive agreement between the primary opposing forces present in the region at the time, that is, liberals and conservatives. These two forces, which had confronted each other in severe armed disputes for decades, finally decided to sit together at the same negotiating table and shape the new institutional organization that was to reign in the region from those years and for a long time to come. The constitutions that emerged after the liberal–conservative compact shared most of their basic features. In the first place, they left aside the social question (consequently they did not include social or economic rights) and established or favored the imposition of limits to the political rights of the majority. Declarations of rights were typically austere and restricted to some basic civil rights and the protection of economic liberties (ie, contract, property, commerce). Most significantly, the organization of powers was characterized by the concentration of political powers in the Executive branch, and the centralization of political authority (demands for federalism were thus rejected or severely limited). By the mid-1850s, most Latin American countries had effectively abolished slavery and titles of nobility. However, the struggle to establish legal equality was still not consolidated (Gargarella 2010). In particular, and in spite of significant early efforts, the church and the military continued to enjoy benefits and privileges, such as the fueros, that were prohibited to all other groups. In Mexico, the fight against these persistent privileges was even more intense than in other countries, given the wealth and the number of privileges accumulated by these two groups. One of the most notable efforts at ending these privileges came after Santa Anna’s definitive defeat. At that time, two progressive laws named after their authors, the Ley Juárez and the Ley Lerdo, appeared to challenge directly the prevailing privileges. The Ley Juárez, sanctioned during Juan Alvarez’s transitional government, suppressed the civil fueros of the military and the church and opened up the possibility of renouncing the religious fueros in the case of common crimes. The laws caused such great agitation that, in the end, Juan Alvarez was forced to resign from his position and Juárez to abandon his law. Shortly afterwards, the Ley Juárez was followed by the Ley Lerdo, which was closely linked to the former one. Lerdo de Tejada, a radical liberal who had participated in Santa Anna’s last Cabinet, promoted this law as a way of mobilizing and redistributing the church’s unused property. In the liberals’ view, the church was perniciously obstructing the free circulation of property. The Ley Lerdo established, therefore, that the church had to sell all its urban and rural properties to its tenants at a price that was accessible to them. If necessary, the state would sell these lands through a public auction. The difficulties that immediately appeared for enforcing

Equality

183

the law forced Lerdo to advance even more radical reforms. The Executive, though, decided not to accept more of these initiatives. Disapproved of by his president, Lerdo resigned his position, accusing the head of the Executive of being too “mild and conciliatory.” In any case, some of the egalitarian initiatives that were pursued in Mexico – particularly those directed at limiting the amount of land controlled by the church (initiatives that were not the rule in the rest of the region) – came to transcend formal equality and ensure some form of equality of opportunity. The idea of equality of opportunity comes to confront some of the criticisms and shortcomings associated with the “simple” idea of formal equality. It usually represents a departure from the notion of formal equality. Equality of opportunity assumes that common approaches to the status quo are problematic, given that they do not question the circumstances that unjustly place people in different positions, making it easier or more difficult, for some, to achieve positions or goods that seem in principle open to all. In different ways, those who defend the idea of equality of opportunity propose to equalize people in what concerns their “starting point.”4 According to this renewed approach to equality, different countries began to modify their legal texts, after acknowledging that granting formal equal rights to different groups (ie, voting rights to men and women) was not sufficient to ensure equal opportunities to all members of society. Their declared objective was to improve material, rather than (merely) formal, equality among different groups.

4

The idea is that (as so-called “starting-gate” theories would propose) everybody should be able to start “the race” from the same bottom line. So, for instance, children who come from poor backgrounds should also be allowed to go to school or to university, perhaps with the help of scholarships. People coming from different backgrounds should be able to compete for the same position, which should be equally open to all and distributed according to merit. Again, the idea is that nobody should be able to enter into that “race” from an unjustly favorable, unequal position: they should all start from the same line. Equality of opportunity has become in some circumstances associated with a meritocratic society, where different people have been equalized in their starting points.

184

Comparative constitutional law in Latin America

IV. THE SOCIAL PERIOD OF LATIN AMERICAN CONSTITUTIONALISM – THREE WAVES OF SOCIAL INTEGRATION The third period of Latin American constitutionalism was definitely “social” in character. In a way, the new constitutions that emerged during this period (1910–1950) came to “repair” the dominant constitutional model, which privileged order over equality, authority over democracy. So, while the “founding period” had been dominated by the liberal– conservative compact, this new “social” period was distinguished by an expansion of that original compact, which now came to (somehow) integrate the republican view of constitutionalism that was originally marginalized. The historical causes behind this change are not easy to discern. It seems clear, however, that the legal reforms came together with other economic and political changes that appeared after the breakdown of the old model of “order and progress” which had prevailed in the region for decades (1880–1910). The old regime, which was based on political authoritarianism and social inequality, brought economic prosperity and growth for almost three decades, but at a serious cost. Large parts of the population lacked political rights and/or were virtually excluded from the decision-making process; and the benefits of the economic growth were fundamentally limited to the social elites (Gargarella 2014). The crisis of the old regime came at the time of the world economic crisis of 1930, which was no surprise, given that the old Latin American order was strongly dependent on the prosperity of the US and British economies. The world crisis brought to the region abrupt and fundamental changes. The most visible of them appeared in the economic sphere: at that time it became more difficult both to continue exporting the primary goods that had been ensuring the economic success of the region, and to continue importing some of the basic goods required by the internal market. In that situation of emergency, most Latin American societies began to rethink the role they had reserved to the state. After decades of proclaiming a “neutral” role (not only, but mainly, in the economic realm), the state openly assumed an interventionist role, deciding to gain control of the production and distribution of resources. Two other events marked the history of the period, namely the World Wars. In principle, and at least in economic terms, the region was greatly benefited by the two wars. Latin American countries began then to play a fundamental role as exporters of food and other primary goods to the countries more directly involved in the conflicts. At the same time, Latin

Equality

185

American economies were forced to change their profile in ways that would also be decisive in their political development. In effect, most nations in the region had to start a process of import substitution in order to replace the manufactured goods that they used to import from more industrialized countries (countries that were now involved in the armed conflicts). This gradual process of industrialization contributed to the emergence of a class of industrial workers, which would soon begin to demand a more relevant role in the public life of their countries. As a consequence of these processes, the entire social structure began to change in every aspect. In economic terms, the emergence of this new paradigm implied the definite breakdown of the old formula of “order and progress.”5 In political and social terms, the changes were also dramatic, given the increasing importance of a more extended suffrage, and the growing influence of a more numerous and powerful working class. In legal terms, Latin America would also come to be distinguished by this “new and increasingly urgent” factor, namely the growing political participation of the masses (Halperín Donghi 2007). In the particular domain of the constitution, the changes that were then implemented implied the massive incorporation of new social, economic and cultural rights into new constitutions. So, in the same way that the new political order expanded the people’s political rights, and the new economic order tried to extend some protections and guarantees to the most disadvantaged, the new “social” constitutions tried to “incorporate” the emergent working class into their texts, through the “window” of the declaration of rights. This decision, which was common among the vast majority of the new Latin American constitutions that were then enacted, became a – or, more properly, the second – “trademark” of the new Latin American constitutionalism. This was the first of three important waves of social and legal incorporation that began to distinguish Latin America in the 20th century. More specifically: (i) the first wave implied the legal recognition of the rights of the working class; (ii) the second phase came together with a stronger emphasis on the rights of women; while (iii) the third and more recent period reached the rights of the “excluded among the excluded,” namely aboriginal groups. Let me now explore these three waves in more detail. 5

With this breakdown, the period of British predominance in the region also came to an end – Great Britain’s influence in the region was then replaced by the dominant role of the United States.

186

Comparative constitutional law in Latin America

(i) The first phase of social and legal incorporation began with the 1910 Mexican Revolution, which achieved a quite spectacular constitutional expression through the 1917 Mexican Constitution. This Constitution was exceptionally long, robust in its declaration of rights, and strongly committed to social rights, which was at the time a complete novelty. In fact, the Mexican Constitution became a pioneer in the entire world in the development of social constitutionalism. It accompanied the enactment of the Constitution of the Republic of Weimar, in 1919; the creation of the International Labour Organization (ILO), in 1919; and the development of the welfare state and the Keynesian economic model. The 1917 Mexican Constitution decisively changed the history of Latin American constitutionalism – and finally, the history of world constitutionalism. Following its adoption, and little by little, most countries in the region began to change their basic constitutional structure. In fact, and following Mexico’s early example, most countries began to include a long list of social rights in their constitutions: Brazil modified its Constitution in 1937; Bolivia in 1938; Cuba in 1940; Uruguay in 1942; Ecuador and Guatemala in 1945; Argentina and Costa Rica in 1949. This was the way in which Latin American constitutions expressed, through the use of legal language, the main social change that had taken place in the region during the first half of the 20th century, namely the incorporation of the working class as a decisive political and economic actor. Through this gradual incorporation of the working class into the new societies, Latin American countries became more equal, at least for a time: the economic product was more equally divided; the working sectors gained political authority; and they also gained the chance to successfully litigate for their constitutional rights in courts. These egalitarian changes, however, would become eroded with the passing of time, and constitutional social rights would then become more an instrument to fight against the consequences of extreme poverty and injustice than means to achieve bold social equality. (ii) The second phase of social and legal incorporation concerned the rights of women, and evolved slowly from the mid-20th century to the present time. Initially, Latin America’s “new social constitutionalism” made special references to women’s rights, but only through clauses characterized by their religious or perfectionist concerns. Accordingly, regional constitutions included some special considerations to family, maternity, marriage and the rights of pregnant women, but mostly in line with the demands of the Catholic Church (which exercised an enormous influence in the region, and helped to promote new social legislation, at least following the enactment of the encyclical Rerum Novarum, issued by Pope Leo XIII on 15 May 1891). Little by little, however, regional

Equality

187

constitutionalism became more aware of the importance of ensuring material equality to women: it was clear that the initial moves in favor of gender equality had not granted equal status to women. In accordance with this new conscience about women’s rights, almost all Latin American countries modified their constitutions in order to make explicit references to the prohibition of gender discrimination. In addition, many of the newest regional constitutions (including those of Argentina, Bolivia, Colombia, Ecuador and Paraguay) incorporated specific clauses consecrating women’s political equality (Bergallo 2013). (iii) The third and more recent phase of social and legal incorporation implied the inclusion of explicit references to the rights of indigenous groups in most regional constitutions. The first important initiative in this respect appeared in Nicaragua, after the conflict that confronted the Sandinista government with the indigenous group of the Miskitos, in 1987.6 The Nicaraguan Constitution begins with a preamble that evokes “the fight of our indigenous antecessors.” Also, in Article 5, it makes reference to indigenous peoples’ rights to “maintain and develop their identity and culture”; and also mentions their right to maintain, exploit and enjoy the fruits of their communal properties. More interestingly still, the Constitution refers to a “regime of autonomy” (regulated in Chapter II of the document) for those communities of the Atlantic coast. The Guatemalan Constitution reserved Section III of its text to indigenous communities, and made reference to respect for indigenous language, habits and traditions (Article 66). It also included protections to their lands and agrarian cooperatives (Articles 67 and 68) and references to their right not to be discriminated against (Article 69). The Constitution of Brazil 1988 also showed some openness to the “indigenous question,” and it included, in particular, special protections reserved for indigenous groups in Chapter VIII of the text. These pioneer cases were then followed by the Convenio 169, which was enacted by the ILO. The advent of this covenant, which became the main international instrument in support of demands by indigenous groups, substantially changed the legal discussion on the subject. The agreement included clauses guaranteeing respect for the culture, way of life and institutions of the indigenous peoples. It also made reference to the right to effect consultation with these peoples in the event of public legislation that could put their main interests at risk. 6

However, there was a first movement in that direction in the Guatemalan Constitution of 1985, which made reference to the rights that peoples and communities had to their cultural identity.

188

Comparative constitutional law in Latin America

Most of the constitutions that emerged after the enactment of the Convenio 169 appeared to take the “indigenous question” more seriously. The new documents included complete lists of indigenous rights in their texts, and adopted views favorable to legal pluralism. Among these new constitutions, we could mention those of Colombia, 1991; Mexico and Paraguay, 1992; Argentina and Bolivia, 1994; Ecuador 1996 (and 1998); and Venezuela, 1999. These documents defined the state as multicultural or pluricultural (as in the cases of Colombia, Peru, Bolivia, Ecuador); guaranteed the right to cultural diversity (Colombia, Peru); and/or proclaimed the equality of cultures (Colombia, Venezuela). In this way, these new constitutions challenged the inherited monocultural model, which had predominated in the region since the 19th century (Yrigoyen Fajardo 2011, p 132). In addition, during those years, another international event of crucial, foundational character took place. This was the Declaration of Rights of the Indigenous Peoples, which was enacted by the United Nations in 2007. The Declaration gave a detailed account of the individual and collective rights of indigenous peoples, and established basic minimum standards that all the different states promised to respect. It also made reference to issues such as cultural identity, education, employment and language. It guaranteed the indigenous peoples’ right to be different, and also referred to their right to economic, social and cultural development. The UN document was then followed by a new set of constitutions, which would be the more advanced in the area. These constitutions include those of Ecuador, 2008 and Bolivia, 2009.

V. SUBSTANTIVE EQUALITY By the end of the 20th century, Latin America had experienced the gradual emergence of a renewed, stronger understanding of equality, namely social equality. The idea of substantive equality came to challenge traditional approaches to the matter, which assumed that people were unequal by nature, and also formal ideas and weak approaches to the ideal of equality, which disregarded the importance of external circumstances in the creation of unjustified inequalities. As John Rawls claimed, the circumstances within which we are born and develop – say, our race and ethnicity, the social class to which we belong, the cultural environment, etc – are not just or unjust per se, but rather the product of a “natural lottery.” The problem is how our institutions react before them, how they process them, what they do with them. For this reason, he considers justice to be the “first virtue” of social institutions. Substantive

Equality

189

conceptions of equality recognize that inequality is rooted in political, social and economic circumstances, and propose to organize our basic institutions in ways that eliminate the burden of those circumstances.7 Contemporary constitutionalism seems to be aware of the importance of introducing legal changes in favor of substantive equality. Very slowly, it has indeed opened its doors to claims that can be inscribed under the heading of substantive equality. Some of these new social reforms can be explained as a reaction to the period of (so-called) programs of structural adjustment that were applied in the region during the 1980s. These were monetarist, anti-state policies, which usually implied a drastic reduction of public expenditure and the elimination of social programs. Not surprisingly, the period of radical economic reforms was immediately followed by a profound and extended social crisis. In effect, the economic changes of the era brought with them growing levels of unemployment, which were not compensated by the existence of a solid safety net. The first consequence of the crisis was then that millions of people suddenly found themselves in a situation of complete abandonment, without means that ensured their subsistence and the subsistence of their family. The state, which for 40 years had occupied the center of the scene, guaranteeing work and social protections for vast sectors of the population, was shrinking, and most of its most valuable activities were sold in usually non-transparent and hasty transactions. Not surprisingly, then, Latin America began to experience a vast process of social mobilization in demands for social protections of the kinds that most of the constitutions in force still promised. Social protests and counter-institutional uprisings exploded in the entire region, from the south to north, from east to west. They included, for example, the insurrection of the Zapatistas of the EZLN in Mexico (which began in January 1994, one year after Mexico’s signature of free trade agreements with the United States); but also the “wars” of “water” (2000) and “gas” (2003) in Bolivia, directed against the privatization of basic sections of the national economy; the occupations of land promoted 7 Rawls’ views on equality, similar to others sometimes grouped under the heading “equality of resources,” stress not only the importance of eliminating the burdens of morally arbitrary circumstances, but also the need to ensure that people become responsible for their own lives. Interestingly, in this way, this egalitarian approach challenged traditional views about “strict” equality (“old egalitarianism”), which insisted on the community’s responsibility to ensure equal concern for all, but ignored those citizens’ personal responsibilities; and also conservative approaches that insist on personal responsibility, but at the cost of ignoring the collective responsibility (Dworkin 2000).

190

Comparative constitutional law in Latin America

by the Landless Movement (MST) in Brazil; the taking of lands in Santiago de Chile; the “invasions” of property in Lima, Peru; the emergence of the piqueteros movement in Argentina; and also numerous acts of violence against the exploitation of mineral resources, in different parts of the region (Rodríguez-Garavito 2011; Rodríguez-Garavito and de Sousa Santos 2005; Svampa and Antonelli 2009). In different ways, the emergence of these protests contributed to the production of social, political, economic and legal changes that, occasionally, favored substantive equality. One of the most important areas where these initiatives for substantive equality took place was that related to the rights of indigenous groups and, more particularly, the indigenous peoples’ rights concerning the land environment where they lived and the natural resources to which they had access. The legal reforms that were consequently introduced implied, on the one hand, the recognition of the grave situation of disadvantage that affected most indigenous communities in the region; and on the other, the acknowledgment of the link that exists between the value of self-government and the control over land and resources. Accordingly, numerous recent Latin American constitutions have included references to the rights of indigenous communities to (their) lands and to the use or control over natural resources. Among other relevant constitutional provisions, some of the following can be cited: (i) the Constitutions of Argentina (Art 75.17), Bolivia (Arts 30-6 and 394 III); Ecuador (Art 57.4), Nicaragua (Art 5°), Panama (Art 123), Paraguay (Art 64), Peru (Arts 88 and 89) and Venezuela (Art 119), like the Constitution of Bolivia (Arts 30.6 and 394 III), recognized the right of indigenous peoples to the property of the land that they had traditionally inhabited. The Constitutions of Bolivia (Arts 30.17 and 171.1), Brazil (Art 231.2), Mexico (Art 2.A.VI), and Nicaragua (Arts 89 and 180) consecrated the rights of use and enjoyment of natural resources to the indigenous peoples; (ii) those of Argentina (Art 75.17), Bolivia (Arts 30.16 and 402), Colombia (Art 330), and Ecuador (Art 57.6), affirmed their right to participate in the exploitation of specific natural resources; (iii) finally, and maybe most interestingly for the purposes of our discussion, some constitutions established the right of consultation regarding natural resources for the indigenous peoples. In the case of Bolivia, for non-renewable natural resources (Art 30.15), in Brazil, for hydraulic and mining resources (Art 231.3), in Ecuador, for natural, non-renewable resources (Art 57.7), and in Venezuela, for all the existing natural resources in native habitats (Art 120) (Aguilar et al. 2010). Another, perhaps more significant, legal instrument, directed at favoring an “equal starting point to all” – and thus capable of serving a more

Equality

191

substantive conception of equality – consisted in the launching of affirmative action programs. Programs of this kind were implemented in different areas, and were mainly directed to favoring the rights of Afro-descendants, aboriginal groups and women. Brazil was a leading country in this respect. In particular, it carried out significant education campaigns trying to raise awareness of the existing situations of racial discrimination and socioeconomic exclusions concerning Afro-Brazilians. At least since 1999, in Porto Alegre, state authorities had stipulated that 5 per cent of the workforce of all publicly funded contracts with the city be black. Other states followed this example and later on, similar policies reached the federal level. In 2001, for instance, the Minister of Agrarian Development issued an order establishing that 20 per cent of all administrative positions in the Ministry be reserved for black persons, as well as 20 per cent of the staff of firms contracting with the Ministry. Later on, similar policies were adopted at the Federal Supreme Court and the Ministry of Justice. Brazil also became known for its strong affirmative action programs at the university level. Colombia, Ecuador, Honduras and Uruguay were other countries that implemented initiatives of this kind. On some occasions, Latin American countries implemented affirmative action programs directed at favoring the political participation of minority groups. For instance, Article 176 of the Colombian 1991 Constitution reserves five places in the Lower House to ethnic groups, political minorities and Colombians living abroad. This article was regulated by Law 649 of 2001, which established that Afro-Colombian groups have two seats reserved in the House, and aboriginal groups received one in the House and two more in the Senate. Also, the Venezuelan 1999 Constitution granted five seats to indigenous communities in the National Assembly. In Peru, the situation was regulated through the Electoral Law, which – at least after 2001 – established that at least 15 per cent of the electoral lists should be reserved to native communities, where they existed. Similarly, some contemporary Latin American constitutions incorporated into their texts explicit references to affirmative action programs favoring substantive gender equality. Article 13 of Colombia’s 1991 Constitution, for instance, maintains that: All individuals are born free and equal before the law and are entitled to equal protection and treatment by the authorities, and to enjoy the same rights, freedoms, and opportunities without discrimination on the basis of gender, race, national or family origin, language, religion, political opinion, or philosophy. The state will promote the conditions necessary in order that

192

Comparative constitutional law in Latin America

equality may be real and effective will adopt measures in favor of groups which are discriminated against or marginalized. The state will especially protect those individuals who on account of their economic, physical, or mental condition are in obviously vulnerable circumstances and will sanction any abuse or ill-treatment perpetrated against them.

In addition, Article 37 of Argentina’s 1994 Constitution establishes that “actual equality of opportunities for men and women to elective and political party positions shall be guaranteed by means of positive actions in the regulation of political parties and in the electoral system.” The reform came to give constitutional support to Law 24012 of November 1991, which granted a more egalitarian access to political positions to men and women. The more recent Constitutions of Ecuador (2008) and Bolivia (2009) go still further beyond the above-mentioned documents and define the political parity between men and women as a political objective, to be obtained at different political and social levels. For instance, Article 65 of the Ecuadorian Constitution establishes that the “State shall promote equality with respect to the representation of women and men in publicly appointed or elected office, in its executive and decision-making institutions, and political parties and movements,” and also that the “State shall adopt affirmative action measures to guarantee the participation of discriminated sectors.” It also aims to achieve “parity” between the representation of men and women in different public positions, including the judiciary (Article 176); the Magistracy Council (Article 179); and the Supreme Court (Article 183). Meanwhile, Article 26 of the Bolivian Constitution determines that the “participation” of men and women in the formation, exercise and control of government shall be fair and equal between men and women (Bergallo 2013, p 19).

VI. INEQUALITY, ASPIRATIONAL RIGHTS AND THE “ENGINE ROOM” OF THE CONSTITUTION In spite of its strong declarations of constitutional rights, Latin America is the most unequal region in the world. One should not rush to reach conclusions from that fact. For some, in effect, these long declarations of rights show the hypocrisy of (Latin American) states; degrade the value of rights; or transform constitutions into mere “poetry.” For others, such situation shows that certain states do not take their constitutions seriously; or that the “real” world is simply disconnected from legal texts.

Equality

193

Things could be read, instead, in a different way. Nobody could expect, in the end, that reality would change after merely including a certain right in the constitution. Reasonably, a right may be included in the constitution, even if (or because) a state had very limited resources, so as to make clear to the citizenry what the state believes to be a just legal order, or more simply to express that there is a public commitment to guarantee certain rights, in spite of the existing difficulties. It may also be a reasonable way to modify the existing public preferences and priorities, and a “bet to the future”: “we know that we are not presently able to perfectly fulfill all our duties, but this is what we are working for.” Providing constitutional status to certain rights may also be interesting in order to define certain collective objectives that the community has democratically decided to achieve – we would be talking, in this case, about “aspirational rights.” In addition, it represents a good way to give the people a legal text in which to ground their claims, and judges a basis on which to ground their decisions. So, the decision to include (more and more) rights in the constitution may be reasonable, even within the context of extreme difficulties. However, and having said this, one cannot but note a grave deficiency that characterizes contemporary constitutionalism, in Latin America and elsewhere: the problem is that legal reforms have concentrated their energies in changing the “dogmatic” part of the constitution (the declaration of right), but have basically neglected the importance of changing the “organic” part (the organization of powers) accordingly. There is an obvious problem, for instance, if we try to “democratize” the constitution by including new “participatory” rights, while at the same time we preserve an organization of powers that concentrates the political authority in the hands of the Executive – a problem that is particularly important in Latin American-type presidentialist regimes, although not exclusive to them. Similarly, there is a problem when we include new social rights in the constitution, without taking care of the fact that the judicial branch, this is to say the least democratic branch of government, will be the main branch involved in the task of enforcing those rights. In fact – I will suggest – this negligence may explain the actual difficulty Latin Americans found in putting the participatory clauses of the new constitutions in practice; or the traditional difficulties they found in transforming social rights into enforced rights. The idea is, in the end, that contemporary constitutionalism does not seem to recognize the peculiar place occupied by the “organic” part of the constitution, which has remained basically unreformed. In this way, legal reforms have neglected the importance of introducing changes also or mainly into the engine room of the constitution – the traditional

194

Comparative constitutional law in Latin America

organization of powers. Ignoring the question of how the constitutional “engine room” will react to constitutional changes introduced (“more rights”) means neglecting the most important question of all. It is in the “engine room” – and nowhere else – that lies the heart of the constitution: we cannot operate on the constitution while turning a blind eye to how the power structure in it will react (or, at least, will foreseeably react) to the changes we introduce. Some might say, “little by little we will get there.” Indeed, a parsimonious approach to reforms might be best. However, we should also be aware that what remains “undone” could simply block adequate implementation of the newly assimilated rights.

APPENDIX: AN EXAMPLE OF THE RIGHT TO PREVIOUS CONSULTATION One of the more interesting, egalitarian, but finally limited legal reforms introduced in Latin American constitutionalism in recent years has to do with the right to previous consultation, which has been granted to usually disadvantaged groups, in order to ensure that their “voice” becomes audible when issues that affected them directly come under public discussion. The reform is interesting because it attempts to ensure the “presence” of certain demands and claims that would otherwise remain invisible or inaudible. It is egalitarian because it has aimed at ensuring that certain groups gain control over decisions that affect them directly. It is limited, however, because it has not come together with other reforms directly aimed at reducing the concentration of political and economic powers, which has usually implied that these initiatives have been frustrated in actual practice. Let me illustrate the case with some more details. As stated, the right to previous consultation has appeared in recent years as an interesting remedy aimed at providing some “voice” to marginalized groups in issues that have affected them directly. This new “right” has achieved an enormous importance in recent years, at least in part as a consequence of two significant political facts. On the one hand, in the last decades, indigenous communities managed to make their claims more visible and began to question incumbent governments about the historic violation of their rights (this has been particularly true in countries such as Bolivia, Ecuador, Guatemala or Venezuela – but not only there – as a consequence of the numbers of their indigenous population). On the other hand, in recent years, different Latin American countries have launched intense programs for the exploitation of their

Equality

195

natural resources (typically, but not only, through new mining initiatives), which have triggered a new set of territorial disputes with local and indigenous communities. Very frequently, members of these groups considered that the new initiatives affected them in their rights to habitat, their well-being and their relation to nature. In sum, what we have here is a new kind of conflict, typically between (so-called) neodevelopmentalist governments, which decided to exploit their primary resources, and indigenous communities, which were challenged in their basic rights. Within this context, the “right to consultation” appeared as an interesting way to channel those disputes and incorporate the affected groups into the decision-making process. The main juridical support to the right to consultation appears in Convention 169 on Indigenous and Tribal Peoples, issued by the ILO in 1989, and also in the UN Declaration on indigenous peoples of 2007. The first treaty, in particular, gained special importance as a result of the fact that the majority of Latin American countries supported and signed it. Article 6.1 maintains that governments shall “consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly.” In addition, Article 6.2 defines that governments shall “establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programs which concern them.” In addition, the Inter-American Court of Human Rights has recently established that such consultation process constitutes a “general principle of International Law” (Saramaka v. Suriname, 2008 Inter-Am. Ct. H.R. (ser. C) No. 185).8 In the same case, the main Latin American Human Rights Court maintained that “regarding large-scale development or investment projects that would have a major impact within (indigenous or tribal territory), the State has a duty, not only to consult with (the indigenous group), but also to obtain their free, prior, and informed consent, according to their customs and traditions” (Saramaka v. Suriname, 2008 Inter-Am. Ct. H.R. (ser. C) No. 185, para 134). Now, in spite of the value of these important legal promises, directed at the promotion of significant changes in the organization of power, the fact is that the actual practice of the right to consult came to be resisted by those in power and diluted in its potential. According to James Anaya, 8

http://www.corteidh.or.cr/docs/casos/articulos/seriec_185_esp.pdf.

196

Comparative constitutional law in Latin America

Special Rapporteur of the UN concerning the rights of indigenous peoples, the majority of the problems that came under his supervision referred to the lack of a proper consultation with the indigenous groups, particularly as regards decisions about development projects and projects related to the exploitation of natural resources in their territories.9 Anaya’s testimony calls for our attention about the different ways in which the states that signed and ratified Convention 169 managed to violate it or ignore its commitments every time they were required to implement the right to consult. Just two recent examples confirm his testimony: first, the almost two decades-long dispute regarding the right of consultation demanded by the U’wa people, in Eastern Colombia, in the face of a project for the extraction of petrol; and second, the dispute that emerged in Peru, in 2009, when the state refused to consult the indigenous population in the Amazonas concerning mining initiatives that affected them directly. Such situations must be considered together with many others in which national authorities trivialized and undermined their obligations in this respect: states that merely present their projects to the indigenous communities and thus consider that they have completed their obligations to “consult”; states that remain indifferent after the negative opinions expressed by the people consulted, etc. (RodríguezGaravito and Arenas 2005). As a result of all these limitations and hostilities, different affected communities have begun to resist the consultation process, or refuse to participate in those activities. On other occasions, the same affected communities have organized “good faith consultations” and even launched their own referenda as responses to the dominant official practices. There is no easy conclusion, in this respect, particularly because the controversies concerning this right are still alive and under process. For instance, there have been judicial decisions that tried to make this right real, and other political and judicial decisions that undermined still more the force of that right. In my opinion, the case provides an interesting illustration of what egalitarian legal reformers should do, and also an illustration of the limits of these strategies. On the one hand, and in order to honor their egalitarian commitments, legal reformers should rethink their approach to constitutionalism. Basically, they should use less energy for demanding the recognition of additional rights, and more to ensure that the disadvantaged enter into the “engine room” of the Constitution. 9 http://unsr.jamesanaya.org/statements/el-deber-estatal-de-consulta-a-lospueblos-indigenas-dentro-del-derecho-internacional.

Equality

197

On the other hand, however, egalitarian legal reformers should, once and for all, take note of the implications of preserving a legal structure that favors the present concentration of political and economic powers.

REFERENCES Aguilar, G., S. LaFosse, H. Rojas and R. Steward. 2010. “Análisis Comparado del Reconocimiento Constitucional de los Pueblos Indígenas en América Latina.” SSRC, Conflict Prevention and Peace Forum. Bergallo, P. 2013. “El género en el constitucionalismo latinoamericano contemporáneo. Tendencias y desafíos desde una perspectiva feminista.” Buenos Aires: ILADD, mimeo. Dworkin, Ronald. 2000. Sovereign Virtue. Cambridge, MA: Harvard University Press. Fowler, Will. 1966. Mexico in the Age of Proposals, 1821–1853. Connecticut: Greenwood Press. Gargarella, Roberto. 2010. The Legal Foundations of Inequality. Cambridge: Cambridge University Press. Gargarella, Roberto. 2014. Latin American Constitutionalism, 1810–2010, Oxford: Oxford University Press. Halperín Donghi, Tulio. 2007. Historia Contemporánea de América Latina. Buenos Aires: Alianza. Holmes, Stephen and Cass Sunstein. 1999. The Cost of Rights: Why Liberty Depends on Taxes. New York: W.W. Norton. Mora, J.M. 1963. Obras sueltas. Mexico: Porrúa. Palti, Elias José. 2007. El tiempo de la política. El siglo xix reconsiderado. Buenos Aires: Siglo XXI. Rodríguez-Garavito, Cesar. 2011. “Beyond the Courtroom: The Impact of Judicial Activism on Socioeconomic Rights in Latin America.” Texas Law Review 89(7): 1669–1698. Rodríguez-Garavito, Cesar and Bonaventura de Sousa Santos. 2005. Law and Globalization from Below. Cambridge: Cambridge University Press. Rodríguez-Garavito, Cesar and L. Arenas. 2005. “The Struggle of the U’wa People in Colombia.” Pp. 241–266 in Law and Globalization from Below, edited by C Rodríguez-Garavito and B de Sousa Santos. Cambridge: Cambridge University Press. Sábato, H. and A. Lettieri (eds). 2003. La vida política en la Argentina del siglo XIX. Armas, votos y voces. Buenos Aires: Fondo de Cultura Económica. Svampa, M. and M. Antonelli. 2009. Minería transnacional, narrativas del desarrollo y resistencias sociales. Buenos Aires: Biblos. Ternavasio, M. 2002. La revolución del voto. Política y elecciones en Buennos Aires, 1810–1852. Buenos Aires: Siglo XXI.

9. Modes of disestablishment in Latin America Julieta Lemaitre A quick review of the news coverage in Latin America in two months of 2014, April and May, shows Catholic clergy opposing civil unions between same-sex couples in Peru (La República 2014); rallying against legal abortion in cases of rape in war in Colombia (RCN 2014); actively supporting an amendment of the Constitution of the state of Nuevo León in Mexico to include the right to life from conception (Milenio 2014); campaigning against the legalization of civil unions for same-sex couples in the state of Veracruz in Mexico (Cancino 2014); and testifying against the emergency contraceptive pill before Congress in Honduras, claiming it is a form of abortion (La Prensa 2014). And yet May and April 2014 were not particularly active months for the Catholic Church, but rather a representative sample of its persistent activism against sexual and reproductive rights in Latin America, before and after the anointment of the Latin American Pope, Francis. The clergy does not act alone in these causes: they have national and transnational allies. The Catholic Church’s conservative activism has revitalized the historical closeness between the Catholic Church and conservative parties and factions in Latin America, and their actions are often either supported by politicians or openly embraced as a beacon and an inspiration. Church activism against sexual and reproductive rights has also cemented a conservative alliance with fundamental evangelical congregations, as well as fostered the existence of a transnational conservative social movement of conservative Catholic lawyers (Lemaitre 2010, 2013). These alliances provide a bulwark of resistance against Francis’s lukewarm efforts to reduce the ferocity of Church activism against sexual and reproductive rights, particularly against same-sex couples.1 1

But not support for gay rights: his opening remarks in the Synod for the Family October 4, 2015 were broadcast around the world as he insisted the Church opposed gay marriage (Reuters 2015). 198

Modes of disestablishment in Latin America

199

The Church’s activism against sexual and reproductive rights has led a revival of disestablishment as a liberal-progressive cause in Latin America (see e.g. Ruibal 2014a, 2014b; Vaggione 2009; Amuchastegui et al. 2010). Feminist and LGBTI activists have called for disestablishment as State neutrality toward religion, appealing sometimes to historic hostility toward the Catholic Church to reject any State endorsement of the official Catholic position. Feminist and LGBTI activists have found allies in transnational activist networks devoted to women’s rights, as well as in liberal and left political parties, liberal intellectuals, doctors and scientists in each country. There are numerous examples of this turn to calls for disestablishment. It is present in “Open your mouth against fundamentalisms,” a regional campaign against Church activism in sexual and reproductive issues. It is also present in feminist campaigns in Colombia against the Inspector General’s promotion of conservative Catholic values which have emphasized Church–State separation using the slogan “free people in secular states, it’s my body, it’s my choice.”2 Yet another example is the 2012 alliance of feminists, sexual-rights activists and liberals in Mexico to include the phrase “Mexico is a secular republic” (república laica) in the Constitution, symbolically rallying anti-Church sentiment still vigorous in that country. Unlike the United States, where religious opposition to sexual and reproductive rights maps over partisan divisions, the confrontation over sexual and reproductive rights in Latin America is not captured by the confrontation between liberal and conservative political parties. Instead, it reflects a rich regional history of controversy over the relationship between Church and State, the institutions of Church–State separation, and the constitutional provisions that regulate them. Conflicts over these issues are no longer reflected in the banners of the different political parties (although this certainly was the case in the nineteenth century). Instead, they persist in the clashes between opposing social movements, frequently through legal mobilization for or against liberalizing provisions and interpretations in matters of sex and reproduction. Hence, while social movement battles over the constitutional frames for abortion and homosexuality are a global phenomenon, in Latin America, unlike other parts of the world, they are firmly rooted in country-specific

2

In Spanish: Personas libres en estados laicos, es mi cuerpo y yo decido.

200

Comparative constitutional law in Latin America

histories of struggles over the relationship between the Catholic Church and the State.3 This chapter begins from the premise that comparative constitutionalism requires detailed study of national contexts and histories in order to understand the variations in meaning across jurisdictions, and avoid the assumption that constitutional text is transparent, and its translation a matter of speaking the language. Government practices and existing background rules shape constitutional meanings over time, as do social movements and political struggles. In the specific case of sexual and reproductive rights struggles in Latin America, and the related issue of religious freedom, the text and the cases must be read in the context of an agitated history of Church and State entanglement and separation in the region, and the various social and political tensions that have fired heated debates, even wars, over disestablishment. Therefore, this chapter reviews Latin American constitutional texts in historical context, tracing the institutional changes in Catholic establishment since the early nineteenth century, as well as the different modes of contemporary disestablishment in Latin America. It is based on a comparison of constitutional texts,4 done in dialogue with a review of the history of the Latin American Church and its relationships with Latin American States,5 the history of Latin American constitutionalism,6 Church documents on the relations between Church and State,7 and some examples of disestablishment campaigns and cases taken from the press and the publications of various non-governmental organizations.8 It also 3 This is also true of similar confrontations in majority Catholic countries in Europe, and footnotes in this chapter will sometimes refer to the cases of Spain, Italy and France to make the point. 4 This chapter is based on a review of the current, and some of the past, constitutions of the following countries: Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Ecuador, Guatemala, Nicaragua, Peru, Uruguay, Mexico and Venezuela. (Latin American countries not included in this review for reasons of space and extension are: El Salvador, Honduras, Panama, Paraguay and the Dominican Republic.) The chapter also includes some representative cases, although it is not based on a detailed jurisprudential review. 5 This section is based on authoritative general histories of the Catholic Church in Latin America: Dussell (1981), Lynch (2012), Mecham (1966). 6 For general histories of political liberalism in Latin America, see Aguilar (2000), Gargarella (2005), Jaksic and Posada Carbó (2011). 7 The original documents were read from the English version on the Vatican website. 8 The review of press stories was built on the reports of the IPPF (International Planned Parenthood Federation) newsletter Global Rights Watch,

Modes of disestablishment in Latin America

201

uses for general contemporary context the US State Department’s 2013 report on the state of religious freedom in Latin America. It examines the different ways in which constitutional texts that are similar in affirming religious freedom and separation of Church and State, in practice have different meanings depending on the paths of disestablishment in each national history, and on the results of the successive struggles over their meaning. In order to do so, it must first explain the history of establishment.

I. ESTABLISHMENT Every single Latin American nation began its independent life with a Catholic establishment, that is, with Catholicism as the only official religion of the State, enshrined in a Constitution. The first Latin American constitutions were confessional, following the model of the 1812 Cádiz Constitution, which not only declared Catholicism as the State religion, but also limited the rights of other faiths with the assertion that “error has no rights.”9 Confessional constitutions generally excluded religious freedom for other faiths: most of the first constitutions mentioned not only that Catholicism was the religion of the State, but that it was the only religion allowed public worship; in some countries even private worship of other religions was prohibited and constitutions announced Catholicism was the only accepted religion “to the exclusion of all others.”10

as well as on the SPW (Sexual Policy Watch) newsletter, both of which regularly report on Church influence on policy and legal debates over sexual and reproductive rights in Latin America. 9 Article 12 of the Cádiz Constitution said: “La religión de la Nación española es y será perpetuamente la católica, apostólica, romana, única verdadera. La Nación la protege por leyes sabias y justas, y prohíbe el ejercicio de cualquiera otra.” 10 Simón Bolivar wanted his 1826 Constitution for Bolivia to allow other religions but met opposition, and it only included the tenet that no other religion will be allowed to worship publicly (i.e. private worship was allowed). It did, however, include the rare phrase that “there is no human power over conscience.” Literally Article 6 says: “La Religión Católica, Apostólica, Romana, es de la República, con exclusión de todo otro culto público. El Gobierno la protegerá y hará respetar, reconociendo el principio de que no hay poder humano sobre las conciencias.” No other constitution included the phrase “there is no human power over conscience.”

202

Comparative constitutional law in Latin America

During most of Latin America’s existence the powerful presence of the Church in everyday life was widely naturalized as part and parcel of civilization, with civilization used as a synonym for Christianity, if not for Catholicism. Laws were subsidiary to religious virtue, and virtue defined by the Catholic Church. Simón Bolívar famously said “religion governs man in his home, in his office, within himself; it alone has the right to examine his intimate conscience. Laws on the contrary look on the surface of things. They do not govern except outside the house of the citizen” (cited in Lynch 2012, pp 180–1). This phrase could more exactly be read replacing the word religion with the words the Catholic Church: indeed the Church, through its control of the public registry, marriage, and cemeteries as well as through the pastoral duties of its priests, as much as through its control of most schools, hospitals, and charities, exercised a form of government, or at least supervision of the private lives of Latin Americans, and laws took second place after that power. The Church decided who could be married and who could not, and therefore which children had full legal rights (legitimate children) and which did not. The stigma on illegitimate children, born out of wedlock, prevailed throughout their life, and prevented them from entering certain schools and civil service. The Church also directly controlled schools and universities, censored books and periodicals, and controlled hospitals, charities and missions to indigenous territories.11 Establishment also frequently meant non-Catholics were stigmatized and persecuted, and their civil rights severely curtailed; for example, generally only Catholics could be elected for public office. Establishment was the inheritance of the colonial period, when the Catholic Church was not merely the established Church; it was hierarchically under the control of the Crown and part of its apparatus of government. In the Spanish colonies, the Church was so central to the colonial regime that evangelization of the Indians was overtly the only legal and moral justification of conquest and colonization, and priests were consistently present among the first colonizers. The symbiotic relationship between Church and colonial bureaucracies meant that Church elites held significant administrative power and wealth in the colonies, and subscribed to the regalist understanding of the identification between Church and Crown, whereby the Crown ruled over the Church. The Crown had patronage rights, bestowed directly by the Pope, and 11 In many countries Catholic missionaries had ample civil powers to govern over the indigenous populations they “civilized.” This entailed quite a lot of power: in Colombia, for example, in 1902 75% of the country was under direct missionary rule (Lynch 2012, p 156).

Modes of disestablishment in Latin America

203

patronage meant the Crown directed the clergy, funded Church activities, chose its leaders and gave or withheld authorization for the Pope to instruct the national clergy (the right of exequatur). After independence several of the new republics attempted to maintain patronage rights, but failed. Independence movements first flourished when France invaded Spain, but after Napoleon’s demise, Pope Pius VII supported Ferdinand VII’s return to power and military attempts to keep Spain’s colonies. The Pope also denounced rebels as defying the will of God, including the liberal clergy that championed independence, and even adopted an encyclical that defined independence movements as sinful (Et si longissimo 1816). These actions sowed bitter hostility against the Church among independence leaders (Lynch 2012, pp 119– 23) even as they attempted to obtain Vatican recognition for the newly independent States, including the extension of patronage and exequatur. In the nineteenth century, as the first liberal revolutions failed in Catholic France and Spain, and the Church returned to power with the monarchies, the remaining liberal regimes in Latin America and Italy were considered enemies of the Church. Liberals promoted the idea of a Church–State separation, and the disestablishment of the Catholic Church. The Vatican considered then that disestablishment was one of the gravest mistakes of liberalism, and a sin. Successive popes wrote encyclicals denouncing both disestablishment and liberalism: Pius IX, for example, in his famous Syllabus of Errors of 1864, specifically attacked the liberal Mexican laws that disestablished the Catholic Church (the reform laws, or La Reforma).12 Vatican resistance to liberalism as a political doctrine can be directly traced not only to the loss of influence in Latin America, but also and perhaps especially to its losing the Papal States to Italian liberals between 1861 and 1870. So when the Vatican finally accepted Latin American independence from Spain, it also successfully rejected the possibility of patronage and exequatur rights for the new States, opposed the possibility of national Catholic Churches, and led what was known as the Romanization of the Catholic Church in the region, that is, its submission to Vatican control after hundreds of years of being ruled by the Spanish Crown. The Church’s rejection of disestablishment, and the Vatican’s disciplining of the Latin American Churches, had a direct link to Catholic dogma, and was not only a grab for power. The Church believed, then as now, it 12 See Gregory XVI Mirari vos (1832), Pius IX Singulari nos (1834), Quanta cura and Syllabus (1864). See also from Pius X Vehementer nos (1906) explaining the errors disestablishment, a position shared by Popes Benedict XV, Pius XI and Pius XII.

204

Comparative constitutional law in Latin America

had the objective truth about the world, generally, and the objective truth about moral knowledge specifically. Being the carrier of this truth, revealed by God, gives the Church the responsibility to preach and convert and to defend what it knows to be both true and good. This responsibility gives it both the right and duty to ensure that civil governments follow its guidance; to refuse this responsibility by accepting disestablishment is a grave error, as it involves the separation of objective moral knowledge from the stewardship of nations. This dogma led directly to establishment in the new republics, and it was shared by early leaders of Latin American independence, some of whom were also Catholic clergy. However, as the Church’s duty to provide stewardship appeared more and more as the duty to oppose liberalism, the Church lost influence and support in many of the new republics. This loss of influence varied in each country in the region, depending on the different processes of independence from the Spanish and Brazilian empire and on the relative wealth and numbers of national political actors. While in some countries the colonial Church had a weak presence, in others it was extraordinary. In colonial Lima, for example, the Catholic Church owned a third of all urban property and was the principal money-lender (Lynch 2012, p 109). In Argentina, in contrast, the colonial Church never had the level of wealth of more central provinces of the Spanish empire; consequently, the Peruvian Church had throughout the nineteenth century a much larger influence in national affairs than the Argentinean Church did. However power was also a matter of relative strength: the Church also had significant influence in Colombia, a fact that is related not to the wealth of the Church itself, but more to the extreme poverty and weakness of the emerging State. Another salient influence in disestablishment would be the national presence and strength of liberal and conservative parties. The initial independence forces soon split into roughly liberal and conservative forces in most countries and by the mid-nineteenth century many, but not all, Latin American countries had vigorous Conservative parties hugely influential in the consequent status of the Church. Conservatives opposed republican versions of liberalism and Anglo-American influence, including non-establishment. They defended a Hispanic version of liberalism they called conservatism, because it built on the historic presence of Spain in the region, and on their own Hispanic culture. Conservative parties tended to promote corporative forms of representation as in colonial government, as well as a Hispanic and Catholic national identity. They fostered an alliance between an expanding class of landowners, urban white elites, and the Catholic Church, and challenged liberal parties inspired in the American and French revolutions and supported by

Modes of disestablishment in Latin America

205

other social groups, not only some urban white elites and emerging businessmen, but also artisans, tradesmen, and other urban middle sectors of the population. Eventually, the political alliance between the Catholic hierarchy and conservative parties bound the fate of establishment to the triumph or defeat of these parties, in elections or in war. Sometimes Church hierarchy itself fanned the flames of war against liberals, convincing conservatives of the holiness of Church interests in power and in governance. In some countries, notably in Colombia and Mexico, these religious civil wars reached into the twentieth century.13 Other countries were spared religious violence, but even those that were had periods of intense political agitation and debate between liberals and conservatives over the privileged status of the Catholic Church. However these debates waned and by the late twentieth century most countries in Latin America, except Costa Rica, had successfully disestablished Catholicism. Disestablishment brought not only separation between Church and State, but also frequently the hegemony of liberal ideas that located religion in private life, and imagined the State as neutral vis-à-vis religions, but protective of individual conscience. However, in many countries conservative ideas prevailed in the definition of the role of the Church in the private sphere, as in Simón Bolívar’s sense of religion as governing private life, especially the life of families and sexual and reproductive mores. Therefore, the forms of Church–State separation in the region are not homogeneous, and the specific power of the Church depends on fragile balances of power between different national actors. In sum, disestablishment does not reflect the kind of power the Church might have in a given country, and in some countries disestablishment might coexist with Catholic control of religious education in public schools, of the types of health care services available, and of the rules governing family life, sexuality, and reproduction. The history of disestablishment in Latin America suggests there are three modes of disestablishment, and that the difference between them accounts for the fate of sexual and reproductive rights. These three modes are: anticlerical, liberal laicidad and friendly cooperation. In an anticlerical regime of disestablishment, religious denominations are strictly excluded from the State, including the provision of health care and 13 Colombia’s mid-century civil war known as La Violencia pitted liberals against conservatives, with the former being backed by the Catholic clergy and alleging its defense of traditional Catholicism. In Mexico the 1929 bloody Cristeros rebellion defended the Catholic Church from the values and laws of the 1916 revolution.

206

Comparative constitutional law in Latin America

education, and hostility toward religion prevails in the State. In a regime of laicidad, the State is not partial to any Church or religion, and religious freedom protects the right of citizens as individuals to associate, and express and advance their purposes provided this does not affect the rights of others or the neutrality of the State. The rights of others specifically include the rights of non-Catholics and the exclusion of specifically religious rules, such as those governing sexual and reproductive mores, from generally applicable legislation. Finally, under a regime of friendly cooperation the State has a positive attitude toward religion, and religious freedom protects and even promotes all expressions of faith, religious associations, and faith-based religious activity. For most conservative Catholics, friendly cooperation also includes special privileges for the Catholic Church, including that of the moral guidance of health care services, public education and legislation that affects sexuality and reproduction. The following section further explains each of these modes of separation, their histories and the way they shape constitutional text and interpretation.

II. ANTICLERICAL DISESTABLISHMENT Anticlericalism soon surfaced in the new Latin American republics as a reaction against the Vatican. It was reflected in the platforms of some liberal political parties but more actively in the writing of anticlerical intellectuals. Anticlericalism came first through republican aspirations inspired both by the American Declaration and by the French Revolution, both of which premised disestablishment. Latin American anticlericalism especially shared many concerns and sources with anticlericalism in other Catholic countries of Europe. It was a reaction against Church power that was hostile to religion generally, often making reference to the ideals of the French Revolution echoed by some Spanish liberals. There were also national traditions of anticlerical sentiment rooted, for example, in a rejection of the Church’s treatment of indigenous people or in the Church’s opposition to the teaching of science or in the Church’s support of landowners and private property rights. Anticlericalism was ardently defended, especially by those who looked to France, where anticlericalism sought the end of all organized religion and the enshrinement of reason in its stead. It flourished at different times in Latin America and, as mentioned above, it found its own voice and expression in local resistance to the many abuses of the local clergy, especially foreign priests accustomed to exercising governance over Indians and slaves, and enjoying vast untaxed personal wealth. Some

Modes of disestablishment in Latin America

207

radical liberals advocated for anticlerical provisions in laws and constitutions: Notably Colombian radical liberals of the mid-nineteenth century promoted the first disestablishment in Latin America (1853) and its 1863 Constitution included the prohibition of Church interference in politics, as well as increased control of the government over Church activities (known as the right of tuition or derecho de tuición). Anticlericalism found its most radical expression during the Mexican revolution, and its bloody developments became the regional representation of the dangers of radical anticlericalism. The revolution was ardently hostile to the Catholic Church as a rival to State power and as an obstacle to achieving freedom and equality. In this spirit the Revolutionary Constitution of Mexico in 1917 severely limited Church rights, expanding the liberal Reform laws of 1857. The revolutionaries completely eliminated Church juridical personhood (Article 130) as well as the Church’s right to own property (Article 27) and to educate children (Article 3), and the rights of priests to be elected or to have any opinion in politics, prohibiting the clergy from criticizing the government (Article 130). The Constitution also outlawed monastic orders (Article 5), as well as the public display of icons and religious ceremonies and the public wearing of religious habits (Article 24).14 Anticlericalism later grew in the shadow of the regional influence of French positivism as a cultural commitment to scientific truth and the aspiration to modernity as reason and science. Under the sway of positivism in the nineteenth and early twentieth centuries, Latin American positivists often opposed Catholicism, identifying it with superstition, ignorance, exploitation and as an obstacle to progress.15 Unlike the revolutionaries, however, the positivists tolerated popular devotion, understanding it as a necessary evil rather than as a good thing in itself. Instead of the violence of the revolutionary anticlericalism, positivism envisioned a gradual dying out of oppression and religious superstition through science and education. Positivist anticlericalism was exemplified by the aspirations of the Masonic secret society, which in the nineteenth century found itself also in a direct fight with the Catholic Church (see Pius IX’s Quanta Cura Enclyclical against freemasonry and “the errors of modernity”). This confrontation played out, for example, in the Brazilian religious troubles of the 1870s, with a standoff between 14

For an authoritative account see Blancarte (1992). Not all positivists were antireligious – as posited by Comte positivism required some type of religion amenable to science. Anticlerical sentiment, however, did feed on positivism to reject the Catholic Church specifically as an enemy of science and progress. 15

208

Comparative constitutional law in Latin America

freemasons, who wanted the Church to remain under the control of the Brazilian State, and the bishops, who were loyal to the Vatican. More recently anticlerical sentiment surfaced in the early twentieth century linked to socialist and communist political parties, but failed to achieve enough power to shape constitutional provisions in most of the region. In Peru, for example, the APRA16 political party was founded on the same principles as the Mexican revolution. In 1923, the APRA led a revolt in Lima when dictator Leguía consecrated the country to the Sacred Heart (Lynch 2012, pp 204–5). The revolt failed and APRA leaders were persecuted for almost a decade. Notable Peruvian anticlerical intellectuals were widely read in Latin America, perhaps more significantly Marxist José Carlos Mariátegui, who in this same period (1920s and 1930s) linked the exploitation of indigenous people to Church power and support for landed elites. After Leguía’s fall, anticlerical sentiment also surfaced as his opponents remembered Church support for the dictator. However, in Peru, as in most Latin American countries, the Church remained solidly in power, and the 1933 Constitution had no anticlerical elements (Kleiber 2009, pp 259–60). Other growths of anticlericalism were even less influential. Argentina, for example, was not a hospitable country for anticlerical liberalism; the peak of anticlerical sentiment in the early twentieth century was linked to workers’ protests in the 1920s, and the sentiment rose again as the Church distanced itself from dictator Perón and his supporters rallied against the Church. The vital populist movement peronismo maintained an anticlerical streak evoked by the 1950s slogan “Perón sí, curas no.” In the 1970s, the Church supported the military coup against Perón as well as the military dictatorship, cementing an undercurrent of anticlerical sentiment in a country otherwise ruled by a solid liberal–conservative ideological alliance that has had no major confrontation with the Church (Gargarella 2014). Today, while anticlericalism is widely understood as a living political position in the region, and many intellectuals continue to defend anticlerical positions, it has generally failed to achieve sustained power.17 16

Alianza Popular Revolucionaria Americana (American Popular and Revolutionary Alliance). 17 This is also true of anticlerical parties, movements and rebellions in the Catholic countries of Europe, at least in France, Spain, and Italy, where anticlericalism failed to reach sustained power as exemplified by the failure of the French Revolution to sustain its hostility to religion after Napoleon, or the failure of Spanish liberals to establish a constitutional monarchy until well into the twentieth century and after a fierce civil war.

Modes of disestablishment in Latin America

209

Even the anticlericalism of the Mexican revolution was never fully implemented, and resulted in the Cristero rebellion of 1929 and in the ensuing tolerance of Catholic worship and influence in the country. Eventually in 1992 Mexico adopted a Law on Religious Freedom that removed the main anticlerical provisions from the Constitution, although it did keep some limits to Church intervention in politics and ownership of media.18 Anticlericalism’s best chance to influence constitutional institutions came through the communist and socialist revolutions, such as those of Cuba (1959) and Nicaragua (1979), as well as through the leftist regimes of Venezuela, Ecuador, and Bolivia more recently. These regimes have taken some anticlerical positions, consistent with socialist and communist hostility toward religion, but as in the other examples, in these countries anticlericalism has been weak. Cuba provides a leading example of the weakening of anticlerical influence in revolutionary law. Its revolution was formally atheistic as well as communist, and its 1976 Constitution included articles hostile to religion. Famously, its Preamble invokes Martí, Marx, and Lenin rather than God as is traditional in Latin American constitutions. Article 62 says faith cannot be opposed to revolution and Article 54 criminalizes faith-based opposition to the revolution. However, relations between the Cuban State and the Catholic Church thawed considerably after the end of the Cold War. Catholics have been able to join the Communist Party since 1991 and the faithful are not particularly harassed (State Department 2013). Article 54 was taken out of the Constitution in 1992, although the Cuban Criminal Code still has a crime of “abuse of religion” (Article 206). The regime allows the presence and activity of the Church, while still keeping an active supervision of all religious activities (State Department 2013). Still, long gone are the days of anticlericalism when religious belief was considered anti-revolutionary by definition (Crahan 1985). The Nicaraguan revolution of 1979 is an even more intense example of leftist renunciation of anticlericalism in constitutional law. The revolution never had the anticlerical tendencies of the Cuban revolution, in spite of the fact that the Catholic Church supported “the contras,” the US backed paramilitary death squads that opposed the leftist uprising. The revolutionary Constitution of 1979 (Estatuto Fundamental del Gobierno de 18 The constitutional reform modified Articles 3, 5, 24, 27, and 130. Read in conjunction with the 1992 Ley de Asociaciones Religiosas (Law of Religious Associations) it establishes a regime of neutrality of the State in religious issues and enshrines in law the tolerance that had existed in practice since the 1929 Cristeros rebellion.

210

Comparative constitutional law in Latin America

Reconstrucción Nacional) was not anticlerical and hardly mentioned religion except to protect freedom of religion. The 1987 Constitution thanks in the Preamble Christians whose faith in God led them to support the revolution, and this is the only mention of God in the text. The Constitution included the provision (Article 14): “the State has no official religion,” the text of disestablishment shared by several liberal constitutions across the region, and in Nicaraguan constitutions since the liberal reforms of 1893, but it was not hostile to religion. Today the proximity between Nicaraguan governments and the Church is such that the US State Department (2013) reports that Catholic bishops in alliance with Protestant pastors blocked sexual education in public schools, in spite of the fact that the Nicaraguan Constitution insists (Articles 116 and 117) education must emphasize scientific approaches to knowledge. More recently, Venezuela, Bolivia, and Ecuador also adopted new socialist Constitutions following the rise to power of leftist governments in democratic elections rather than revolution (Hugo Chavez, Evo Morales and Rafael Correa). These Constitutions reframed the liberal commitments traditional in regional constitutions in a loosely socialist mode: Venezuela proclaimed a Constitution for twenty-first-century socialism; Ecuador claims its Constitution is based on indigenous conceptions of the good life as including care of nature, and invokes the protection of the Earth Goddess (Pachamama) instead of God; and the Bolivian Constitution calls itself the first “decolonial” Constitution. However, the three countries also guarantee Church rights, and the State Department reports no breach of religious freedoms of the Church and no hostility of the government to religion (State Department 2013). The three do exclude religious education from public schools, but not from private schools, and report some confrontation between governments and some members of the Catholic clergy, related more to individual politics than to the Church as a whole. In conclusion, anticlerical constitutional reforms in the region were short-lived. Socialist constitutions contemplate a neutral State that tolerates the presence of the Church and its many activities. Increasingly, Latin American countries also practice friendly cooperation, where the Church actively collaborates with and is protected by the State, in tension with constitutional commitments to strict laicidad. The following sections explain these other modes of disestablishment.

Modes of disestablishment in Latin America

211

III. DISESTABLISHMENT AS LAICIDAD19 Unlike anticlericalism, the liberal model of laicidad has had a lasting influence in regional constitutions. In laicidad, disestablishment limits the presence of the Church in the public sphere, while respecting freedom of religion and conscience in the private sphere, and giving equal legal recognition and special protection for all organized religions and all faiths and beliefs. The paradigm of nineteenth-century laicidad was the reforma (reform) of the Mexican liberals of the 1850s, perhaps the most aggressive program of disestablishment in the region, followed closely by Guatemala and fiercely resisted by the Church at the time, although its tenets are tame by contemporary standards. The reform, like many other nineteenth-century disestablishment programs, entailed the disappearance of many of the establishment privileges of the Catholic Church, such as the existence of special taxes earmarked for the Catholic Church, the power to provide sanctuary to criminals, and the Church’s right to judge priests who committed criminal offenses. At the time, it included the expropriation of the Church’s vast and untaxed urban and rural property, linked back to establishment privileges, and allowed the Church only to keep property related to worship (such as churches, convents, and houses where nuns and priests lived). In addition, reform laws abolished the tithe and monastic orders, created the possibility of civil (non-religious) marriage and divorce, public cemeteries, public assistance for the poor, public hospitals, a public register of births and deaths, and compulsory public education. Up to this moment all of these services had been provided for, and controlled by, the Catholic Church, revealing the extent of its control over everyday private life from the cradle to the grave. Other liberal governments in the region implemented similar reforms in the nineteenth and twentieth centuries, adopting some or all of these changes, and generating the identification between liberalism and disestablishment, with varying degrees of success. For example, the government of José Santos Zelaya (1893–1909) in Nicaragua created secular public education, and established civil marriage and divorce as well as 19 Laicidad is sometimes translated as secularism, but I think that is inexact. Secularism covers a wider range of phenomena, including all forms of disestablishment. It is sometimes written in French (laicité) but I also think that is problematic as the French tradition is different from the Latin American. State neutrality is another option, but it does not fully capture all aspects of laicidad. There is no widely used English noun for the adjective lay. I have therefore decided to keep the word in Spanish and explain its meaning in the text.

212

Comparative constitutional law in Latin America

public cemeteries and a public register of births and deaths. He also eliminated the collection of tithes through the State and these reforms were reflected in the 1893 Constitution. In Colombia, during the liberal governments between 1863 and 1885 there were many of the same reforms, and by 1880 “Colombia was virtually a secular state” (Lynch 2012, p 215).20 Argentina adopted liberalism slowly between 1820 and 1860, and in 1882 an important law defining public education as free, compulsory, and secular. Still, it kept to the day the constitutional provision by which the State economically supports the Catholic Church. In Ecuador, after a fiercely clerical nineteenth century under dictator García Moreno and his followers, the country adopted a vigorous disestablishment program with the revolution led by liberal Eloy Alfaro. Alfaro supported the secular Constitution of 1897, which was adopted in spite of armed resistance both by the Church and conservatives. Chile, on the other hand, had a smooth transition to disestablishment under liberal rule, from the elimination of special tribunals (fuero) in the 1870s, to the large 1925 reform that allowed free exercise of religion, separation of Church and State, and secular education, and eliminated any payment to clerics or financing of the Catholic Church. Unlike many other liberal reforms, however, Church–State separation in Chile did not touch Church property, and that might have eased the transition into a non-established Church. In Brazil, disestablishment occurred in 1891 at the end of the monarchy, as in Chile with little strife or resistance from the Church. In Brazil, especially, the Church was glad to be freed of what it felt was suffocating State control under the monarchy. As in Chile, liberal reforms also allowed for the first time for public cemeteries, civil marriage, and a public registry of births and deaths.21 20 Reforms, however, led to a series of civil wars with the Church being defended by the Conservative Party. These wars ended in the military victory of the conservatives in 1885, and the re-establishment of the Catholic Church with many of its former privileges, including monetary compensation for loss of property in the past, and the ensuing Concordat or treaty with the Vatican. 21 Church–State separation was also a trend in the Catholic countries of Europe at the end of the twentieth century. The best known is the French law of December 9, 1905 (concernant la séparation des Églises et de l’État), the culmination of a slow process of secularization of public administration that included, as in Latin America, the government replacing the Church in cemeteries, public schools, public registries and public hospitals, as well as ending direct subsidies to clergy. In Spain, the Church was deeply involved in one side of the civil wars that ravaged the country, the Carlist wars of the nineteenth century (1833–1840 and 1870–1876) and the civil war (1936–1939). In each case the Church opposed the tendencies to secularization, whether the constitutional

Modes of disestablishment in Latin America

213

Uruguay represents an exemplary case of early and thorough liberal laicidad. Its 1830 Constitution established Catholicism as the religion of the State, but included toleration of other religions. Without any dramatic anticlerical parties or political activism, Uruguay adopted the nineteenthcentury reform-like program that so many other nations did, albeit at a measured pace: in 1837, civil marriage was enacted, public cemeteries in 1861, a public registry in 1880, in 1885 compulsory civil marriage and the possibility of divorce, in 1892 it curtailed direct monetary aid to the Church and in 1909 it established secular education. The government of mason Batlle y Ordoñez (1903–1907, 1911–1915) also brought some reforms that can be classified as anticlerical, such as the renaming of national holidays to reflect no religion, but they did not reach the level of hostility of anticlericalism proper. By 1919, Uruguay had finalized its process of disestablishment with a unique feature in the region, which was the prohibition of religious symbols in public buildings, public documents, and the names of public holidays. In spite of conservative opposition to disestablishment, liberal laicidad reforms were not, like anticlericalism, overtly hostile to religion. Religion remained an area of significant importance for people’s private lives, and many liberals were devout Catholics in spite of the Church’s wrath against liberalism. Some liberal provisions, for example those limiting the political activities of the clergy and prohibiting the entry of foreign clergy into the country, as in Guatemala, Mexico, and Nicaragua, seem to correspond to the partisan activities of the Church in the civil wars rather than to an anti-religious animus. At the time, however, many of these laicidad reforms were sorely resented by some national Churches: for example in Ecuador the rallying cry of resistance to Alfaro, led by priests, was “God, or the Devil” (Lynch 2012, p 212) and the armed rebellion opposed to reform laws in Mexico in the 1850s flew its flags under the demand “Religión y fueros!” (loosely translated as “we want religion and special rights for priests”). Today, most Latin American constitutions tout laicidad principles. God might be mentioned in the Preamble, but there is no established religion monarchy of the nineteenth century or the republic of the twentieth, joining the partisan, and bloody, defense of Spain as Catholic and monarchic against the liberal defense of the modernizing trends of Europe. As elsewhere, liberal governments, beginning with the constitutional monarchy of the 1830s, disentailed Church land, abolished the tithe and dissolved mandatory allegiance to monastic orders, but in Spain periods of aggressive disestablishment alternated with periods of restoration or reestablishment of the Church (see Casanova 1994).

214

Comparative constitutional law in Latin America

and no special privileges for the Catholic Church in the Constitution. The texts often declare explicitly the State has no official religion, and religious freedom is enshrined in all of them, and has protected the dramatic growth of conversion to non-Catholic Christian Churches. The Colombian Constitutional Court, widely respected in the region, has defined laicidad in several notable decisions. While the mostly liberal 1991 Constitution did not overtly include disestablishment, and did not mention religion except for a general call for the protection of God in the Preamble and the protection of religious freedom and the equality of all religions (Articles 18 and 19), the Court has interpreted Articles 18 and 19 to mean the State must not privilege the Catholic Church or creed, building on the idea that pluralism entails disestablishment and religious neutrality. In 1994 the Court, in decision C350, declared it was unconstitutional to consecrate the country to the Sacred Heart and said laicidad emerged from the equal status of all religions in Articles 18 and 19.22 The Court also defined Colombia as founded on a secular principle of strict Church–State separation as well as on the recognition of religious freedom and the prohibition on establishing an official Church. Later in 2003 (C152), the Court further examined the content of the principle of Church–State separation, laying the ground for a laicidad test that it later developed in 2010 (C766). In order to pass the test, in a law with religious content, the religious content must be anecdotal or accidental, having mostly a cultural and not a religious meaning.23 Any 22

This point was later developed in C-107 of 1994 on religious holidays and later in C-1261 of 2000 on Sunday as the rest day: in these cases the Court said the religious connotation of holidays and Sunday were cultural as much as religious and did not violate laicidad. 23 The Court has also defended religious freedom, declaring it “essential to democracy” (C766 of 2010). First, it has advocated equal treatment of all religions and Churches. For example, in 1997 it said all Churches should be equal for tax purposes (T352 of 1997); in 2009 (T397) that a worker could not be fired for not working on Saturdays for religious reasons, in 2010 (T492) that students could not be forced to present tests on Sunday and in 2011 (T832) that a school could not ask women to wear pants if that was against the beliefs of the Pentecostal Church. The Court has also refused to use human rights to make decisions on Church dogma, in spite of several human rights actions that ask for State protection. It has therefore refused to protect children denied baptism because their parents are not married by the Catholic rites (T200 of 1995), to protect inmates denied religious marriage by the Church ban on marriage ceremonies in prison (T946 of 1999), couples denied religious annulment of their Catholic marriages (T998 of 2002) and a disabled boy denied communion (T1083 of 2002). In 2013 (T658), the Court did order a religious community to

Modes of disestablishment in Latin America

215

religious meaning in a law or administrative act can be interpreted as a violation of laicidad. This test, however, does not engage with the central problem of religious presence in the State: preferential treatment for the Catholic Church. While formally forbidden by most constitutions, preferential treatment has crept in through laws that interpret laicidad to include a friendly cooperation between Churches and the State. This preferential treatment coexists with disestablishment in most of Latin America, often through laws rather than through constitutional text or interpretation. Preferential treatment now takes the form not of a Catholic establishment, but of a friendly relationship between the State and an independent Church, a relationship of cooperation and respect, sometimes overtly based on the historical dominance of Catholicism among national religions. The next section describes the friendly cooperation mode of disestablishment.

IV. DISESTABLISHMENT AS FRIENDLY COOPERATION Friendly cooperation between the Catholic Church and national States in Latin America is not an extension of State respect for the religious freedom of its citizens, cooperating with the Churches sponsored by citizens. Instead, it is the extension of establishment, a reflection of the centrality of the Catholic Church in everyday life, and is linked to the persistence of some patronage rights in contemporary constitutions and to the constitutional privilege for the Catholic Church alleging national tradition. Patronage rights, the right of the State to name upper-level clergy, came with the presence of the Church within State institutions, and with State responsibility to support the Church. This latter responsibility can be found even under disestablishment. In Venezuela, an extreme example, the 1824 patronage laws that gave the State the same rights as the Spanish Crown were good law until 1964, when a modus vivendi agreement was reached with the Vatican. Even under the socialist government of Hugo Chavez (1999–2013), the Catholic Church enjoyed a special status and received funds for its religious works.24 In Argentina, receive an elderly nun who had been part of the community for 42 years and had no pension, based on the right to social security. 24 Venezuela, Law approving the Agreement between the Republic of Venezuela and the Holy Apostolic See. Official Gazette of Republic n27478 June 30, 1964.

216

Comparative constitutional law in Latin America

Article 2 of the 1994 Constitution says the federal government “sustains the apostolic and Roman Catholic religion.” This support has been interpreted as a financial commitment that does not impede disestablishment, but that does require the allocation of public funds to support Catholic clergy, Catholic military chaplaincies, and salaries and pensions for priests. Thus, even today under an officially disestablished regime, the State offers the Church economic support through a wide range of subsidies and institutional privileges, such as subsidies and autonomy for private Catholic schools, preference in assigning radio frequencies, monthly stipends for priests, stipends for the education of priests, etc. (State Department 2013).25 Friendly cooperation extends, however, beyond patronage rights and economic support. It also requires the official commitment to the Catholic Church itself as the majority religion, linked to the history of Catholicism. For example, the Peruvian Constitution of 1978, in an article that remained after the 1992 reform (Article 50), enshrines the recognition of the Catholic Church as “an important element of the historic cultural and moral formation of Peru” and therefore the State “offers cooperation.”26 This remains the model of what conservative commentators define as positive laicidad (Prieto 2009), and liberal commentators dismiss as neo-confessionalism (Chiassioni 2013, p 51). The Peruvian Supreme Court in 2013 gave an example of the constitutional interpretation that follows disestablishment as friendly cooperation. The case concerned a constitutional challenge against the law that declared the Señor de los Milagros (Lord of Miracles) religious image of Jesus Christ the patron saint of Peru. The challenger claimed this law violated his religious freedom as an evangelical Christian, as well as the principle of laicidad, but the Court considered the religious icon reflected Peruvian identity and Catholic tradition, and did not violate religious freedom. The Court also cited the special cooperation the Peruvian State grants the Catholic Church in the Constitution as mentioned above.27 25 These privileges are enshrined not in the Constitution but in laws such as Law 22.162 on monthly stipends for priests, and Law 22.950 on the education of Argentinean clergy. 26 The Spanish Constitution of 1978 has a similar text: Art.16.3: “Ninguna confesión tendrá carácter estatal. Los poderes públicos tendrán en cuenta las creencias religiosas de la sociedad española y mantendrán las consiguientes relaciones de cooperación con la Iglesia Católica y las demás confesiones.” 27 Peru, Tribunal Constitucional, March 19, 2013 EXP. N.° 03372-2011-PA/ TC.

Modes of disestablishment in Latin America

217

Peru stands in Latin America as the country with the closest cooperation with the Catholic Church. Historically, the Peruvian Church has been close to power, including successive dictators, and anticlerical dissidents successfully excluded from power. The Alberto Fujimori government (1990–2000) further created the opportunity of an alliance between conservative neoliberal forces in power and the conservative wing of the Church in power in the Vatican, effectively excluding from power Peruvian priests who had led the leftist Liberation Theology movement (Kleiber 2009, p 267). The 2013 State Department report on religious freedom singles out Peru as the country of concern in Latin America, given the close relationship between the Catholic Church and the State, including, for example, a preferential treatment in education, generous tax exemptions, stipends and salaries for Church hierarchy and monthly stipends for each diocese. Of special concern is the difficulty for other Churches to obtain official recognition and inscription in the national registry of religious entities even though a 2010 law of religious freedom formally gives any religious organization many of the same benefits granted to the Catholic Church under the 1980 agreement with the Holy See. Several countries that have laicidad regimes in their constitutions in fact have friendly cooperation regimes established by subsequent laws. For example, in Colombia, even though the liberal 1991 Constitution says that all religions and Churches are equally free in Colombia, and in spite of the constitutional decisions noted above, Law 133 of 1994 begins by saying “the State is neither atheist, agnostic nor indifferent to the religious sentiments of Colombians” and proceeds to give all Churches substantive freedom and protections, excepting satanic beliefs and beliefs defined as “contrary to religion.” Likewise, in Mexico the 1992 Law on Religious Freedom eliminated the anticlerical provisions of the Constitution, leaving a regime of laicidad with few exceptions denoting any hostility toward religion (except perhaps the prohibition of ownership of commercial broadcast radio or television to transmit religious programming).28 Another example is Brazil, where the 2009 Law known as the Church Statute (Estatuto de la Iglesia) specifically mentions the cooperation of Church and State, followed by a series of norms that strengthen this cooperation. The law defines both the State and the Church as independent and sovereign, cooperating in the construction of 28 These laws are close in time to the US Religious Freedom Restoration Act as well as to the rise of the religious Right in the United States. The Cold War is also the backdrop to UN documents on freedom of religion, a right defended by the US as an accusation against the USSR’s “atheist communism.”

218

Comparative constitutional law in Latin America

a society that is more just, peaceful, and fraternal, and includes the teaching of Catholicism in public schools as well as many benefits for the Church such as tax exemptions, the recognition of civil effects for Catholic marriages, the inclusion of Churches in urban planning, collaboration in artistic and cultural endeavors, and the provision of Catholic spiritual services for people in health care and carceral institutions. These same benefits were later extended to other Churches through a different law and coexist with the constitutional norm (Article 19) declaring that neither the Union nor States nor municipalities can establish or subsidize any religion or Church. Today, the three modes of disestablishment, anticlericalism, laicidad and friendly cooperation, continue to shift in Latin American constitutional law. Multiple constitutional reforms, laws, and interpretations adopt different definitions of disestablishment, redefining what they mean by secular. Increasingly, the influence of US constitutionalism, with its conservative defense of nondenominational Christianity in the State, and with its strong version of religious freedom, supports the friendly cooperation model of disestablishment. Conservative commentators applaud these changes as a “modernization” of Church–State relations, an adoption of a “positive” laicidad, and as being more in line with a human rights understanding of religious freedom than the “old” version (Prieto 2009). This is echoed by the Catholic Church’s commitment to the friendly cooperation model of disestablishment, and its vigorous advocacy for robust religious freedoms. The following section explains how friendly cooperation is the background for an increasingly robust interpretation of religious freedom, sidelining the primacy of its more discreet version in the Latin American laicidad regime of disestablishment.

V. CONCEPTS OF RELIGIOUS FREEDOM AND MODES OF DISESTABLISHMENT Unlike separation of Church and State, religious freedom has not been a much-debated issue in Latin American constitutionalism. It is generally accepted that its meaning is derived from disestablishment: under a regime of establishment, religious freedom of non-Catholics was severely curtailed, and disestablishment reforms enshrined the principle of religious freedom as a liberal right that limits the privileges of a formerly established Church. Therefore, the scope of religious freedom depends on the scope of disestablishment, and concerns especially those who, through a different faith or through disbelief, were historically vulnerable to discrimination and exclusion under Catholic establishment.

Modes of disestablishment in Latin America

219

Anticlerical disestablishment extended Catholic intolerance to other religions to Catholicism itself, almost as a mirror image. Under Catholic establishment, other religions were limited to the private realm, when they were not outright banned, and their public cult was forbidden. Non-Catholics were excluded from government. Under the more ferocious anticlericalism Catholicism suffered the same fate: Catholicism was banned from the public sphere and the clergy was excluded from politics. Famously, the initial anticlerical measures of the Mexican revolution, leading to the 1929 Cristeros rebellion, banned the wearing of religious habits in public and public manifestations of faith and declared all Church property, including places of worship, to be owned and controlled by the State. These constitutional measures were taken against a background of revolutionary violence against religious symbols and clergy, a violence that mimicked and exceeded the worst excesses of Catholics against non-Catholics. Religious freedom was therefore severely curtailed. Laicidad regimes, on the other hand, understood themselves as the protectors of religious freedom. Laicidad is the banner of a State that treats all faiths equally, and initially this meant non-Catholics could now exercise the same religious liberties as Catholics and for liberals progress was sometimes defined as the openness of a country to non-Catholics. The passing of the registry into public hands allowed equality of all marriages, and eventually equality of children born out of wedlock with those born to married couples, as well as the possibility of non-Catholics attending public schools without being forced to receive Catholic religious education, and of non-Catholics (including people committing suicide and other grave sinners) to be buried in public cemeteries. This, for example, ended the common practice of a separate Protestant cemetery and protected Jewish communities, and symbolized the religious freedom protected by laicidad. However, increasingly, Catholic advocates insist the disestablishment regime of friendly cooperation is the only proper protection of religious freedom. They tend to conflate anticlericalism and laicidad as a single regime described as laicismo,29 and claim the elimination of public signs of worship and the limitation of religious privileges are a form of harassing people for their faith. They also claim the adoption of laws that clash with their faith (such as same-sex marriage laws) is a source of 29 This reframing can be traced back to John Paul II’s numerous statements against an atheist secularization that would exclude God and natural moral law from human life. See e.g. https://w2.vatican.va/content/john-paul-ii/en/speeches/ 2002/june/documents/hf_jp-ii_spe_20020622_costituzione-europea.html.

220

Comparative constitutional law in Latin America

violations of religious freedom, especially that of public officials forced to hide their deeply held beliefs, and who may even be required to act in violation of these beliefs. The link between friendly cooperation and religious freedom requires further examination for it reveals the paths taken by the globalization of constitutional law in dialogue with local legal traditions. The right to religious freedom is a central right for the foundation of the United States, fiercely protected by both Democrats and Republicans as representative of their constitutional values. During the Cold War, the United States exercised enormous international pressure to enshrine religious freedom in international law as a particular human right violated by the Soviet Union. More recently, the growing influence of conservatives in the United States has also reshaped the right to religious freedom there. Generally protected by both liberals and conservatives, it has been increasingly redefined by the latter to include a growing deference to religious beliefs and religious institutions.30 In 2014, for example, this expansion included the possibility for corporations to claim religious exemptions from laws of general applicability and the constitutionality of Christian prayer in public spaces beyond traditional legislative nondenominational prayer.31 These trends in the United States are amenable to the Catholic Church’s own understanding of the right to religious freedom as a God-given right, founded on universal moral law, and accessible to reason (Carozza and Philpott 2012, p 36). The history of this definition is rooted in the Church’s traumatic experience of disentangling itself from States’ patronage rights, attempting to maintain its wealth and influence at a distance from temporal powers that abused establishment. This traumatic experience is perhaps best captured in the Vatican’s relationship with the Italian State, which, after taking over the extensive Papal States and leaving the Vatican confined to a few blocks within the city of Rome, today recognizes the Catholic Church as a sovereign entity. This sovereign entity is different from the Italian State, not only in terms of 30 In 1992 the United States, like Latin American countries, adopted a law favoring religion: Religious Freedom Restoration Act of 1993, 42 U.S.C. §§ 2000bb a, 2000bb. There is an ample literature spearheading conservative interpretation of religious freedom. See, for example, McConnell (1990); Green (2010); Hamburger (2002); and Witte and Nichols (2010). For a liberal analysis of this trend see Koppelman (2013) and Chemerinsky (2010, pp 101–34). 31 For the leading cases see Burwell v. Hobby Lobby Stores, Inc., No. 13-354, slip op. (U.S. June 30, 2014) and Town of Greece, N.Y. v. Galloway, No. 12-696, slip op. at i (U.S. May 5, 2014).

Modes of disestablishment in Latin America

221

territoriality (in the sense that the Vatican City is an independent territory within Rome) but in terms of the recognition of Church sovereignty within Italian territory.32 Thus religious freedom is much more than the right of individuals to have their beliefs: it is the right of the Church, as a sovereign entity, to be independent from the State, a society that is distinct from civil society, with its own authorities and its own laws.33 For the Church, its sovereignty and religious freedom are inextricable, because sovereignty justifies a very robust Church right to religious freedom. It was the aspiration to a robust religious freedom that convinced the Catholic Church to accept disestablishment in Catholic countries, which it did in the mid-20th-century meeting known as Vatican II. Proponents of the separation within the Church, especially the American priest John Courtney Murray, argued successfully in Vatican II that disestablishment benefited the Church when religious freedom guaranteed the independence of the institution as it did in the United States; the United States concept of religious freedom was the model. Dignitates Humanae (1965), Vatican II’s declaration on religious freedom, offers three concurring definitions of this right (at 3):34 first, religious freedom as individual liberty of conscience; second, religious freedom as a protection of the social expression of conscience in collective acts of religion; and third, religious freedom as protecting religion generally, creating the duty for governments to “show it favour” as a human good transcending temporal affairs and temporal governments. In the last definition, “favour” entails friendly cooperation between the State and the Church, and the recognition of Church sovereignty. Religious freedom as showing the Church favor, however, 32

The Italian Constitution states in its Article 7: “The State and the Catholic Church are independent and sovereign, each within its own sphere. Their relations are regulated by the Lateran pacts. Amendments to such Pacts which are accepted by both parties shall not require the procedure of constitutional amendments.” 33 Arguably, this understanding of Church–State separation as grounded on Church sovereignty explains the hierarchy’s reluctance to turn priests over to civil authorities even when priests commit crimes such as the rape of children. 34 This definition is also reflected in Canon law. Canon law defines the religious freedom of the Church as the right to preach and teach, the right to collective worship, the right of the Church to have its own rules and its own authorities, the right of the Church to pass judgment in temporal matters, the right to form educational, religious, and cultural associations, to own property and use it as it sees fit (Can. 747). It also includes the right of freedom of conscience defined as the individual and institutional right not to be pressured to perform acts that violate religious beliefs.

222

Comparative constitutional law in Latin America

directly rebuts not only the possibility of anticlerical constitutional provisions but laicidad and more generally any disestablishment different from friendly cooperation. For example, it challenges the provisions in liberal Latin American constitutions that explicitly declare the general laws of the nation to limit the right of religious freedom. It also calls for debate on whether freedom of religion can be balanced with other constitutional rights, or must always be given primacy. These considerations are gaining more traction as the fights over the meaning of religious freedom move to the realm of sexual and reproductive rights, for example to conscientious objection to the provision of abortion services. More generally, religious freedom defined as a form of Church sovereignty seems to be destined to extend itself to a renewal of Church government of private life, as a different realm from the public realm governed by the State, in the terms first identified by Simón Bolívar.

VI. DISESTABLISHMENT, RELIGIOUS FREEDOM, AND CONFLICTS OVER SEXUAL AND REPRODUCTIVE RIGHTS The conflict over sexuality and reproduction, and their constitutional dimension, remain conflicts over disestablishment. Conservatives have very actively advocated for a shift away from disestablishment as laicidad, and toward friendly cooperation as a “modernization” of Church–State relations, an adoption of a “positive” laicidad and as being more in line with a human rights understanding of religious freedom than the “old” version (Prieto 2009). The goal is a sovereign Church with political influence, reflecting the Church’s natural rights and, they argue, compatible with a liberal democracy. Feminist and LGBTI activists interpret this definition of religious freedom and of disestablishment as a threat to freedom in private life, especially the freedom to depart from Church teachings on sexuality and reproduction. In the transition from the twentieth to the twenty-first century the Church’s political forces focused on fighting the changes in sexual culture and values. Conservative forces within the Church were reinvigorated under Pope John Paul II35 and Benedict XVI,36 and remain 35 See John Paul II Mulieris Dignititatem (1986) and Congregation for the Doctrine of the Faith (1986). 36 See for examples of Benedict’s statements Donadio (2008) and Benedict XVI (2006).

Modes of disestablishment in Latin America

223

powerful under Francis I.37 In the last decades the Catholic Church has rallied its political powers on a single common commitment: to directly oppose and block any legal change liberalizing sexual mores. Initially this struggle included a radical opposition not only to abortion, but also to sexual education in school, divorce, and remarriage in civil law, and to the use of scientific methods of family planning. In the twenty-first century, however, Catholic resistance refocused on the opposition to the liberalization of attitudes toward abortion and homosexuality (Lemaitre 2009, 2010, 2013; Vaggione 2005, 2013; Mujica 2005). Abortion-related activism has expanded to new and related issues, such as emergency contraception and assisted reproduction, under the banner of bio-ethics, issues that are thinly veiled as different from abortion, but that revolve around the same claims of human personhood from the moment of conception. The Church has also rallied opposition to emerging claims for the recognition of rights to same-sex couples, linking abortion and homosexuality to the radical rejection of both in conservative sexual theology.38 Perhaps the most pressing concern for contemporary calls for disestablishment is the Catholic Church’s activism against sexual and reproductive rights. Even under Pope Francis, reputedly less socially conservative than his predecessors, Church authorities oppose liberal legislation on a daily basis.39 The Church’s activism exists against the backdrop of already problematic aspects of its dogma, such as discrimination against women within the Church, the poor control and monitoring of systemic

37

Church activism has not diminished with Pope Francis. See e.g. Vaggione (2015.) 38 John Paul II was the first modern Pope to develop a theological position on women, arguing traditional gender roles express God’s will (known as the theology of the body). See also John Paul II Mulieris Dignititatem (1986). Benedict XVI further, as the leader of the former Inquisition, the Congregation for the Doctrine of the Faith, led not only the crackdown on leftist liberation theology, but also awareness of homosexual desire as “a tendency to evil.” See Congregation for the Doctrine of the Faith (1986). 39 A further example of internal division is the difference among bishops and priests in the importance they give to activism on sexuality and reproduction. Notable among these is the widely covered remark by Pope Francis that he did not have the authority to judge homosexuals. In 2014 the very conservative Peruvian Church did not join a march against same-sex civil unions, announcing they wanted to concentrate on opposition to the decriminalization of abortion (Atencio 2014).

224

Comparative constitutional law in Latin America

sexual abuse of children, lack of internal democracy and severe difficulties controlling corruption within the Vatican itself.40 But it also exists against the backdrop of a particular national history that varies in each country, a history in many cases marked by the powerful political presence of the Catholic Church, its many privileges, its alliance with conservative parties, and its long-time tension with liberalism. This chapter has argued that this history explains why Latin American defenders of sexual and reproductive rights remain wary of the Church and its definitions of disestablishment and religious freedom, and why they are quick to demand respect for separation of Church and State every time the Church advocates for conservative laws. Like their nineteenth-century lineage, these defenders are liberals who identify the Church as an institutional threat to individual freedoms. Outspoken clergymen who defend restrictive laws on sexuality and reproduction, and who do so every day, feed into liberal hostility toward organized religion, and a regional revival of anticlerical sentiment in struggles over sexual and reproductive rights. However they play out, the end result of these struggles is bound to change the meanings of constitutional texts, and perhaps even the letter of the text, in the regional tradition of permanent constitutional reform.

REFERENCES Aguilar, José Antonio. 2000. En pos de la quimera: Reflexiones sobre el experimento constitucional atlántico. Mexico City: Fondo de Cultura Económica. Amuchastegui, Ana, Guadalupe Cruz, Evelyn Aldez and Maria Consuelo Mejia. 2010. “Politics, Religion and Gender Equality in Contemporary Mexico.” Third World Quarterly 31(6): 989–1005. Atencio, R. 2014. Iglesia Católica no marcharía contra la ley de unión civil. Correo del Peru. May 19, 2014. http://diariocorreo.pe/ultimas/noticias/ 9560771/edicion+huancayo/iglesia-catolica-no-marcharia-contra-ley-de. Accessed June 10, 2015. Blancarte, R. 1992. Historia de la Iglesia Católica en Mexico. Mexico City: Fondo de Cultura Economica. Carozza, P. and D. Philpott. 2012. “The Catholic Church, Human Rights and Democracy: Convergence and Conflict with the Modern State.” Logos, 15(3): 15–43. 40 These conflicts have been widely covered by the international press. See for example The Guardian (2010), El Mundo (2014).

Modes of disestablishment in Latin America

225

Cancino, Karla. 2014. Arrecia Iglesia Católica en Xalapa campaña contra ley de convivencia. Diario de Xalapa, May 5, 2014. http://www.oem.com.mx/ diariodexalapa/notas/n3380461.htm. Accessed June 10, 2015. Casanova, José. 1994. Public Religions in the Modern World. Chicago, IL: University of Chicago Press. Chemerinsky, Erwin. 2010. The Conservative Assault on the Constitution. New York: Simon and Schuster. Chiassioni, Paolo. 2013. Laicidad y libertad religiosa. Mexico City: UNAM. Crahan, Margaret. 1985. “Cuba: Religion and Revolutionary Institutionalization.” Journal of Latin American Studies 17: 319–340. Dussell, E. 1981. The Church in Latin America From Colonialism to Liberation Theology. Grand Rapids, MI: Eerdsman Publishing. El Mundo. 2014. El Papa Francisco decide que Banco Vaticano permanezca operativo. El Mundo Madrid, España, May 7, 2014. http://www.elmundo.es/ internacional/2014/04/07/53426099e2704edd648b456f.html. Accessed June 10, 2015. Gargarella, Roberto. 2005. Los fundamentos constitucionales de la desigualdad. Buenos Aires: Siglo XXI. Gargarella, Roberto. 2014. La sala de máquinas de la constitución. Buenos Aires: Katz Editores. Green, Steven K. 2010. The Second Disestablishment: Church and State in Nineteenth-Century America. Oxford: Oxford University Press. Hamburger, Philip. 2002. Separation of Church and State. Cambridge, MA: Harvard University Press. Kleiber, Jeffrey. 2009. “Peru Evangelization and Religious Freedom.” Pp. 253– 268 in Religious Freedom and Evangelization in Latin America: The Challenge of Religious Freedom, edited by Paul E. Sigmund. Maryknoll, NY: Orbis Books. Koppelman, Andrew. 2013. Defending American Religious Neutrality. Cambridge, MA: Harvard University Press. La Prensa. 2014. Iglesia Católica reitera oposición a la píldora del día después. La Prensa, Tegucigualpa, Honduras, April 24, 2014. http://www.laprensa.hn/ lasultimas24/693292-98/iglesia-católica-reitera-oposición-a-la-p%C3%ADldoradel-d%C3%ADa-después. Accessed June 10, 2015. La República. 2014. Unión civil enfrenta a Iglesia Católica con Vargas Llosa. La República, Lima, Peru, April 23, 2014. http://www.larepublica.pe/23-04-2014/ union-civil-enfrenta-a-iglesia-catolica-con-vargas-llosa. Accessed June 10, 2015. Lemaitre, Julieta. 2009. “Anticlericales de nuevo.” Pp. 286–304 in Derecho y Sexualidades, edited by L. Peroni. Buenos Aires: Libraria. Lemaitre, Julieta. 2010. “By reason Alone: Catholicism, Constitutions and Sex in the Americas.” International Journal of Constitutional Law 10(2): 493–511. Lemaitre, Julieta. 2013. Laicidad y Resistencia. Mexico City: UNAM. Lynch, J. 2012. New Worlds: A Religious History of Latin America. Oxford: Oxford University Press. McConnell, Michael W. 1990. “Free Exercise Revisionism and the Smith Decision.” University of Chicago Law Review 57(9): 1109–1153.

226

Comparative constitutional law in Latin America

Mecham, J.L. 1966. Church and State in Latin America: A History of PoliticoEcclesiastical Relations. Chapel Hill, NC: University of North Carolina Press. Milenio. 2014. Arzobispo se pronuncia a favor del derecho a la vida. Milenio, May 25, 2014. http://www.milenio.com/region/Iglesia_catolica_Monterreyderecho_a_la_vida-aborto-eutanasia-Congreso_local-iniciativa_de_reforma_0_ 305369559.html. Accessed June 10, 2015. Mujica, Jaris. 2005. Economía política del cuerpo. La reestructuración de los grupos conservadores y el biopoder. Lima: Fondo de Población de las Naciones Unidas, Centro de Promoción y Defensa de los Derechos Sexuales. Prieto, Vicente. 2009. “La laicidad positiva del Estado colombiano.” Pensamiento y Cultura 12(1): 39–65. RCN. 2014. “Choque entre Iglesia y ONG por decisiones congreso a favor del aborto.” RCN Radio, May 7, 2014. http://www.rcnradio.com/noticias/choqueentre-iglesia-y-ongs-por-decisiones-del-congreso-favor-del-aborto-135066. Accessed June 10, 2015. Reuters. 2015. Pope Opens Church; Welcoming Church But No Gay Marriage. http://www.reuters.com/article/us-pope-synod-idUSKCN0RY0BT20151004? feedType=RSS&feedName=topNews#29zu6b9wyEfA2J1z.97. Accessed October 31, 2015. Ruibal, Alba. 2014a. “Movement and Counter Movement: A History of Abortion Law Reform and Backlash in Colombia 2006–2014.” Reproductive Health Matters 22(44): 42–51. Ruibal, Alba. 2014b. “Feminismo frente a fundamentalismos religiosos mobilizacion e contramoblizacao em torno dos diereitos reprotutivos na America Latina.” Revista Brasilera de Ciencia Politica 14: 111–138. State Department. 2013. Report on Religious Freedom around the World, State Department: Washington D.C. The Guardian. 2010. Rebel U.S. nuns in showdown with Vatican over women’s role. June 9, 2010. http://www.theguardian.com/world/2012/jun/09/vaticanshowdown-america-liberal-nuns. Accessed October 31, 2015. Vaggione, J.M. 2005. “Reactive Politicization and Religious Dissidence: The Political Mutations of the Religious.” Social Theory and Practice 31(2): 233–255. Vaggione, Juan Marco (ed). 2009. El activismo religioso conservador en Latinoamerica. Buenos Aires: Católicas por el Derecho a Decidir. Vaggione, Juan Marco. 2013. Laicidad y Sexualidad. Mexico City: UNAM. Vaggione, Juan Marco. 2015. The Challenges of a “Progressive” Pope. June 26, 2015, Sexual Policy Watch. http://sxpolitics.org/the-challenges-of-progressivepope/13100. Accessed December 7, 2015. Witte, John and Joel A. Nichols. 2010. Religion and the American Constitutional Experiment. Boulder, CO: Westview Press.

10. Judicial role and the limits of constitutional convergence in Latin America David Landau An important recent literature explores the convergence thesis in comparative constitutional law – a claim that the constitutional law of different countries is becoming increasingly similar through time. Convergence theorists often point to high-level factors stemming from judges, international institutions, and ordinary citizens or political actors as spurring this movement. Many of these high-level factors are present in Latin America. Courts across the region have been influenced by the currents of “new constitutionalist” thought, constitutional judges increasingly engage in dialogue, international human rights institutions have gained power, and citizens and civil society groups increasingly push for the effective realization of human rights. Scholars seeking evidence for the convergence thesis have focused largely at the level of constitutional text, asking, for example, whether the same kinds of rights are increasingly showing up in nearly all constitutions. However, for many purposes the more relevant – if more complex – level of analysis is the actual enjoyment of rights by citizens, or at least the enforcement of rights by judiciaries. This chapter makes a modest effort to carry out such an inquiry by analyzing two recent issue areas of great importance in Latin America: same-sex marriage and socioeconomic rights. These are both areas replete with high-level pressures towards convergence at the regional level. Nonetheless, a close look at recent judicial decisions demonstrates that judicial approaches within Latin America continue to vary widely. In particular, courts use conceptions of justiciability, as well as differing remedial approaches, to modulate whether and how these rights have been recognized. Thus, for example, while nearly all constitutions within the region include socioeconomic rights to goods like health and housing, some courts have made these rights nearly non-justiciable, while the 227

228

Comparative constitutional law in Latin America

courts enforcing the rights have done so using a number of different interpretive and remedial approaches, with wildly varying effects. The concept of judicial role is useful as a partial explanation for this ongoing resistance to convergence at the level of actual enforcement of rights. Despite important commonalities in legal culture across Latin America, high courts in the region in fact vary widely in terms of their historical trajectories, design, the political contexts in which they operate, and idiosyncratic factors such as the backgrounds and interests of individual judges. These factors in turn shape the orientation of a high court towards rights enforcement and other tasks. It would be wrong to essentialize these differences by ignoring the heterogeneity and dynamic nature of any conception of judicial role, but at the same time it is undeniable that there are sweeping differences between the role conceptions of different judiciaries within Latin America. The four factors that are chiefly responsible for shaping judicial role – history, politics, design, and idiosyncratic influences – show little sign of converging across different Latin American countries. Instead, factors like the historical role of the judiciary in public law matters, the political context in which courts operate, and even the design and powers of high courts continue to differ in substantial ways. Thus, conceptions of judicial role are unlikely to converge within the region, and given ongoing divergence in judicial role, judicial interpretations of rights may also be likely to continue to resist pressures towards convergence. At the least, scholars and policymakers interested in promoting convergence will need to attend to the problem of judicial role. The rest of this chapter is organized as follows. Part I situates the piece in the convergence literature by pointing out that many of the high-level theoretical mechanisms thought to promote convergence are present in Latin America. It also argues that for many purposes, the existence of convergence may better be studied at the level of judicial enforcement of rights rather than more abstract or high-level measures like constitutional text. Part II considers the landscape of convergence in judicial enforcement of rights across two issue areas of great recent relevance to Latin America, same-sex marriage and socioeconomic rights. Part III conceptualizes the idea of judicial role and explains how major differences in judicial role shape practice across countries including Chile, Mexico, Colombia, and Brazil. Finally, Part IV concludes by raising the ways that differences in judicial role complicate the efforts of actors pushing convergence and, more broadly, by suggesting that the sharp differences in judicial role found within the region may suggest limits on the desirability of convergence as a normative goal.

Judicial role

229

I. THE CONVERGENCE THESIS The claim that constitutional law is converging across countries is in my view a claim that the content of constitutional law is becoming increasingly similar across countries. This means more than what Vicki Jackson (2009) calls engagement, which is the weaker claim that constitutional courts across the world will be in contact with one another and show awareness of each other’s decisions. It may mean less than uniformity, which would be the claim that constitutional systems will look the same over time. There are at least three different kinds of theories positing convergence in comparative constitutional law. First, there is a demand-side story under which globalization increases competition between countries for both capital and skilled workers, and this competition creates a “race to the top” in areas like human rights and property rights (Law 2008). A second literature posits a supply-side story as driving convergence: The key actors are judges, who communicate via conferences, conversations, or precedent across countries in order to find common solutions to legal problems (Tushnet 2009; Slaughter 2003). A third relevant literature identifies the international community as a significant source of pressure for convergence. For example, international human rights tribunals in some regions have had an increasingly dramatic impact on domestic constitutional law, and other instruments like international treaties may also spur constitutions towards convergence (Elkins, Ginsburg, and Simmons 2013). Dixon and Posner (2011) have pointed out that each of these pathways is contingent in ways that may limit the amount of actual convergence that is going on. For example, skilled workers and mobile capital might push only for a relatively narrow set of rights (say, protection of property rights and broader protections for expatriate workers), rather than seeking protections for the overall domestic population. Or governments with poor human rights records might cabin pressures by establishing courts that protect economic interests and the rule of law without promoting constitutional or human rights (Moustafa 2007; Silverstein 2003). The judge-led and international institution-led stories depend on similar contingencies: the extent to which judges actually seek and are able to learn from each other, for example, and the strength and nature of the interface between international and domestic law. One possibility is that scholars might find more of these contingencies met at the regional rather than global level. At least at a high level of abstraction, each of the pathways noted above seems to have some

230

Comparative constitutional law in Latin America

support regionally within Latin America. In the aftermath of widely repudiated military regimes throughout most of Latin America in the 1970s and 1980s, citizens and NGOs have developed a sense of the importance of human rights. Both scholars and judges have been heavily influenced by the “new constitutionalism” which has swept through the region and given a rights-centered and principle-centered constitutionalism priority over other branches of law (Couso 2010). Doctrinal tools like proportionality seem to have migrated quickly and easily across national boundaries. Finally, the regional human rights systems, the Inter-American Commission and Court of Human Rights, have become increasingly influential. Many domestic states within the region have adopted incorporation clauses requiring judges to interpret human rights clauses of their constitution in light of international human rights and/or the jurisprudence of the Inter-American Court (Gongora Mera 2011, p 89). All of these factors make the convergence claim an intriguing and important one for scholars working on Latin America. Evidence for the convergence thesis is still underdeveloped. However, several important studies over the past several years have focused on the content of constitutional texts globally, and these studies find some support for the claim. In a quantitative study of constitutions from 1946 to 2006, Law and Versteeg (2011) find that a core group of rights like freedom of expression and religion, as well as equality, was becoming “generic” through inclusion in almost all constitutions, although they find that constitutions diverge more as to whether they are “statist” or “libertarian” in their economic ideology. Similarly, Elkins, Ginsburg, and Simmons (2013), using a quantitative database of constitutions promulgated between 1789 and 2006, find a core of relatively universal rights included in almost all modern constitutions, and also show that the post-World War II human rights instruments exercised a heavy influence on which kinds of rights were included in domestic constitutions. For example, rights included in the Universal Declaration of Human Rights spread quickly after its promulgation, while rights excluded did not share the same trajectory. Of course, evidence at the level of constitutional text leaves open key questions about the actual enjoyment or exercise of rights by citizens in the country. Some work finds such a link at a broad level: Countries with rights in their constitutions have higher scores on human rights indices associated with these rights.1 Other empirical work suggests that the 1 Law and Versteeg (2011) use quantitative analysis to compare the existence of 15 constitutional rights with a country’s performance in upholding those

Judicial role

231

relationship may depend on the kind of right involved. Chilton and Versteeg (2015) find a relationship between textual rights and actual enjoyment of rights only for rights that tend to spur the development of organizations that will defend those rights. The complex and uncertain nature of the relationship between constitutional text and actual enjoyment of rights should lead scholars interested in convergence to focus more on the question of how rights are actually interpreted and enforced across countries. This is because textual convergence has limited intrinsic value, while convergence in the actual enjoyment of rights by citizens across countries is intrinsically important. Such a move of course leaves many important questions open: It is unclear whether academics should focus mainly on judges or instead study alternative mechanisms through which constitutions might impact the level of enjoyment of rights. Moreover, studies of constitutional convergence below the textual level are likely to be methodologically challenging, and in particular may require qualitative rather than quantitative analysis. The next section of this chapter is a modest attempt to evaluate the extent and causes of convergence in enjoyment of rights in Latin America. Of necessity, the effort is partial and focuses on two rights of recent interest – same-sex marriage and socioeconomic rights. The analysis focuses on courts and thus may underplay non-judicial mechanisms pushing towards convergence. Nonetheless, the analysis suggests that enduring differences in judicial role are an important factor in causing Latin American courts to resist pressures towards convergence despite the existence of high-level factors within the region favoring convergence.

II. TWO EXAMPLES: SAME-SEX MARRIAGE AND SOCIOECONOMIC RIGHTS This section uses two examples to make a case that judicial role is an important factor in limiting or resisting convergence in Latin America. The first example, same-sex marriage, is interesting because there seem to be high-level factors on both the demand side (changes in culture) and rights. Overall, they find a fairly high level of compliance. Elkins, Ginsburg, and Simmons (2013) find that ratification of the International Covenant on Civil and Political Rights has both an effect on the civil liberties found in constitutions, which themselves are associated with higher scores on the civil liberties index constructed by Freedom House, and a direct effect on scores in that index.

232

Comparative constitutional law in Latin America

supply side (migration of reasoning templates) pushing convergence. The second, socioeconomic rights, is worth exploring because there is a high degree of textual convergence within the region – almost all major constitutions in Latin America include rights to health, housing, and social security. Nonetheless, when one explores judicial enforcement practices, significant differences have persisted across both issue areas. As I argue in more detail in the next section, these continuing divergences are largely a consequence of factors linked to domestic conceptions of judicial role. A. Same-sex Marriage Despite the traditional conservative Catholicism of Latin America, samesex marriage has spread quite quickly throughout the region over the past decade. At first glance, the story seems to fit the basic contours of the convergence thesis quite well. On the demand side, civil society groups favoring gay rights and same-sex marriage have developed, as have demands from economic actors (Piatti-Crocker 2013). Judges throughout the region have increasingly adopted reasoning templates that are receptive to both liberty and equality-based arguments in favor of same-sex marriage (Saez 2014). This has plausibly been aided by the flexible nature of these arguments, which are consistent with a range of judicial approaches to equality and other norms. Finally, while international institutions both inside and outside the region have not yet required same-sex marriage, they have issued decisions protecting gay rights and reinterpreting the family as a social reality rather than requiring that it take any particular form. At the same time, it is noteworthy that pressure towards convergence has occurred without many changes to constitutional texts. In Argentina and Uruguay, recognition of same-sex marriage proceeded at the legislative level via the Civil Code. In Brazil, Colombia, and Mexico, as analyzed in more detail below, courts have ordered movement towards same-sex marriage with pre-existing constitutional texts that are either neutral or seemingly hostile to same-sex marriage. In Colombia, for example, Article 42 of the Constitution states that the family “is constituted by the free decision of a man and woman to contract marriage or the responsible will to confirm it.”2 A comparison of constitutional 2 The Mexican constitutional text is more ambiguous. Article 4 states: “Men and women are equal before the law. The organization and development of the family will be protected. All people have the right to decide in a free, responsible, and informed way on the number and spacing of their children.”

Judicial role

233

texts would thus miss much of the movement towards same-sex marriage in Latin America. Despite high-level pressures towards convergence, the responses of courts have shown considerable variance. Several courts have resisted the trend by explicitly rejecting cases calling for recognition of same-sex marriage. For example, the Costa Rican Constitutional Chamber in Decision 7262 of 2006 rejected a claimed right to same-sex marriage on the grounds that opposite-sex and same-sex couples were not in a situation of equality before the law, although it did call on the legislature to regulate the area. The rejection is striking in light of its otherwise aggressive and well-known jurisprudence in favor of minority groups in general and gay rights in particular.3 In contrast, the Chilean judiciary is among the most conservative and passive in the region – it is well known for having historically weak judicial review and a weak Constitutional Tribunal. In Decision 1881-10-INA of 2011, the Constitutional Tribunal held that it had no power to hear a challenge to the relevant provisions of the Civil Code, because the relevant constitutional procedure only had power to set aside existing provisions of law, rather than to take positive actions to create a new regulatory system. The Tribunal also stated that the regulation of marriage was an essentially legislative matter. Subsequently, the Chilean Parliament recognized civil unions in 2015, but not same-sex marriage. Perhaps more interesting are the strategies used by those courts that have sought to recognize the right. The Mexican decisions are an example of a slow-motion constitutionalization of same-sex marriage in the face of significant political resistance. In a first step in 2010, the Mexican Supreme Court upheld a law legalizing same-sex marriage in Mexico City against challenges from the National Attorney General that the measure violated the definition of marriage found in the federal constitutional text (Lozano 2013, p 162). Subsequently, since 2012, panels of the Supreme Court have issued a series of individualized amparo judgments against state constitutional provisions defining marriage as between a man and a woman. More recently, the Court has also struck down attempts – such as the one in Colima – to create an alternative regime for same-sex marriage that was not labeled marriage. 3 In 2010, the Court struck down a referendum that would have recognized civil unions because it found that the referendum device contained insufficient safeguards for minority groups and was backed by groups who wanted the referendum to fail. It thus would have “prolonged the structural discrimination against homosexuals”: see Decision 10-013313, Aug. 10, 2010, at § IX.

234

Comparative constitutional law in Latin America

As a matter of design, however, these amparo decisions bound only the parties to the case and thus constitutional change proceeded slowly. Mexican law allows for the creation of precedent through the accumulation of five identical theses in amparo cases, but this left open certain ambiguities (for example whether these precedents needed to be accumulated separately for each state’s constitution). Finally, in June 2015, the Court issued a jurisprudential thesis (number 43/2015) stating that all state constitutional provisions disallowing same-sex marriage were violations of the federal Constitution. This should allow same-sex couples located anywhere in Mexico to marry by filing an amparo and receiving a judicial order. Most states continue to lack legal regulations of the issue and moreover will refuse to allow same-sex marriage without such an order. In Colombia, the Constitutional Court responded creatively – although ultimately with only limited success – to similar forms of political resistance. The Court issued a landmark ruling in Decision C-075 of 2007 when it recognized same-sex marital unions in fact (a kind of common law marriage) in a decision issued by a conservative justice. It subsequently issued a number of other decisions equalizing many property rights and similar issues between same-sex and opposite-sex couples. In 2011, the Court declined to order same-sex marriage but instead in Decision C-577 of 2011 held that there was a “deficit of protection” in that opposite-sex couples could formally marry while same-sex couples could not. The Court issued an unusual and creative remedy: It modulated the effects of its decision for two years, thus giving the legislature a chance to resolve the deficit. Failing legislative action within that timeframe, it held that couples could go to notaries to “formalize” their relationships. Because of fierce resistance, the Congress did not legislate within the two-year window, and the Court has delayed issuing a clear ruling recognizing same-sex marriage. Thus, while individual judges and notaries have celebrated same-sex marriages in reliance on the Court’s 2011 decision, the legal status of same-sex marriage remains somewhat murky in Colombia. Congressional attempts to regulate the issue have proven impossible because of continuing resistance. The reasoning of the Mexican and Colombian judgments recognizing a right to same-sex marriage show striking similarities. Both courts used some form of increased scrutiny of laws discriminating against same-sex couples on the grounds that they have been a class of people historically subject to discrimination. Both courts also relied on a conception of equality that was not simply formal but also material. Both courts have referred to a constitutional conception of the family – taken from the European Court of Human Rights – as a social reality rather than in a

Judicial role

235

fixed or traditional form. Finally, both courts have referred to rights to the free development of personality or, in other words, to liberty interests behind same-sex marriage. The case of same-sex marriage thus suggests that pressures towards convergence at the level of reasoning may be meeting more localized conceptions of judicial role at the level of remedy. The courts in Chile and Costa Rica that declined to order same-sex marriage did so citing concerns about institutional competence rather than hostility towards the right. Similarly, the courts in Colombia and Mexico that were favorable to the right nonetheless have had only slow and modulated impacts on their political regimes because of factors like the design of legal mechanisms and the courts’ relationship with the political branches. What is unclear at this stage is the end result. For the time being, Latin America demonstrates a tableau of different responses on the same-sex marriage issue, both in terms of whether marriage, civil unions, or neither are recognized and in terms of which branch of government is spearheading change. However, it may be that these differences only exist as to the pace of change, rather than as to its direction or nature. B. Socioeconomic Rights Socioeconomic rights are a dramatic example of an issue where it would be nearly impossible to argue that differences merely concern the pace of change. Instead, variations in patterns of judicial enforcement seem to go to the very nature of these rights. Most major constitutions within the region recognize socioeconomic rights. For example, the constitutions of nearly all countries in Latin America include rights like health, education, and housing (Uprimny 2011, p 1591). These rights have been included in Latin American constitutions in a number of different historical contexts and within a number of different ideological traditions, including the revolutionary and programmatic Mexican Constitution of 1917, the right-wing and Catholic Chilean Constitution of 1980 (written by a military dictatorship), and the 1991 Colombian Constitution, a social democratic document written in the midst of deep civil conflict. It is nonetheless striking that this homogeneity at the level of constitutional text has been accompanied by extraordinary variation in terms of the level and nature of justiciability. Put another way, the fact that a constitutional text within the region enshrines socioeconomic rights tells us virtually nothing about how the judiciary handles those rights in practice. First, there are countries with a durable tradition of non-judicial enforcement of socioeconomic rights despite the textual inclusion of

236

Comparative constitutional law in Latin America

these rights. In Mexico, for example, social rights are considered a central part of the 1917 Constitution but nonetheless have historically been excluded from enforcement via the amparo. The Court has used principles of standing and pronouncements about the programmatic character of these rights to make them judicially unenforceable and thus to leave their development to the political branches (Zamora et al. 2005, p 251). Similarly, the Chilean judiciary has historically made it extremely difficult to enforce socioeconomic rights via the recurso de proteccion. For example, in a series of cases where plaintiffs suffering from HIV sought protection for the right to health via the recurso de proteccion, the Supreme Court cited the constitutional text excluding the right to health from the ambit of the instrument and referred more broadly to a conception that rights to health provided guidance for the political branches but were not subject to judicial control (Contesse and Lovera 2008). Thus, the right to health was judicially unenforceable even when litigants attempted to link it to the right to life. In both countries, movement away from this non-justiciability position has been slow and halting, although some movement has occurred.4 Perhaps a more fundamental point is the great variation between the countries where the socioeconomic rights have been held justiciable. As I have noted in prior work, courts protecting socioeconomic rights can choose between a number of different kinds of remedial approaches (Landau 2012). Courts can provide individual remedies to individual plaintiffs, providing them, for example, with a medical treatment or medicine. Courts can also use socioeconomic rights as a method for protecting the status quo, for example by striking down laws that attempt to cut social benefits for the broad population or for certain groups. Finally, courts can issue different kinds of structural remedies that attempt to work broader changes in social programs. These include “weak-form” review such as the famous South African case of South Africa v Grootboom, 2001 (1) SA 46, where the Court declared the

4 In Chile, for example, the Constitutional Tribunal in Decision 976 of 2008 gave some recognition to the right to health in striking down discrimination in the pricing of health plans due to age and sex. In Mexico, a 2011 reform linking domestic constitutional rights to international human rights law has produced some movement towards enforcing socioeconomic rights like the right to health. For example, in amparo 378 of 2014, the Supreme Court relied heavily on international treaties in recognizing the right to health and requiring authorities to take measure to improve the conditions of late-stage AIDS patients vulnerable to infection.

Judicial role

237

government’s housing policy unconstitutional for those in most dire need but left the remedy up to the political branches. They also include stronger structural injunctions like the Colombian “state of unconstitutional affairs,” where the Court holds that the state’s response to a policy problem is grossly insufficient and begins issuing programmatic orders to the bureaucracy (Rodriguez-Garavito 2011). These approaches are not inconsistent, and some courts within the region – particularly the Colombian Constitutional Court – have at different times deployed all of them. Nonetheless, the mix of these approaches has varied sharply between different courts within the region, with important effects. As an illustration, one might compare the jurisprudence of the two most active courts in the region on socioeconomic rights, the Colombian Constitutional Court and the Brazilian Supreme Federal Tribunal. The Brazilian Tribunal has focused primarily on giving out individual remedies, particularly on the right to health. Given the complexity of the Brazilian legal process, this has been criticized as benefitting primarily middle- and upper-class litigants and creating a queue-jumping phenomenon where public policy is not improved but those patients who litigate (mostly relatively wealthy) gain advantages over those litigants who do not (and who are mostly poor) (Motta Ferraz 2011). Moreover, the Brazilian Tribunal has occasionally worked to enjoin attempts to cut pension and other social benefits for relatively privileged groups, particularly civil servants, thus maintaining the status quo (Brinks 2011). In contrast, attempts by litigants to force the Tribunal to intervene in a structural or collective way in order to improve or construct social programs have fared poorly (Hoffmann and Bentes 2008, p 135). Commentators have explained the shape of this jurisprudence by pointing to two factors: the traditional nature of the Brazilian judiciary, which makes it prefer individual and negative forms of judicial review, and its “corporatist” tendency, which leads it to aim to protect the judiciary and the civil service more broadly (Hoffmann and Bentes 2008, p 143; Brinks 2011, p 145). The Colombian jurisprudence has also been marked by a widespread individual enforcement of socioeconomic rights, particularly the rights to health and pensions, via the Colombian individual complaint or tutela (Rueda 2010). But in addition, and partly as a response to the perceived inequities and limitations of the individualized jurisprudence, the Court has also undertaken a series of structural interventions in areas of public policy. Most notably, the Court has developed the doctrine of the unconstitutional state of affairs, where it has aggregated a large number of individual tutelas, held that an area of public policy was marked by

238

Comparative constitutional law in Latin America

systematic deficiencies at the level of public policy, and accordingly begun to issue structural orders to the bureaucracy (Rodriguez-Garavito 2011). In T-025 of 2004, the Court held that there was an unconstitutional state of affairs with respect to internally displaced persons who had been forced out of their homes due to Colombia’s ongoing civil conflict. It held that no coherent public policy existed on the issue and began trying to cajole the bureaucracy into creating a budget and a set of programs to attend to these internal refugees. In 2008, in Decision T-706, the Court used a similar device to undertake a structural intervention in the healthcare sector, after years of large-scale individualized jurisprudence. The Court has also undertaken structural interventions in other sectors, including housing, pensions, and prisons. The Court’s role conception since its creation in 1991 has been considerably less traditional, and more creative, than its Brazilian counterpart. These very different patterns of jurisprudence have had a significant impact on the effects of judicial enforcement of socioeconomic rights. The Brazilian pattern may, for example, produce a jurisprudence that is relatively focused on middle-class groups, and which seeks to preserve, rather than alter or expand, existing social programs (Motta Ferraz 2011, p 1667). Structural remedies like those used in Colombia may be somewhat more effective at both reaching those in poverty and in transforming and constructing social programs (Landau 2012). Thus, among courts within the region working with texts that include socioeconomic rights, some are barely enforcing those rights at all, and there is meaningful variance between those courts that are carrying out large-scale programs of enforcement. Even if (as seems possible) nonjusticiability becomes increasingly disfavored going forward and those countries that have historically not enforced their social rights begin to do so, major differences in the manner of enforcement seem likely to persist.

III. JUDICIAL ROLE AND RESISTANCE TO CONVERGENCE The evidence in the previous section certainly does not show that no convergence is occurring. To the contrary, in some issue areas like same-sex marriage the evidence suggests movement towards common solutions at the level of judicial enforcement of rights. The examples nonetheless do demonstrate important sources of resistance to this convergence. Much of this resistance seems to be located at relatively low-level (but important) issues like the kind of remedy issued by a court. Behind these differences are enduring differences within Latin

Judicial role

239

America in conceptions of judicial role. This is not of course the only significant cause of ongoing divergence in constitutional outcomes in Latin America – other variables like differences in the strength of civil society may also help explain different outcomes. But it does appear to be an important factor. This section explains the concept of judicial role and its determinants, explores the differences across several major Latin American countries, and links the conception of judicial role back to the differences found in the previous section. A. The Concept of Judicial Role What one can call the judicial role of a high court is a product of several different factors – the design of the court and its powers, the historical development of the judiciary, the way in which the court relates to its political system, and finally idiosyncratic factors relating to the specific personnel appointed to it. While it is too strong to say that these factors generally produce a homogeneous conception of judicial role in a given country, they do work together to shape judiciaries in ways that vary greatly across different countries in Latin America. Design, first, plays an important role defining the options a court has to influence its political system. Latin America has long illustrated a great diversity in the kinds of instruments available to courts within the region. Many high courts within Latin America now possess some form of abstract review power, but they differ sharply in terms of who has standing to bring these actions and the timeframe for bringing them (Navia and Rios-Figueroa 2005). In Colombia, any actor can bring these challenges at any time, while in countries like Mexico, Brazil, and Chile, challenges are limited to around the time of promulgation and restricted to certain political or social actors. Similarly, all major judicial systems in Latin America have some form of individual complaint, but there are major differences across countries in terms of how easy and rapid these instruments are, the kinds of rights for which they can be used, and the generalizable effects of a decision (Brewer-Carias 2009). Some constitutions in the region (like Chile) textually limit the kinds of rights for which the individual complaint instrument can be used, while others (Colombia) at least suggest some limitations. Some constitutions (particularly Colombia) go to great lengths in the text to define the individual complaint as an easily accessible and rapid instrument; other constitutions lack such definition and have often allowed (as in Mexico) their instruments to become highly complex and technical. Finally, some

240

Comparative constitutional law in Latin America

constitutional orders (as in Mexico and Colombia) have some system of precedent, while others do not.5 Design thus exercises a meaningful impact in the way different regional high courts interact with their political system. At the same time, it is worth noting that to some degree design is a construction of a court rather than merely an input. For example, the extraordinary utility of the Colombian tutela is partially a creation of the Court. The ability to bring tutelas for violations of socioeconomic rights was ambiguous in the 1991 constitutional text, but the Court created doctrines allowing such use very early on. Later, the Court on its own initiative created the doctrine of an unconstitutional state of affairs, which has allowed it to turn the individual complaint into a device allowing system-wide supervision and remedies in some major cases (Landau 2012, pp 207–209, 222–223). Moreover, the constitutional design of a high court is often largely a product of the historical and political factors analyzed below. In Mexico, for example, constitutional reformers in 1994 focused on creating instruments that would mediate structural disputes between parties and levels of government (Zamora and Cossío Diaz 2006, p 421). These reforms occurred at a time when the Mexican party system was beginning to pluralize and key members of incumbent and opposition parties were focused on the issues of governmental structure and elections. Only with much more recent reforms have designers also turned in earnest to the amparo. Thus, design exercises an influence on judicial role, but it is not independent of the historical, political, and idiosyncratic factors laid out below. Second, judicial role is a product of historical patterns of development that are at least somewhat sticky. History may, for example, shape the external relationships between the courts and the other political branches. In some political systems, high courts have a long history of playing a role in major political disputes; in other systems, they lack such a role. History also may affect the internal workings or culture of a judiciary, which is what Kapiszewski (2010) calls a “court culture.” Because judiciaries in Latin America are generally bureaucratic organizations where higher-level judges may have power over the selection and career 5 I do not deal explicitly here with another aspect of design that exercises a major influence on the behavior of high courts: the appointment, tenure, and removal mechanisms for high court judges. These features appear to exercise an important but highly contextual influence on judicial behavior (Rios-Figueroa 2011, pp 38–40). Appointment mechanisms vesting power in a Congress, for example, may operate very differently depending on the institutionalization and fragmentation of the party system.

Judicial role

241

paths of newer entrants, the predominant culture or outlook of a court may tend to perpetuate itself through time. Hilbink (2007), for example, argues that the Chilean judiciary demonstrated consistently conservative tendencies through time despite major changes in the nature of the political system. Third, judicial role is shaped by the character of the political system. While all major Latin American systems are presidential, there are important differences in the fragmentation and particularly institutionalization of parties. There are of course obvious limitations on the power of a court in a dominant party system (such as Mexico in the heyday of the Institutionalized Revolutionary Party (PRI)), although even in such environments some limited interventions may be possible.6 More subtly, the behavior of courts in strong-party systems (like Mexico at present or Chile) may be systematically different from the behavior of courts in systems with weaker or less institutionalized parties (like Colombia and Brazil). While judges in the strong-party systems may tend to be agents of the parties, judges in weak-party systems may be less tied to political parties and thus may have stronger links to other audiences like the general public or the judiciary itself as a corporatist group. Finally, judicial role is influenced by a set of more idiosyncratic factors that vary from country to country. For example, whether a given high court is staffed by judges with foreign legal training, and if so where those judges received that training, may be important. Similarly, the arrival of a single judge or a small group of judges with a particular ideology or conception of judicial role may be critical, especially in the early years of a court. There are examples, such as the first Colombian Constitutional Court in 1992, where the personalities and backgrounds of particular judges played a key role in the progressive trajectory of the institution subsequently. The four factors outlined here – design, history, politics, and idiosyncratic influence – all combine to help shape the character and nature of a judiciary in ways that differ significantly across countries within Latin America. There is a danger, however, that role will be conceived as either homogeneous or static within a given country. Neither trait is accurate. All judiciaries, even within authoritarian regimes, are heterogeneous entities where different judges have different conceptions of role. Nonetheless, the factors noted in this section may tend to give a high court a dominant conception. Moreover, the dominant conception of judicial role 6 For a nuanced assessment of the performance of a high-capacity constitutional court in a dominant party system, see Roux (2013).

242

Comparative constitutional law in Latin America

can clearly change, perhaps as a result of changes in design, political context, or idiosyncratic factors. The role conceptions of high courts in Colombia, Mexico, and Argentina have all undergone significant shifts in recent years due to changes in each of these factors. However, a historical analysis of courts within the region suggests that role is at least somewhat sticky. Moreover, and despite the high-level pressures towards convergence described above in Part I, the factors shaping judicial role themselves show little movement towards convergence. The design of high courts across the region has of course been influenced by common global and regional trends, but nonetheless significant differences persist in, for example, powers of constitutional review and appointment mechanisms. Similarly, while constitutional histories within Latin America have often been shaped by certain common factors (like the problem of excessive executive power), the relationships between courts and the political branches show significant variation across countries. Further, the region continues to contain important variance in political context, for example in the strength and number of political parties. Finally, courts across countries (as well as across time in the same country) continue to show variation in the background and training of individual judges. Thus, there is little reason to expect convergence in the conception of judicial role within Latin America. B. Judicial Role in Latin America As evidence for the continuing variation in judicial role, one might trace the way the concept has evolved in four high court systems whose jurisprudence was analyzed extensively in the previous part – the Chilean Supreme Court and Constitutional Tribunal, the Mexican Supreme Court, the Colombian Constitutional Court, and the Brazilian Supreme Federal Tribunal (STF). My intent is not to give exhaustive or fine-grained analyses of those institutions (a project that would be at least book length). It is rather to give a broad sense of the differences in role conceptions that run across the four judiciaries, as well as to analyze how these differences have led to some of the ongoing divergence in approaches to judicial enforcement of rights identified in the previous part. 1. Chile The Chilean judiciary illustrates a distinctive historical trajectory: High courts were historically kept out of most public law disputes, and focused instead on private-law matters (Faundez 2007). The small population,

Judicial role

243

relatively well-functioning political system, and unitary state may have meant that there was little reason to draft the judiciary into major public law disputes. Similarly, the judiciary largely (although not entirely) kept out of sensitive disputes during the military dictatorship, relative to the situation in other countries like Brazil. The Constitutional Court and Supreme Court have continued to play a very modest role in constitutional issues since the return to democracy. While the courts have been found to have begun to display an “incipient activism” on abortion and other issues, constitutional norms in Chile are significantly underdeveloped as compared with most other major countries in the region (Couso and Hilbink 2011). Contemporary politics also plays some role in explaining the relatively passive nature of the Chilean judiciary. Chilean parties are quite strong and programmatic, and political institutions relatively well-functioning, potentially making it more difficult for the Chilean high courts to find policy space than in countries with less institutionalized party systems like Brazil and Colombia. Moreover, the judiciary, and particularly the Chilean Constitutional Tribunal, were envisioned by Pinochet as checks on popular power; subsequently, however, as a center-left coalition has governed the country in a moderate manner for most of its postauthoritarian history, and as other institutions have effectively limited exercises of political power, it has proven difficult to justify aggressive judicial interventions (Couso 2011). The Chilean Constitution itself, which was imposed during a military dictatorship, has an ambiguous status within the political system – political actors have had to spend considerable time reforming the Constitution to remove “authoritarian enclaves” originally inserted by Pinochet, such as unelected senators and a National Security Council with vaguely defined powers over the state (Siavelis 2000). Current President Michele Bachelet has announced plans to replace the Constitution within the next few years, and this ambiguous and contested status has plausibly hampered constitutional judicialization in Chile. Finally, the design of the system has presented some important challenges. Unlike most Latin American systems, the 1980 Constitution split judicial review between two institutions – the Constitutional Tribunal (which had abstract review power over new legislation), and the Supreme Court (which had concrete review power). This weakened the Constitutional Tribunal and made it an institution with relatively little meaningful work for a long time. Moreover, the Chilean individual complaint or recurso de proteccion was limited in important ways in the constitutional text (for example, it could be used only to protect certain rights, excluding socioeconomic rights). Reform efforts have targeted

244

Comparative constitutional law in Latin America

some of these issues in recent years – for example, some of the Supreme Court’s concrete review powers were transferred to the Constitutional Tribunal (Couso and Hilbink 2011, pp 110–112). The various factors noted above have constructed a constitutional judiciary that continues to be relatively passive by regional standards, with a relatively low level of constitutional judicialization. The Supreme Court’s resistance to the judicialization of socioeconomic rights is a product of both design factors (the limited textual reach of the recurso de proteccion) and its politically and historically driven aversion to aggressive constitutional litigation. Similarly, the Constitutional Tribunal’s invocation of role-based grounds to deny a claim for same-sex marriage is consistent with a judiciary that is unwilling to stretch existing constitutional instruments. 2. Mexico In Mexico, the judiciary historically played a more significant role in state-building, but from the mid-twentieth century, it was drafted into the project of a monolithic and centralizing regime. The 1917 Constitution was interpreted in light of the project of the ruling PRI, so much so that party platforms were sometimes used as instruments of judicial interpretation. Large parts of the Constitution – including the socioeconomic rights which were seen as innovations in the text – were rendered non-justiciable (Cossío 2002). As an arm of the ruling party, the Supreme Court was given extensive powers over the lower federal judiciary and the interpretations of state courts. At the same time, the amparo was structured so that resourceful or powerful litigants could prevail on individual issues against the state, but those victories were not necessarily generalized to other affected individuals. Key judicial reforms were put in place in Mexico in the 1990s, in the midst of changes to the political system that were making it much more competitive. Reformers created a Supreme Electoral Court to ensure clean elections and strengthened the Supreme Court by giving it abstract review powers that could be activated by political minorities (the constitutional action) and the ability to resolve controversies between levels and branches of government (the constitutional controversy) (Zamora and Cossío Diaz 2006). As Mexico has transitioned into a multiparty system with several relatively strong parties, the parties with the most say over the reforms and the composition of the judiciary (the historically hegemonic PRI and the right-wing Partido Acción Nacional (PAN)) have focused on viewing the Supreme Court as a structural arbiter. In contrast, the historical rights-protecting instrument, the amparo, was less emphasized in the 1990s reforms. Thus, commentators

Judicial role

245

have argued that the reforms to the Court were put in place “more for the political class than for the citizenry” and that there has been a “low level of judicialization in rights cases” (Ansolabehere 2010, p 79). Nonetheless, this picture is clearly in some flux. Rights-minded judges on the Court, along with civil society groups, have pushed changes to judicialize rights within Mexico. A key reform in 2011, for example, required that constitutional rights provisions be interpreted in light of international human rights law. The Court’s activism on same-sex marriage reflects these slow and tentative changes, modulated by distinctive elements of Mexican judicial design. While the Court can validate legislation legalizing same-sex marriage (as in Mexico City) using abstract review, it can only legalize same-sex marriage using the amparo, which by design produces systematic changes only fairly slowly. And even the new incorporation clause has had only very modest impacts on the Mexican judiciary’s historic resistance to the judicial enforcement of socioeconomic rights. 3. Colombia Compared to the Chilean or Mexican patterns, the Colombian judiciary was historically quite involved in public law matters involving the country’s historic two-party system. After the 1886 Constitution was written, the Colombian Supreme Court alternated between serving the interests of consolidated regimes (during the Conservative hegemony of the late nineteenth century and during the Liberal hegemony of the 1930s) and arbitrating disputes during more pluralistic periods (ie, the power-sharing arrangement of the National Front) (Cajas 2015). It performed a number of tasks that gave it an important role in statebuilding: centralizing the judiciary, reinterpreting norms to give the government more power, mediating important disputes between the two major parties, and defining the boundaries of autonomous executive power. In this effort, it was aided by the existence of the public action, which enabled any citizen to raise an abstract challenge to any law at any time. The Court’s involvement in public law issues became problematic in the 1970s and 1980s, when it began intervening aggressively to block attempted constitutional reforms and replacements, and to strike down emergency power decrees meant to deal with rising levels of civil violence (Landau 2014a). Partly because of this recent history and a deep political crisis, the drafters of the 1991 Constitution created a new institution, the Colombian Constitutional Court, and imbued that body with sweeping powers of judicial review. They retained the public action that made the judiciary a major player on political issues while also creating a new individual

246

Comparative constitutional law in Latin America

complaint instrument, the tutela, that was designed to be extremely rapid (cases had to be decided in 10 days) and informal (a lawyer was not required, and complaints could be filed in any form). The Court was also given a very high degree of control over its own docket, since it was enabled to select those tutelas that it wished to review (Cepeda 2004, pp 552–554). A set of judges on the first court, generally academics from outside the career judiciary, pushed aggressive interpretations of these powers. They established the justiciability of socioeconomic rights as well as the reviewability of historically discretionary presidential powers like the invocation of states of emergency. The new Court has operated within a context in which the Colombian political party system has partially deinstitutionalized – the traditional two-party system disappeared and was replaced by a larger number of more fluid and personalist parties without strong ideological identities. In this context, the Court has been able to gain power and popularity by pointing to and substituting for perceived deficiencies in traditional political institutions, especially the Congress (Landau 2014b, pp 1520–1524). The Colombian Constitutional Court’s aggressive and creative socioeconomic rights jurisprudence is thus an outgrowth of its ability to carve out space within the political system, the judiciary’s historic involvement in political matters, a design that gives the Court sweeping powers and easy access, and the luck of having had a highly progressive group of justices at its inception. As previously noted, the instruments allowing the Court to make widespread interventions on socioeconomic issues were largely constructed by the Court itself (albeit from a sympathetic constitutional text). On the other hand, the same-sex marriage case suggests that the Court’s remedial ingenuity and power are not endless: It remains constrained and influenced by its political system, and its creative remedial efforts (such as the default rule it attempted in the same-sex marriage case) do not always work. 4. Brazil In some respects, the Brazilian pattern of judicial history and politics resembles the Colombian one. It appears that the Brazilian judiciary, like the Colombian one, played a meaningful role in resolving public law disputes historically. At least during the military dictatorship, the Brazilian courts were surprisingly relevant players both in collaborating with the military regime but also in ameliorating the effect of military law (Pereira 2005). The Brazilian Constitution like the Colombian one is a long, programmatic document with a large number of both firstgeneration and second-generation rights (Rosenn 1990). Finally, both the

Judicial role

247

Brazilian STF and the Colombian Constitutional Court operate in fragmented, weak-party systems where courts have been able to carve out important roles in politics (and at times by playing off of political dysfunction). The general public is an important audience for the high courts in both countries (Brinks 2011, p 137; Landau 2014a). However, there are also significant differences between the two systems. In terms of design, the Brazilian STF is a powerful institution but definitely weaker than its Colombian counterpart – access to abstract review is more restricted, the Brazilian mechanisms of individual recourse are costlier and more complex than the Colombian tutela, and the Brazilian STF lacks the docket control that the Colombian Constitutional Court possesses (Rios-Figueroa and Taylor 2006). These design differences have plausibly made it more difficult for the Brazilian STF to undertake interventions with the same degree of aggressiveness and creativity as the Colombian Court. The Brazilian STF is also more closely tied to the ordinary judiciary. As already noted, on the Colombian Court a subgroup within the first set of justices (largely tied to progressive sectors of academia) created a style of jurisprudence that was very different from the traditional Colombian culture of public law. Many ordinary judges have subsequently sat on the Colombian Court, but these justices have to a high degree been absorbed into the prevailing culture of the Court. In contrast, the STF has been heavily influenced by the culture of the ordinary judiciary in Brazil. Even though this culture in itself is far from homogeneous, the link between the STF and ordinary judicial politics has had at least two significant effects. First, it has created an STF with somewhat “corporatist” tendencies – some of the Court’s interventions (like those defending the benefits of civil servants) have been explained partially by these links (Brinks 2011). Second, the STF continues to have a fairly traditionalist conception of judicial role (Hoffmann and Bentes 2008). It is less likely than the Colombian Court to be willing to experiment with aggressive remedies or interpretations. Both the Colombian and Brazilian courts have a robust socioeconomic rights jurisprudence. Litigation on the right to health in both countries, for example, has had a significant cumulative impact on budgets and public policy. This is plausibly an outcome of the similar historical trajectories and political environments of the two judiciaries. At the same time, the Colombian jurisprudence is ultimately more creative than the Brazilian jurisprudence. The Brazilian Court’s litigation to date has focused primarily on either blocking proposed cuts or issuing individual relief to litigants, while the Colombian Court has been more willing to utilize structural remedies. This is plausibly explained by the differences

248

Comparative constitutional law in Latin America

in culture of the two institutions, and particularly the STF’s stronger links to the ordinary judiciary and higher degree of traditionalism.

IV. CONCLUSION This chapter has argued that the convergence literature should focus more on the actual enjoyment of rights across countries, rather than simply on similarities in the texts of constitutions. It has also made a modest effort to study the extent of convergence across Latin America by considering the similarity in judicial enforcement of rights across two issues: samesex marriage and socioeconomic rights. Although there are high-level factors pushing convergence in both issue areas, judicial interpretations and remedies continue to differ in significant ways. Some courts have resisted adopting these rights completely, while approaches to enforcement have been meaningfully different even as between adopters. There are a number of plausible explanations for these divergences, but differences in judicial role are a key explanatory factor. This finding has at least two implications. The first is a suggestion for international and domestic actors interested in furthering projects involving convergence towards common outcomes. Regional and international institutions may be able to push courts across the region to pay attention to certain kinds of rights or to adopt common interpretive approaches. But these successes may bear relatively little fruit if these actors do not also attend to sweeping differences in judicial role. The degree to which judicial role conceptions are rooted in domestic history and politics makes this a daunting task. But perhaps not hopeless, given that domestic judicial cultures are inevitably heterogeneous and dynamic rather than homogeneous and static. Constitutional designers in the recent past in Latin America have used a number of design tools, like changes in appointment mechanisms, judicial powers, and incorporation clauses linking constitutional law to international law, in order to spur changes. The past changes to the Colombian judiciary, the ongoing shifts in the Mexican judiciary, and a current effort (in the context of constitutionmaking) to make the Chilean courts more progressive all demonstrate the importance – but also the difficulty – of this task. A second set of questions revolves around the desirability of global or regional convergence. The evidence in this chapter suggests that significant differences in judicial role between countries in Latin America are likely to persist. Given the relative similarity of legal cultures within the region, this may suggest even greater divergence at the global level. The fact that conceptions of judicial role are so embedded in domestic history

Judicial role

249

and politics also points to a broader problem: Convergence at the level of judicial enforcement of rights may not be desirable even if it were more feasible. Instead, the tasks that a judiciary is most needed to perform may differ in systematic ways across countries. The end goal, for example, may not be to ensure that judiciaries interpret and enforce rights in the same way across the region, but instead to ensure that courts ameliorate rather than exacerbate weaknesses in the political system (Landau 2014b). This suggests the need for a conception of judicial role that will be responsive in important ways to differences in domestic political conditions. At the very least, scholars committed to the normative project of convergence may need to do more work to explain whether – and to what extent – convergence is a desirable end goal either within or beyond Latin America.

REFERENCES Ansolabehere, Karina. 2010. “More Power, More Rights?” Pp. 78–111 in Cultures of Legality: Judicialization and Political Activism in Latin America, edited by Javier A Couso, Alexandra Huneeus and Rachel Sieder. New York: Cambridge University Press. Brewer-Carias, Allan R. 2009. Constitutional Protection of Human Rights in Latin America: A Comparative Study of Amparo Proceedings, New York: Cambridge University Press. Brinks, Daniel M. 2011. “‘Faithful Servants of the Regime’: The Brazilian Constitutional Court’s Role Under the 1988 Constitution.” Pp. 128–153 in Courts in Latin America, edited by Gretchen Helmke and Julio Rios-Figueroa. New York: Cambridge University Press. Cajas Sarria, Mario Alberto. 2015. La historia de la Corte Suprema de Justica de Colombia, 1886–1991. Bogota, Colombia: Universidad de los Andes Press. Cepeda, Manuel José. 2004. “Judicial Activism in a Violent Context: The Origin, Role, and Impact of the Colombian Constitutional Court.” Washington University Global Studies Law Review 3: 529–700. Chilton, Adam and Versteeg, Mila. 2015. “Do Constitutional Rights Make a Difference?” American Journal of Political Science 60(3): 575–589. Contesse, Jorge and Domingo Lovera. 2008. “Acceso a Tratamiento Médico para Personas viviendo con VIH/SIDA: Éxitos sin victoria en Chile.” Sur Revista Internacional de Derechos 8: 143–161. Cossío, José Ramón. 2002. La teoria constitucional de la Suprema Corte de Justicia. Mexico City: Distribuciones Fontamara. Couso, Javier. 2010. “The Transformation of Constitutional Discourse and the Judicialization of Politics in Latin America.” Pp. 141–160 in Cultures of Legality: Judicialization and Political Activism in Latin America, edited by Javier A Cuoso, Alexandra Huneeus and Rachel Sieder. New York: Cambridge University Press.

250

Comparative constitutional law in Latin America

Couso, Javier. 2011. “Models of Democracy and Models of Constitutionalism: The Case of Chile’s Constitutional Court, 1970–2010.” Texas Law Review 89: 1517–1536. Couso, Javier and Lisa Hilbink. 2011. “From Quietism to Incipient Activism: The Institutional and Ideological Roots of Rights Adjudication in Chile.” Pp. 99–127 in Courts in Latin America, edited by Gretchen Helmke and Julio Rios-Figueroa. New York: Cambridge University Press. Dixon, Rosalind and Eric Posner. 2011. “The Limits of Constitutional Convergence.” Chicago Journal of International Law 11: 399–424. Elkins, Zachary, Tom Ginsburg and Beth Simmons. 2013. “Getting to Rights: Treaty Ratification, Constitutional Convergence, and Human Rights Practice.” Harvard International Law Journal 54: 61–95. Faundez, Julio. 2007. Democratization, Development, and Legality: Chile, 1831– 1973. New York: Palgrave Macmillan. Gongora Mera, Manuel Eduardo. 2011. Inter-American Judicial Constitutionalism: On The Constitutional Rank of Human Rights Treaties in Latin America Through National and Inter-American Adjudication. San José, Costa Rica: Inter-American Institute of Human Rights. Hilbink, Lisa. 2007. Judges Beyond Politics in Democracy and Dictatorship: Lessons from Chile. New York: Cambridge University Press. Hoffmann, Florian F and Fernando RNM Bentes. 2008. “Accountability for Social and Economic Rights in Brazil.” Pp. 100–145 in Courting Social Justice, edited by Varun Gauri and Daniel M Brinks. New York: Cambridge University Press. Jackson, Vicki. 2009. Constitutional Engagement in a Transnational Era. New York: Oxford University Press. Kapiszewski, Diana. 2010. “How Courts Work: Institutions, Culture, and the Brazilian Supremo Tribunal Federal.” Pp. 51–77 in Cultures of Legality: Judicialization and Political Activism in Latin America, edited by Javier A Couso, Alexandra Huneeus and Rachel Sieder. New York: Cambridge University Press. Landau, David. 2012. “The Reality of Social Rights Enforcement.” Harvard International Law Journal 53: 189–247. Landau, David. 2014a. Beyond Judicial Independence: The Construction of Judicial Power in Colombia. Harvard University, unpublished Ph.D. dissertation. Landau, David. 2014b. “A Dynamic Theory of Judicial Role.” Boston College Law Review 55: 1501–1562. Law, David S. 2008. “Globalization and the Future of Constitutional Rights.” Northwestern University Law Review 102: 1277–1350. Law, David S and Mila Versteeg. 2011. “The Evolution and Ideology of Global Constitutionalism.” California Law Review 99: 1163–1258. Lozano, Genaro. 2013. “The Battle for Marriage Equality in Mexico, 2001– 2011.” Pp. 151–166 in Same-Sex Marriage in Latin America: Promise and Resistance, edited by Jason Pierceson, Adriana Piatti-Crocker and Shawn Schulenberg. Plymouth, UK: Lexington Books. Motta Ferraz, Octavio Luiz. 2011. “Harming the Poor Through Social Rights Litigation: Lessons From Brazil.” Texas Law Review 89: 1643–1668.

Judicial role

251

Moustafa, Tamir. 2007. The Struggle for Constitutional Power: Law, Politics, & Development in Egypt. New York: Cambridge University Press. Navia, Patricio and Julio Rios-Figueroa. 2005. “The Constitutional Adjudication Mosaic of Latin America.” Comparative Political Studies 38: 189–217. Pereira, Anthony (2005). Political (In)justice: Authoritarianism and the Rule of Law in Brazil, Chile, and Argentina, Pittsburgh, PA: University of Pittsburgh Press. Piatti-Crocker, Adriana. 2013. “Diffusion of Same-Sex Policies in Latin America.” Pp. 3–21 in Same-Sex Marriage in Latin America: Promise and Resistance, edited by Jason Pierceson, Adriana Piatti-Crocker and Shawn Schulenberg. Plymouth, UK: Lexington Books. Rios-Figueroa, Julio. 2011. “Institutions for Constitutional Justice in Latin America.” Pp. 27–54 in Courts in Latin America, edited by Gretchen Helmke and Julio Rios-Figueroa. New York: Cambridge University Press. Rios-Figueroa, Julio and Matthew M Taylor. 2006. “Institutional Determinants of the Judicialisation of Policy in Brazil and Mexico.” Journal of Latin American Studies 38: 739–766. Rodriguez-Garavito, Cesar. 2011. “Beyond the Courtroom: The Impact of Judicial Activism on Socioeconomic Rights in Latin America.” Texas Law Review 89: 1669–1698. Rosenn, Keith. 1990. “Brazil’s New Constitution: An Exercise in Transient Constitutionalism for a Transitional Society.” American Journal of Comparative Law 38: 773–802. Roux, Theunis. 2013. The Politics of Principle: The First South African Constitutional Court, 1995–2005. New York: Cambridge University Press. Rueda, Pablo. 2010. “Legal Language and Social Change During Colombia’s Economic Crisis.” Pp. 25–50 in Cultures of Legality: Judicialization and Political Activism in Latin America, edited by Javier A Couso, Alexandra Huneeus and Rachel Sieder. New York: Cambridge University Press. Saez, Macarena. 2014. “Transforming Family Law Through Same-Sex Marriage: Lessons From (and to) the Western World.” Duke Journal of Comparative and International Law 25: 125–196. Siavelis, Peter. 2000. “Disconnected Fire Alarms and Ineffective Police Patrols: Legislative Oversight in Post-authoritarian Chile.” Latin American Politics and Society 42(1): 71–98. Silverstein, Gordon. 2003. “Globalization and the Rule of Law: A Machine that Runs of Itself?” International Journal of Constitutional Law 1: 427–445. Slaughter, Anne-Marie. 2003. “A Global Community of Courts.” Harvard International Law Journal 44: 191–219. Tushnet, Mark. 2009. “The Inevitable Globalization of Constitutional Law.” Virginia Journal of International Law 49: 985–1006. Uprimny, Rodrigo. 2011. “The Recent Transformation of Constitutional Law in Latin America: Trends and Challenges.” Texas Law Review 89: 1587–1609. Zamora, Stephen and José Ramón Cossío Diaz. 2006. “Mexican Constitutionalism after Presidencialismo.” International Journal of Constitutional Law 4: 411–437.

252

Comparative constitutional law in Latin America

Zamora, Stephen, José Ramón Cossío, Leonel Pereznieto, José Roldán-Xopa, and David Lopez. 2005. Mexican Law. New York: Oxford University Press.

11. Ambitious constitutions: prominent courts* Oscar Vilhena Vieira I. INTRODUCTION In the last few decades, the Colombian Constitutional Court and the Brazilian Supreme Federal Tribunal (STF) have acquired a prominent role within their political systems. The expressions “super court” and “supremocracy”1 have been used to describe the institutional performance of these courts, respectively (Uprimny and Villegas 2015; Vieira 2008). The claim here is that this prominence is a direct result of two institutional events: the adoption of very ambitious constitutions, combined with expanded access and concentration of jurisdictional powers in the hands of these two apex courts. Although other relevant factors played a role in forging the identity of these courts, such as the judicial autonomy built in both countries over the last century and the emergency of constitutional theories that support judicial responsiveness, as the “constitutional effectiveness” and “neo-constitutionalism” doctrines, the focus here will be on the combination of the two institutional variables previously mentioned. The last wave of democratization (Huntington 1996), which started at the end of the 1980s, culminated with an intense period of constitutional drafting and constitutional reform in Latin America. The Brazilian Constitution of 1988 was the first to inaugurate a new constitutional moment in the continent, followed by Colombia in 1991, Paraguay in 1992, Peru in 1993, Ecuador in 1998 and 2008, Venezuela in 1999, and Bolivia in 2009. The same tendency prompted Costa Rica in 1989, * I would like to thank Rosalind Dixon for all her patience, kindness and insistence with this chapter. I also would like to express my full appreciation for the help, generosity, and intelligent insights provided by Helena Alvear. 1 I am borrowing this expression from Ran Hirschl (2007) and customizing it to the experience of the Brazilian Supreme Federal Tribunal. 253

254

Comparative constitutional law in Latin America

Mexico in 1992, and Argentina in 1994 to promote ample reforms of their old charters (Gargarella 2013). Chile is one of the few examples of a country that overcame an extreme authoritarian regime without a re-constitutionalization process. On the contrary, Pinochet promoted a preventive constitutional reform before handing power to civilians in 1990. The new democratic moment in Chile also did not reform its Supreme Court jurisdiction, as happened in Brazil, or set up a brand new court, as happened in Colombia. In the absence of these two major institutional events, it is natural that the Chilean Supreme Court has not followed the pattern of expanding its powers like both the Colombian and Brazilian apex courts in the last three decades (Couso 2011). The ubiquitous presence of these apex courts in their polities has been attracting enormous attention from researchers, not just in Colombia and Brazil, but also from several other legal communities. Most of these studies are centered on the social rights jurisprudence of these courts. The Colombian Court in particular has been the object of numerous and enthusiastic studies and reviews (Garavito 2011). The Brazilian Court has received less attention outside its own jurisdiction (Ferraz 2011). The Portuguese language can be a barrier to outsider attention, and the Court’s unrealistic caseload can impose severe obstacles to those interested in grasping its jurisprudence. Comparative efforts have been made to understand the role of these two courts and their jurisprudence in light of other active courts in the Global South, such as the Indian Supreme Court and the South African Constitutional Court (Baxi, Vieira and Viljoen 2013; Bonilla 2013). Paradoxically, however, no systematic attempt to make a direct comparison between the Colombian and the Brazilian apex courts was made. More than that, few analysts focus on the political jurisdiction of these courts. This comparison is the primary object of this chapter. The main questions that will orient this chapter are twofold. First, how did the distinct designs adopted by the drafters of the 1988 Brazilian Constitution and the 1991 Colombian Constitution regarding their aspirational clauses, and the composition, access, and attributions of their apex courts impact their accomplishments? Second, how are the Brazilian Supreme Court and Colombian Constitutional Court fulfilling their expanded roles more than two decades after the adoption of very ambitious constitutional projects? Although both of these Courts received challenging responsibilities to protect and guarantee very ambitious constitutions, several distinctions in the way their members are selected, the duration of their terms, their openness to being accessed, the way they deliberate, and the tools that

Ambitious constitutions

255

they can use to impose their decisions have significant repercussions on how they accomplish their missions. Obviously many other factors besides the Courts’ design have influence over their behavior. However, by focusing on some specific normative differences, and the actual behavior of these Courts, from a comparative perspective, it is hoped that our understanding of the relationship between institutional design and constitutional results will be improved.

II. AMBITIOUS CONSTITUTIONALISM Even though the new constitutional documents enacted in Brazil and Colombia during the last wave of democratization are substantially distinct in the details, they share some common trends with each other, and other constitutions enacted in Latin America in the 1990s. The main shared characteristic is their ambition to transform not only the political system, but also the societies in which they are inserted (Baxi, Vieira and Viljoen 2013). Besides the traditional goal of liberal-democratic constitutionalism to limit power and to create institutions for self-government, most of these constitutions expressly aspire to transform their societies by promoting social justice, political inclusion, and the erosion of traditional hierarchies that organize most Latin American societies. The ambition of this new constitutionalism is a direct consequence of reactive foundational moments, and, in most countries, of unprecedented inclusive and participatory constitutional processes. Most of these processes were inclusive in the sense that they were open to new political and social actors, traditionally kept on the margins of the Latin American political system. This inclusiveness made constitutional assemblies in search of legitimacy extremely responsive to group interests and the major concerns of society. This was particularly the case for both the Brazilian and Colombian Constitutional Assemblies. These assemblies reacted to immediate past experiences of human rights violations, a lack of democratic stability, and a longer and persistent history of inequality, economic exclusion, and social hierarchization. In the case of Colombia, the Constitutional Assembly was also reacting to a long armed conflict. They similarly respond to the traditional problem of a lack of effective legal systems and a lengthy political instability in both countries. To cope with these challenges, constitutional legislators seem to have opted to entrench every major agreement and interest in the constitutional texts, making these Constitutions detailed and expanded documents. Every major issue, and less important questions, became objects of constitutional law.

256

Comparative constitutional law in Latin America

To cope with this transformative aspiration both Constitutions adopted comprehensive Bills of Rights. These charters would contemplate not only a wide list of civil and political rights, but also social and economic rights, including specific sets of rights to protect vulnerable people, traditional populations, and even future generations, that would transcend the agreement achieved by international human rights instruments. Perhaps one of the major differences between the 1990s constitutional moment in Latin America, in which these two Constitutions were produced, and previous moments when aspirational constitutions were also drafted, was some consciousness of the difficulties in implementing such ambitious pacts (Sarlet 2005; Nino 2011). Therefore, there was a perceived necessity to create new self-implementation mechanisms, such as mandatory budget allocation to back social rights expenditures, or to create new judicial remedies to protect and promote the Constitutions (Cepeda 1998; Garcia-Villegas 2013; Dimoulis and Vieira 2013). These Constitutions also adopted new forms of public participation, amplifying the direct enrollment of citizenship on government issues, and strengthening the autonomy of accountability agencies, such as the Ministerio Publico, Defensoria del Pueblo, and the courts, especially apex courts. Another important element of this new constitutional moment is the concern with constitutional regressions, promoted by constitutional amendments or other plebisciterian mechanisms, in terms of threats to both democratic rule and fundamental rights. To deal with the risk of abusive reforms, some constitutions, such as the Brazilian Constitution, include substantive clauses to protect democracy, separation of powers and fundamental rights. These substantive limitations were carved into “stone clauses” (cláusulas pétreas) of the Constitution. In other countries, such as Colombia, the Constitution created more procedural mechanisms to protect its constitutional oeuvre, this in turn demanded a stronger doctrinal effort by the court to protect the democratic core of the Constitution against abusive amendments (Dixon and Laundau 2015). The entrenchment of constitutional principles or structures against abusive reforms is a key element to understanding the resilience of these two constitutional systems.

III. EMPOWERED APEX COURTS The second pattern of this new constitutional moment was the expansion of judicial powers in the region, allowing courts in several countries to assume a broader role in the definition of relevant political, economic, and moral issues within their societies (Kapiszewski and Taylor 2008).

Ambitious constitutions

257

As argued by David Landau, in this volume, we should not overestimate a convergence in this field. Even if most new constitutions in Latin America became “aspirational,” “transformative” or “ambitious,” the strengthening of apex courts followed different paths. On one side of the spectrum, new constitutions gained space for a group of more responsive courts, such as the Argentinean, Brazilian, Colombian, and Costa Rican apex courts; on the other side, the Chilean, Peruvian, and Bolivarian courts (for obvious reasons) kept a more discreet profile. Since we are focusing only on the Brazilian and Colombian experiences, it should not be neglected that these countries’ judiciaries have a long and recognizable involvement in the political sphere, and a lengthy tradition of independence. In Colombia, the drafters decided to create a new Constitutional Court, composed of a different set of justices, bypassing the old Supreme Court of Justice. In Brazil, however, the hundred-year-old STF survived following an intense debate in the Constitutional Assembly, albeit with its jurisdiction profoundly renewed and expanded. In Colombia, the creation of a Constitutional Court with ample powers to review the constitutionality of laws, which could be easily accessed by any citizen, and open to civil society participation through amicus curiae, anticipated what would become a very powerful court. By forcefully reacting to the several challenges presented to it, the Constitutional Court came to be viewed almost immediately as a “super court,” criticized by some for its activist posture, and praised by others who embraced the emancipatory potential of its jurisprudence (Umprimny and Villegas 2015). The 1988 Constitution did not create a new Constitutional Court in Brazil, founded on the Kelsenian model, as happened in Colombia and many other countries that re-constitutionalized themselves in the last wave of democratization. The decision was to grant new powers to the Brazilian STF. By doing this, the constitutional legislators concentrated in the hands of the Court three distinct roles. The STF became a constitutional court by acquiring the power to conduct abstract review of the constitutionality not just of ordinary legislation, but also amendments to the Constitution, and the competence to review unconstitutional omissions by the other branches. The STF kept its position as a supreme court of last appeals, with constitutionally diffuse review powers (for the whole state and federal system). And finally, it had expanded powers to act as a first instance court for administrative and criminal cases brought against high officials of the Republic (Silivia 1991; Vieira 2008).

258

Comparative constitutional law in Latin America

Access to STF jurisdiction was expanded out to new actors, such as political parties, governors, legislators, the Bar Association, and confederations of labor unions. Although access is much more limited than that opened to the Colombian Constitutional Court, it provided avenues for most sectors of Brazilian society to directly access the Court. By responding to an immense number of demands brought by these actors and exercising its new powers, the Brazilian STF became an extremely exposed political arena. The exercise of these expanded powers has received enthusiastic endorsement from authors that espouse neoconstitutional doctrines (Barroso 2016), but also severe criticisms from formalist jurists (Dimoulis 2016). Another important distinction between these two Courts is the length of their jurisdictions. The decision to create a new Constitutional Court in Colombia and to maintain the old Supreme Court with expanded jurisdiction in Brazil resulted in several relevant distinct consequences. The first one relates to the commitment of their respective members to the new Constitution. In the Colombian case, there is a fresh group of justices nominated by the same political powers that created the Constitution; in Brazil the old regime justices were kept in the Court until their natural retirement age. The result was that it took more time to constitute a court completely committed to the new constitutional promises in Brazil than in Colombia. It is also important to mention in relation to the composition of these two Courts and the stability of their jurisdictions, that the Brazilian justices serve until they are 75, while the Colombian justices have an eight-year mandate, which has had important impacts on how the Courts shift their positions over longer periods of time. This distinction probably contributed to a more stable jurisprudence in Brazil. A second important set of distinctions relates to the jurisdiction itself. The Brazilian Supreme Court has all the typical powers of a constitutional court plus attributes of a classical supreme court, and jurisdiction over a myriad of topics that would normally remain dispersed over the judicial system. This option has obviously caused severe operational problems, because of the number of review cases heard by the Brazilian STF every year, and because of the STF’s responsibility to be directly concerned in deciding criminal and administrative cases involving high officials. The Colombian Court follows a more specific model of a constitutional jurisdiction, and as such is able to concentrate its activities on the formulation of high constitutional jurisprudence. A third relevant distinction for our purposes is related to access to the Courts. In the Brazilian case, access to the constitutional jurisdiction of the Court is limited to fewer institutional, political, and social actors.

Ambitious constitutions

259

Citizens can only access the Brazilian Supreme Court through appeals from lower courts’ decisions, and amicus curiae. In the Colombian case, access is open to all citizens, obviously with some procedural filters. Here resides an important distinction between the two Courts. The facilitated access made the Colombian Court immediately a target for social and individual actors with constitutional claims, after the adoption of the Constitution. In the Brazilian case, it took more time for some of these cases to move through all lower instances before getting to the Supreme Court. It is important to mention, however, that several of the agents with standing in the Court have served as direct vehicles for social demands before the Supreme Court’s constitutional jurisdiction. The fact is, however, that besides the institutional design distinctions, both of these Courts were able to emerge as key political actors. During the last two decades, both courts have been acting in a very responsive manner to the claims that arrived at their benches. This is not to say that commentators have always endorsed or praised this vigorous behavior. However, few would disagree that these two Courts have occupied an unprecedented position in the region. Their decisions have not just defined relevant political, moral, and economic issues, but have also caused other branches of government to try to anticipate the behavior of these Courts before taking action. The importance of these Courts has transcended the political realm and became part of the public debate. Not just the academy, but also political analysts, journalists, and common citizens scrutinize their most important decisions daily, giving Courts an enormous space in the public sphere. In the Brazilian case the presence of the Court in the public debate is amplified by the fact that all its deliberation processes are broadcast on public television (Falcão 2015).

IV. JUDICIAL POWER AND POLITICAL DISTRUST Several reasons probably contributed to the institutional decisions that led to a strengthening of judicial power in Latin America. It has been claimed that the expansion of the role of the judiciary, not just in Latin America, but also all over the world, was a direct consequence of the globalization process, which demands a more impartial and trustworthy agency to protect private interests and foreign investments than elected democratic bodies (Hirschl 2004). Charles Epp has a different proposition: For him judicial empowerment is a direct consequence of a new age of rights that arose from post-authoritarian regimes (Epp 1998). Perhaps a more comprehensive explanation for judicial empowerment in

260

Comparative constitutional law in Latin America

new democratic regimes, which does not exclude the previous hypothesis, was the existence of a general fear of the drafters that the rules of the game would not be respected if opponents were to succeed them in power (Ginsburg 2003). In very fragmented political and/or conflictual systems, there is no guarantee for the framers of new constitutions that they will not be excluded from the political system shortly after the constitutional moment ends. In a parallel direction, a context of diffuse distrust of ordinary politics, and of the authority of law, creates strong incentives for constitutional legislators to entrench rights and interests in the text and enhance the powers of independent agencies, forged to secure and protect their oeuvre. When these constitutions have an accentuated aspirational or transformative character, they will naturally face political resistance. In these circumstances, the drafters have robust motivations to diversify instruments to promote and protect their ambitions. In an environment with low trust of the democratic process and the effectiveness of the rule of law itself, the transfer of powers to an apex court could seem an extremely rational movement to be made (Vieira 1997, 2008). The lack of trust of political parties and the incapacity of the executive to comply with the new constitutional promises brought the courts to the center of the political arena. The challenge will be to understand how these courts are behaving in a specific constitutional setting, where they are challenged every day to act not only as negative legislators, as proposed by Kelsen, or as a deferential court, but as key institutional players, protecting the democratic process, reinforcing the rule of law, destabilizing traditional social hierarchies, fostering the implementation of social rights or public policies, and, most of all, protecting the Constitution from “aggressive” constitutional reforms. In the next section a comparative analysis of cases from both jurisdictions that exemplify the strengths of the Colombian and Brazilian constitutional apex courts will be presented.

V. CASES In this section, a set of cases decided by both Courts, dealing with similar issues or related to analogous powers of these Courts, will be compared. The attempt here is to understand how courts are dealing, in concrete cases, with the challenges established by aspirational constitutions with the powers conferred on them by the respective constitutions. The idea is to present a brief analysis of how these cases arrived at the courts, the

Ambitious constitutions

261

major rationale that oriented the decisions, and finally how government and society absorbed them. The Colombian and Brazilian Courts have been deciding thousands of cases every year. Hence, the cases to be analyzed represent just a small part of their jurisprudence. However, by choosing them, I believe it is possible to illuminate the major trends that have oriented the activities of these Courts. From a preliminary assessment, three sets of cases from both Courts will be studied here: power to control amendments to the Constitution, affirmative action, and some civil rights cases with structural consequences. A. Power to Review a Constitutional Reform Process 1. Colombian case (Ruling C-141 of 2010) In the middle of his second mandate, President Uribe achieved a high level of public support, mostly as consequence of his war on terrorism. His allies in Congress proposed a constitutional amendment allowing for a third eventual term that should be approved by a referendum. In Ruling C-141, the Colombian Constitutional Court decided that a referendum to approve a constitutional reform that would allow a third presidential term was unconstitutional. The Colombian Constitution can be reformed by “Congress, a Constitutional Assembly, or by the people through a referendum” (Art. 374 CC). In the context of expanding President Uribe’s powers, a “popular initiative” promoted a legislative act, approved by Congress, under the title of Law 1354 of 2009, calling for a referendum, in which it was to be decided if the Constitution could be reformed or not, so as to allow for a third presidential term. The Constitutional Court had already decided, in Case C-551 of 2003, that it had competence to scrutinize the validity of a legislative act that calls for a constitutional referendum when this act is initiated by the government. In the case of the “third presidential term,” it was not a “government initiative,” but a popular initiative. The Court, however, said that this point was not relevant in this case; the problem resided in the fact that a referendum was being used to provoke a reform of a substantial part of the Constitution, and this would only be permissible by a new Constitutional Assembly. Only in this case would the Court not have the power to review the constitutional reform. By this argument, the Court adopted the classical distinction between constituent power and constituted power. The constituent power is the original power of the people to make a new constitution. Consequently, it cannot be limited by the Court’s jurisdiction. However, the Court can

262

Comparative constitutional law in Latin America

impose limitations to the constituted power of reform, even when this power is manifested in a popular referendum, and called by a legislative act derived from a popular initiative. The Court also had overcome another doctrinal distinction. In accordance with Article 241(2) of the Colombian Constitution, the Court should “decide, prior to a popular vote, on the constitutionality of the call for a referendum or a constituent assembly to amend the Constitution, exclusively for errors of procedure in their convocation and implementation.” Unlike the Brazilian or the German Constitutions, the Colombian Constitution does not contain intangible clauses (cláusulas pétreas). In this sense there are no explicit clauses limiting the constituted powers. However the Court found that the constituted power to reform the Constitution has “material limits, given that the faculty to reform the Constitution does not include the possibility to derogate, subvert or substitute the Constitution on its integrity …” (p 7). If there is a profound political will to change the identity of the Constitution, people should call for a new Constitutional Assembly, and not for a mere referendum to amend the Constitution. This distinction is important for understanding the reasons why the Court did not invalidate the first reform to the Colombian Constitution that allowed for one presidential re-election. For the Court, this normative change, allowing a president to stay for two terms of four years, was not incompatible with the political structure of the Colombian presidential system. Nevertheless, the addition of another term – extending eventually to 12 years the term of the president in office – would necessarily collide with several fundamental principles of the Colombian constitutional democracy. A longer term of a president in office could jeopardize the key republican principle of alternation in power; it would also threaten the separation of powers, given the capacity of the president to nominate officials in the other branches of government, reducing their autonomy; and finally it would put in danger the very notion of political pluralism (p 41). In summary, the power to reform the Colombian Constitution is limited by the competences attributed to the constituted power. In consequence of these competence limitations, the constituted power can reform but not substitute the Constitution. To establish that a given reform is, in reality, a substitution of the Constitution, it is necessary to have a clear definition of the principles and values that give identity to the Constitution. Although the Constitution does not contain intangible clauses, the Court built a doctrine that the power to reform the Constitution could not be used to derogate, subvert or substitute the integrity of the Constitution.

Ambitious constitutions

263

Only the constituent power could produce the substitution of the Constitution (p 127). Since the legislation (Law 1354 of 2009) proposing the referendum stepped outside of the constituted power competences, threatening the identity of the Constitution, it was considered unconstitutional. By this decision the Colombian Constitutional Court not only limited the ambition of a particular president to expand his term in office, threatening the whole structure of the Colombian democracy, but also established an extremely important precedent regarding the power to reform the Constitution. By this precedent it made clear that the power to reform is not the power to substitute the Constitution, abusing the power to amend the Constitution (Dixon and Landau 2015). 2. Brazilian cases (ADI 939-7 of 1994 and ADI 1946-5/DF of 1999) In contrast with the Colombian Constitution, the Brazilian Constitution expressly creates substantial limitations on Congressional amending powers. Article 60, paragraph 4 of the Brazilian Constitution basically impedes Congress from deliberating about amendments aimed at “abolishing” the “federative form of state,” “direct, secret and universal suffrage,” “separation of powers,” and “individual rights and guarantees.” In 1993, to overcome a governmental deficit crisis (aggravated by President Collor’s impeachment) Congress approved a new tax (Imposto Provisorio sobre Movimentação Financeira – IPMF) to be collected in that same year. Financial institutions were supposed to charge 0.25 percent of every financial transaction undertaken by their customers, and transfer this amount to the federal government. Foreseeing potential constitutional challenges to the new tax, the Constitution was amended (Amendment n. 3 of 1993) to expressly allow the new tax. Despite this caution, several challenges were brought before the Supreme Court. The first objection, made by state governors, pointed to a violation of the “reciprocal immunity” clause, stated by Article 150(VI) of the Constitution, by which no entity (Union, States or Municipalities) of the Brazilian Federation is allowed to collect tax from another. The second objection claimed that the amendment violated the “principle of anteriority,” instituted by Article 150(III)(b) of the Constitution, prohibiting the collection of a new tax in the same fiscal year of its enactment. Finally, it was claimed that the amendment infringed an “immunity” clause established by Article 150(III(d) of the Constitution, forbidding Congress to impose tax on books, newspapers, and magazines, or paper to produce them. Government lawyers responded that none of these clauses could be considered untouchable, since they were not expressly entrenched by Article 60, paragraph 4, of the Constitution. Thus, a constitutional

264

Comparative constitutional law in Latin America

amendment could validly create exceptions to their restrictions. Even if they could be considered important constitutional limitations over Congressional power to impose taxes through ordinary legislation, they should not impede constitutional amendments. The crucial question before the Court, therefore, was if the abovementioned constitutional limitations to Congressional power to impose taxes could be considered substantial limitations to Congressional powers to amend the Constitution. In other words, how far could the Court go in the exercise of its power to review the constitutionality of amendments to the Constitution? The Supreme Court, by a vast majority of its justices, agreed with the plaintiffs, declaring the amendment unconstitutional in the three charges mentioned above. The first issue analyzed by the Court was the alleged violation of the Brazilian federal system. It was stated that the principle of “reciprocal immunity” entered the Brazilian constitutional system in 1891, under the influence of McCulloch v. Maryland: “the power to tax involves the power to destroy,” and it was never rejected by the following constitutions, including the Constitution of 1988. As an essential component of the federal architecture it could not be challenged even by a constitutional amendment. The second topic addressed was more sensitive, and with broader consequences. For the majority of the Court, even though the limitations to the powers of the State to tax were not inscribed in the fundamental rights chapter of the 1988 Constitution, they should be considered authentic fundamental rights in their daily conflicts with the state. Therefore an infringement on the constitutional rule that forbids taxes from being collected in the same year of the relevant enactment could not be tolerated, even if it was introduced into the legal system by an amendment to the Constitution. Finally the Court decided that the “tax immunity” granted by the Constitution in respect of books, newspapers and so on was an intrinsic part of the rights to freedom of the press, and thus an authentic fundamental right expressly protected as an untouchable clause by Article 60, paragraph 4(IV) of the 1988 Constitution. In a dissenting vote, Justice Sepulveda Pertence argued that, by giving an extensive interpretation to the content of the untouchable clauses of the Constitution, the Court would put at risk the real intention of its drafters. For him “… the stability of the Federal Constitution, where resides the unequivocal goal of the limitations imposed on the constituted power (amending power), can be … jeopardized and not reinforced by the strictness of an interpretation that enlarges these restrictions …”

Ambitious constitutions

265

Disregarding this prudential argument, the Supreme Court expanded its power to provide a final word on almost any matter involving constitutional reform, putting itself above the most robust manifestation of the representative system, which is the power to amend the Constitution. Perhaps the most important case of constitutional review of an amendment to the Constitution decided by the Court after this first IPMF case during these decades was related to the reform of the Brazilian social security system, promoted by Amendment no. 20 to the Constitution. Article 12 of this amendment regulated maternity leave. With the objective of reducing governmental costs regarding social security benefits, it established a ceiling for the benefit to be paid for pregnant women on leave. According to the Supreme Court, this provision would increase discrimination against women in the labor market. Since it is a constitutional labor right of a woman to live with her full salary for a certain period of time before and after giving birth to a child, if the government does not cover this cost, employers would have an economic incentive to prefer men over women, at least women of pregnancy age. As such, under the argument that women would be indirectly discriminated against by this new constitutional rule, the Supreme Court declared the norm unconstitutional. It is important to say that the Brazilian Supreme Court has been exercising this power to review the validity of constitutional amendments for the last 27 years. It is believed that the decision in the first IPMF case had a strong effect on establishing the supremacy of the Court in the Brazilian system. More than that, this case had a pre-emptive effect on eventual future initiatives that could threaten the basic principles of the Constitution. At the end of President Lula’s mandate, there was also a strong movement in Congress to promote an amendment to allow him an eventual third term, as occurred in Colombia. Several members of the Brazilian Supreme Court, in public interviews, reacted negatively to the proposal, emphasizing that it would erode the basis of Brazilian democracy. The proposal was withdrawn in the lower house. This decision also had an important preventive effect during the debates around reforming Brazilian criminal law or labor law detrimental to fundamental rights, or even the reform of the judiciary to limit its powers. By demonstrating its willingness to control any attack on an expanded conception of fundamental rights or the basic structures of the Brazilian State, the Supreme Court is responsible for drowning out some of these debates in Congress. Perhaps the attempt to introduce the death penalty would be the most notorious one.

266

Comparative constitutional law in Latin America

B. Affirmative Action: Women and Race 1. Colombian case: women’s participation in the political process (C-371 of 2000) This is a case where the Colombian Constitutional Court was called to exercise its preventive power to review legislation being adopted by Congress. In Ruling C-371 of 2000 the Court decided that several affirmative action policies adopted by a draft statutory law (projecto de lei estatutaria n° 62/98 Senado n°158/98 Cámara) were not just compatible, but also explicitly authorized by Article 13 of the Colombian Constitution. An important formal aspect in this case highlights both the protective nature of the Colombian Constitution in relation to the necessary regulation of fundamental rights, and the pivotal role conferred on the Constitutional Court to guarantee these rights. The Constitution manifests its garantist nature by requiring that the state can regulate “the exercise of fundamental rights and duties” only through a special type of legislation, called statutory law (Article 152). The enactment of a statutory law demands that a more rigorous procedure be approved. The Constitution also demands a previous review, by the Constitutional Court, of the compatibility between the draft statutory law and its procedural and substantive clauses before the legislation enters in to force (Article 153). The particular drafted legislation under constitutional scrutiny by the Court in Ruling C-371 of 2000 adopted several mechanisms to advance the representation of women in high levels of decision making within the Colombian State, and to increase the participation of women in the private sector and within the civil society (para 13). The legal questions presented to the Court were the following: Can the state provide for preferential treatment of women? Does affirmative action, which takes gender as a criterion to positively discriminate, violate Article 13 of the Constitution? For the Court, even if affirmative action, based on gender, brings tensions with the formal notion of equality, inscribed in the first part of Article 13, it is in absolute conformity with the second section (inciso 2o) of this clause, which imposes on the state the duty to promote the conditions for equality to became real and effective (para 18). The Court also brought into consideration Article 40 of the Colombian Constitution, which provides that “authorities should guaranty effective and adequate participation of women …” (para 31). Citing Ruling C-410 of 1994, the Court stated that substantive equality reveals a remedial and corrective character, protecting people who are

Ambitious constitutions

267

submitted to conditions of inferiority. Hence, although affirmative action appeals to suspect categories, such as race or gender, it is authorized by the Constitution. Although accepting affirmative action as a valid measure, the Constitutional Court created a test by which the legislator has to demonstrate: (a) the real existence of discriminatory circumstances; (b) that actions adopted are rational and proportional; and (c) that they should have a time limit, since they lose their reason for being when the goal of “real and effective” equality is achieved (para 20). 2. Brazilian case: affirmative action for university quotas based on race (ADPF 186/DF of 2012) More than 50 percent of the Brazilian population considers themselves Afro-descendant. However, until the mid-1990s, less than 3 percent of university students were non-white. This issue started to be addressed by the adoption of affirmative action programs by different universities, and by the creation of a large federal scholarship program that has poverty, public schooling, and race as the bases for an affirmative action component (PROUNI). For more than a decade these cases waited for a decision of the Court, which apparently made use of its “passive virtues” (Bickel 1986) to postpone a decision over these cases. In the meantime, many other programs and experiences were put in place all over Brazil. Although the PROUNI case was the first one to be decided by the Brazilian Supreme Court, the case of the University of Brasilia (UNB) can be considered the first case where the Supreme Court articulated a bold and consistent defense of affirmative action policies, allowing it to take race into consideration. By a unanimous vote, the Supreme Court decided that the affirmative action program adopted by the institution to increase the enrollment of Afro-descendant students was constitutional. The plaintiff, a conservative party with representation at National Congress called “Democratas”, argued that the program built by UNB, in using race as one of the criteria to select its students, violated several dispositions of the Constitution, especially those that protect the principles of equality, legality, human dignity, and non-discrimination. The petitioner also accused the university of having specifically infringed Article 208(V) of the Constitution, which literally says that a person’s “capacity” should be the criterion governing access to university education, in opposition to “universality access,” which regulates entrance to basic and intermediary levels of the educational system. For the Supreme Court “the fundamental question to be examined is to know if affirmative action programs that adopt a system of quotas, based on ethnic-racial criteria … are in conformity with Constitution.”

268

Comparative constitutional law in Latin America

The first point addressed by the Court was related to the two dimensions of the right to equality. According to the Court, the Brazilian Constitution not only protects formal equality, but also creates a positive obligation for the state to promote substantial equality, so that the right to equality does not become an empty concept. Therefore, affirmative action programs to enhance the position of disfavored groups are not extraneous to the constitutional scheme. Regarding the claim that the Constitution expressly opted for the adoption of a meritocratic principle as a criterion for selection of university students, the Court reacted that this was one among other more general norms of the Constitution, including its Preamble, which set the objective to create a more harmonious, pluralist, and just society. Consequently “it is essential to calibrate the several selection criteria for university (entrance) so to give a concrete dimension to the greater objectives collimated by the Constitution.” The Court moved then to the impugning of “racial criteria” inserted in the UNB affirmative action program. According to the Court a history of slavery, repression, and prejudice against racial groups left a “racial depreciative perception regarding the traditionally subjugated groups” that formal equality was not able to overcome, and in many circumstances it only contributed to “perpetuate existent de facto inequalities.” Hence the non-discrimination clause embraced by the Constitution cannot be an obstacle to the adoption of positive discrimination. Citing an affirmative action scholar, it affirmed that: “if race has been used to build hierarchies, it must also be used to deconstruct them” (Ikawa 2008). It is important to mention that the Court did not uphold affirmative action without conditions. It expressly said that the program was acceptable only because it was transitory and also because it respected a proportional relationship between the constitutional end it aimed for and the means that had been chosen: a 20 percent quota reserved for Afro-descendant students. Finally, on a concurrent vote, one of the justices remembered that the adoption of affirmative action by other universities did not trigger a racialization of social relations as feared by the plaintiffs. Therefore, the length of time left by the Court for social experimentation could be considered strategic for the consolidation of affirmative action programs in Brazil.

Ambitious constitutions

269

C. Civil Rights: Structural Changes 1. Colombian case: unconstitutional state of affairs regarding prison conditions (Ruling T-153 of 1998) In Ruling T-153 of 1998, the Colombian Constitutional Court declared the “unconstitutional state of affairs” of the Colombian prison system. This concept was previously forged by the Court (SU 559/1997 and T 068/1998) to deal with situations where the violation of fundamental rights has a generalized feature, affecting a great number of people, and is a consequence of structural causes. Since in these situations the violations of fundamental rights are not exclusively caused by one agency, the remedy should necessarily require the articulation of actions of several agencies. In the “unconstitutional state of affairs” cases, the Colombian Constitutional Court expanded its powers to an unprecedented level. First of all, the Court addressed a structural problem of many Latin American countries, related to the culture of non-compliance with the law (incumplimiento). It also confronted the traditional concept of separation of powers, by which courts were expected to be deferential to the administration on matters of policy. Finally it forged a concept of structural injunction that was not an explicit attribute of the Court. In deciding a tutela case, proposed by an inmate at a crowded prison in Medellin against the Ministry of Justice and INPEC – Instituto Nacional Penitenciario y Carcelario – the Court understood that the situation described by the proponent was not unique. Cruel and inhumane prison conditions were widespread in the Colombian prison system. According to the Court, “living conditions in the Colombian prisons clearly violate inmates’ dignity and threaten other rights, as those to life [and] personal integrity, … No one would dare to say that these facilities accomplish their mission … on the contrary … these prisons are schools of crime, generating … violence and corruption” (paragraph 48). Government reaction to this catastrophic situation has been historically insufficient and inadequate. For the Court, “the prison problem and life conditions inside these prisons does not occupy a due place on the political agenda” of the country. Inmates are a “marginalized minority,” therefore their sufferings are not taking into consideration by public officials (para 50). The Court also stressed that “the constitutional rationality is distinct than the majority rationality. Fundamental rights are precisely a limitation to the principle of majority, requiring the animus to guaranty the minority rights … The constitutional judge is obliged to give voice to the forgotten

270

Comparative constitutional law in Latin America

minorities … For this reason, the Constitutional Court is called to intervene in situations like the present one” (para 51). The Constitutional Court emphasized that lower courts were not able to remedy such a vast and systematic situation of human rights violation. Both society and the administration disregarded brutal and cruel conditions inside the prisons system. The situation required a prompt response, not only from the Ministry of Justice and the penitentiary agency INPEC, but also from many other sectors of the Colombian State. In accordance with Article 2 of the Colombian Constitution, “public officials are instituted to protect life, honor, goods and other rights of citizens. From here derived the constitutional obligation to watch for the security of citizens” (Paragraph 61). Because of this legal construction, the Court ordered several sectors of the Colombian State to take concrete steps to overcome the structural problems encountered in the Colombian prison system. For example, the Court ordered the Ministry of Justice and INPEC to produce a plan, within three months, to construct and reform the prisons so as to guarantee humane conditions in the prison system. It conferred supervision authority on Procuradoria General and the Defensor del Pueblo to oversee the order. 2. Brazilian case: same-sex couples (ADPF 132/RJ and ADI 4.277/DF) On May 2011, the Brazilian Supreme Court, by a unanimous vote, decided that same-sex couples should share the same rights as heterosexual couples in civil unions. This decision would regularly attract major attention, since the new Brazilian Civil Code of 2005, by its Article 1723, had limited civil unions only to couples composed of “man and woman.” However, the issue was more complicated, since the Civil Code only replicated Article 226, paragraph 3, of the Constitution, which also expresses that, “for the purposes of protection by the state, the stable union between a man and a woman is recognized as a family entity …” Therefore, to allow same-sex couples to legally form civil unions, the Supreme Court had not only to invalidate ordinary legislation under the Constitution, but also to produce a constructive interpretation that would allow it to overcome a specific limitation inscribed in the Constitution itself. It is important to mention that the Brazilian Congress has for decades been dormant as regards several legislative proposals to change both the Constitution and the Civil Code. Two were the complaints brought before the Supreme Court. The Governor of the State of Rio de Janeiro proposed a first lawsuit, ADPF 132, questioning the constitutionality of the state Civil Servant statute that did not benefit same-sex partners in the case of death or invalidity of their public employee partner. The Federal Attorney General filed a

Ambitious constitutions

271

second suit, ADI 4277, directly questioning the constitutionality of Article 1723 of the Civil Code, which limited civil unions to man and woman. The strategy of the Court, as advanced by Justice Britto, the reppourter of the case, was to demonstrate that the Constitution forbade any discrimination on the basis of sex. It “did not prohibit any concrete manifestation of human sexuality … which is a recognition that these manifestations are part of the people’s autonomy.” Therefore, sex, sexuality, or its multiple manifestations are not valid grounds for any sort of legal discrimination. The Court also stated that homo-affective couples should be allowed to construct and shape their relationships because of their rights to freedom and dignity: “to live a life with dignity it is necessary to be free. Liberty permeates a person’s life in all its dimensions, including freedom to choose their sexuality, effectiveness and with whom to live.” So if sexuality and its manifestations are not permissible grounds for discrimination, how can the Constitution itself discriminate against homo-affective unions, by not extending to them the same protections of a hetero-affective union? Several justices, in their concurrent opinions, argued in harmony that Article 223, paragraph 6, should be read not as excluding homo-affective relationships from the protection of the law. This rule was drafted with the objective of extending to civil unions the same protections of a formal marriage; thus, it used the same traditional language. In addition, you cannot read a clause designed to expand rights to exclude a specific category. Thus, the Court in a unanimous decision declared unconstitutional any interpretation of the Constitution or the Civil Code that would restrict the fulfillment of rights by same-sex couples. The decision was severely criticized by conservative groups, which argued that the Court decided against an explicit clause of the Constitution, and substituted the recent decision of the legislator expressed by the newly adopted Civil Code. Most progressive sectors, however, supported the Court decision and even criticized some of the concurrent votes that left space for the legislator to promote some restrictions in issues like adoption. Disregarding the tension between conservative and progressive actors, for the purpose of this chapter, the important aspect to be highlighted here is how the Court occupied the space of the legislator, for whom it would be too costly to make this move.

272

Comparative constitutional law in Latin America

VI. CONCLUSION The decisions analyzed in this chapter are a small sample of the powerful jurisprudence produced by these two Courts in the last decades. Many issues regarding distributive justice, such as allocation of resources in health or education, were left aside, since they have been the object of extensive analyses elsewhere (Ferraz 2011; Garavito 2011). This chapter also did not address the role of these Courts in controlling corruption or abusive use of powers by high executive and legislative authorities, as occurred in the Brazilian impeachment processes, in the trials of high political officials, or in the Colombian state of emergency cases. Analyses of these situations would confirm the prominent role assumed by these Courts. However, they would demand more space and time to be developed. The main objective here was to demonstrate that ambitious constitutions transfer an enormous burden on those in charge to protect and implement them. In the Brazilian and Colombian cases, by institutional design, a substantive part of these responsibilities was located on the shoulders of their apex courts. Some important institutional aspects are relevant to understanding how these courts come to fulfill their roles, such as appointment and tenure rules, accessibility, the extent of their jurisdictions, and the mechanisms to enforce their decisions. The most visible differences between these courts are the extent of their jurisdictions and the rules of accessibility. By being much more open to civil society and even individuals, the Colombian Constitutional Court was able to respond immediately to more provocative claims, proposed by progressive groups, than the Brazilian Court. The necessity to convince one of the agents with direct standing to appear before the Brazilian Court decreased the speed and intensity with which similar cases were submitted to the Court. However, since the number of agents with standing is large, and among them are the political parties, slowly, several of these minority political actors understood that they could amplify their power by channeling social demands through the STF. The second difference between these courts is the length of their jurisdictions. The Brazilian STF has a much wider jurisdiction in that it accumulated three judicial functions at the same time. Therefore, even if the rules of accessibility are stricter, as a Court with powers to review all other courts it became an open arena to decide hard cases that did not arrive there through its concentrated jurisdiction, but through its diffuse jurisdiction.

Ambitious constitutions

273

Finally, another important aspect that differentiates, in principle, the extent of the jurisdictions of these courts is the explicitly conferred role of the Brazilian Court to control the constitutionality of amendments to the Constitution that tended to abolish democracy, separation of powers, federalism, and fundamental rights. As we have seen, in the proposal for a third-term election in Colombia, the power to control constitutional reforms had to be constructed by the Court itself, as a doctrine. As could be noticed, however, even with this clear institutional design distinction, both Courts were unembarrassed and keen to defend the Constitutions from abusive amendments. The question that remains here is how these courts will be using this super-power in future cases: if they will constrain themselves to extraordinary situations, where there is a clear threat to democracy or fundamental rights, or if they will became “road blocks” (Dixon and Landau 2015) to legitimate democratic decisions taken by society. In the Brazilian case, it became clear that the combination of a reasonably flexible mechanism of constitutional reform with the substantive protection of fundamental constitutional principles, by the “carved in stone clauses,” allowed the Constitution to be systematically adapted and reformed, without losing its essential identity, becoming, therefore a very resilient document. Finally, the cases demonstrated that the Courts were also comfortable to move beyond or even against the express letters of the Constitutions to protect certain rights, as in the civil unions of homosexuals in Brazil, or the prison or the third mandate in Colombia. This responsive attitude by these courts transcends, by its nature, the institutional powers that they originally received. The exercise of this power also attracted severe criticism from more conservative forces in both societies and gave rise to profound concern about how both Courts will behave in a situation where the composition of the courts are not as aligned to the emancipatory principles entrenched in the original Constitutions. The analyses of the Colombian and Brazilian apex courts cases reinforces the perception that institutional design matters. However, many elements other than institutional variants also count in understanding the behavior of apex courts, such as the weakness and fragmentation of the representative system, or the strength of the legal culture, particularly of constitutional doctrines that grant authority to courts. Perhaps the combination of all these variants is what explains the appearance of a super court in Colombia and of a sumpremocratic court in Brazil. Needless to say, the allocation of this amount of power in the hands of apex courts creates enormous justification burden vis-à-vis majoritarian imperatives. However, this is a theme for another essay.

274

Comparative constitutional law in Latin America

REFERENCES Barroso, Luis Roberto. 2016. “Razão sem Voto.” Pp. 24–51 in A Razão e o Voto: diálogos com Luis Roberto Barroso, edited by Vieira e Glezer. São Paulo: Saraiva. Baxi, Upendra, Oscar Vilhena Vieira and Frans Viljoen. 2013. Transformative Constitutionalism: Comparing the Apex Courts of Brazil, India and South Africa. Pretoria: Pretoria University Press. Bickel, Alexander. 1986. The Least Dangerous Branch: The Supreme Court at the Bar of Politics. New York: Vail-Ballous Press. Cepeda, Manuel José. 1998. “Democracy, State and Society in the 1991 Constitution: the Role of the Constitutional Court.” Pp. 71–96 in Colombia: The Politics of Reforming the State, edited by Eduardo Posada Carbó. New York: St Martin’s Press. Couso, Javier. 2011. “Models of Democracy and Models of Constitutionalism: The Case of Chile’s Constitutional Court, 1970–2010.” Texas Law Review 89: 1517–1536. Dimoulis, Dimitri and Oscar Vieira. 2013. Resiliência Constitucional. São Paulo: Acadêmica Livre. Dimoulis, Dimitri and Soraya Lunardi. 2017. “Democraticidade ou Juridicidade? Reflexões sobre o passivismo do STF e o futuro do controle judicial de constitucionalidade.” In Oscar Vilhena Vieira and Rubens Glezer (eds), A razão e o voto: diálogos constitucionais com Luis Roberto Barroso. Rio de Janeiro: Editora FGV. Dixon, Rosalind and David Landau. 2015. “Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment.” International Journal of Constitutional Law 13: 606–638. Epp, Charles. 1998. The Rights Revolution: Lawyers, Activists, and the Supreme Courts in Comparative Perspectives. Chicago, IL: Chicago University Press. Ferraz, Octavio. 2011. “Harming the Poor through Social Rights Litigation: Lessons from Brazil.” Texas Law Review 89: 1643–1668. Falcão, Joaquim. 2015. O Supremo. 1st edn., v. 1. Rio de Janeiro: Edições de Janeiro. Garavito, Cesar. 2011. “Beyond the Courtroom: the Impact of Activism on Social Rights in Latin America.” Texas Law Review 89: 1669–1698. Garcia-Villegas, Mauricio. 2013. “Constitucionalismo Aspiracional”, Pp. 77–97 in Colombia: Desafios y Possibilidades de una Nacion en Construccion, edited by Leonardo Garcia Jaramillo. Bogota: EAFIT. Gargarella, Roberto. 2013. Latin American Constitutionalism: 1810–2010. Oxford: Oxford University Press. Ginsburg, Tom. 2003. Judicial Review in New Democracies: Constitutional Courts in Asian Cases. Cambridge: Cambridge University Press. Hirschl, Ran. 2004. Toward Juristocracy. Cambridge, MA: Harvard University Press. Hirschl, Ran. 2007. Towards Juristocracy: Origins and Consequences of the New Constitutionalism. Cambridge, MA: Harvard University Press.

Ambitious constitutions

275

Huntington, Samuel. 1996. The Clash of Civilizations, and the Remaking of World Order. New York: Touchstone Books. Ikawa, Daniela. 2008. Ações Afirmativas em Universidades. Rio de Janeiro: Lumen Juris. Kapiszewski, D. and M.M. Taylor. 2008. “Doing Courts Justice? Studying Judicial Politics in Latin America.” Perspectives on Politics 6(4): 741–767. Nino, Carlos. 2011. Un Pais a Margem de la Ley. Buenos Aires: Ariel. Sarlet, Ingo. 2005. A Eficácia dos Direitos Fundamentais, 5th. Ed. Porto Alegre: Livraria dos Advogados. Silivia, Patricia. 1991. “Technocrats and Politics in Chile: From the Chicago Boys to the CIEPLAN Monks.” Journal of Latin American Studies 23(2): 385–410. Uprimny, Rodrigo and Mauricio Villegas. 2015. Corte Constitucional y Emancipacion Social en Colombia. Bogota: DeJusticia. Vieira, Oscar. 1997. A Constituição e sua Reserva de Justiça. São Paulo: Malheiros Editor. Vieira, Oscar. 2008. “Supremocracia.” Revista de Direito GV. 8: 441–463.

12. Between power and submissiveness: constitutional adjudication in Latin America Raul A. Sanchez Urribarri The expansion of judicial power in Latin America, and especially the onset of constitutional adjudication bodies (especially high courts, generally referred to as “constitutional courts”), is one of the most important aspects of the region’s return to democratic rule in the 1980s/1990s. Once considered a region plagued with low levels of judicial independence (Verner 1984), Latin America now provides some of the most important examples of what has been heralded as “the global expansion of judicial power” (Tate and Vallinder 1995). The emergence of high courts endowed with constitutional review powers as key political/policymaking actors took place against the backdrop of vast institutional reform agendas, including substantial law reform efforts, carried out by countries in the process of adopting or strengthening pre-existing liberal democratic institutions, and counting on the financial support of foreign governments, multilateral institutions and non-profit foundations (Hammergren 2014). Such processes envisioned courts as bulwarks of the rule of law, with enough powers to prevent abuses of power from ruling elites, inhibit the infringement of rights against citizens and political minorities, and contribute to social and political change (Ginsburg 2003; O’Donnell 2003). These efforts took place at different points in time across the region – with a substantial degree of institutional variation across cases, different amounts of resources and technical support allocated to the reforms in question, and varied levels of commitment on behalf of the different players involved (Helmke and Ríos-Figueroa, 2011). Yet, behind the broad generalization of the rising importance of constitutional adjudication bodies in the region lies a more nuanced (and interesting) reality. The varied institutional configurations, socio-political contexts, and demands have led to dissimilar experiences. For instance, at one extreme of the judicial power spectrum, countries like Colombia and 276

Between power and submissiveness

277

Costa Rica have constitutional adjudication bodies that have a protagonist role in these countries’ political life. These institutions are widely perceived as legitimate by citizens and vast portions of the political class, and thus enjoy the opportunity and authority to decide a wide range of questions of political relevance – from “mega-politics questions” of vital importance to these nations (Hirschl 2008), to less prominent issues that present themselves in the country’s routine tasks of governance. Yet, this is not the state of affairs in other countries in the region, where high courts with constitutional review prerogatives play a less dominant role, intervening only occasionally in issues of political importance or, more worryingly, refusing to stand up against blatant unconstitutional actions. Countries as dissimilar as Ecuador, Honduras, Paraguay, and Venezuela, to name a few, have constitutional courts that are perceived as controlled by external political actors (e.g. several cases in Central America, see Bowen 2013) or overzealous party elites and other politicians (e.g. Ecuador, see Basabe-Serrano 2012; Paraguay, see Basabe-Serrano 2015 and Venezuela, see Sanchez Urribarri 2011). These varied experiences provide fertile ground for empirically grounded reflections about the role of constitutional courts in contemporary Latin American politics, and some of the challenges they confront in an era when democracy has become the “only game in town,” but where the quality of democracy across the region varies considerably (Mainwaring and Perez-Linan 2015). The region offers significant institutional variation of constitutional review, levels of legitimacy, patterns of judicial independence, and political context – all significant factors when thinking about patterns of judicial power cross-nationally (Navia and RíosFigueroa 2005). Thus, it offers an ideal site to think about both the rise of powerful courts, and the dynamics of politicization of judicial institutions in comparative perspective – a question that has become increasingly important in recent years. This chapter seeks to offer an introduction to help make sense of the different experiences that constitutional courts have had in their attempt to control political action, influence policy, and secure the rights of citizens, in the context of the democratization processes the region experienced in the last two decades (O’Donnell 2003). To do this, the chapter first briefly explores the diversity of institutional configurations of constitutional review across the region, relying on literature that has recently explored the topic, and briefly discusses a few ideas about the politicization of institutions of constitutional adjudication in comparative perspective. Next, the chapter discusses an example of a powerful constitutional court in the region: the Costa Rican Constitutional Chamber. To this end, I rely on prior literature to highlight the roles this Court

278

Comparative constitutional law in Latin America

has played in the context of one of the region’s most stable democracies. I then proceed to discuss an example of a weak, submissive, constitutional adjudication body: the Constitutional Chamber of the Venezuelan Supreme Court. Thus, I illustrate how a combination of chronic institutional weakness and an adverse political context can prevent a constitutional court from successfully controlling elected leaders and consistently influence policy. I finish the chapter with a few concluding thoughts for further reflection about the role of constitutional courts in the region and their continuous scholarly relevance, at a time in which enhancing accountability mechanisms and protecting the rights of citizens in Latin America is more pressing than ever.

I. THE (FORMAL AND INFORMAL) DIMENSIONS OF CONSTITUTIONAL ADJUDICATION IN LATIN AMERICA As comparative constitutional law scholars have previously documented (e.g. Brewer-Carías 1989; Rosenn 1974), most Latin American countries already enjoyed judicial review prerogatives way before the eventual rise of judicial power in the 1990s – including constitutional review powers. As Rosenn notes, by the early 1970s “all of the Latin American republics, with the exception of the Dominican Republic, provide for some form of judicial review” (1974, p. 785). Historically, there has not been a single “constitutional adjudication” model followed in Latin America (as opposed to the diffuse American model, or the centralized (Kelsenian) European model (Navia and Ríos-Figueroa 2005, p. 192)). Thus, across the region we find different mixed systems of constitutional adjudication, which rely on centralized judicial review – allocated to a high court, a branch of the high court, or a separate constitutional court – quite often coexisting with judicial review powers in the hands of the judiciary as a whole. As noted elsewhere in this volume, that continues to be the case today. Yet, overall, in the past constitutional adjudication was a less prominent alternative to address political issues, or the rulings’ policy implications were more limited. In part, this was due to the institutional frameworks that governed the constitutional jurisdiction. Quite often, the rules of access to constitutional adjudication were obstructive, the scope of the cases that arrived at the courts were limited and lacked political relevance, and the effects of the rulings were be inter partes as opposed to general or erga omnes. Additionally – and more importantly – lawyers

Between power and submissiveness

279

and judges across the different levels of the judiciary were not necessarily in favor of exercising their prerogatives for their own conservative predispositions, grounded in a past of deference to executive authority (Hilbink 2007); and, even if they had, courts had to face unstable or otherwise adverse political contexts (Helmke 2002, 2005; Ríos-Figueroa 2007). After all, with a few notable exceptions, most of Latin America was still under military rule or under unstable, limited democracies; and an emphasis on constraining political authority and upholding the rule of law was not a priority at either the domestic or the international level. Therefore, it is imperative to take into account that, before the rise of constitutional courts in the region, each system and the subsequent reforms they experienced operated within specific historical institutional backgrounds and trajectories (Hilbink 2007; Kapiszewski 2012). This had major consequences for the prospects of judicial power across the region. Later on, constitutional review mechanisms were introduced or strengthened in several jurisdictions across the region (Larkins 1996) – as part of the 1980s–90s democratization process that followed the collapse of these military dictatorships and the introduction of an economic agenda based on liberal economics. Part of these reforms began in the context of broader constitutional or legal reform attempts that also involved other significant modifications conducive to judicial empowerment – such as the modification of appointment rules; the recognition of a broad catalog of constitutional rights; the creation of judicial councils; and the establishment of bodies with the mission of protecting fundamental rights, especially ombudsman’s offices (see Table 12.1). All in all, these different configurations led to an assorted institutional landscape, with varied levels of de jure judicial independence, jurisdictional scope and rules of access. As Ríos-Fígueroa and Navia (2005) point out, Latin America’s constitutional adjudication systems vary by type (concrete or abstract), timing (a priori or a posteriori), and jurisdiction (centralized or decentralized). For instance, in Latin America, constitutional adjudication bodies may come in the form of separate Kelsenian-style constitutional courts standing alongside the judicial system (such as the Colombian Constitutional Court, the Chilean Constitutional Tribunal, Guatemala’s Corte de Constitucionalidad, and the Peruvian Constitutional Tribunal); conceived of as part of the functions played by high courts situated at the apex of the judiciary (such as the Argentinean Supreme Court, the Mexican Supreme Court, and the Supreme Courts of Honduras and Panama); or may have been assigned to a separate Chamber within the Supreme Court, such as the Costa Rican

280

Comparative constitutional law in Latin America

Table 12.1 Latin America – constitutional adjudication bodies Country

Name

Year Constitution (Last Revision)

World Justice Project “Rule of Law” Ranking (2015)

Argentina

Supreme Court

1853 (1994)

54/102

Bolivia

Plurinational Constitutional Tribunal

2009

94/102

Brazil

Supreme Federal Tribunal

1988 (2015)

46/102

Chile

Constitutional Court

1980 (2015)

26/102

Colombia

Constitutional Court

1991 (2013)

62/102

Costa Rica

Supreme Court – Constitutional Chamber

1949 (2011)

25/102

Dominican Republic

Constitutional Court

2015

67/102

Ecuador

Constitutional Court

2008 (2015)

77/102

El Salvador

Supreme Court – Constitutional Division

1983 (2014)

57/102

Guatemala

Constitutional Court

1985 (1993)

85/102

Honduras

Supreme Court – Constitutional Chamber

1982 (2013)

90/102

Mexico

Supreme Court

1917 (2015)

79/102

Nicaragua

Supreme Court – Constitutional Chamber

1987 (2014)

89/102

Panama

Supreme Court

1972 (2004)

49/102

Paraguay

Supreme Court – Constitutional Chamber

1992 (2011)

N/A

Peru

Constitutional Court

1993 (2009)

63/102

Uruguay

Supreme Court

1966 (2004)

22/102

Venezuela, R.B.

Supreme Court – Constitutional Chamber

1999 (2009)

102/102

Sources: Constitute, Comparative Constitutions Project (Data from 2013, last accessed September 30, 2016 at: http://www.constituteproject.org); Navia and Rios-Figueroa (2005); World Justice Project (http://worldjusticeproject.org; Data from 2015, last accessed September 30, 2016).

Between power and submissiveness

281

Sala Cuarta, El Salvador’s Sala de lo Constitucional, and the constitutional chambers of Paraguay and Venezuela. These courts also have very different rules of access or standing – ranging from open systems where almost anyone can bring a case to the court, to more secluded systems where only a handful of actors can bring cases or take part in constitutional review proceedings. They are also quite different in terms of size, candidates’ requirements to be appointed, appointing authorities, and tenure. Such institutional variation has important consequences, as recent research on judicial independence in the region has shown (e.g. RíosFigueroa 2011). Furthermore, to make the puzzle of judicial power in constitutional review even more intriguing, the incentives and constraints placed by these formal institutional frameworks do not necessarily translate to the desired outcomes (Blass and Brinks 2011). Consider, for example, the case of the Constitutional Chamber of the Venezuelan Supreme Court. In theory, the court is a “powerful” court – the 1999 “Bolivarian” Constitution establishes specific provisions that are supposed to guarantee its independence, including designation processes that involve different branches or power and civil society representatives; in theory, appointees to the Supreme Court need to meet certain professional and ethical standards; the Constitutional Chamber has a generous jurisdictional scope, including concrete review a posteriori, and abstract centralized a priori and a posteriori review powers; including constitutional review powers over the other branches of the Supreme Court, and a variety of prerogatives that have been devised through case-law (Sanchez Urribarri 2011). And yet, as explained below, the Constitutional Chamber’s record has been, at the best of times, mixed (Sanchez Urribarri 2011), whilst in the past few years it has demonstrated an utter lack of interest in controlling elected leaders (Brewer-Carías 2015). Although this is a particularly striking case of mismatch between institutions and reality, it is still a useful example to illustrate the need for further empirical analysis on the topic. The introduction of these different modes of constitutional adjudication, the diverse array of institutional designs, and the actual performance of constitutional adjudication systems has guided the work of comparative judicial scholars in Latin America for years already (Kapiszewski and Taylor 2008). This burgeoning body of work has been able to explain not only the actual dynamics of judicial power in each one of these countries via longitudinal, well-documented case studies, but also to expand our theoretical knowledge of judicial power in comparative perspective. A non-exhaustive, brief selection of this ever-growing list of works includes Helmke’s assessment of the Argentinean Supreme Court

282

Comparative constitutional law in Latin America

and its varied ability to control the executive branch across democracy and dictatorship, as a function of the prospect of change of regime (Helmke 2002, 2005); Kapiszewski’s detailed study of the vast differences in judicial power patterns of the Argentinean and Brazilian high courts in salient cases involving economic policy, as a function of their varied “character” (Kapiszewski 2012); Ríos-Figueroa’s assessment of the effect of the fragmentation of the Partido Revolucionario Institucional (PRI) regime on the performance of the PRI in Mexico (Ríos-Figueroa 2007), and, with Taylor, their comparative assessment of the judicialization of policy in Brazil and Mexico (Ríos-Figueroa and Taylor 2006); Finkel’s study of the applicability of insurance theory to explain the empowerment of the Mexican judiciary, including its Supreme Court (Finkel 2008); Staton’s analysis of the Mexican Supreme Court’s strategic efforts to develop public legitimacy and strengthen their power in democratizing Mexico (Staton 2010); Couso’s analysis of the Chilean Constitutional Court in the context of democratizing Chile (Couso 2003); Hilbink’s analysis of the Chilean Constitutional Tribunal’s behavior during the Pinochet dictatorship and beyond (Hilbink 2007), and Wilson’s numerous analyses of the major role policy-making played in the Costa Rican Constitutional Chamber (e.g. Wilson 2009, 2010), just to name a few. This partial sample is evidence of the strong scholarly attention to the region’s high courts of constitutional adjudication, and the continuous relevance of this topic. As Kapiszewski and Taylor suggested (2008), whilst the line of works in this topic has been extensive, there is still room for further theorizing about how courts work in the region – even judicial adjudication bodies, which have clearly received more scholarly attention than the rest of the judiciary. There has also been a serious imbalance in terms of what countries are studied, and to what ends. High courts in larger countries, such as the Argentinean Supreme Court, the Brazilian Supremo Tribunal Federal, the Chilean Constitutional Tribunal and the Mexican Supreme Court have received greater attention than their counterparts in the rest of the region. As a result, we end up with a lack of important knowledge essential for theory development, and with lessons that might not necessarily apply to other countries in the region. Despite significant efforts to correct this gap in the past few years, we still know precious little about the politics of constitutional adjudication in countries like Bolivia, Ecuador, most Central American and Caribbean nations, Paraguay, Peru, Uruguay, and Venezuela. Colombia and Costa Rica are, to some extent, exceptional – they are well known in comparative constitutional circles and judicial politics research.

Between power and submissiveness

283

Before elaborating on notable examples of powerful and weak constitutional adjudication bodies, it is important to reflect on two major intertwined problems that affect our understanding of how constitutional courts function in the region. On one hand, so far, there have been relatively few analyses focused on the extent, conditions, and consequences of the politicians’ efforts to control the judiciary and, specifically, institutions of constitutional adjudication. This is an unfortunate omission because the dynamics of judicial politics are not static, and because the politicians’ respect for the independence and roles of judicial institutions in Latin America’s emerging democracies cannot be taken for granted. Together with assessing the moment and conditions of judicial empowerment, and the courts’ use of their constitutional review prerogatives, it is critical to further investigate the politicians’ reactions to judicial assertiveness (especially situations of overt attack against the courts), or the use of litigation for political advantage. Scholars have already pointed out the importance of this phenomenon in comparative judicial politics research, particularly in an age of judicialization of politics. After all, the rise of importance of the judiciary may increase the stakes for politicians to control courts (Domingo 2004). Across the region, politicians react in diverse ways to manifestations of judicial empowerment, and scholars have taken note by systematically analyzing under what conditions, and why, politicians and bureaucrats are willing to follow judicial decisions (Kapiszewski and Taylor 2010; Gauri et al 2015). In turn, politicians’ efforts to control and use courts also vary considerably. Some of the most significant comparative judicial politics scholarship of recent years has moved in this direction, seeking a better understanding of regime dynamics and judicial assertiveness. A growing number of authors, such as Basabe-Serrano (2015), Brinks (2011, 2012), Hammergren (2014), Ingram (2015), Llanos et al (2015), Perez-Linan and Castagnola (2009), and Sanchez Urribarri (2012, 2013), amongst others, have already emphasized the need to systematically investigate the dynamics of the politicization of courts or, alternatively, are including in their analyses of constitutional adjudication these deliberate efforts. Traditionally, the term politicization has strong negative connotations. According to the predominant view of the connection between the political system and courts in the US context, the underlying assumption is that the nature of the political control of the court is through ideological means (Dahl 1957; Peretti 1999). Scholars speak of the crafting of a judicial system in terms of the conscious selection of judges with ideological affinities, and the examination of patterns of judicial decision-making as a function of the implementation of such values via their votes at the bench. Partisanship was not usually considered a

284

Comparative constitutional law in Latin America

variable of import, since it is often equated with ideology (even if this is a problematic assumption in the United States and other established democracies). Yet, in unstable democracies, the “ideological connection” as a basis for control does not necessarily hold true; politicians might rely on other mechanisms to control courts. Research like Helmke’s strategic defection theory (2002, 2005) in Argentina shows that the control of courts can also operate via explicit or implicit threats to judges, given their lack of security in an unsteady political context. Moreover, as Llanos et al (2015), Basabe-Serrano (2015), and Sanchez Urribarri (2011) claim, elected leaders and other politicians could resort to informal routes to influence and control the judiciary (see also Popova 2012 and Trochev and Ellett, 2014, for examples of how this premise holds in the post-Communist and African contexts). These routes may also include corrupt exchanges or recurring clientelar relations, also referred to as judicial clientelism, which are important informal dynamics in judicial behavior that remain understudied (Sanchez Urribarri 2012). In a region where informal politics has been pervasive and influential in other spheres – such as elections, bureaucratic appointments, and even legislative behavior – it is hard to imagine that similar dynamics will not be present vis-à-vis the judiciary, including high courts with constitutional review powers. This discussion helps to explain the lack of emergence of judicial power in some jurisdictions, or processes of disempowerment that have taken place in the region. In the next sections, I provide two illustrative examples of constitutional courts in the region that have performed in remarkably different ways: the Costa Rican Sala Cuarta and the Venezuelan Sala Constitucional. Whilst both institutions share a number of institutional features, the former has long been considered an independent, principled, leading rights-protection adjudicatory body, whilst the second has gained notoriety for becoming an arm of the Chavista regime since its creation in 2000.1

1

The two most influential constitutional courts in Latin America are arguably the Colombian Constitutional Court, and the Costa Rican Constitutional Chamber of the Supreme Court (Sala Cuarta). Examples of the influence and notable role of the Colombian Constitutional Court have been discussed elsewhere in this volume (e.g. see chapters by Alviar Garcia and Bernal), and a growing number of works have helped to understand why it has become such a powerful judicial institution in a challenging environment for democratic institutions and the rule of law (e.g. Botero 2015; Cepeda-Espinosa 2004; Nunes

Between power and submissiveness

285

II. A POWERFUL CONSTITUTIONAL COURT: THE COSTA RICAN SALA CUARTA Since its creation in 1989, the Sala Cuarta emerged as an institutionally powerful institution, as part of the Supreme Court, with exclusive constitutional review jurisdiction and sitting at the apex of the country’s judicial system. Originally envisioned as a judicial institution with important prerogatives, the Chamber emerged as a vital institution to channel growing policy challenges in Costa Rica’s changing sociopolitical scene, eventually becoming “the most powerful political entity in the Costa Rican state” (Vargas Cullel 2007). There were several conditions that facilitated the rise of the Constitutional Chamber. Costa Rica has enjoyed a stable democracy for over six decades – one of the strongest and most resilient in the region, which has not suffered interruptions by force since 1949. Despite recent challenges to the stability of its long-standing party system and the surge of new political options (Frajman 2014), the country has not really experienced the tensions and turmoil of its Central American counterparts (Bowen 2013). Moreover, the Sala Cuarta was created as a deliberate effort to enhance the country’s rule of law, and counted on the support of key actors in Costa Rica’s political scene from its inception. The creation of the country’s Constitutional Chamber did not happen in the context of a major overhaul of the Constitution, or as a result of a major shift in the country’s political system. Instead, it was the consequence of a protracted institutional reform effort that took place throughout the 1980s, involving Congress, the Supreme Court, and other key stakeholders (Barker 1991). The Chamber and its powers were established via the reform of article 10 of the Costa Rican Constitution,2 and was further developed by legislation, in tandem with other reforms conducive to strengthening the

2010; Ríos Figueroa 2016; Rodriguez Raga 2011, and several others). Thus, this chapter will focus on the constitutional branch of the Costa Rican Supreme Court. 2 Article 10 of the 1949 Costa Rican Constitution, with Amendments through 2011: “It will correspond to a specialized Chamber of the Supreme Court of Justice to declare, by absolute majority of its members, the unconstitutionality of the norms of any nature and of the acts subject to the Public Law. The jurisdictional acts of the Judicial Power, the declaration of election made by the Supreme Tribunal of Elections and the others determined by the law will not be (subject to review) by this way. It will also correspond to (the Chamber): a. To settle the conflicts of competence (jurisdiction) between the powers of the State, the Supreme Tribunal of Elections included, as well as with the other entities or

286

Comparative constitutional law in Latin America

protection of rights (Ley de Jurisdiccion Constitucional, No. 7135 de 11 de Octubre de 1989). The law also indicated that the Chamber’s rulings declaring the unconstitutionality of different types of legislation have erga omnes effect, binding upon the rest of the judiciary and all state institutions (Barker 1991). This eliminated the need for landmark judicial interpretations to assert its prerogatives, which has sometimes been the case in other jurisdictions in the region. The Chamber has seven justices, who are appointed by the legislative branch for eight-year renewable terms. It is well known for having amongst the most generous rules of access in the region in terms of standing, legal costs, and other procedural matters (Wilson and Rodriguez Cordero 2006; Wilson 2007). Since its inception, la Sala has become the country’s true court of last resort, deciding thousands of interim constitutional proceedings (recurso de amparo constitucional, known in popular jargon as salacuartazo) and habeas corpus petitions. Official statistics on the Chamber’s historical decision trends show that it went from receiving just a few hundred cases in its first years, to receiving 19,470 constitutional petitions in 2014. In contrast, before the creation of the Chamber, the Corte Suprema had received only 150 cases of constitutional review (Wilson 2007). Although the vast majority of the cases are declined via summary decisions, the Chamber still exercises its powers frequently across a range of important policy-making areas. Throughout more than 25 years of jurisprudence, the Chamber has developed a reputation for being a progressive institution across a range of issue areas, including health rights (Wilson 2011), indigenous rights, due process in the context of criminal procedure and environmental affairs, and other areas of protection of individual rights (Wilson and Rodriguez Cordero 2006). As Wilson claims, “it is widely agreed that, since 1989, Costa Rica has experienced a judicial revolution – more specifically, a ‘rights’ revolution – that has encouraged individuals and groups from virtually every sector of society to turn to the Court for redress” (Wilson 2007, p. 243). A quick search for recent news about the Constitutional Chamber usually leads to good examples of this court hearing or deciding important cases. For example, in the first two months of 2016 alone, the Costa Rican Constitutional Chamber already decided a number of cases of policy import, such as the decision to strike down an executive decree implementing an Inter-American Human Rights Court’s organs that the law indicates; b. To take cognizance of the consultations on bills of constitutional reform, of approval of international agreements or treaties and of other bills of law, as provided in the law” (see http:www.constitute project.org).

Between power and submissiveness

287

ruling about access to in vitro fertilization procedures (La Nación, February 16, 2016); ruling unconstitutional the incarceration of minors for not paying alimony (La Nación, February 24, 2016); and declaring that citizens with disability who attend open university schemes should be afforded access to adequate technological support (La Nación, February 12, 2016). These are select examples that reflect the Chamber’s strong tradition of protection of socio-economic rights. Also, the Chamber has been a pioneer in receiving progressive constitutional interpretations from other tribunals, including supra-national courts deciding human rights cases (e.g. the Inter-American Court of Human Rights, which is located in San José), and foreign courts. As Wilson and Rodriguez Cordero point out (2006), the creation of the Constitutional Chamber – with its strong constitutional review model – was not the main reason why a “rights revolution” emerged in Costa Rica, especially in contested areas such as LGBT rights or health policy. Instead, one should pay attention to rules of access and litigation costs, which, under the right circumstances, allow marginalized groups to come ahead (Wilson and Rodriguez Cordero 2006). The Court’s assertive, progressive jurisprudence tendered an invitation to politically marginalized groups to conceive of and use litigation as a way to influence policy. Moreover, the Costa Rican judiciary has historically enjoyed a reputation of judicial independence (Verner 1984) – an important precondition for the emergence of judicial power. Yet, even in Costa Rica the powerful Sala Cuarta has faced significant limitations. For example, despite enjoying high levels of legitimacy vis-à-vis political actors and the population as a whole, there have been instances in which the Chamber has been forced to decide cases of major political significance and, as a result, feel the constraints of a less welcoming political environment. Good examples are the Chamber’s “mega political” rulings with respect to the constitutionality of President Oscar Arias’ re-election (see Martinez-Barahona 2010); and the decision to declare constitutional the free trade agreement with the United States (La Nación, July 4, 2007). The Chamber has occasionally been considered too powerful; in a way, a victim of its own success. Some observers claim that too much judicial power is not good for the political process, and that Costa Rica is ruled by a juristocracia – an unaccountable government of judges.

288

Comparative constitutional law in Latin America

III. A SUBMISSIVE CONSTITUTIONAL COURT: THE VENEZUELAN SALA CONSTITUCIONAL On a different note, there have been courts with constitutional review prerogatives that have failed to become powerful, influential actors against elected leaders and other state authorities. Even if some of these courts effectively enjoy ample institutional powers, generous rules of access, and jurisdictional rules that, on paper, are conducive to the emergence of judicial power, they have refused to perform their accountability role in a consistent manner. Moreover, their lack of effectiveness as a check on political authority has become part of these countries’ recent experience of democratic backsliding (Mainwaring and PerezLinan 2015) – that is, their coyness and complacency with the other branches of power, especially the executive branch, have been instrumental in helping to consolidate regimes that have purposefully sidelined democratic institutions and adopted authoritarian traits and practices. The high courts of Bolivia, Ecuador, and Nicaragua have been denounced as politicized institutions that refrain from safeguarding the constitution from the Morales, Correa, and Ortega populist administrations, respectively. However, the most emblematic of these problematic cases is the Venezuelan Supreme Court, especially its Constitutional Chamber. The Chamber has played an important role in the Bolivarian Revolution, and is nowadays perceived as a dependent and highly politicized institution or “rubber-stamp” of the regime (Berrios 2013a; Canova et al 2014; Castaldi 2006; Brewer-Carías 2012, 2013, 2015; Sanchez Urribarri 2011, 2013; Taylor 2014). The Chamber has gained more notoriety in the aftermath of Chávez’s death, with the subsequent arrival of Nicolas Maduro in power and the country’s rising socio-political crisis. However, as explained below, this court has been highly politicized since its inception in Venezuela’s “Bolivarian” Constitution in 1999, and it has progressively become a tool of the Chavista ruling elite as Hugo Chávez’s rule consolidated (Sanchez Urribarri 2011). The experience of constitutional adjudication in Venezuela during the democratic regime that preceded the Bolivarian Revolution (1998) was mixed at best. There is documented evidence of a systematic increase in the use of courts for policy-making and other political purposes, and rising constitutionalization of civil litigation, throughout the 1980s and early 1990s, particularly following the creation of the Organic Law on Constitutional Amparo (see Brewer-Carías 1989; Sanchez Urribarri 2011). This period included cases that put the Court at the storm center of Venezuelan politics, such as the impeachment of President Carlos

Between power and submissiveness

289

Andres Perez in 1993 and several landmark cases filed against the government during Rafael Caldera’s presidency. During this time, Venezuela experienced a broad push for judicial reform similar to other countries in the region (Castaldi 2006; Hammergren 2010).3 However, Hugo Chávez’s landslide victory in the 1998 presidential elections and the onset of the Bolivarian Revolution would bring an end to these reformist attempts, and initiate a new phase in inter-branch relations in Venezuela. Soon after arriving in power, the new president vowed to create a new Constitution via an elected Constitutional Assembly. Given that this option was not contemplated in the 1961 Constitution, Chávez pushed for the creation of the Assembly through the Supreme Court. Facing a hugely popular president and the prospect of becoming an irrelevant player during the confrontation between the displaced political elites and the new Chávez-led regime, the Court yielded to the president’s wishes in a strategic-survival move. Shortly after the Chavistadominated Assembly was elected and installed, the legislative branch was shut down and replaced with a smaller legislative committee appointed by the Constituent Assembly. When the Assembly’s decision was denounced before the Supreme Court, a divided Plenary Chamber sided again with the regime (Berrios 2013a; Brewer-Carías 2015). However, this strategic coexistence with the Chavista regime did not last long, and would end with the creation of a new Supreme Tribunal, in the context of the approval of the new “Bolivarian” Constitution in December 1999. To this end, the Assembly’s legislative committee dismissed all but a handful of the Supreme Court’s justices, and replaced most of them with justices from different professional paths, but who shared disparate links and connections with the composition of the Chavista political establishment of the day (Brewer-Carías 2015; Sanchez Urribarri 2011). One of the most important innovations in this regard was the creation, appointment, and organization of a new Constitutional Chamber that was 3 This effort was endorsed by international financial institutions like the World Bank and the Inter-American Development Bank; a growing number of non-governmental organizations, and law professionals, and it was directed towards proposing and implementing ambitious plans in order to enhance judicial independence, increase the professionalization of judges and court personnel, foster an institutional culture of respect for human rights in the Venezuelan state (and the judiciary in particular) – all significant efforts that were also under way in other countries in the region. The reform generated great expectation regarding the emergence of judicial power in Venezuela. This had been the aspiration of many lawyers, judges, and academics for years (see Perez-Perdomo 2007).

290

Comparative constitutional law in Latin America

meant to concentrate the constitutional review powers previously distributed amongst different Salas of the Court (especially the Plenary Chamber), and thus become the pinnacle of the judicial system. This Chamber would also have the prerogative to strike down decisions of the other Chambers of the Supreme Court via a special petition of “constitutional revision,” and broad jurisdiction to oversee decisions of the courts of appeals on constitutional matters. Thus, the Chamber was given extensive powers and generous rules of jurisdiction, and the Chamber itself interpreted these powers in a very generous way, in order to ensure the greatest possible scope of constitutional review action in a volatile political and legal context. This was the start of the Chamber’s contradictory existence: Whilst institutionally strong, the Chamber was subject to risk of significant political influence from the very beginning, and its disposition to take on an active role in the midst of a change of regime would only raise the stakes for political interference. The importance of the Constitutional Chamber’s functions; the pressures created by the growing judicialization of political conflict in the aftermath of Chávez’s arrival in power; and the gradual transferring to the Supreme Court of appointment, discipline, and administration functions that were previously in the hands of a (now abolished) judicial council gave the regime additional reasons to control the judiciary. Moreover, the Chamber’s binding interpretations of the new Constitution were a critical piece in Venezuela’s new constitutional order, and formed part of Chávez’s claim to democratic legitimacy (particularly in the first years of his regime). Understandably, since then, there have been claims that the government had crafted a new judiciary to suit the needs of the regime. Yet, the Chamber’s pro-government character and its proclivity to favor the regime at all costs were not entirely clear. Though largely supportive of the regime in salient cases (Brewer-Carías 2015), and playing a significant role in striking down previous legislation in the name of the new Bolivarian constitutional order, the Chamber also showed modest signs of independence from the legislature and other state authorities (Sanchez Urribarri 2011). Moreover, during this early period, the Constitutional Chamber asserted its “Super Sala” role within the Supreme Court, concentrating important review functions over the other Chambers of the Supreme Court and the rest of the judiciary. In short, at least during the early period of Chavismo, this is, during the transition from the previous democratic regime, the Chamber could not be readily dismissed as an irrelevant veto player. Despite its inclination to assist the regime in its quest for democratic recognition, it displayed a behavior that, at least, allowed it to retain a modicum of legitimacy vis-à-vis the public and other political actors in an increasingly volatile context.

Between power and submissiveness

291

However, after the failed April 11, 2002 coup, and all the way until the unsuccessful 2004 recall referendum against Hugo Chávez, the Constitutional Chamber was subject to growing pressures on all political fronts. More controversially, the justices themselves became willing participants in the stalemate between the opposition and the government. During this time, the Bolivarian regime’s underlying coalition fractured. With it, the Chamber and the Supreme Court as a whole became firmly divided between pro- and anti-Chávez justices. The intractable conflict between the government and the opposition led to the arrival of several cases of major political significance to the Chamber, most notably the designation of the members of the National Electoral Authority (Consejo Nacional Electoral, CNE), and other cases of foremost relevance during the run-up to the referendum. Arguably, this case was the Chamber’s last major autonomous exercise of power. Whilst the Court’s decision favored the government in the long run, it is credited with alerting the Chavista political majority in the legislature about the need to control the Chamber (and the Court as a whole), especially prior to the August 2004 recall referendum against Chávez. In a blatant exercise of “judicial insurance”, the legislature proceeded to reform the Supreme Court via ordinary legislation, and appoint justices that reflected the composition of the Chavista coalition of the day (Brewer-Carías 2015; Castaldi 2006; Sanchez Urribarri 2011). Once Chávez consolidated his power, and particularly after the opposition decided not to contest the 2005 legislative elections, the Constitutional Chamber gradually ceased its activist role vis-à-vis other branches of the state. With a few notable exceptions, the Chamber – along with the Court as a whole – increasingly came to be perceived as a regime tool. By then, the political control of the Court had been secured and, consequently, its legitimacy as an independent arbiter had been tarnished. In fact, Court–executive relations changed even further as the regime became increasingly authoritarian. In the last years, and particularly after 2007, the Court has not only declined to decide cases in favor of the opposition (Canova et al 2014), but has also become a proactive partner of the government. As the regime proceeded to unilaterally transform the state along the lines of “21st-century Socialism” (a broad policy agenda seeking to develop Venezuela’s own version of a socialist regime), the Chamber provided the regime with complacent judicial rulings when most needed. This era (which continues until today) needs to be analyzed from the vantage point of the roles played by judicial institutions in authoritarian contexts (Ginsburg and Moustafa 2008). Although, institutionally, the Supreme Court continues to proclaim that it is an independent branch of power, the character of the institution has clearly changed.

292

Comparative constitutional law in Latin America

For instance, according to Justice Morales – the former head of the Supreme Court, who was also the head of the Constitutional Chamber – the relationship between the Court and the other branches of power should not be based on the liberal democratic separation of powers model, since “the separation of powers weakens the State” and the goal, instead, should be the “collaboration” of the branches of power established in the Constitution (Interview with Chief Justice Morales, Noticias 24). Whilst this sounded quite alarming back in 2009, it is no longer considered extraordinary. The call for a strengthening of the “cooperation” between branches has been echoed by the current Chief Justice, Gladys Gutiérrez, who was Venezuela’s Solicitor General prior to being appointed Justice of the Supreme Court, and was eventually promoted to head of the Constitutional Chamber and the Court as a whole. In order to analyze the Chamber’s role in the current “hybrid regime” era we can cite several remarkable examples of the Constitutional Chamber supporting the government’s increasingly authoritarian actions. For instance, on October 17, 2011 (Constitutional Chamber, Decision 1547-2011), the Constitutional Chamber ruled in favor of an unusual “innominate petition of constitutional review” filed by the Solicitor General, which claimed that a recent ruling of the Inter-American Court of Human Rights issued in favor of opposition politician Leopoldo López could not be enforced (that is, declared inejecutable). The Inter-American Court’s ruling in question had declared that a Comptroller General’s Office’s administrative sanction issued against López in 2008, barring him from holding elected office, had unduly infringed López’s political rights, which could only be restricted via judicial ruling according to article 32.2 of the Inter-American Convention on Human Rights (BrewerCarías 2012). This decision is cited as one of the milestones of the Court’s ongoing path towards becoming an instrument of the regime. Another important episode that illustrates the disposition of the Constitutional Chamber to collaborate with the regime took place in the context of Hugo Chávez’s illness and untimely death at the end of 2012–beginning of 2013 (Brewer-Carías 2013). On December 10, 2012, only two months after winning re-election by popular vote, Chávez left Venezuela to seek medical treatment in Cuba for cancer. He then did not return on time for the official inauguration of his new term in office on January 10, 2013 and continued to stay in Cuba for a total of 72 days after his departure (El Pais, February 18, 2013), dying later on March 5, 2013. As the situation progressed, Chávez’s indeterminate, undefined absence originated several important questions of constitutional relevance, including determining whether such absence was temporary or

Between power and submissiveness

293

definitive, who was to be invested with presidential functions during his absence, and who would, then, proceed to take office when the new presidential term started on January 10, 2013. Some of these questions were addressed by the Constitutional Chamber in an unusual joint opinion that decided an “interpretation petition” filed by a citizen on January 9, 2013. As Berrios (2013b) and Brewer-Carias (2013) explain, the Constitutional Chamber ruled that Chávez did not need to be sworn in before the National Assembly to start his new term and, astoundingly, declared that the president’s absence from Venezuela could not be considered a temporary absence “unless it is expressly decided so by the President of the Republic” – notwithstanding that, due to his own condition, that might have been impossible even if the situation required it. The transition towards Nicolas Maduro’s rule after Chávez passed away was also governed by a Constitutional Chamber ruling that interpreted article 233 of the Constitution (141/2013, March 8, 2013). Moreover, after the April 2013 presidential election – in which Maduro narrowly defeated opposition candidate Henrique Capriles Radonski – the Chamber ex officio decided to take over the cases filed and pending before the Electoral Chamber, and declared them moot or inadmissible (Marquez Luzardo 2014). There are more cases that reflect the Constitutional Chamber’s significant contribution to the regime’s hybrid authoritarian rule. However, the Chamber’s open subservience has diminished its relative impact as conflict adjudicator. This is even more the case as the opposition has stepped up its efforts to contest power against the regime, and it is certainly the case after the governing party lost control of the National Assembly after the elections on December 6, 2015.4

IV. CONCLUDING REMARKS This chapter has sought to provide an introduction to the landscape of constitutional adjudication in Latin America, with an emphasis on high courts with constitutional review prerogatives (i.e. constitutional courts). The chapter has given a brief cross-national summary of the varied formal institutional framework within which courts operate, and reflected on the growing scholarship that has attempted to evaluate how, and to what extent, these institutions effectively lead to the emergence of judicial power cross-nationally. The analysis does not attempt to provide 4 I am currently developing a project to investigate the different roles played by the Constitutional Chamber in this period.

294

Comparative constitutional law in Latin America

a comprehensive approach, but only an introduction to the topic, in order to help develop a good sense of the key aspects that need to be kept in mind when assessing the conditions under which constitutional courts exert their influence in the region’s political life and policy-making – or, conversely, understand the reasons why they refuse to exercise its prerogatives or, even worse, fall prey to elected leaders and other external political actors. The chapter summarizes key scholarly findings and highlights recent works that have assessed this phenomenon. Moreover, it identifies novel examples of the different roles that constitutional courts play in the region, including countries where democratic institutions have been under stress or effectively undermined. In a region where many countries have long suffered from lack of de facto judicial independence, and where challenges to democratic consolidation persist today, it is critical to keep track of new manifestations of judicial assertiveness, along with any efforts by the government and other political actors to preserve control over the judiciary. I have also discussed the notion of politicization of courts in comparative perspective. To these ends, I have offered a tentative theoretical framework to begin exploring the different modalities through which judges are entangled with political actors, including both formal and informal dimensions. In addition to the usual discussions surrounding the structural-institutional conditions of judicial decision-making – framed in the state’s constitutional and legal architecture – I have included a discussion about a series of informal political factors that influence the way courts work and, particularly in the case of constitutional courts, influence their accountability role with respect to elected leaders. After all, there are countries where constitutional courts are weak, dependent, highly politicized, and clearly ineffective. These are countries that have typically experienced dysfunctional democracies or where political regimes have actually regressed towards authoritarianism. In these cases, despite enjoying generous prerogatives of political control, constitutional courts have tended to be controlled by the regime or by the country’s political elites. Thus, constitutional courts end up playing the role of tokens of the government, as is the case of Venezuela under the Chavista regime. In other less dramatic scenarios, constitutional courts have simply been linked to the political elites in such a way that they lack effective autonomy to make principled constitutional decisions in cases of political relevance, thus playing a less prominent role (as is the case of Paraguay, Honduras, and Venezuela before Chavismo and even in the regime’s early years). Additional empirical analyses in these less prominent cases should allow us to develop a better sense of why we observe

Between power and submissiveness

295

different patterns of judicial assertiveness across the region, and understand some of the key challenges that we face to improve the quality of the judiciary in Latin America and beyond.

REFERENCES Barker, Robert S. 1991. “Taking Constitutionalism Seriously: Costa Rica’s Sala Cuarta,” Florida Journal of International Law, 6(3): 349–397. Barker, Robert S. 2007. “Stability, Activism, and Tradition: The Jurisprudence of Costa Rica’s Constitutional Chamber,” Duquesne Law Review 45: 523. Basabe-Serrano, Santiago. 2012. “Judges Without Robes and Judicial Voting in Contexts of Institutional Instability: The Case of Ecuador’s Constitutional Court, 1999–2007,” Journal of Latin American Studies 44(1): 127–161. Basabe-Serrano, Santiago. 2015. “Informal Institutions and Judicial Independence in Paraguay, 1954–2011,” Law & Policy 37(4): 350–378. Berrios, Juan Alberto. 2013a. “El Concepto Constitucional de Democracia y la Judicialización de la Política en Venezuela,” Cuestiones Políticas 29(50): 13–46. Berrios, Juan Alberto. 2013b. “La Judicialización de la Transición Politica en Venezuela. Estudio sobre la Decision 141/2013, del 8 de Marzo de 2013 de la Sala Constitucional del Tribunal Supremo de Justicia,” Fronesis 20(1): 149–156. Blass, Abby and Daniel M. Brinks. 2011. “The Institutional Roots of Judicial Power: Latin America from 1975 to 2009,” Annual Meeting of the American Political Science Association, Seattle, Washington. Botero, Sandra. 2015. “Agents of Neoliberalism? High Courts and Rights in Latin America,” Paper presented at the DCC Conference “Citizens, Constitutions and Democracy in Post-Neoliberal Latin America” University of Pennsylvania, May 2015. Bowen, Rachel E. 2013. “Judicial Autonomy in Central America: A Typological Approach,” Political Research Quarterly 66(4): 831. Brewer-Carías, Allan R. 1989. Judicial Review in Comparative Law, Cambridge: Cambridge University Press. Brewer-Carías, Allan R. 2012. “El Ilegítimo ‘Control de Constitucionalidad’ de las Sentencias de la Corte Interamericana de Derechos Humanos por parte de la Sala Constitucional del Tribunal Supremo de Justicia de Venezuela: El Caso Leopoldo López Vs. Venezuela, Septiembre 2011,” Estudios Constitucionales 10(2): 575–608. Brewer-Carías, Allan R. 2013. “Crónica Constitucional del Proceso Venezolano de Transición Gubernamental, Ocasionado por la Enfermedad y Muerte del Presidente Hugo Chávez, y de la Instauración por el Juez Constitucional de un Gobierno sin Legitimidad Democrática (Diciembre 2012/Abril 2013),” Pensamiento Constitucional 18: 265–314. Brewer-Carías, Allan R. 2015. Dismantling Democracy in Venezuela: The Chavez Authoritarian Experiment, Cambridge: Cambridge University Press.

296

Comparative constitutional law in Latin America

Brewer-Carías, Allan R. 2015. “The Government of Judges and Democracy. The Tragic Institutional Situation of the Venezuelan Judiciary,” in Sophie Turenne, ed., Fair Reflection of Society in Judicial Systems – A Comparative Study, Berlin: Springer, 205–232. Brinks, Daniel M. 2011. “‘Faithful Servants of the Regime’: The Brazilian Constitutional Court’s Role under the 1988 Constitution,” in Gretchen Helmke and Julio Ríos-Figueroa, eds., Courts in Latin America, New York: Cambridge University Press, 128–153. Brinks, Daniel M. 2012. “Chapter 5: A Tale of Two Cities. The Judiciary and the Rule of Law in Latin America,” in P. Kingstone and D. Yashar, eds., Routledge Handbook of Latin American Politics. London: Routledge. Canova Gonzalez, Antonio, Luis A. Herrera Orellana, Rosa E. Rodriguez Ortega, and Giuseppe Graterol Stefanelli. 2014. El TSJ al Servicio de la Revolucion, Caracas: Editorial Galipan. Castaldi, Lauren. 2006. “Judicial Independence Threatened in Venezuela: The Removal of Venezuelan Judges and the Complications of Rule of Law Reform,” Georgetown Journal of International Law 37: 477. Cepeda-Espinosa, Manuel José. 2004. “Judicial Activism in a Violent Context: The Origin, Role, and Impact of the Colombian Constitutional Court,” Washington University Global Studies Law Review 3: 529. Chavez, Rebecca-Bill. 2004. The Rule of Law in Nascent Democracies: Judicial Politics in Argentina, Cambridge: Cambridge University Press. Couso, Javier. 2003. “The Politics of Judicial Review in Chile in the Era of Democratic Transition, 1990–2002,” Democratization 10(4): 70–91. Dahl, Robert A. 1957. “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” Journal of Public Law 6: 279. Domingo, Pilar. 2004. “Judicialization of Politics or Politicization of the Judiciary? Recent Trends,” Democratization 11(1): 104–126. Eder, Phanor J. 1960. “Judicial Review in Latin America,” Ohio State Law Journal 21(3): 570–615 Finkel, Jodi. 2008. Judicial Reform as Political Insurance: Argentina, Peru and Mexico in the 1990s, South Bend, IN: University of Notre Dame Press. Frajman, Eduardo. 2014. “Notes on Recent Elections: The General Election in Costa Rica, February/April 2014.” Electoral Studies 35: 61–66. Gauri, V., J.K. Staton and J.V. Cullell. 2015. “The Costa Rican Supreme Court’s Compliance Monitoring System.” The Journal of Politics 77(3): 774–786. Ginsburg, Tom. 2003. Judicial Review in New Democracies: Constitutional Courts in Asian Cases, New York: Cambridge University Press. Ginsburg, Tom and Tamir Moustafa, eds. 2008. Rule by Law: The Politics of Courts in Authoritarian Regimes, New York: Cambridge University Press. Hammergren, Linn. 1998. The Politics of Justice and Justice Reform in Latin America: The Peruvian Case in Comparative Perspective, Boulder, CO: Westview Press. Hammergren, Linn. 2010. Improving Judicial Performance in Latin America, University Park, PA: The Pennsylvania State University Press. Hammergren, Linn. 2014. Justice Reform and Development: Rethinking Donor Assistance to Developing and Transition Countries, New York: Routledge.

Between power and submissiveness

297

Helmke, Gretchen. 2002. “The Logic of Strategic Defection: Court–Executive Relations in Argentina under Dictatorship and Democracy,” American Political Science Review 96: 291–303. Helmke, Gretchen. 2005. Courts under Constraints: Judges, Generals, and Presidents, Cambridge: Cambridge University Press. Helmke, Gretchen, and Julio Ríos-Figueroa. 2011. “Introduction: Courts in Latin America,” in Gretchen Helmke and Julio Ríos-Figueroa, eds., Courts in Latin America, New York: Cambridge University Press. Hilbink, Lisa. 2007. Judges beyond Politics in Democracy and Dictatorship: Lessons from Chile, Cambridge: Cambridge University Press. Hirschl, Ran. 2008. “The Judicialization of Mega-Politics and the Rise of Political Courts,” Annual Review of Political Science 11: 93–118. Ingram, Matthew. 2015. Crafting Courts in New Democracies, Cambridge: Cambridge University Press. Kapiszewski, Diana. 2012. High Courts and Economic Governance in Argentina and Brazil, Cambridge: Cambridge University Press. Kapiszewski, Diana and Matthew M. Taylor. 2008. “Doing Courts Justice? Studying Judicial Politics in Latin America,” Perspectives on Politics 6(4): 741–767. Kapiszewski, Diana and Matthew M. Taylor. 2010. “Compliance: Conceptualizing, Measuring, and Explaining Adherence to Judicial Rulings,” Law and Social Inquiry 38(4): 803–835. Larkins, Christopher M. 1996. “Judicial Independence and Democratization: A Theoretical and Conceptual Analysis,” The American Journal of Comparative Law 44(4): 605–626. Llanos, Mariana, Cordula Tibi Weber, Charlotte Heyl and Alexander Stroh. 2015. “Informal Interference in the Judiciary in New Democracies: A Comparison of Six African and Latin American Cases,” Democratization (Online first). Mainwaring, Scott and Anibal Perez-Linan. 2015. “Cross-Currents in Latin America,” Journal of Democracy 26(1): 114–127. Marquez Luzardo, Carmen Maria. 2014. “Politica Judicial en la Venezuela post-Chavez,” Cuadernos Manuel Gimenez Abad, Fundacion Manuel Gimenez Abad de Estudios Parlamentarios y del Estado Autonomico. Martinez-Barahona, Elena. 2010. “Las Cortes Supremas como Mecanismo de Distribución de Poder: el Caso de la Reelección Presidencial en Costa Rica y Nicaragua,” Revista de Ciencia Política 30(3): 723–750. Navia, Patricio, and Julio Ríos-Figueroa. 2005. “The Constitutional Adjudication Mosaic of Latin America,” Comparative Political Studies 38(2): 189–217. Nunes, Rodrigo M. 2010. “Ideational Origins of Progressive Judicial Activism: The Colombian Constitutional Court and the Right to Health,” Latin American Politics and Society, 52(3): 67–97. O’Donnell, Guillermo A. 2003. “Horizontal Accountability: The Legal Institutionalization of Mistrust,” in Scott Mainwaring and Christopher Welna, eds., Democratic Accountability in Latin America, New York: Oxford University Press. Peretti, Terri. 1999. In Defense of a Political Court, Princeton, NJ: Princeton University Press.

298

Comparative constitutional law in Latin America

Perez-Linan, Anibal and Andrea Castagnola. 2009. “Presidential Control of High Courts in Latin America: A Long-Term View (1904–2006),” Journal of Politics in Latin America 1(2): 87–114. Perez-Perdomo, Rogelio. 2007. “Medio Siglo de Historia Judicial en Venezuela: 1952–2005,” Cuadernos Unimetanos 11: 3–24. Popova, Mariam. 2012. Politicized Justice in Emerging Democracies: A Study of Courts in Russia and Ukraine, Cambridge: Cambridge University Press. Ríos-Figueroa, Julio and Matthew M. Taylor. 2006. “Institutional Determinants of the Judicialization of Policy in Brazil and Mexico,” Journal of Latin American Studies 38(4): 739–766. Ríos-Figueroa, Julio. 2007. “Fragmentation of Power and the Emergence of an Effective Judiciary in Mexico, 1994–2002,” Latin American Politics and Society 49: 31–57 Ríios-Figueroa, Julio. 2011. “Institutions for Constitutional Justice in Latin America,” in Gretchen Helmke and Julio Ríios-Figueroa, eds., Courts in Latin America, New York: Cambridge University Press, 27–54. Ríos-Figueroa, Julio. 2016. Constitutional Courts as Mediators: Armed Conflict, Civil-Military Relations, and the Rule of Law in Latin America, Cambridge: Cambridge University Press. Rodriguez-Raga, Juan Carlos. 2011. Strategic Prudence in the Colombian Constitutional Court PhD Diss., University of Pittsburgh. Rosenn, Keith S. 1974. “Judicial Review in Latin America,” Ohio State Law Journal 35: 785–819. Sanchez Urribarri, Raul A. 2011. “Courts between Democracy and Hybrid Authoritarianism: Evidence from the Venezuelan Supreme Court,” Law and Social Inquiry 36(4): 854–884. Sanchez Urribarri, Raul A. 2012. “Politicization of the Latin American Judiciary via Informal Connections,” in David K. Linnan, ed., Legitimacy, Legal Development & Change, Aldershot: Ashgate, 307–322. Sanchez Urribarri, Raul A. 2013. “Empirical Analysis of the Politicization of the Venezuelan Supreme Judiciary 1989–2009,” in Conference Proceedings, Meeting of the Australian Political Studies Association, Murdoch University, Perth, WA. Staton, Jeffrey. 2010. Judicial Power and Strategic Communication in Mexico, Cambridge: Cambridge University Press. Tate, C. Neal, and Torbjorn Vallinder. 1995. The Global Expansion of Judicial Power, New York: NYU Press. Taylor, Matthew M. 2014. “The Limits of Judicial Independence: A Model with Illustration from Venezuela under Chávez,” Journal of Latin American Studies 46(2): 229–259. Trochev, Alexei and Rachel Ellett. 2014. “Judges and Their Allies,” Journal of Law and Courts 2(1): 67–91. Vargas Cullel, Jorge. 2007. “Costa Rica: Fin de una Era Política,” Revista de Ciencia Política 27: 113–28. Verner, Joel. 1984. “The Independence of Supreme Courts in Latin America,” Journal of Latin American Studies 16(2): 463–506.

Between power and submissiveness

299

Wilson, Bruce M. 2007. “Claiming Individual Rights Through a Constitutional Court: The Example of Gays in Costa Rica,” International Journal of Constitutional Law 5(2): 242–257. Wilson, Bruce M. 2009. “Institutional Reform and Rights Revolutions in Latin America: The Cases of Costa Rica and Colombia.” Journal of Politics in Latin America 1(2): 59–85. Wilson, Bruce M. 2010. “Enforcing Rights and Exercising an Accountability Function: Costa Rica’s Constitutional Chamber of the Supreme Court.” Pp. 55–80 in Courts in Latin America, edited by Gretchen Helmke and Julio Rios-Figueroa. New York: Cambridge University Press. Wilson, Bruce M. 2011. “Costa Rica. Health Rights Litigation: Causes and Consequences,” in Alicia Ely Yamin and Siri Gloppen, eds., Litigating Health Rights: Can Courts Bring More Justice to Health?, Cambridge, MA: Harvard University Press, chapter 6. Wilson, Bruce M, Juan Carlos Rodriguez Cordero and Roger Handberg. 2004. “The Best Laid Schemes … Gang Aft A-gley: Judicial Reform in Latin America – Evidence from Costa Rica,” Journal of Latin American Studies 36: 507–531. Wilson, Bruce and Juan Carlos Rodriguez Cordero. 2006. “Legal Opportunity Structures and Social Movements: The Effect of Constitutional Change on Costa Rican Politics,” Comparative Political Studies, 39(3): 525–551.

Links Corte Suprema de Justicia de Costa Rica, Sala Constitucional: http://sitios. poder-judicial.go.cr/salaconstitucional/documentos%20varios/LA%20SALA %20CONSTITUCIONAL%20EN%20NUMEROS%2014.pdf Diario Extra: http://www.diarioextra.com/Noticia/detalle/284050/alumnos-deeducacion-abierta-con-discapacidad-deberan-tener-apoyos-tecnicosEl Pais, February 18, 2013: http://internacional.elpais.com/internacional/2013/02/ 18/actualidad/1361178572_452045.html La Nación, 4 de Julio de 2007: http://www.nacion.com/nacional/politica/Sala-IVresuelve-TLC-constitucional_0_913308773.html La Nación, 24 de Febrero de 2016: http://www.nacion.com/sucesos/poderjudicial/Magistrados-prohiben-prision-menores-pension_0_1544645628.html Noticias 24, December 5, 2009: http://www.noticias24.com/actualidad/noticia/ 124782 /presidenta-del-tsj-dice-que-la-division-de-poderes-debilita-al-estado-ypide-reformarlo/

13. The institutional limits of Inter-American constitutionalism Alexandra Huneeus Until recently, if you wanted to visit the Inter-American Court of Human Rights (“the Court”), based in San José, Costa Rica, you would instruct your taxi to drive you to the “El Spoon” restaurant in the Las Yoses suburb, for it is the eatery, rather than the Court, that acts as a local landmark. Housed in a former residence, the Court would be dwarfed by the European Court of Human Rights (ECtHR), which sits in a specially designed glass-plated building in Strasbourg, or by the complex of towers that house the International Criminal Court (ICC) in The Hague. It would also be overshadowed by most high courts in the region, which typically occupy a formidable palacio de justicia at the historical heart of their capital city. The Inter-American Court is, in fact, among the poorest international courts in the world. Over half of its budget of US$5.5 million in 2015 came from donations (Inter-American Commission on Human Rights 2014, pp 77–78), and its seven judges conduct much of their work by email from home as they juggle other jobs.1 The Court’s docket is similarly constrained: In 2015, the Court issued 18 judgments, while the ECtHR issued 823, and the Colombian Constitutional Court 715.2 If its building, budget, and docket size are modest, however, the Inter-American Court’s imprint is not. From its Central American quarters it has sparked a regional debate as to whether it is leading the construction of a new constitutional law of the Americas. Throughout the region, courts refer to the Inter-American Court’s jurisprudence in 1

OAS budget, http://www.oas.org/budget/2015/Program%20Budget% 202015_V1.pdf at 16. See also Lineamientos 2011–2015: Fortaleciendo la Justicia Interamericana, a través de un financiamiento previsible y armónico at 17–18 (receiving an honorarium of about $4,000 per year). 2 Id. at 195; http://www.echr.coe.int/Documents/Annual_Report_2015_ENG. pdf at 195; http://www.corteconstitucional.gov.co/relatoria/estadisticas.php. 300

The institutional limits of Inter-American constitutionalism

301

deciding domestic rights cases, and the region’s most salient political issues – the peace process in Colombia; disappearances in Mexico; political prisoners in Venezuela; indigenous groups’ struggle for autonomy – are often debated with reference to the jurisprudence of the Court. Accordingly the Inter-American Court has become an object of study and commentary by scholars and public commentators, and international law and constitutional law journals alike now frequently publish articles on what has been dubbed Inter-American Constitutionalism (Gongora Mera 2011, p 162). The Court’s growing influence is perhaps made most evident by the critical scrutiny it receives about its role. Some scholars and judges worry that the Inter-American Court has, through its own plucky activism, overridden the region’s high courts, placing itself at the pinnacle of a new transnational constitutional order. Of course the Inter-American Court is an international court, and not a national constitutional court. However, as international courts develop and expand their powers and become more embedded in national legal systems, a debate has ensued as to how much they should be allowed to take on attributes and powers traditionally belonging to constitutional courts. This debate, which has unfolded with spirit in Europe regarding both the European Court of Justice and the ECtHR, has in recent years also emerged in Latin America. The Inter-American Court, one scholar warns, “has become dangerously close to being legislator, judge and supreme administrative authority of the American states” (Malarino 2012, p 695). Others complain that it “resembles more a conception of a supreme court in a federal state” (Dulitzky 2015, p 64); that it “discounts the will of member states as a factor relevant to the interpretation of their obligations” (Neuman 2008); and that “it is not sufficiently respectful to democracy” (Gargarella 2015). Ariel Dulitzky (2015) adds that it is one of the world’s more activist international courts, claiming powers rivaled only by the European Court of Justice. This chapter puts together the observation of the Court’s penury, on the one hand, with that of its ever greater engagement with regional constitutional law and practice, on the other, to address two related puzzles. First, how has the Inter-American Court, despite its significant institutional constraints, come to be perceived as an entity that is forging a new American constitutional order by reshaping the content and practice of constitutional law in the region? Secondly, at what point will it have gone too far, such that we should worry about its incursion on the turf of domestic institutions, including but not limited to constitutional courts? By addressing these two puzzles – one empirical and one normative – the chapter aspires to put the emerging field of empirical

302

Comparative constitutional law in Latin America

studies of the Inter-American Court in closer dialogue with the (also growing) normative debates among legal scholars over the proper legal role of the Inter-American Court and the emergence of Inter-American constitutionalism. The chapter begins by delineating the two main paths by which the Court has come to exert influence in the constitutional realm. The first path refers to the Court’s use of structural remedies that require reform of bureaucratic practices, including judicial reform, to solve entrenched systemic problems at the domestic level. The second path of influence was not originally a product of the Court’s actions but rather of constitutional reforms and judicial creativity at the domestic level: In various ways the constitutions and courts of the region have woven the jurisprudence of the Inter-American Court into the domestic constitutional system, so that in many countries its judgments are used as guides in domestic adjudication and law-making. In a 2006 ruling, however, the Inter-American Court transformed this bottom-up judicial dialogue rooted in domestic constitutional law into a duty imposed by international law: It interpreted the American Convention to require all domestic courts and other state actors to both (a) review the legality of all laws under the American Convention – with the Court’s jurisprudence as interpretive guide – and (b) refrain from applying those laws that violate the Convention (Almonacid Arellano v Chile, 2006 Inter-Am. Ct. H.R. (ser. C) No. 154, para. 171). With these bold moves, the Court has, some argue, placed itself at the apex of a new constitutional order. Or so it looks if you read the Court’s jurisprudence and some of the scholarly commentary on its legal doctrine. The reality is a bit more nuanced. The second part of the chapter contextualizes both the predictions of a shared, progressive, rights-based constitutional law of the Americas, on the one hand, and the concerns about judicial overreach, on the other, in the reality of the Court’s institutional constraints. It argues that it is too soon to worry about the deleterious effects on the ground of an overweening Inter-American Court. For if the Court continues to invoke powers not explicitly contained in the American Convention, it necessarily relies on the support of different state and non-state actors in the domestic sphere to bring these powers to life (Alter 2014; Rosenberg 1991). The Court’s influence on constitutional orders grows only insofar as it is able to find amenable domestic allies – particularly judges, but also executives, legislatures, and civil society – to promote its jurisprudence and implement its judgments. The Inter-American Court’s impact, therefore, will

The institutional limits of Inter-American constitutionalism

303

continue to vary greatly across states and issue areas, is always vulnerable to curtailment, and in no case overshadows that of domestic high courts or legislatures. The chapter unfolds in three main sections. Section I provides an overview of the Inter-American Court’s jurisdiction. It then examines how – like the US Supreme Court, the Colombian Constitutional Court, and domestic judiciaries – the Court uses structural remedies to have impact beyond the particular case it is deciding. Section II examines how, through its creation of the doctrine of conventionality control, the Court is able to seize on the rise of a transnational judicial dialogue over constitutional rights to have a greater say in how judges and other state actors interpret rights across the region. Section III turns to the question of whether the Court has gone too far. It suggests that the Court’s institutional constraints ensure that, despite the Court’s innovative construction of self-aggrandizing judicial doctrines, it remains dependent on the support of state actors exactly on the terms many of its critics would prefer.

I. THE INTER-AMERICAN COURT CONFRONTS STRUCTURAL INJUSTICE The Inter-American Court is one of the two main organs of the Organization of American States’ (OAS) human rights system. It has both an advisory jurisdiction and a contentious jurisdiction, through which it reviews state behavior for compliance with the American Convention on Human Rights. All 35 American states are part of the OAS and participate in the general human rights system, which includes the Inter-American Commission; however, only 20 Latin American and Caribbean states are currently actively under the jurisdiction of the Inter-American Court. As in the original European Council System, there is no direct petition to the Inter-American Court: Cases must begin at the Inter-American Commission, a quasi-judicial body that tries to resolve the case through friendly settlement, and only refers cases it fails to resolve to the Court. The Commission typically refers under 20 cases per year. Since issuing its first contentious judgment in 1988, the Court has developed an innovative corpus of jurisprudence through the course of roughly 200 judgments. In its early days the Court’s docket focused almost exclusively on state-sponsored atrocity crimes, and it became known internationally for its judgments on forced disappearance, amnesties, and the duty to prosecute atrocities. But its docket has diversified in

304

Comparative constitutional law in Latin America

recent years, and the Court has issued landmark rulings on indigenous rights, freedom of expression, judicial independence, LBGT rights, and reproductive rights, to name a few. One of the features that most distinguishes the Inter-American Court from its European counterpart, and indeed from international courts more generally, is the practice it has developed of ordering very specific remedial actions, and then supervising their implementation. The InterAmerican Court is “the only international human rights body with binding powers that has consistently ordered equitable remedies in conjunction with compensation” (Antkowiak 2008, p 355). Traditionally, the ECtHR ordered monetary compensation, but otherwise allowed states to choose how to bring themselves into compliance with the European Convention once it declared them to be in violation.3 The Inter-American Court has always been more willing to instruct states on the means by which they should come into compliance. Even in its first contentious judgment, the Court was not content to simply pronounce that Honduras had violated the American Convention, but also suggested the specific actions it should undertake to comply with its obligations (Velasquez Rodriguez v Honduras, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4). Starting in the 2000s, the Court began to give ever more specific instructions and, notably, it began to include these instructions in the operative part of its ruling, the section that lists the remedies due by the state. In other words, the Court began to directly order the state actions to be taken before the state would be deemed to have complied with the judgment. Not only did these orders include detailed provisions for monetary compensation, but also lists of equitable relief the state must provide. A further interesting aspect of these orders for equitable relief is that they are not always focused on making the plaintiff whole. Sometimes the Court’s focus is rather on changing the structural conditions that led to the violation, in order that it will not be repeated, and others will not suffer the same harm. The Court has begun to issue orders aimed at changing bureaucratic practices, such as the manner in which prosecutors conduct investigations (Radilla-Pacheco v Mexico, 2009 Inter-Am. Ct. H.R. (ser. C) No. 209), the way in which police officers are trained (Gonzalez (“Cotton Field”) v Mexico, 2009 Inter-Am. Ct. H.R. (ser. C) No. 205), or the way courts hire and fire judges (Apitz Barbera v Venezuela, 2008 Inter-Am. Ct. H.R. (ser. C) No. 182; Constitutional 3

In recent years, the ECtHR has both begun to issue structural remedies, and has become more involved in supervising implementation. See Huneeus (2015); Leach et al. (2010).

The institutional limits of Inter-American constitutionalism

305

Court v Peru, 1999 Inter-Am. Ct. H.R. (ser. C) No. 55), to name a few. In a case against Mexico, for example, the Court issued over 20 different orders (Cottonfield v Mexico, 2009 Inter-Am. Ct. H.R. (ser. C) No. 205). The list included orders requiring the state to instruct officials regarding the human rights of women; to create a DNA database of the women who have disappeared in Ciudad de Juarez; and to restructure the military jurisdiction. The Court has also interpreted its mandate to allow it to supervise the implementation of its remedies. The American Convention provides that the OAS General Assembly should review cases of non-compliance with Court judgments. Repeatedly faced with OAS inaction, however, the Court decided to take this matter into its own hands. It has created a system of supervision that includes formally requesting compliance reports from the parties to the case (which include the complainant and the defendant state, but also the Inter-American Commission); issuing its own compliance report based on these reports; and holding mandatory closed compliance conferences. In these conferences, judges work with the parties towards overcoming obstacles to compliance, including structural change. In recent years, the Court secretariat has created a unit dedicated to supervision of compliance, and has added to its menu of instruments public compliance hearings in situ,4 which allow more stakeholders to take part. Further, it has taken to supervising cases that request structural changes against one state in a single compliance report.5 Thus, like the Constitutional Court of Colombia in the internally displaced persons cases (Rodríguez Garavito and Rodríguez Franco 2015), or the US federal courts in school desegregation and prison reform cases, the Inter-American Court uses some cases as a platform from which to step outside its adjudicatory role and to order and supervise structural reform. Interestingly, the ECtHR has also moved in this direction over the past decade. In response to a crisis of docket overload, the ECtHR began to accumulate those repetitive cases that raised the same issues against a single state in “pilot” and semi-pilot judgments (Leach et al. 2010). The underlying problem in pilot judgments is usually a structural problem, such as judicial delay or prison overcrowding. The difference is that while the impetus for creating pilot judgments was to 4

See for example https://vimeo.com/138362028. See for example http://www.corteidh.or.cr/docs/supervisiones/11_Casos_ 21_08_14.pdf. 5

306

Comparative constitutional law in Latin America

ease an onerous caseload, the Inter-American Court’s structural judgments are arguably a response to its small caseload. Through structural equitable orders, the Inter-American Court is able to overcome the limits imposed by case-by-case adjudication and a small docket. Now, a single case potentially can lead to the Court becoming involved in structural reforms over many years, with effects that benefit not just the individual plaintiff before the Court, but others similarly vulnerable to systemic violations. A. Judicial Remedies An important facet of the Inter-American Court’s jurisprudence is its focus on the region’s judiciaries through its docket: In a majority of its cases, it has issued remedies that require judicial action, such as orders to prosecute. Further, in a string of cases it has issued structural remedies that seek to reshape judicial practices and institutions (Kosar and Lixinski 2015), and, in a small but meaningful subset of cases, national judges have been the complainants before the Court (Apitz Barbera v Venezuela, 2008 Inter-Am. Ct. H.R. (ser. C) No. 182; Constitutional Court v Peru, 1999 Inter-Am. Ct. H.R. (ser. C) No. 55; Atala v Chile, 2012 Inter-Am. Ct. H.R. (ser. C) No. 239). Initially, the focus on judiciaries was a remnant of the dictatorship era. Amnesties and other legal and political obstacles impeded domestic investigation of the crimes committed by the former dictatorships. As noted above, the majority of the Court’s cases have dealt with these type of violations. By issuing increasingly detailed remedial orders, the Court began to slowly chip away at the legal and judicial obstacles to prosecution. In cases of atrocity crimes it has ordered states to remove statutes of limitations and amnesties and other legal impediments to the prosecution of atrocity crimes; to move cases from military to civil jurisdiction; to allow victims access to the criminal investigation; to put certain crimes, such as forced disappearance, into legislation; and even to investigate certain theories of the case and to interrogate certain witnesses (Huneeus 2013). Further, it requires states to report on the progress of the prosecutions during its supervisory proceedings. These orders have the potential to render important changes to domestic practices. In a string of cases against Mexico, for example, the Court has demanded that Mexico alter the balance between martial and civilian courts so that military crimes against civilians fall into the jurisdiction of the regular courts (Radilla-Pacheco v Mexico, 2009 Inter-Am. Ct. H.R. (ser. C) No. 209; Carbera Garcia and Montiel Flores v Mexico, 2010 Inter-Am. Ct. H.R. (ser. C) No. 220; Rosendo Cantu v

The institutional limits of Inter-American constitutionalism

307

Mexico, 2010 Inter-Am. Ct. H.R. (ser. C) No. 216). Mexico has responded by implementing important reforms to its justice system. Interestingly, the Court has at times consolidated its supervision of these judgments, an innovation which seems to acknowledge that it is supervising the reform of an institution, rather than repairing the harm in a particular case. The Court’s docket also includes cases in which judges are the plaintiffs. In cases against Peru, Venezuela, and Chile, lower judges have issued complaints about the acts of their superiors. This is a particularly interesting line of cases as it means that part of the Inter-American Court’s engagement with constitutional law involves the Court opining on the proper shape of the judicial hierarchy within a democratic system. David Kosar and Lucas Lixinski (2015) argue that the Inter-American Court and ECtHR have both been engaged in promoting particular judicial reforms through their contentious jurisdiction. In their survey of the judicial cases, Kosar and Lixinski (2015) find that the Inter-American Court and the ECtHR are imposing a vision in which judicial independence is safeguarded through the autonomy of the individual judge, as opposed to the autonomy of the institution as a whole. By thus bolstering judges and the realm of the judicial, they argue, the human rights courts also bolster their own power. In this way, the Inter-American Court’s emphasis on reform of judicial institutions also is a path to empowerment beyond case-by-case adjudication. B. Constrained Capacity and Impact By ordering structural remedies, the Court has the potential to have impact beyond the particular dispute and parties that come before it, broadening its impact despite its small docket. Whether that potential is realized is a different question. The problem is that while the Court is ambitious in ordering structural remedies, it does not have the capacity to undertake a sustained and consistent supervision process that leads to effective change on the ground. It is difficult to know the exact compliance rate with structural orders because the Court’s supervision is spotty: last year it issued seven compliance reports.6 However, there are 171 cases still pending compliance and under supervision (InterAmerican Court of Human Rights 2015). That means that each case typically receives much less than one compliance report per year. The 6 The compliance report against Guatemala grouped 11 cases against that state into one report, one way in which the Court tries to be more efficient.

308

Comparative constitutional law in Latin America

Court simply does not have the institutional capacity to supervise all of its pending cases each year. Further, the Court’s manner of supervision is itself constrained. The Court relies on the Commission, complainant, and state defendant to report on the states’ compliance. This means that in cases against states such as Venezuela, where the state is reluctant to participate in the supervision process, there is little the Inter-American Court can do to gather the information it needs about the states’ implementation of its remedies. On the other hand, where the Court issues judgments against states that are willing to play along, its supervisory process can help the parties come to terms about how to implement the remedies. Thus, the Court’s supervisory interventions in judicial responses to atrocity crimes in Colombia and Peru have at times been fruitful.7 The Court’s structural interventions also have an effect that is distinct from compliance but nonetheless important. Through its structural remedies, the Court typically makes requests that can only be fulfilled by actors that are not necessarily part of the executive arm charged with relations before international courts. Thus, it diversifies its relation with different state actors. Through these interactions, a broader array of state actors become aware of the Inter-American Court and its jurisprudence.

II. THE RISE OF JUDICIAL DIALOGUE The previous section argued that the Inter-American Court, by directly ordering structural reforms in its judgments, is able to have some impact beyond the confines of the specific parties and facts before it. This section adds a different dimension to the picture, showing how the Court has also escaped the confines of its small docket through the growth of judicial dialogue. The emergence of the Inter-American Court coincides with and is part of a change in the role of law and courts that began to unfold towards the close of the Cold War, when democratic government returned to the region after a period of dictatorship and civil war. Starting in 1988, the year of the Inter-American Court’s first contentious judgment, a new generation of constitutions emerged: Brazil (1988), Colombia (1991), Paraguay (1992), Ecuador (1998 and 2008), Peru (1993), Venezuela 7 See, for example, compliance reports in Castillo Paez v Peru and Mapiripan Massacre v Colombia.

The institutional limits of Inter-American constitutionalism

309

(1999), and Bolivia (2009) all introduced new constitutions, and Argentina, Chile, Costa Rica, and Mexico undertook important constitutional reforms (Uprimny 2011, p 109). There is great variety among the new constitutions, reflecting diverse political projects.8 Nonetheless, the new constitutions share important features that distinguish them from prior constitutions and are relevant here. They encompass more rights, including socioeconomic and community rights, and they provide for more procedural mechanisms for rights protection. They also explicitly place human rights treaties at a high rank within domestic law. At the same time, several high courts – some newly made, some newly strengthened by political or legal reforms – began to gain autonomy from the executive, and the practice of strong-form judicial review became more frequent (Tushnet 2009, p 21),9 creating a more judicialized politics (Sieder, Schjolden and Angell 2005; Couso, Huneeus and Sieder 2010). A crucial feature of the practice of judicial review that emerged in the 1990s is that these new or newly empowered courts frequently referred to international law, and to the Inter-American system in particular, when interpreting their own constitutions. Reference to international law has the benefit of conferring greater legitimacy, and thus greater autonomy from the executive. The Inter-American Court’s jurisprudence was also a place for new courts to seek guidance as to the proper interpretation of rights in countries that had no domestic tradition of rights adjudication in place. Importantly, national courts cited to the Inter-American Court’s judgments not only as a guide or model, in the way they cite, for example, the Spanish Constitutional Court. Rather, they began to incorporate the American Convention, and through it the Court’s jurisprudence, directly into domestic law. A. The Constitutional Block The new constitutions of the 1990s emerged hand in hand with new theories of constitutional interpretation that emphasized rights, and 8

The constitutions of Ecuador, Venezuela and Bolivia in particular would seem to form a group apart: Salazar Ugarte (2011). 9 While Latin American courts actually have a long history of judicial review through the writ of amparo and other doctrines, it was less frequently invoked prior to the 1990s (Cepeda-Espinosa 2004, pp 538-539 (arguing that Colombia’s nineteenth-century constitution had judicial review); Fernandez and Behar 2011, p 174 (showing that Mexico’s 1841 Constitution included the writ of amparo)).

310

Comparative constitutional law in Latin America

viewed interpretation as guided by principles and purpose as well as the constitutional text. These new constitutionalists adapted the French doctrine of the “constitutional block” into the Latin American setting. It has come to refer to the idea that in interpreting the scope and meaning of constitutional rights, judges must look to principles that undergird constitutions as well as the words of the text. Góngoro Mera (2011) defines the constitutional block as “a set of norms and principles with constitutional rank that … encompasses 1) the Constitution stricto sensu, 2) international declarations of human rights, such as the Universal Declaration and the American Declaration and 3) human rights treaties ratified by the States” (p 163).10 Through the constitutional block, judges interpret their constitution as constrained not only by the language of its rights, but also the human rights treaties ratified by the state. Human rights treaties are thus woven directly into the domestic realm through judicial interpretation. The Argentine Supreme Court and the Colombian Constitutional Court (CCC) were important leaders in constitutionalizing the American Convention. The Argentine Supreme Court declared in 1992 that human rights treaties were directly applicable domestically even though, at that time, the Argentine Constitution had no such provision (Ekmedjian v Sofovich, Corte Suprema de Justicia de la Nacion, July 7, 1992). In 1994 the Constitution was amended to include a provision stating that certain human rights instruments, including the American Declaration of the Rights and Duties of Man and the American Convention, have constitutional status, and the Supreme Court has, since then, referred to the Inter-American Court’s judgments as authoritative interpretations of the American Convention, even when the judgments were issued against states other than Argentina (Constitution of Argentina, Art 75). The 1991 Constitution of Colombia provides only that international treaties ratified by Congress have “priority” domestically. During the CCC’s first year, however, it declared in two rulings that human rights treaties are directly binding and hold a status superior to domestic legislation (Sentencia C-574-92 (2003); see Orango Olaya 2004). In 1995 the CCC first used the term “constitutional block” and began to systematize its meaning, declaring that human rights treaties had constitutional rank.11 In 2000, 10 See also at p 161 (explaining the difference between the Constitutional Block doctrine in Europe, where it originated, and in Latin America). 11 C.C., enero, 19, 2000, Alejandro Martínez Caballero, Sentencia C-010-00, G.C.C. (Colom.) (“La Corte coincide con el interviniente en que en esta materia es particularmente relevante la doctrina elaborada por la Corte Interamericana de

The institutional limits of Inter-American constitutionalism

311

the Court declared that the rulings of the Inter-American Court and, in some cases, Commission, were self-executing (Sentencia C-1490/00 (2000)). The doctrine of the constitutional block has spread throughout the region, and has become a topic of discussion in constitutional law and international law journals alike. Even in those countries where the text of the constitution is ambiguous on the status of international law, constitutional block arguments have permeated the judicial sphere. Thus, in Chile, where the 1980 Constitution imposed by the military regime is still in place, there is great debate as to whether human rights treaties are internally binding. And thus, when the Dominican Constitutional Court declared that the Dominican Republic was, for technical reasons, not under the jurisdiction of the Inter-American Court, it had to do battle with its own prior rulings depicting the Inter-American Court’s jurisprudence as binding in domestic law (Sentencia TC/0168/13 (2013)). A related doctrine has also proved essential to the constitutionalization of international law: the pro persona principle. This doctrine holds that “where there is a conflict between rights interpretations, the interpretation that expands the ambit of liberty trumps” (Rodilles 2016, p 166). The allure of the pro persona principle, from a judge’s perspective, is that it would seem to allow judges to elude strict legal hierarchies: it grants judges discretion to decide which law to apply in a rights matter. Thus, Alejandro Rodilles (2016) concludes, “‘the most favourable interpretation for the human person’ has also become the most favourable method for these courts” (pp 166–167). The CCC in particular broadened the pro persona doctrine beyond treaty law, using it to incorporate judicial decisions of international courts as well as recommendations. For the Inter-American Court, the openness of domestic courts to international human rights law, and their use of its jurisprudence in domestic litigation, means that it has an impact well beyond its docket. Battles over rights that never make it to the Inter-American system are nonetheless decided using the rules and norms the Court has articulated in its jurisprudence. In this way, moreover, its jurisprudence begins to influence the behavior of actors making political decisions wholly outside the ambit of the Courts. Most prominently, the rulings of the Inter-American Court (alongside the interventions of the ICC) have played a significant role in the debates around the peace accord that the Derechos Humanos, que es el órgano judicial autorizado para interpretar autorizadamente la Convención Interamericana.”); see also C.C., septiembre 30, 2003, Clara Inés Vargas Hernández, Sentencia C-872, G.C.C. (Colom.) (cited in García 2006).

312

Comparative constitutional law in Latin America

government is negotiating with the FARC guerrillas. Actors on the ground know that the peace accord will eventually end up on the docket of the Constitutional Court, which will, in turn, apply the jurisprudence of the Inter-American Court in reviewing the law, as it has done in reviewing two prior related laws. Indeed, even the ICC has cited the Inter-American Court’s amnesty jurisprudence in opining on the Colombian peace process (Bensouda 2012).12 The peace process is still unfolding and has not yet come before the Inter-American Court. Through the work of domestic judges, however, its judgments nonetheless cast a shadow on important political decisions at the domestic level. Note, however, that Colombia is a leader in this realm. While the jurisprudence of the Inter-American System has, through judicial dialogue, permeated the entire region, the depth to which it has penetrated each system is highly uneven (Huneeus 2016). Whereas Argentina, Colombia, and Costa Rica are places where political battles are frequently articulated in the language of international human rights and litigated in court, other countries have experienced less judicialization, and the role of the Inter-American Court’s jurisprudence in domestic litigation and the domestic sphere more generally is less pronounced. B. A Decade of Conventionality Control The dynamic described above – the use of the Inter-American Court’s judgments to decide domestic cases – is not of the Court’s own making, but rather a regional dynamic from which it has benefitted. In 2006, however, the Inter-American Court issued a ruling that converted this bottom-up dialogic dynamic into a duty imposed from above: The Court ruled that judges in states bound by the American Convention were under a duty to review laws for conformity to the American Convention, and to rely on the Inter-American Court’s interpretation of the Convention as authoritative. It ruled therefore that all judges under its jurisdiction must conduct “conventionality control,” reviewing domestic acts and legislation alike for conformity to the American Convention, and, notably, not applying laws that were in contradiction to the Convention. This duty was first articulated in the 2006 Almonacid v Chile case, and the order to conduct conventionality review was part of the operative section of the judgment. In Almonacid, then, the Inter-American Court directly ordered Chilean judges to not apply a particular law. The Court 12

Letter from Fatou Bensouda to President of Constitutional Court of Colombia August 7, 2012, Revista Semana, Bogota, Aug 18, 2013. http:// www.semana.com/nacion/articulo/una-carta-bomba/354430-3.

The institutional limits of Inter-American constitutionalism

313

then opened a process of supervising Chile’s compliance with that order. But the pronouncement of conventionality control in this and subsequent cases is cast not only as a duty for the state party before the Court. The Inter-American Court’s statement is much broader than that: it contains an admonishment that all courts in states bound by the Convention must undertake this duty (Almonacid Arellano v Chile, 2006 Inter-Am. Ct. H.R. (ser. C) No.154, para. 124): [W]hen a State has ratified an international treaty such as the American Convention, its judges, as part of the State, are also bound by such Convention. This forces them to see that all the effects of the provisions embodied in the Convention are not adversely affected by the enforcement of laws which are contrary to its purpose . . In other words, the Judiciary must exercise a sort of “conventionality control” between the domestic legal provisions which are applied to specific cases and the American Convention on Human Rights. To perform this task, the Judiciary has to take into account not only the treaty, but also the interpretation thereof made by the InterAmerican Court, which is the ultimate interpreter of the American Convention.

The doctrine of conventionality control has now been developed by the Inter-American Court in over two dozen cases over 10 years (Macgregor 2015). Although it has evolved in important ways, its exact meaning is still being worked out on a case-by-case basis. First, the Court expanded the mandate to apply not just to judges, as in the excerpt quoted above, but to all those who work on behalf of the state, and thus can incur state responsibility (Macgregor 2015). If a president or, conceivably, even a police officer is meant to implement a law that she or he deems contrary to the American Convention, she or he should not apply the law. The Court has also curtailed the duty in important ways. The doctrine as stated in Almonacid seemed to say that all courts must review laws under the American Convention and not apply them if found to be in violation. But not all courts in Latin America have the faculty to review legislation in this way. Many states have a system of concentrated judicial review, in which only constitutional court judges have the power of judicial review. In this sense, the Inter-American Court in Almonacid seemed to be converting all of the region’s legal systems into systems of diffuse review, at least insofar as the American Convention was concerned (Dulitzky 2015). Further, the Court seemed to be saying that the American Convention is self-executing, or binding directly in domestic law. Again, however, not all constitutions in the region give treaties this status in domestic law. Traditionally, the practice in international law has been for the question of the status of treaty law in domestic law to be

314

Comparative constitutional law in Latin America

considered a question of domestic practice, unless a treaty explicitly states otherwise, which the American Convention does not. In subsequent cases, the Court softened its statements about conventionality control to respond to these problems. It has since held that while judges must exercise the doctrine of conventionality control, they must do so only “in the context of their respective spheres of competence and the corresponding procedural regulations” (Dismissed Congressional Employees v Peru, 2006 Inter-Am. Ct. H.R. (ser. C) No.159, para. 128). Thus, the doctrine does not “imply that this control must always be exercised, without considering other procedural and substantive criteria regarding the admissibility and legitimacy of these types of action” (para. 128). The precise contours of the doctrine, and how it applies in the different constitutional systems of the 20 states bound by the American Convention and under the Court’s jurisdiction, is still being defined. In Mexico, for example, it is unclear if federal judges and state judges should exercise judicial review under the American Convention differently, given the distinct mandates they have vis-à-vis constitutional review (Gonzalez 2016). Under Chile’s Constitution, the doctrine would seem to apply to the Constitutional Court and perhaps the Supreme Court, but not first instance courts. Further, it is likely that the doctrine of conventionality control will be shifting and variable for years to come even within particular jurisdictions. The Colombian Court early on adopted the constitutional block and declared that it would follow the Inter-American Court’s interpretation of the American Convention in cases against other states. However, it has more recently begun to introduce caveats – some might say it is retrenching – that allow it to elude the Court’s jurisprudence. In a 2013 case, even as the CCC upheld the notion that the Inter-American Court’s jurisprudence is binding upon Colombia, it noted that (SU-712 de 2013, p 76): [T]he application of the American Convention must take into account the institutional architecture of each state, that is, of the context in which it is inserted … [T]he application of the constitutional block must be harmonized with the Constitution, starting from an interpretation that is coherent, systematic and teleological, with the purpose of reconciling the rules of one and the other statute.

Through this loophole the CCC elided the Inter-American Court’s interpretation of the American Convention in a judgment against Venezuela with facts similar to the case before it. In this way, the Inter-American Court’s general language has left the project of hammering out the exact meaning of conventionality control to

The institutional limits of Inter-American constitutionalism

315

the region’s judges and other domestic actors exercising state authority, as well as legal scholars. Indeed, one of the conventionality control doctrine’s biggest impacts so far may be to have spawned a generation of doctoral theses grappling with the question of how the doctrine of conventionality control applies in different systems across Latin America. At a minimum, conventionality control in some jurisdictions may come to mean only that those actors who already have the power to conduct constitutional review should also conduct review under the American Convention, and to take into consideration the Inter-American Court’s jurisprudence when they do so. As noted above, many judiciaries around the region had already come to this conclusion on their own prior to the Court’s Almonacid judgment.

III. WHO’S AFRAID OF THE INTER-AMERICAN COURT? The previous two sections have shown how the Inter-American Court has assigned itself the work of ordering and supervising specific bureaucratic reforms from afar, even as it has delegated part of its own work to judges and other state actors across the region, deputizing them to monitor local law for compliance with the American Convention. By thus reshaping its work, the Inter-American Court has been able to extend its influence beyond its limited docket, and beyond the parties that appear before it in individual cases. It is, by any standard, a creative and activist court. These shifts have received much commentary, and have engendered a debate about whether they are a positive development, or whether the Inter-American Court has ventured too deeply into sovereign terrain. On the one hand there are those who associate a more robust Inter-American Court with a more robust protection of human rights and more robust democracy in the Americas. One of conventionality control’s chief proponents is Eduardo Ferrer Macgregor, who began writing about it as an academic at the Universidad de Mexico, and now continues as a judge on the Inter-American Court. For him, the doctrine of conventionality control “is a key component in the creation and unification of a ius constitutionale commune which protects the dignity of all individuals and strengthens constitutional democracy in the region” (Macgregor 2015). Armin von Bogdandy (2015), a German legal scholar, similarly views conventionality control and the construction of a ius constitucionale commune in Latin America as a way to change the “political and social realities in the region in order to create the general framework for the full realization of democracy, the rule of law, and human rights.” This vision

316

Comparative constitutional law in Latin America

imagines a dialogue among Latin American judges, with the InterAmerican Court as an authoritative guide, that improves democratic practices and continuously, progressively expands the province of human rights in domestic politics. But while the vision of a powerful transnational constitutional court of the Americas is an aspiration for some, it is a source of concern for others. Some fear that the Inter-American Court’s interpretation of its powers constrains the discretion of other state actors to the detriment of existing political relations and institutions. Three strands of argument have been particularly prominent. The first is legalist: These critics argue the Court has misconstrued its mandate. Whereas the Council of Europe states have ratified protocols to amend and expand the powers of the ECtHR, the Inter-American Court is still governed by the original American Convention. As its role and functions change, then, critics object that the Court is departing from its legal mandate, and does so without the consent of the States Parties to which it is beholden (Neuman 2008). It is therefore acting illegitimately. The facts that executives seemingly play along or that judiciaries around the region accept the Court’s interpretive shifts is inapposite to the legalists: Such changes should be wrought by states as such through treaty law amending the American Convention. The second set of criticisms are concerned not with legal doctrine but with judiciaries: The problem with the conventionality control doctrine is that it squelches the creativity and protagonism of national courts. If one reads the doctrine to mean that the Inter-American Court’s judgments trump domestic courts, just as the US Supreme Court judgments on constitutional law trump those of state courts, then the role of those domestic courts in creating doctrine is hampered. Such a view, critics argue, “does not properly embrace domestic judges” (Dulitzky 2015, p 48). Rather, the Court should rigorously engage national judicial opinions and at times defer to them, for “sometimes it is domestic constitutional law that best situates the problem at hand and, therefore, provides a sounder response to it” (Contesse 2017). The third and most powerful set of criticisms are an iteration of the classic complaint against strong-form judicial review at the national level: Judicial adjudication supplants democratic decision-making processes, empowering judges at the expense of legislatures. The argument has been made most famously by Roberto Gargarella’s objection to the Court’s judgment in Gelman v Uruguay (2011). In that case the Inter-American Court held, as it had several times before, that an amnesty law was in violation of the American Convention and should not be applied. Gargarella objected because, this time, the law had been passed by a

The institutional limits of Inter-American constitutionalism

317

democratic government, and upheld by two plebiscites. “In less than ten lines, and basically without giving reasons” the Court overrides “the decision of the Uruguayan Congress, endorsed by the will of over 50% of the people, as expressed in a clean and direct manner” (Gargarella 2015). The Court should have been more respectful of the democratic decisionmaking, Gargarella argues. And while this objection was articulated in response to a case involving dictatorship-era atrocity crimes, it is interesting to note that it may apply with more force when the Court turns to areas of human rights law, where there is even less consensus, such as reproductive rights and LGBT rights. Specifically, there are several ways in which the Court’s rulings might be said to unduly impinge on legislative decision-making. First, they are constrained because the Court claims that it can, in the operative part of the judgment, directly overturn the outcome of a democratic process, such as the Uruguayan Amnesty Law and plebiscites; just as it can directly order legislatures to pass a new law or amendment. Secondly, under conventionality control, the Court’s jurisprudence essentially acts as case law, or to use the European term, res interpretata, and constrains the range of options from which a legislature can choose. In both cases, the Court’s judgments directly curtail the discretion of domestic legislatures. A slightly different but related objection is the claim that a stronger Inter-American Court contributes to judicialization in a more general way, by tipping the overall balance of power and politics away from legislatures and towards judicial forms. In a region where certain political issues have become judicialized over the past three decades, the Court both participates in and helps further construct judicialization: It gives national actors arguments and tools with which to advance their politics in the language of rights, and through judicial institutions. Thus it adds to a phenomenon by which some worry politics bypasses and undervalues deliberation, compromise, and legislation – although it must be noted that in some states judicialization may be a reaction to a weak legislative branch (as in Colombia) (Sieder, Schjolden and Angell (eds) 2005). A. A Realist Intervention Each of these arguments rests partly on normative claims that will not be examined in this chapter. However, the arguments also rest on predictions about what will happen in the real world. Some proponents predict that the Court will move Latin American states towards a more progressive, democratic, and just political order; conversely, several of the judicial and democratic criticisms suggest that the Inter-American Court, through its

318

Comparative constitutional law in Latin America

activist doctrines, will undermine domestic institutions. The problem is that for either of these predictions to become reality the Inter-American Court would need to have a much greater capacity than it actually has relative to the state institutions concerned. Insofar as these arguments seek to imagine where the doctrines of conventionality control and the practice of issuing structural injunctions could lead, they should look not at the Court’s assertive rhetoric but at its constrained daily workings and limited interactions with state actors. It is useful to recall, for example, that although 20 states are currently under the Inter-American Court’s jurisdiction, the Court issues only about 15 cases per year. That is less than one case per year per state. The courts in the region generate many more judgments, and thus develop the law much more frequently than does the Court (Dulitzky 2015, p 71). The peak courts of the region, some of which see over 1,000 cases per year, and the legislatures that make the laws, are going to have the first cut in developing the meaning of the rights contained in their constitutions, and then they will have many more bites at the apple. One might object that a small docket does not per se lead to less power, and in some ways quite the opposite may be true: The US Supreme Court’s power in part derives from its ability to pick and choose among the many cases it receives, and that Court deliberately keeps its docket under 100 cases per year, allowing it to focus its resources on the development of salient doctrines that matter at particular moments. But there are significant differences: The Inter-American Court does not exercise control over its docket; the authority of its rulings to create binding precedent is deeply contested; and, finally, 15 cases per year is significantly less than 100, in a region substantially larger than the United States.13 Timing acts as another important constraint. Many of the courts with constitutional jurisdiction in the region have direct petition through amparo and other writs, allowing them to weigh into social and political issues as they emerge. By contrast, petitioners to the Inter-American system must first exhaust local resources. After that, their case may take roughly seven years – five in the Commission stage and two in the Court – before reaching judgment (Dulitzky 2015, p 131). The Inter-American Court, then, will not be the first to step in and define the issue; rather, its decision will be cast in response to how other courts have ruled as well as how the politics have played out on the ground. Note that this is exactly the outcome some critics would like, as it fosters domestic 13

The population of Latin America minus Venezuela is roughly 520 million.

The institutional limits of Inter-American constitutionalism

319

judicial creativity and political deliberation. The IAS’s slowness, while a very real problem in some scenarios, is in others a virtue. In the realm of compliance with direct orders, the Court’s ability to enforce its complex rulings is similarly constrained, as argued above. In 2015 it issued compliance reports for seven of the 158 cases in which it claims to be supervising implementation of its remedies.14 Further, the supervisory process is itself a soft form of enforcement, which relies heavily on self-reporting and the political good will of state actors. Ultimately, international courts rely on the very government actors that they are ruling against to implement their rulings, which is not unlike the work of some constitutional courts, but is nonetheless more precarious than what most courts do most of the time – rely on executive branches to execute their rulings against actors other than the executive. Turning to judiciaries in particular, it seems the region’s courts are not easily cowed from on high. When the Inter-American Court ruled against the Venezuelan system for judicial appointments, the Venezuelan Supreme Court suggested in a ruling that the executive should denounce the American Convention (which the executive eventually did in 2012). More recently, the Supreme Court responded to a judgment by urging the executive to submit a complaint against the Inter-American Court to the OAS General Assembly.15 The Constitutional Tribunal of the Dominican Republic found a different way to elude the Inter-American Court: It argued that the manner by which the Dominican Republic had accepted the Inter-American Court’s jurisdiction in 1999 had been unconstitutional, and that therefore the Dominican Republic was not now, and never had been, under the Court’s jurisdiction (Sentencia TC 0256-14 C). Other courts have been less confrontational, but nonetheless ambivalent. While the Chilean Supreme Court has come to accept the Inter-American Court’s rulings as directly binding (Sentencia TC 0256-14 C),16 its judges do not frequently refer to, and are often seemingly unaware of, InterAmerican jurisprudence (Schönsteimer 2016). Further, there is always the possibility of backtracking: the CCC, one of the early adapters of the

14

See Section I above. http://historico.tsj.gob.ve/decisiones/scon/septiembre/181181-1175-109152015-15-0992.HTML. 16 http://www.emol.com/noticias/nacional/2014/07/30/672517/corte-supremapor-resolucion-de-la-cidh-los-fallos-tienen-que-cumplirse.html; also http://diario. latercera.com/2015/10/10/01/contenido/pais/31-199880-9-cidh-cuestiona-a-la-cortesuprema-y-ordena-revisar-condenas-de-consejos-de.shtml. 15

320

Comparative constitutional law in Latin America

doctrine of the constitutional block, has recently begun to narrow the situations in which it applies.17 These limits are perhaps best portrayed by the evolution of the Court’s most lauded and well-developed line of cases – and the ones that have provoked the most controversy. The Court’s judgments in the realm of amnesty and accountability for atrocity crimes have famously shaped legal understandings throughout the region. In particular, it has issued a string of five judgments that declare amnesty laws to violate the American Convention. And yet, the most recent three of the Court’s five amnesty rulings have not been implemented. Whereas the rulings against Peru and Chile have helped catalyze further prosecution of authoritarianera crimes, the Brazilian and Uruguayan high courts are holding their ground against the Inter-American Court, and there is little judicial movement in El Salvador as well. Overall, then, while the Court’s judgments may have had important impacts, quashing judicial autonomy and homogenizing the region’s courts’ views on rights do not seem to be among them. Indeed, it is possible to turn on its head the concern that the Inter-American Court will impinge on domestic courts’ creativity to argue instead that it is this very creativity and plurality that will prove a challenge to the construction of a shared and uniform constitutional law of Latin America. As to the question of the democratic credentials of strong-form judicial review, it is true that the Court constrains the options available to democratic deliberation, and at times gives direct orders for states to pass, derogate, or reform particular laws. Yet even Gargarella would have to admit that despite the paucity of its reasoning in the Gelman judgment, the Inter-American Court has not, in actuality, undermined the Uruguayan democracy in any palpable way. If anything, the Gelman judgment triggered the kind of deliberation that the Court itself unfortunately avoided, and in some ways reignited and enriched the debate around amnesty in Uruguay. Gomez v Lund, an amnesty judgment against Brazil, has similarly not impoverished but rather enriched deliberation around the question of amnesty and the past, despite non-compliance by legislature and judiciary alike. Even the Chilean legislature has not derogated the amnesty, although its courts have stopped applying it (a trend that had arguably begun before the Inter-American Court’s ruling, but was further spurred by the Almonacid judgment). More generally, it is important to note that if we look at the region – including Argentina, where many of these critiques have most strongly 17

See Section II above.

The institutional limits of Inter-American constitutionalism

321

arisen – it seems to be the executive, rather than the judiciary, that is the greater threat to legislative decision-making. Throughout American history, and today especially in states as important as Venezuela and Argentina, the impetus to undermine existing institutions has come most strongly from executives, through executive decrees, court-packing, selective prosecution, institutional reforms, and a panoply of other power-grabbing actions. If the concern is legislative authority, in other words, the Court’s rulings are at most a secondary threat. There are signs that the institutional constraints of the OAS human rights system described thus far may become even greater. As this chapter neared completion, the Inter-American Commission announced that it had lost funding from European donors, and would have to cut its staff and suspend a portion of its hearings. The Commission issued a public plea for greater OAS funding, but the American states have been slow to respond to the Commission’s plight, instead seizing on the crisis to express their criticisms. This financial crisis, like an effort in 2011 to reform the OAS human rights systems, has focused on the Commission rather than the Court. But the Commission is closely linked to the Court: It is the first stage in any litigation before the OAS. The two form part of a whole, and threats to one organ becloud and threaten the entire system of rights protection. The Commission’s current budget crisis reveals that states are willing to use the Commission’s already strained budget to further weaken the OAS human rights system’s institutional capacity overall. For this reason alone, it might behoove the Court’s friendly critics to soften their description of the Inter-American Court as a threat to democratic politics and domestic courts. The current debate over the Court’s proper role should be understood as just that: a lively debate characteristic of thriving judicial systems.

IV. CONCLUSION Recent scholarship has raised the concern that the Inter-American Court is too “activist.” This chapter has drawn back the curtain to show how, through two different innovations, the Court has indeed been able to cast a shadow longer than its institutional limits might at first seem to allow. But the chapter has also revealed how the Court’s ability to chime into the ongoing discussion about the American Convention are severely constrained, as is its capacity to correct deviations from its preferred interpretations of the American Convention, and to enforce its rulings. As Rosenberg (1991) argued about the US Supreme Court, these judicial mechanisms only have effects on the ground when the Court’s judgments

322

Comparative constitutional law in Latin America

are able to gain the support of the Court’s key audiences in the domestic realm, including judges, civil society, legislatures, and executives. As with the proverbial wizard, it is through audience buy-in that the Court gains influence. This observation casts doubt on the vision of the Court as boldly leading a progressive shift in politics across the region: It will only be as progressive as its key audiences allow, and, insofar as one key audience is the region’s judges, there will be great variation among states. It also dispels concerns that the Court will undermine judiciaries or legislatures as premature. And yet, this is not to say that the Court is simply epiphenomenal: It does have a net effect and alters domestic politics (Alter 2014 (discussing “altered politics”)), possibly in the direction of greater respect for the American Convention (although there is, of course, deep and reasonable disagreement about what the rights provisions of the Convention mean) (Waldron 1999). It also likely fosters further judicialization of politics, such that more political issues are articulated in the language of rights, and are fought through judicial, as opposed to legal, institutions. An important but challenging research question that has yet to be approached through empirical research is if and how, exactly, this judicialization through the American Convention changes political outcomes.

REFERENCES Alter, Karen J. 2014. The New Terrain of International Law: Courts, Politics, Rights. Princeton, NJ: Princeton University Press. Antkowiak, Thomas. 2008. “Remedial Approaches to Human Rights Violations: The Inter-American Court of Human Rights and Beyond.” Columbia Journal of Transnational Law 46: 351. Bensouda, Fatou. 2012. Letter to President of Constitutional Court of Colombia August 7. Revista Semana, Bogota, August 18, 2013. http://www.semana.com/ nacion/articulo/una-carta-bomba/354430-3. Cepeda-Espinosa, Manuel José. 2004. “Judicial Activism in a Violent Context: The Origin, Role, and Impact of the Colombian Constitutional Court.” Washington University Global Studies Law Review 3: 529. Contesse, Jorge. 2017, Forthcoming. “The Final Word? Constitutional Dialogue and the Inter-American Court of Human Rights.” International Journal of Constitutional Law 15. Couso, Javier, Alexandra Huneeus and Rachel Sieder, eds. 2010. Cultures of Legality: Judicialization and Political Activism in Latin America. Cambridge: Cambridge University Press. Dulitzky, Ariel E. 2015. “An Inter-American Constitutional Court? The Invention of the Conventionality Control by the Inter-American Court of Human Rights.” Texas International Law Journal 50: 45–93.

The institutional limits of Inter-American constitutionalism

323

Dulitzky, Ariel. “Too Little, Too Late: The Pace of Adjudication of the InterAmerican Commission on Human Rights.” Loyola of Los Angeles International and Comparative Law Review 35: 131. Fernandez, Vicente and Nitza Samaniego Behar. 2011. “El juicio de amparo: historia y future de la protección constitucional en México [The Trial of Amparo: its History and the Future of this Constitutional Protection in Mexico].” Revista del Instituto de Ciencias Juridicas de Puebla 27: 173. García, Olano. 2006. “El bloque de Constitucionalidad en Colombia.” Estudios Constitucionales 3: 231. Gargarella, Roberto. 2015. “Democracy and Rights in Gelman v. Uruguay.” AJIL Unbound 109: 115. Gongora Mera, Manuel Eduardo. 2011. Inter-American Judicial Constitutionalism: On the Constitutional Rank of Human Rights Treaties in Latin America through National and Inter-American Adjudication. San José: Inter-American Institute of Human Rights. Gonzalez Domínguez, Pablo. 2016. Implementación de la Convención Americana de Derechos Humanos en los Sistemas Jurídicos Nacionales: La Doctrina de Control de Convencionalidad, 2014. Centro de Estudios Juridícos. Huneeus, Alexandra. 2013. “International Criminal Law by Other Means: The Quasi-criminal Jurisdiction of the Human Rights Courts.” American Journal of International Law 107: 1. Huneeus, Alexandra. 2015. “Reforming the State from Afar: Reform Litigation at the Human Rights Courts.” Yale Journal of International Law 40: 1. Huneeus, Alexandra. 2016. “Constitutional Lawyers and the Inter-American Court’s Varied Authority.” Law and Contemporary Problems 79: 179–207. Inter-American Commission on Human Rights. 2015. Annual Report. Kosar, David and Lucas Lixinski. 2015. “Domestic Judicial Design by International Human Rights Courts.” American Journal of International Law 109: 713–760. Leach, Philip, H Hardman, S Stephenson and B Blitz. 2010. Responding to Systemic Human Rights Violations: An Analysis of “Pilot Judgments” of the European Court of Human Rights and Their Impact at National Level. Antwerp: Intersentia. Macgregor, Eduardo Ferrer. 2015. “Conventionality Control: The New Doctrine of the Inter-American Court of Human Rights.” AJIL Unbound 109: 93. Malarino, Ezequiel. 2012. “Judicial Activism, Punitivism and Supranationalisation: Illiberal and Antidemocratic Tendencies of the Inter-American Court of Human Rights.” International Criminal Law Review 12: 665–695. Neuman, Gerald L. 2008. “Import, Export, and Regional Consent in the Inter-American Court of Human Rights.” European Journal of International Law 19: 101. Orango Olaya, Monica. 2004. “El Bloque De Constitucionalidad En La Jurisprudencia De La Corte Constitucional Colombiana Revista.” Anuario juridico. 79–102. Rodilles, Alejandro. 2016. “The Law and Politics of the Pro Persona Principle in Latin America.” In The Interpretation of International Law by Domestic Courts: Uniformity, Diversity, Convergence, edited by Helmut Phillipp Aust and Georg Nolte. Oxford: Oxford University Press.

324

Comparative constitutional law in Latin America

Rodríguez Garavito, Cesar and Diana Rodríguez Franco. 2015. Radical Deprivation on Trial: The Impact of Judicial Activism on Socioeconomic Rights in the Global South. New York: Cambridge University Press. Rosenberg, Gerald. 1991. The Hollow Hope. Chicago, IL: University of Chicago Press. Salazar Ugarte, Pedro. 2011. “Garantismo y neoconstitutionalismo frente a frente: algunas claves para su distincion.” Doxa: Cuadernos de Filosofia del Derecho 34: 289–310. Schönsteiner, Judith. 2016. “El derecho internacional de los derechos humanos en el Tribunal Constitucional chileno: El mínimo común denomìnador.” Revista de Derecho (Valdivia) XXIX: 197–226. Sieder, Rachel, Line Schjolden and Alan Angell, eds. 2005. The Judicialization of Politics in Latin America. New York: Palgrave Macmillan. Tushnet, Mark. 2009. Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law. Princeton, NJ: Princeton University Press. Uprimny, Rodrigo. 2011. “Las transformaciones constitucionales recientes en América Latina: tendencias y desafíos.” p. 109 in Et Derecho en America Latina: Un Mapa para el Pensamiento Juridico del Siglo XXI, edited by Cesar Rodríguez Garavito. Buenos Aires: Siglo XXI editores. von Bogdandy, Armin. 2015. “Ius Constitutionale Commune en America Latina: Observations on Transformative Constitutionalism.” AJIL Unbound 109: 109. Waldron, Jeremy. 1999. Law and Disagreement. Oxford: Oxford University Press.

14. The constitutional protection of economic and social rights in Latin America Carlos Bernal* This chapter aims to illuminate answers to two questions: whether there is convergence in the constitutional protection of economic and social rights in Latin American countries; and what can explain the existence or absence of convergence. Within this context, the concept of constitutional protection will only refer to two aspects: the manner in which constitutional provisions entrench economic and social rights, and the standards that apex courts employ for adjudicating cases under those provisions. Moreover, a standard will refer to a set of directives that, in the form of a methodology, guide judges through the process of adjudicating cases under constitutional provisions entrenching rights. Judges use standards to assess whether actions and omissions by the duty-bearers – stage agencies or private individuals or corporations – violate those rights, and, when this is the case, for determining what the appropriate remedies are. Answering these questions has theoretical and practical significance. Among Latin American countries there is remarkable convergence about the mode in which constitutions entrench economic and social rights, and concerning the political, economic, and social circumstances in which those rights ought to be implemented. From the theoretical viewpoint, the present analysis will show whether that convergence also reflects in the way in which the judiciary interprets and enforces economic and social rights. From the practical point of view, comparing the way in which Latin American constitutions enshrine economic and social rights, and courts use relevant standards will contribute to a reflection on what would be the “normatively preferable best practice” (see Jackson, 2012, 70) of * I should like to thank Rosalind Dixon and David Landau for helpful suggestions. 325

326

Comparative constitutional law in Latin America

constitutional entrenchment and enforcement of those rights in the region. The choice of the mode of entrenchment and standards of adjudication is not neutral. The mode of entrenchment implies allocating competences to judges for directly enforcing economic and social rights or declining such allocation. Moreover, the choice of standard implies that judges take a stand on three issues: rationality, deference, and priority. Different standards lead to different degrees of rationality in the adjudication of rights (see Bernal, 2013, 508). They also enable courts to be more or less deferential vis-à-vis other state powers – in particular, the legislative and the executive – and to grant a greater or lesser degree of priority to rights over other competing interests and policy considerations. Hence, the choice of standard has an impact on the implementation of representative democracy and the separation of powers, and the degree of satisfaction of economic and social rights. The stronger the standard of adjudication is, the higher the degree of satisfaction of the relevant rights will be, but, at the same time, the more the judiciary will interfere with the competences of the legislative and executive powers. So, the key questions to be considered from a practical comparative perspective are: Are justiciable economic and social rights preferable over non-justiciable rights in Latin America? If this is the case, is a stronger standard preferable over a weaker one? This chapter will argue for the following proposition: Despite convergence of Latin American constitutions in the mode of entrenchment of economic and social rights, and in the legal and economic circumstances for their adjudication, assessed from the comparative constitutional perspective, an analysis of the case law of Latin American apex courts shows that there is only limited convergence, and, correlatively, extended divergence concerning the use of standards for adjudication of economic and social rights. While the beginning of a practice of intra-regional migration of constitutional ideas may account for the convergence, the different role of apex courts and the distinct strength of the executive power in each jurisdiction may explain the divergence.

I. CONVERGENCE IN THE CONSTITUTIONAL ENTRENCHMENT OF ECONOMIC AND SOCIAL RIGHTS IN LATIN AMERICA Economic and social rights count as one of the greatest developments of contemporary constitutionalism, particularly in Latin America. Since the

Economic and social rights in Latin America

327

1917 Mexican Constitution of Queretaro, numerous international instruments and national constitutions have entrenched human and constitutional rights with economic and social content. This has become a widespread strategy to address the issues of poverty, unsatisfied basic needs, lack of resources to secure a life with dignity, and unequal distribution of opportunities and wealth. According to 2012 data, 179 constitutions in the world – out of 195 – enshrine economic and social rights. Moreover, in 68 constitutions all economic and social rights are justiciable, and in 58 this nature has at least been accorded to some of them. Besides, as Jung, Hirschl and Rosevear (2014) reveal in an analysis of that information, all Latin American constitutions entrench economic and social rights, and guarantee a higher average number of them in comparison to other regions in the world. There are various ways in which constitutions protect economic and social rights. Constitutions belonging to the first liberal constitutionalism included provisions entrenching what Mark Tushnet (2008, 238) calls “nonjusticiable” or “merely declaratory rights,” that is, rights that courts would not enforce. This was the case for almost all Latin American constitutions for the greater part of the 20th century (see Krennerich and Góngora Mera, 2006, 3). In this respect, they were clearly influenced by older constitutions of continental European countries. Articles 21 and 22 of the French Constitution of 24 June 1793, for instance, guaranteed the right of unfortunate citizens to obtain public assistance for securing employment or provision of basic goods, and the right to public education. These provisions were not enforceable by the judiciary against political authorities. This was also true of the economic and social rights enshrined in the 1919 Weimar Constitution. Relevant jurisprudence and noteworthy German constitutional scholars, whose voices were influential in Latin America, considered provisions prescribing those rights as “programmatic statements” (Programmsätze). As such, they required neither the legislator nor the executive to act in any enforceable way (see Anschütz, 1933, 514; Huber, 1960, 96). This view was the prevailing interpretation of relevant articles of the Weimar Constitution, namely, article 151, according to which achieving “life in dignity for everyone” was a goal for the organization of the economy; article 155, which empowered the state to supervise the distribution and usage of real estate “in order to secure healthy housing”; article 161, which instituted a system of insurance for assisting mothers, the elderly, and less fortunate citizens; and article 162, which protected minimum social rights of workers. Several current constitutions still institute economic and social rights in the same way, that is, as merely declaratory rights. Article 53.3 of the

328

Comparative constitutional law in Latin America

1978 Spanish Constitution states that economic and social rights constitutional provisions “shall guide legislation, judicial practice and actions by the public authorities.” These provisions belong to Part I, Chapter 3 of the Spanish Constitution, which is entitled: “Principles governing Economic and Social Policy.” Provisions belonging to this chapter guarantee economic and social rights of the family, children, and mothers (article 39), workers (articles 40, 41, and 42), disabled individuals (article 49), and the elderly (article 50), and the rights to health (article 43) and housing (article 47) as well. Despite the lack of binding force, merely declaratory economic and social rights have political value as ideals to be achieved through the exercise of political powers. In addition, judges can use them as criteria for interpreting ambiguous statutes. The legislature can also make reference to them as legitimate reasons for justifying limitations upon freedoms (see, Jiménez Campo, 1999, 130, and Parejo Alfonso, 1983, 56). Finally, in a context of governance, not only by the state, but also by corporations and other actors, non-enforceable economic and social rights can guide and generate pressure over executive and corporate policy-making, and can direct other kinds of relevant actions by agencies, independent commissions, non-governmental organizations and social movements (see Young, 2012, 74). If law-makers and public and corporate policy designers overlook them, public opinion can legitimately blame or censor them. Interestingly, despite the influence of the 1978 Spanish Constitution in all the Latin American constitutions enacted after that year, there is clear convergence in the latter regarding the entrenchment of justiciable or enforceable economic and social rights. For instance, articles 42 to 77 of the 1991 Colombian Constitution guarantee, among others, the justiciable fundamental rights of children, pregnant women, adolescents, senior citizens, and people with disabilities of any sort, as well as the rights of every citizen to receive a pension, health care, housing, recreation, fair work conditions, and education. Articles 12 to 55 of the 2008 Constitution of Ecuador also guarantee all these rights plus other relevant socio-economic entitlements, such as the right to the provision of water and food, and the basic rights of inmates and persons with disastrous sicknesses. Also, chapter II of title II (articles 6 to 11) of the 1988 Brazilian Constitution guarantee the rights to education, health, nutrition, labor, housing, leisure, security, social security, protection of motherhood and childhood, assistance to the destitute, and the social rights of workers. They are all enforceable rights. The constitutional practice in Chile was a noteworthy exception to this Latin American convergence. Chapter III of the 1980 Constitution enshrines some economic and social rights without specifying their

Economic and social rights in Latin America

329

justiciable or non-justiciable character. For almost 20 years the case law of the Constitutional Court accorded to them a merely declaratory nature. Nonetheless, the introduction of a “writ of inapplicability” to article 93.6 by the 2009 Amendment (see Couso and Coddou, 2010) led that apex Court to begin enforcing economic and social rights such as the right to health (see, for instance the case ISAPRES I: 1. Rol 976 – 2007- INA of 26 June 2008; see also Bassa, 2013, 102).

II. COMMMON CIRCUMSTANCES FOR THE ADJUDICATION OF ECONOMIC AND SOCIAL CONSTITUTIONAL RIGHTS IN LATIN AMERICA This convergence creates certain common legal circumstances for the adjudication of economic and social constitutional rights across Latin America. First, provisions establishing constitutional justiciable socio-economic rights give rise to various sorts of legal positions (see Alexy, 2002, 120). As Michelman (2008, 667) explains, constitutions and human rights charters guaranteeing socio-economic rights aim to achieve a “desired set of social outcomes”: that the “rights holders at no time should lack access to levels deemed adequate for subsistence, housing, health care, education, and safety or to the means of obtaining the same (say, through available, remunerated work) for themselves and their dependents.” In order to achieve such social outcomes, these provisions ground at least three types of claims for the right-holders: first, claims of no interference from the state and other individuals regarding access to and enjoyment of adequate levels of benefits that the right-holders already have (negative claims); second, claims concerning the equal access and enjoyment of the right-holders to those adequate levels of benefits, in comparison to other individuals (equality claims); finally, claims of enablement, promotion, protection or guarantee of access by the right-holders to the adequate levels of benefits conferred by the socio-economic rights and the enjoyment of them (positive claims). Those claims are triadic legal positions in which a right-holder has a claim right against a duty-bearer, who, correlatively, has a duty. The subject matter of the claim and, at the same time, of the duty, is a mode of action that the addressee ought to perform in favor of the right-holder or in favor of a third person (see Alexy, 2009, 1). The performance of the action will cause the satisfaction of the right at a certain level.

330

Comparative constitutional law in Latin America

Latin American constitutional case law and scholarship has addressed these three kinds of claims. The most relevant negative claim is the prohibition of retrogression concerning social benefits (see Courtis, 2006, which encompasses critical analysis of Inter-American, Argentinean, Brazilian, Colombian, and Peruvian jurisprudence). Concerning equality claims, the doctrine has outlined why economic and social rights are not only necessarily linked to the principle of non-discrimination (see Gutiérrez and Salazar, 2011) but can also justify delivering preferential treatment to the poor and most vulnerable (see Salgado, 2015, 75). The rest of the chapter will address only the issues related to the positive claims. Second, constitutional cases involving the judicial enforcement of constitutional provisions enshrining positive economic and social rights are sometimes hard cases in Dworkin’s sense (see Dworkin, 1975, 1057). They are cases in which the decision is not clearly directed by the constitution. This is because of the linguistic and institutional circumstances in which this enforcement takes place. These circumstances include the facts that constitutional provisions entrenching economic and social rights are vague, ambiguous, and open-textured; that the claims they ground can collide with claims grounded in other constitutional rights and principles (see Dixon and Ginsburg, 2011, 3); that there might be disagreements as to the appropriate way to solve those collisions (see Gerstenberg, 2012, 906); that the enforcement of economic and social constitutional rights may imply that judges review policies and actions of political authorities; and that provisions enshrining positive economic and social rights may lack determination concerning, in particular, the dutybearer, and the level and mode of satisfaction. Regarding the final circumstance, the adjudication of positive economic and social constitutional rights would not be different to that of ordinary private law obligations, such as contractual obligations to repay a loan or to pay the price of land, if the addressee, the level and the mode of satisfaction of the right were determined. However, this does not always occur. Constitutions entrench abstract and unqualified economic and social rights rather than specified lists of concrete actions to be performed by an identifiable duty-bearer. Some constitutional provisions protect social rights in a flexible way. They guarantee access to benefits rather than certain benefits per se. For instance, sections 26 and 27 of the South African Constitution grant “access” to adequate housing, health care services, sufficient food and water, and social security. Other provisions confer rights to certain goods. For example, article 30 of the Constitution of Ecuador grants to each person a right to “appropriate housing.” Nevertheless, even more specific provisions, like the latter,

Economic and social rights in Latin America

331

describe the entitled goods in a generic way. It is open what “appropriate” should mean in the context of article 30 of the Constitution of Ecuador. Furthermore, some constitutional provisions neither specify who the duty-bearers of the right are, nor the manner in which they should guarantee the access of the right-holder to the relevant benefits or the enjoyment of them. Some provisions require creation of policies, such as a “health policy” (article 32 of the Constitution of Ecuador) or a “housing plan” (article 51 of the Colombian Constitution). Notwithstanding their potential utility, they neither spell out the details of the policy nor when it ought to be issued. Finally, these policies do not usually specify how to deal with financial constraints and scarcity of resources for allocating the benefits to a wide range of right-holders. Most socio-economic rights’ constitutional provisions do not determine who the duty-bearer of each economic and social right is. At first glance the state could be considered a universal addressee of these rights. In this respect, in almost all Latin American constitutions the state is characterized as a “social state.” However, within the state, sometimes there are several agencies jointly responsible for drafting and enforcing a program with the purpose of satisfying certain rights. Constitutions do not usually determine what agency is responsible for what specific tasks. This is a legislative matter and parliaments can leave “blind spots” (see Dixon, 2007) at the time of empowering agencies and endowing them with resources for satisfying economic and social rights in all the relevant aspects. Furthermore, closer analysis will show that in neoliberal societies sometimes the state does not have the immediate responsibility to satisfy these rights. Concerning the right to water, for instance, the water market has been privatized in many Latin American countries, where private corporations play the role of delivering water to individuals. It is not clear whether these corporations are also duty-bearers of the right to water and whether they have a constitutional duty to satisfy it (see Russell, 2011). Finally, most economic and social rights provisions lack determination concerning the appropriate level and mode of satisfaction of the right required by the constitution. While the level of satisfaction refers to the specific goals that political authorities and private dutybearers ought to meet concerning each right, the mode of satisfaction concerns the appropriate means that should be implemented to achieve that level. As a consequence, it is difficult to identify, in concrete cases, what can be called the definite lawful opposite (see Lübbe-Wolff, 1988). In order to establish whether a right has been violated, judges need to know what the lawful conduct is that the addressee ought to perform. The task of determining the definite lawful opposite is fairly easy concerning freedoms. From the perspective of freedoms, actions are unlawful if they

332

Comparative constitutional law in Latin America

interfere with legal positions of freedom or entitlement. The definite lawful opposite of these positive unlawful actions is the omission by the agent of the unlawful action at stake. Concerning positive rights, omissions are unlawful if they do not adequately protect the right at stake. However, due to the indeterminacy concerning the duty-bearer, the level, and the mode of satisfaction, an unlawful omission does not have a definitive opposite. Rather, there may be as many opposites as there are possible duty-bearers, levels, and alternative modes of satisfaction. Under these circumstances, it cannot be expected that every instance of economic and social rights adjudication will produce an answer capable of ruling out uncertainty and disagreements. Uncertainty and disagreements would disappear only if there were a rule prescribing a specific and clear solution for every possible case. The set of all rules of this kind would render clear what economic and social rights permit, prohibit, or require in every conceivable situation. This is, nevertheless, neither feasible – due to the above-mentioned circumstances – nor desirable. In a society that had such a specific and totally certain catalogue of economic and social constitutional rights, its prospects of political deliberation would be notably reduced. Parliament’s sphere of action would be reduced to a minimum, the legislature would be transformed into an authority that is responsible merely for executing constitutional regulations, and its importance as a forum for democratic deliberation would be lost. Moreover, the adjudication and implementation of economic and social rights in Latin America should take place under certain common social, political, economic, and institutional circumstances across the different relevant jurisdictions. Latin American constitutions generate a paradox that can be called the paradox of the social state. On the one hand, those constitutions entrench neoliberal economic principles that have grounded policies of privatization of state agencies delivering community services. On the other hand, they also guarantee the social state principle (transplanted from the German Basic Law, and the 1978 Spanish Constitution), judicially enforceable economic and social rights, and a positive dimension of the right to equality – according to which the state ought to undertake positive actions for creating equal opportunities across the population. While the former set of principles is the foundation for a small state guided by the political and economic ideology of laissez-faire, the latter set of rights creates entitlements whose satisfaction necessitates strong state interventions in the economy. The above-mentioned neoliberal principles reflect the law reform requirements imposed on Latin American countries by multilateral agencies at the beginning of the 1990s labeled the “Washington Consensus.”

Economic and social rights in Latin America

333

This concept, formulated by John Williamson (see Williamson, 1990), suggested the adoption of free trade, floating exchange rates, free markets, deregulation, privatization of state enterprises and welfare agencies, and macroeconomic stability (including fiscal stability), as necessary tools for the recovery of Latin American economies from the financial crises of the 1980s. Support for free trade through the WTO and the North Atlantic Free Trade Agreement (NAFTA), financial conditionality – that is, the fact that International Monetary Fund bailouts and World Bank credits required previous free market reforms – and US diplomatic pressure were useful strategies to compel the adoption and implementation of the Washington Consensus. That implementation mainly took place during the governments of Carlos Menem (Argentina, 1989–1999), Fernando Collor de Mello (Brazil, 1990–1992), César Gaviria (Colombia, 1990–1994), Carlos Salinas de Gortari (Mexico, 1988–1994), the first term of Alan García (Peru, 1985–1990), Julio María Sanguinetti (Uruguay, 1985–1990 and 1995–2000), and the second term of Carlos Andrés Pérez (Venezuela, 1989–1993). The constitutional and legislative entrenchment of neoliberal economic principles makes it difficult for the state to provide appropriate satisfaction of economic and social rights. Preserving budgetary equilibrium and privatizing welfare state agencies eliminate, or at least diminish, the capacity of political institutions for delivering services that correlate to economic and social claims. Leaving the delivery of those services in the hands of private corporations creates internal tensions between private profit and capital growth, on the one hand, and satisfactory delivery of social and welfare services, on the other. The better the delivery of a social or welfare service, the less profitable it is, and vice versa. Interests associated with private profit usually prevail in the resolution of this tension, and governments lack the capacity or the will – private corporations delivering social services usually fund presidential candidates – to secure a different outcome.

III. CONVERGENCE AND DIVERGENCE CONCERNING THE STANDARDS OF ADJUDICATION OF ECONOMIC AND SOCIAL RIGHTS IN LATIN AMERICA Under all these circumstances, it is impossible to imagine that there can be an objective standard for the enforcement of constitutional economic and social rights. Apex courts around the world use a few different

334

Comparative constitutional law in Latin America

standards. Among them are: reasonableness, the minimum core, and proportionality. The jurisprudence developed by the South African Constitutional Court in the adjudication of cases under sections 26.2 and 27.2 of the 1996 South African Constitution is a paradigmatic use of reasonableness. These sections require the state to “take reasonable legislative and other measures, within its available resources, to achieve the progressive realization” of the rights to housing, health care, food, water, and social security. Consistent with these provisions, the South African Constitutional Court has held that the scope of the positive duties of political authorities to achieve satisfaction of economic and social rights is “defined and limited” by the standard of reasonableness (see Minister of Health v Treatment Action Campaign (No. 2) 2002 5 SA 721 (CC), paras. 30–39; also Liebenberg, 2010, 132). Scholars and judges have contended that the standard of reasonableness does not suffice for an adequate protection of economic and social rights (see Woolman and Bishop, 2013, 56A-12; Pillay, 2013, 599; Steinberg, 2006, 264). For this reason, some authors claim that economic and social rights should be judicially interpreted by means of the identification of a minimum core (Bilchitz, 2007, 187). Within this context, the minimum core is a bundle of specific rights that should be satisfied under any circumstance. There is only limited convergence, and, correlatively, extended divergence concerning the standards used across several Latin America jurisdictions. Constitutional and supreme courts of countries such as Argentina, Brazil, Colombia, Costa Rica, and Mexico have enforced economic and social rights provisions in a stronger way, appealing in some of them to the minimum core, and using highly creative techniques of judicial reasoning and adopting resourceful remedies (see Gauri and Brinks, 2008). In insightful decisions they have exhorted and commanded political authorities to implement appropriate legal, financial, and administrative measures in order to ensure that the state and private individuals and corporations meet the demands imposed by rights grounded in those provisions. The case law of the Colombian Constitutional Court offers a variety of examples concerning the use of the standard of the minimum core. The Court adopted a doctrine of a vital minimum, under which each citizen has a constitutional right to enjoy the necessary means for a basic level of subsistence (see judgments SU-559/1997, T-068/1998, T-153/1998, SU-090/2000, T-068/2010, T-025/2004, and T-760/2008). In this respect, the minimum core is different from reasonableness. The former justifies courts in determining the minimum amount and quality of goods and services that political authorities should deliver to individuals; the latter

Economic and social rights in Latin America

335

acknowledges that only the legislature and the executive are empowered to determine what the minimum amount should be. Judges should be deferential to this determination unless it is unreasonable. For instance, when applied to enforce the constitutional right to water, the minimum core requires the state to ensure that every citizen receives a minimum amount of clean water daily (see judgment T-740/2011 of the Colombian Constitutional Court). And when applied to the right to health, it requires the government to guarantee a minimum schedule of medical services and medicines to all individuals, regardless of their income (see judgment T-760/2008 of the Colombian Constitutional Court). This judicial practice has given rise to strong objections. The criticisms comprehend institutional concerns related to the capacity of courts to adjudicate economic and social rights claims (Young, 2012). They also encompass reservations about the compatibility between this judicial practice, on the one hand, and the principles of the rule of law and separation of powers along with the foundations of representative democracy, on the other (Nolan, 2009). There has also been discussion on the effectiveness of this minimum core practice for achieving the abovementioned aims linked to the redistribution of wealth. Surprising evidence points to the fact that, at least in some Latin American countries, the constitutional enforcement of economic and social rights has not been benefiting the poor. They have improved financial circumstances of middle class citizens that are somehow able to meet their basic needs by means of ordinary market strategies (Landau, 2012). Finally, concerns arise about the substantial increase in economic and social rights litigation, which creates inefficiencies in the final satisfaction of the claims and needs of the right-holders (Rodríguez-Garavito, 2010–2011). Notwithstanding this, some apex courts in Latin America have protected economic and social rights in structural cases. Those are judicial proceedings in which a large number of litigants allege a violation of the same right, whose satisfaction implies the coordinated action of various state agencies in designing and implementing policies. In those cases courts issue structural injunctive remedies benefiting an entire population that goes beyond the litigants (Rodríguez-Garavito, 2010–2011, 1671). The Colombian Constitutional Court has decided remarkable structural cases in judgments concerning, among others, the lack of compliance of the state’s duty to affiliate public officials to the social security system (judgments SU-559/97, T-068/98, T-535/99, and SU-090/2000), prison overcrowding (judgment T-153/98), and the deficiency of the protection awarded to human rights advocates (judgment T-590/98), to constitutional rights of internally displaced people (judgment T-025/2004), and to the right to health (judgment T-760/2008). The Supreme Court of Costa

336

Comparative constitutional law in Latin America

Rica has issued structural injunctions in cases related to the protection of constitutional rights in closing the landfill Río Azul (judgment 1154-96), the protection of the right to health along the whole territory of the country by the Social Security Agency (judgment 2013-4621), and several cases concerning constitutional rights of the inmates. The Federal Supreme Court of Brazil has dealt with structural cases related to the violation of constitutional rights of the inmates due to overcrowding in prisons (judgment of 27 September 2015). In the Colombian and Brazilian structural cases the respective Courts have declared the existence of an unconstitutional state of affairs. This standard refers to a massive violation of human rights, which is caused by a significant institutional blockage that must be overcome with the engagement of various state agencies (compare Sombra 2015). Finally, in addition to the declaration of an unconstitutional state of affairs, in two structural cases, one related to the protection of economic and social rights of internally displaced persons (T-025/2004), and the other concerning the guarantee of the right to health – in particular of the most vulnerable – (T-760/2008), the Colombian Constitutional Court delivered orders to the legislature and the executive related to the design and performance of specific policies and programs. The Court has also endowed itself with the competence to supervise the fulfillment of those orders in yearly public hearings. A current issue is when the Court should stop performing that supervisory role. An answer to this question involves a trilemma. First, the Court cannot perform this role – not foreseen in its constitutional competences – forever. However, the programs adopted by the public authorities do not protect the violated economic and social rights to the constitutionally lawful level and it is not likely that they will achieve that level in the near future. Then, if the Court stops performing its supervisory role it should either accept the lack of compliance with its judgments or admit that this compliance is impossible under the current political and economic circumstances. In either case the question will remain open whether the Court can then admit further constitutional complaints regarding the same unachieved economic and social outcomes. This trend concerning strong standards for enforcing economic and social rights, developed by apex courts in Colombia, Costa Rica, and Brazil, diverges from at least two other trends. There is the enforcement of economic and social rights by means of weaker standards on the one hand. A relevant example is the Argentinean reasonableness (razonabilidad), which, according to the Supreme Court, should be understood as a kind of “proportionality test”. (See judgment 319:1934, of 12 September 1996, para. 8; and Vizzotti, 14 September 2004, para. 7f.) In comparative

Economic and social rights in Latin America

337

literature and case law the principle of proportionality is understood as a set of three linked sub-principles: suitability, necessity, and balancing (or proportionality in the narrow sense). Each sub-principle establishes a requirement that any limitation on a constitutional right ought to meet. The sub-principle of suitability requires that the limitation contribute to the achievement of a legitimate end. The sub-principle of necessity requires that the limitation be the least restrictive of all means that are equally suitable to achieve the pursued end. The sub-principle of proportionality in the narrow sense requires that the limitation achieve the pursued end to a degree that justifies the extent of the constraint on the constitutional right (see Barak, 2012, 3; Stone Sweet and Mathews, 2008, 47). Certainly, in addition to the possibility of employment of the minimum core and reasonableness, recently some comparatists have suggested that the employment of proportionality could improve the adjudication of economic and social rights (see Contiades and Fotiadou, 2012 and 2014). There is convergence in Latin America about the use of proportionality for the adjudication of constitutional freedoms (see Carbonell, 2008). Nevertheless, apex courts in the region do not usually employ this standard for the adjudication of economic and social rights. A reason that may explain this asymmetry is the lack of clarity concerning the structure of proportionality for adjudicating positive rights claims. Furthermore, there is discussion in the theoretical literature on whether proportionality is different from reasonableness and from the minimum core, and if different, whether its use is actually incompatible with the employment of these other standards. For instance, while Klatt (2015, 357) claims that proportionality and reasonableness imply “different sets of questions” to be asked in the adjudication of economic and social rights, Liebenberg (2010, 185) seems to endorse that proportionality can be embedded into reasonableness. Also, while the South African Constitutional Court (in Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC)) characterizes the minimum core as incompatible with reasonableness, Bilchitz (2003) conceives it as a possible conception of reasonableness, in which priority should be given to economic social rights in their collisions with other interests and policy goals. Moreover, Bilchitz (2014) also holds that courts cannot use proportionality independently from a doctrine of the minimum core. A closer analysis of the Argentinean economic and social rights case law reveals that the Argentinean reasonableness only involves a suitability review. The Supreme Court only checks whether the means selected by the political authorities to implement the relevant social right is appropriate for contributing to that end. According to the literature, the

338

Comparative constitutional law in Latin America

use of this weaker standard has led to an under-enforcement of rights of great social significance, such as the right to shelter (see Etchichury, 2013). On the other hand, there is almost no economic and social rights litigation in countries such as Venezuela, Bolivia, Nicaragua, and Ecuador, in which incumbent presidents clearly endorse socialist ideals. In those countries, there is disagreement on whether social policies and programs have actually transformed indicators concerning the satisfaction of economic and social rights (see, for instance, concerning Venezuela: (in praise) Pereira and Heredia, 2014; this is incompatible with the 2015 Encovi data, according to which 73 per cent of the Venezuelan population is living below the poverty line, see Encovi, 2015).

IV. IN SEARCH OF AN EXPLANATION What can explain both convergence and divergence in the judicial enforcement of economic and social rights across Latin America? On the one hand, the beginning of a practice of intra-regional migration of constitutional ideas may account for the convergence. Standards of adjudication can easily migrate from one jurisdiction to another. They concern ways of reasoning that can solve common problems for judges in different contexts. In this respect, there are at least two factors that can account for the migration of the use of strong standards for adjudicating cases concerning positive economic and social rights claims among some Latin American jurisdictions. The first is the strong protection of social and economic rights within the Inter-American System of human rights. This protection derives not only from the entrenchment of some of those rights in the American Convention on Human Rights, but also from the direct enforcement by the InterAmerican Commission and Court of Human Rights (see, with an analysis of relevant reports by the Commission and Judgments by the Court, Bazan, 2005, 568). In the last 10 years Latin American constitutional and supreme courts have increasingly quoted and adopted concepts and doctrines developed by the Inter-American Court of Human Rights. A traditional doctrine of monism accepting the direct internal application of international human rights law explains the creation of a conventionality review – that is a review of decisions, actions, and omissions by internal authorities from the perspective of the American Convention on Human Rights. Thus, due to the monist character of most Latin American jurisdictions, these Inter-American legal sources are internally valid and directly applicable by all judges. Concerning the second factor, courts,

Economic and social rights in Latin America

339

such as the Colombian Constitutional Court, have crafted innovative conceptual and methodological tools that are more appropriate for constitutional adjudication in the Latin American setting than doctrines elaborated by their European and North American counterparts. Judges in the region have appreciated this special suitability and have transplanted some of those tools. A relevant instance of this phenomenon is the migration of the Colombian doctrine of the unconstitutional state of affairs to the jurisprudence of the Brazilian Supreme Court. On the other hand, it is true that the adjudication of economic and social rights, as with all constitutional law matters, is, in part, an expression of national particularity. This is true not only of constitutional provisions, but also of methods of constitutional adjudication. Legal methods are entrenched in the attitudes and background knowledge of officials and lawyers in each constitutional culture. They also depend on the level of independence of the judge vis-à-vis political authorities. Concerning this matter, a constant in Latin American countries since their independence from Spain has been hyper-presidentialism. Commonly, the constitution itself establishes an imbalance of powers between the president and other powers in favor of the former. A reason that explains this historical pre-eminence of the executive is that the president possesses independent democratic legitimacy throughout Latin America, given that he is elected directly by the citizens in elections that are independent from the elections of the Congress. Corruption practices and a lack of a well-structured opposition have led in some countries to a capitis diminutio of the legislature concerning political control. Not even the implantation of strategies for political control which derive from parliamentary systems, such as the vote of censure or questions to government, has succeeded in the toning-down of hyper-presidentialism. Each government somehow manages to handle the fluctuating political forces in the Congress to elude checks on public policies. Within this context, apex courts, such as the Colombian Constitutional Court, Peruvian Constitutional Court, the Supreme Court of Costa Rica, and the current Brazilian Supreme Court, which exhibit independence vis-à-vis the executive, have tried to compensate for the predominance of the president and the deficit of political control by the Parliament, with a strong review of economic and social policies and programs. They have also begun to play this role, due to the existence of public standing of individuals to take economic and social rights cases to the jurisdiction by means of writs, such as the Colombian Acción de Tutela or the Brazilian Mandado de Segurança. However, other less progressive courts – such as the Chilean Constitutional Court – or less independent courts – such as the Argentinean Supreme Court under some years of the Kirchner era, the

340

Comparative constitutional law in Latin America

Constitutional Court of Ecuador or the Supreme Court of Venezuela – though motivated by very different ideologies remain attached to the original Kelsenian conception of the constitutional judge as a “negative legislature” (see Kelsen, 1929), and refuse to enforce economic and social rights with strong standards against political authorities.

REFERENCES Alexy, Robert. 2002. A Theory of Constitutional Rights. Oxford: Oxford University Press. Alexy, Robert. 2009. “On Constitutional Rights to Protection” Legisprudence 3. Anschütz, Gerhard. 1933. Die Verfassung des Deutschen Reichs vom 11. August 1919. Berlin: G. Stilke, 14th ed. Barak, Aharon. 2012. Proportionality: Constitutional Rights and their Limitations. Cambridge: Cambridge University Press. Bassa, Jaime. 2013. “La evolución en la protección constitucional de los derechos sociales vía interpretación constitucional.” In: Derechos Económicos, Sociales y Culturales en el orden constitucional chileno, edited by Aguilar Cavallo. Santiago: Librotecnia. Bazan, Victor. 2005. “Los derechos económicos, sociales y culturales en acción: sus perspectivas protectorias en los ámbitos interno e interamericano” Anuario de derecho constitucional latinoamericano. Bernal, Carlos. 2013. “The Migration of Proportionality Across Europe” New Zealand Journal of Public and International Law 11(3). Bilchitz, David. 2003. “Towards a Reasonable Approach to the Minimum Core: Laying the Foundations for Future Socio-Economic Rights Jurisprudence” South African Journal of Human Rights 19. Bilchitz, David. 2007. Poverty and Fundamental Rights: The Justification and Enforcement of Socio-Economic Rights. Oxford: Oxford University Press. Bilchitz, David. 2014. “Socio-Economic Rights, Economic Crisis and Legal Doctrine.” International Journal of Constitutional Law 12(3): 710–739. Carbonell, Miguel. 2008. El principio de proporcionalidad y protección de los derechos fundamentales. Mexico: Comisión Nacional de derechos humanos. Contiades, Xenophon and Fotiadou, Almene. 2012. “Social Rights in the Age of Proportionality: Global Economic Crisis and Constitutional Ligitation” International Journal of Constitutional Law 10(3). Contiades, Xenophon and Fotiadou, Almene. 2014. “Socio-economic Rights, Economic Crisis, and Legal Doctrine: A Reply to David Bilchitz” International Journal of Constitutional Law 12(3). Courtis, Christian. 2006. Ni un paso atrás. La prohibición de regresividad en materia de derechos sociales. Buenos Aires: Centro de Asesoría Legal y Centro de Estudios Legales y Sociales. Couso, Javier and Coddou, Alberto. 2010. “La naturaleza jurídica de la acción de inaplicabilidad en la jurisprudencia del Tribunal Constitucional: un desafío pendiente” Estudios Constitucionales 2(8).

Economic and social rights in Latin America

341

Dixon, Rosalind. 2007. “Creating Dialogue about Socioeconomic Rights: Strongform versus Weak-form Judicial Review Revisited” International Journal of Constitutional Law 5(3). Dixon, Rosalind and Ginsburg, Tom. 2011. “The South African Constitutional Court and Socio-Economic Rights as ‘Insurance Swaps’” Constitutional Court Review 4. Dworkin, Ronald. 1975. “Hard Cases” Harvard Law Review 88(6). Gauri, Varun and Brinks, Daniel M. 2008. ‘Introduction: The Elements of Legalization and the Triangular Shape of Social and Economic Rights.” In Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World, edited by Varun Gauri and Daniel M. Brinks. Cambridge: Cambridge University Press. Encovi 2015. National Data on Poverty in Venezuela. Available at: http://www. rectorado.usb.ve/vida/sites/default/files/2015_pobreza_misiones.pdf (31.1.2016). Etchichury, Horacio. 2013. “Un techo razonable: El derecho a la vivienda en un fallo de la Corte Suprema Argentina” Estudios constitucionales 11(2). Gerstenberg, Oliver. 2012. “Negative/positive Constitutionalism, ‘Fair Balance,’ and the Problem of Justiciability” International Journal of Constitutional Law 10(4). Gutiérrez, Rodrigo and Salazar, Pedro. 2011. Igualdad, no discriminación y derechos sociales. Una vinculación virtuosa. Mexico: Consejo Nacional para Prevenir la Discriminación. Huber, Ernst Rudolf. 1960. Deutsche Verfassungsgeschichte seit 1789. Volume VI: Struktur und Krisen des Kaiserreichs. Stuttgart: Kohlhammer. Jackson, Vicki. 2012. “Comparative Constitutional Law: Methodologies.” In The Oxford Handbook of Comparative Constitutional Law, edited by Michel Rosenfeld and András Sajó. Oxford: Oxford University Press. Jiménez Campo, Javier. 1999. Derechos fundamentales, concepto y garantías. Madrid: Trotta. Jung, Courtney, Hirschl, Ran and Rosevear, Evan. 2014. “Economic and Social Rights in National Constitutions” American Journal of Comparative Law 62(4). Kelsen, Hans. 1929. “Wesen und Entwicklung der Staatsgerichtbarkeit” VVDStRL 5. Klatt, Matthias. 2015. “Positive Rights: Who Decides? Judicial Review in Balance” International Journal of Constitutional Law 13(2). Krennerich, Michael and Góngora Mera, Manuel Eduardo. 2006. “Los derechos sociales en América Latina. Desafíos en justicia, política y economía” Centro de Derechos Humanos de Nuremberg: 1–16. Available online at: http:// www.polwiss.uni-erlangen.de/professuren/menschenrechte/them.% 20Expertise/MK_Los_Derechos.pdf (25.4.2016). Landau, David. 2012. “The Reality of Social Rights Enforcement” Harvard International Law Journal 53. Liebenberg, Sandra. 2010. Socio-Economic Rights: Adjudication under a Transformative Constitution. Cape Town: Juta. Lübbe-Wolff, Gertrude. 1988. Die Grundrechte als Eingriffsabwehrrechte. Struktur und Reichweite der Eingriffsdogmatik im Bereich staatlicher Leistungen. Baden-Baden: Nomos.

342

Comparative constitutional law in Latin America

Michelman, Frank I. 2008. “Socio-economic Rights in Constitutional Law: Explaining America Away” International Journal of Constitutional Law 6. Nolan, Aoife. 2009. “Ireland: The Separation of Powers Doctrine vs. SocioEconomic Rights.” In Social Rights Jurisprudence: Emerging Trends in International and Comparative Law, edited by Malcolm Langford. Cambridge: Cambridge University Press. Parejo Alfonso, Luciano. 1983. Estado social y administración pública. Los postulados constitucionales de la reforma administrativa. Madrid: Cívitas. Pereira, Lourdes and Heredia, Henny. 2014. “Conjeturas sobre el derecho social y la salud en Venezuela” Revista Latinoamericana de Derecho Social 18. Pillay, Anashri. 2013. “Economic and Social Rights Adjudication: Developing Principles of Judicial Restraint in South Africa and the United Kingdom.” Public Law 3. Russell, Anna. 2011. “Incorporating Social Rights in Development: Transnational Corporations and the Right to Water” International Journal of Law in Context 7. Rodríguez-Garavito, César. 2010–2011. “Beyond the Courtroom: The Impact of Judicial Activism on Socioeconomic Rights in Latin America” Texas Law Review 89. Salgado, Constanza. 2015. “Derechos sociales e igualdad” Revista de ciencias sociales 22(1). Steinberg, Carol. 2006. “Can Reasonableness Protect the Poor? A Review of South Africa’s Socio-Economic Rights Jurisprudence” South African Law Journal 123. Stone Sweet, Alec and Mathews, Jud. 2008. “Proportionality, Balancing and Global Constitutionalism” Columbia Journal of Transnational Law 47. Tushnet, Mark. 2008. Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law. Princeton, NJ: Princeton University Press. Williamson, John. 1990. “What Washington Means by Policy Reform.” In Latin American Adjustment: How Much Has Happened?, edited by John Williamson. Washington, DC: Institute for International Economics. Woolman, Stu and Bishop, Michael. 2013. Constitutional Law of South Africa. Cape Town: Juta. 2nd ed, vol. 5. Young, Katharine. 2012. Constituting Economic and Social Rights. Oxford: Oxford University Press.

15. The “economic constitutions” of Latin America: between free markets and socioeconomic rights Javier Couso I. INTRODUCTION One of the enduring features of contemporary constitutional theory is the debate concerning the question of whether constitutions ought to be “neutral” with regard to the economic domain or if – to the contrary – they should entrench the juridical infrastructure underpinning a given economic model. In spite of the extraordinary development that constitutional theory has experienced over the last decades, this question remains under-examined. In this chapter, I approach this issue from the perspective of Latin America, a region in which the debate concerning the “economic constitution” has shifted from calls by neoliberal economists to introduce the basic institutions of free markets in the constitution (in the 1980s and 1990s), to the present push to make socioeconomic rights readily justiciable. After addressing the general issue of the relationship between constitutional law and the economic domain, I offer a taxonomy of the different “economic constitutions” of contemporary Latin America, a continent where there is still a great deal of variation in the way constitutions deal with this issue. The chapter concludes by arguing that, when it comes to the intersection of constitutional law and economics, the old question of whether a constitution should regulate the economy at all remains as difficult and controversial as ever, although hidden behind new debates.

343

344

Comparative constitutional law in Latin America

II. ON CONSTITUTIONS AND THE ECONOMY As comparative constitutional scholars know well, the very concept of a “constitution” remains controversial, since it is dependent on the political – as well as legal – ideology of the person offering a definition of it. Thus, for example, whereas for some scholars a constitution should be a merely political document aimed at structuring the state powers and protecting the most fundamental of rights, for others it should be conceived of not just as a vehicle for organizing political power and protecting civil and political rights, but also as a pact entrenching the basic structure of the economy. Given the existence of different understandings of the scope a constitution should have – a topic related to the key question of what should be the central features and functions of a constitution – it should come as no surprise that, in spite of the global convergence that can be observed in constitutional law, particularly in the domain of fundamental rights, there is still considerable variation in the configuration of constitutions around the world, including the way in which they regulate – when they do – the basic aspects of the economy. One prototypical approach to the relationship between constitutionalism and the economic realm defends a “minimalist” constitution.1 In this conception, the constitution’s basic task is to provide the political framework within which different social and political actors will compete for the implementation of their preferred economic policies. Policies that could be – even drastically – altered, if a political group with a different understanding of the way to organize the economy comes into power. In this understanding of the scope of a constitution, the economic domain remains largely unregulated by constitutional law. At the opposite end of the spectrum, there is a conception of constitutions (that can be labeled “maximalist”) which argues that they should include not just the political framework of the state, but also the basic features of its economic order. In a maximalist constitution, the main features of the existing economic order become constitutionalized, something which, in turn, contributes to the perpetuation of it, given that any meaningful reform of the economic structure would necessarily 1

In Chile’s current constituent debate, the constitutional scholar and former member of the Constitutional Court, Jorge Correa Sutil, has openly defended the minimalist conception, claiming that the “thicker” the economic content of a constitution, the “thinner” the space left for democratic decision-making concerning economic policy-making. See Correa Sutil (2013), page 34. My translation.

The “economic constitutions” of Latin America

345

demand a constitutional reform. The latter, of course, assumes that there are courts endowed with the power to enforce the constitution since, lacking that, the introduction of an economic constitution will not prevent the alteration of the economic model through legislation. What is important to keep in mind regarding the maximalist approach is that, within the group who holds this conception of the scope of constitutional law, there are very different opinions concerning the kind of economic models that constitutions ought to entrench. Having sketched the two opposite poles concerning the relationship between constitutional law and economics, it is important to highlight that – as is the case with most social and political phenomena – the bulk of the existing constitutions fall in between the two extremes just described. This is the case in Latin America, where there are important variations in the way the economy is regulated at the level of constitutional law, ranging from countries close to the minimalist pole, to others that fit strongly with the maximalist conception.

III. FROM THE “POLITICAL” TO THE “ECONOMIC” CONSTITUTION At the time of the emergence of modern constitutionalism – towards the end of the eighteenth century – constitutions were mostly political documents. Consequently, fundamental law limited itself to constituting and coordinating the different branches of governments, as well as recognizing a – rather basic – set of civil and political rights enjoyed by the people. The fundamentally political understanding of the nature of constitutions explains why, in the early years of modern constitutionalism, the only connection between constitutional law and economics was the inclusion of the right to private property among the fundamental freedoms and liberties protected by the constitution and – in some cases – the introduction of freedom of contract clauses. The political conception of constitutional law just outlined continued to be upheld by European scholars throughout the nineteenth century. Thus, for example, one of the most important comparative constitutional scholars of that era, A.V. Dicey, defended precisely that conception in a section of one of his books called The Nature of a Constitution. Quoting another constitutional scholar, Paley, he had this to say: By the constitution of a country is meant so much of its law, as relates to the designation and form of the legislature; the rights and functions of the several parts of the legislative body; the construction, office, and jurisdiction of courts

346

Comparative constitutional law in Latin America

of justice. The constitution is one principal division, section, or title, of the code of public laws; distinguished from the rest only by the superior importance of the subject of which it treats.2

The notion defended by Dicey was shared by constitutional scholars from Latin America. Thus, for example, Chile’s foremost constitutional scholar of the nineteenth century, Jorge Huneeus, had this to say regarding the nature of constitutional law: Public Law … deals with the relationship between the authorities among themselves and with regard to their subordinates … . Public Law is divided between Constitutional or Political [law] which, in general, organizes the Public Powers and studies the prerogatives of the superior authorities of the State [and] Administrative Law, which concerns itself with the prerogatives of the lower authorities of the administration [and which] regulates the action and competence of the executive branch, that is to say of the central administration, the local administration and administrative justice … .3

The fact that the dominant conception of the scope of constitutional law during the nineteenth century remained fundamentally political is rather puzzling, considering that the notion that power relations had both political and economic elements was familiar to Western intellectuals from at least the 1840s, thanks to the work of scholars like Proudhon (1840) and Karl Marx (1959), who explicitly linked constitutional law with economics. Whatever the explanation for the failure by nineteenth-century European and Latin American constitutional scholars to even consider the introduction of economic clauses into the constitution, by the beginning of the twentieth century some scholars had started to pay attention to the economic significance of constitutions. A prominent example was Charles Beard, who (in 1913) noted that the fact that the US Constitution was a political document did not mean that it lacked economic significance. In his own words: … it is necessary to realize at the outset that law is not an abstract thing, a printed page, a volume of statutes, a statement by a judge … . Separated from the social and economic fabric by which it is, in part, conditioned and which, in turn, it helps to condition, it has no reality … . Inasmuch as the primary object of a government, beyond the mere repression of physical violence, is the making of the rules which determine the property relations of members of society, the dominant classes whose rights are thus to be determined must 2 3

Dicey (2013) page 94. Huneeus (1890), page 23. My translation.

The “economic constitutions” of Latin America

347

perforce obtain from the government such rules as are consonant with the larger interests necessary to the continuance of their economic processes, or they must themselves control the organs of government.4

As can be appreciated from this passage, already in the early twentieth century there was consciousness within US intellectual circles that legal rules – including the constitution – had an impact on the economic domain. Indeed, as Beard highlighted, even the most basic study of the economic interests at play at the time of the discussion of the US Constitution (in 1786–1787) showed that the political structure adopted by the latter was more functional to the economic interests of one of the two basic contenders at the time. In the words of Beard: No one can pore for weeks over letters, newspapers, and pamphlets of the years 1787–1789 without coming to the conclusion that there was a deepseated conflict between a popular party based on paper money and agrarian interests, and a conservative party centred in the towns and resting on financial, mercantile, and personal property interests generally. It is true that much of the fulmination in pamphlets was concerned with controversies over various features of the Constitution; but those writers who went to the bottom of matters, such as the authors of The Federalist, and the more serious Anti-Federalists, gave careful attention to the basic elements in the struggle as well as to the incidental controversial details.5

What is interesting about Beard’s analysis is that – even a century ago – he recognized that the political structures set up by the US Constitution responded in part to the economic concerns of the faction that prevailed in the constitution-making process. In other words, that the US Constitution was not just a political document. Beard’s point would be echoed decades later (in the 1960s) by a Chilean jurist, Eduardo Novoa Monreal, who noted that the legal system in general – and constitutional law in particular – had profound links with what he regarded as a profoundly unjust capitalist economic order. Novoa Monreal, who would later become President Salvador Allende’s main legal adviser, stated that Chile’s liberal-democratic constitution represented “an obstacle to social change.” Writing in the late 1960s, when the country was embarking on an unprecedented process of socioeconomic transformation, he complained that: We cannot find in the Constitution of Chile one clause destined to impose in general terms, as a guiding juridical principle, the superiority or primacy of 4 5

Beard (1913), pages 12–13. Ibid., page 292.

348

Comparative constitutional law in Latin America

collective interest over individual interest. The Chile of 1968 has, in this crucial point … the same juridical principles that informed the country in 1833, that is to say, one hundred and thirty five years ago. This because – to the astonishment of the non-jurists – in such a capital issue, which is able to orient the interpretation of all the legal system in a given path, there has been no true innovation in Chile’s positive law, and everything unfolds on the basis of the same constitutional clauses destined to shape the liberal individualistic regime of the last century.6

Charles Beard and Eduardo Novoa Monreal’s interest in highlighting the economic significance of the liberal constitutions of their countries responded to the fact that – in the charters they were respectively analyzing – there was no explicit constitutionalization of the free market system. Indeed, both the US Constitution of 1787 and Chile’s constitutional tradition (grounded on the Constitution of 1833 and the Constitution of 1925) were largely silent regarding the way the economy was structured, limiting themselves to proclaiming the protection of private property rights and, in the case of the United States, to guaranteeing the freedom of contract and the regulation of inter-state commerce. The omission exhibited by the early constitutions of Europe and the Americas to regulate the economic structure upon which the political one was set up was possible due to the social, cultural, and political “inevitability” of the market economy during the nineteenth century. Indeed, precisely because the hegemony of that economic model was so pervasive, political elites did not feel the need to entrench in the constitution the legal infrastructure supporting it. A similar point was made some years after the collapse of the Soviet Union by Cass Sunstein, who defended the need to “consciously” introduce into the constitutions of the post-Communist states the main institutions of the market economy, something which, he argued, had not been necessary in the constitutions of the Western democracies. In his own words: In Eastern Europe, there is a more pressing need for constitutional protection of economic and democratic liberties than there has been in the United States or the West. In the United States, for example, the process of constitutionmaking was simplified by the fact that well before that process began, private property, the common law, and civil society were firmly in place. The constitution-makers could build on, and attempt to protect, existing achievements. The market and the institutions of civil society antedated the Constitutions … . The task of constitution-building in Eastern Europe is both more 6

See Novoa Monreal (1993), page 120. My translation.

The “economic constitutions” of Latin America

349

critical and more daunting, precisely because of the absence of wellestablished institutions protecting market ordering … . The emergent constitutions must not only create the basic governmental structures and protect the conventional catalog of liberal rights, but also concern themselves with the creation of safeguards for the transition to (some version of) market ordering.7

As we can see, in Sunstein’s view the reason why the early modern constitutions of the West were silent concerning the legal infrastructure of the market economy was because the latter was taken for granted at the time those charters were enacted. Therefore, aside from the inclusion of the right to private property within the bill of rights, the rest of the juridical elements crucial for the market economy to work were left to common legislation and administrative regulations. The perceived inevitability of the market economy noted above began to fade soon after World War I, due to the criticism which arose within supporters of the market economy of the extremes reached by laissezfaire economics (especially its inability to provide a minimum degree of welfare to millions of workers), combined with the outright challenge to capitalism leveled by socialism and communism, when the Russian Revolution materialized an alternative economic system. It is within this context that some liberal democracies in Europe and Latin America addressed the excesses of laissez-faire economics through the inclusion within the bill of rights of a set of socioeconomic rights, aimed at attenuating the brutal impact of that economic system. This approach, which came to be known as “social constitutionalism,” was first implemented in the Mexican Constitution of 1917, the Weimar Constitution of 1919, and the Chilean Constitution of 1925, among others. The problem, however, is that soon after its introduction, this approach to the scope of constitutional law revealed itself to be able to make only modest progress in improving the economic conditions of the workers. The reason for this is straightforward: Social constitutionalism was first introduced in states where the courts either lacked the power of judicial review or, alternatively, were unwilling to actively use it. Consequently, the entrenchment of socioeconomic rights into the fundamental law did not translate into the constitutionalization of the social democratic model underpinning this approach. This, however, did not mean that the movement was completely useless, since it provided a constitutional foundation for

7

Sunstein (1997), page 204.

350

Comparative constitutional law in Latin America

the enactment of the legislation that started to construct welfare states in those countries.8 To sum up this section, even though during the first century-and-a-half of modern constitutionalism there was no perceived need to constitutionalize the economic domain, after World War I this started to change. The move towards the inclusion of economically relevant constitutional clauses was backed by left-of-center groups who wanted to attenuate the excesses of unregulated markets, and who managed to include socioeconomic rights into some constitutions. This shift towards the inclusion of socioeconomic rights would later receive a big push, when the United Nations approved the Universal Declaration of Human Rights, which included them. Decades later – towards the end of the twentieth century – the collapse of the Soviet Union renewed calls for ending the economic neutrality of constitutions. This time, however, the push came from a very different ideological milieu: that of advocates of the market economy, who thought that the constitutional entrenchment of the basic features of the latter was required in countries coming out of Soviet-style socialism.

IV. THE “ECONOMIC CONSTITUTION” IN THE ERA OF CONSTITUTIONAL ADJUDICATION As we have seen above, due to the fact that the doctrine of “social constitutionalism” emerged in countries with little or no tradition of constitutional adjudication, the socioeconomic rights that the former involved served a mostly symbolic function – that of legitimating the legislative and administrative construction of the welfare state – but they rarely guaranteed the enforcement of those rights against economic policies undermining them. In other words, because the introduction of socioeconomic rights was not accompanied by an active set of courts endowed with powers of judicial review, social constitutionalism failed to

8 A similar point is made by David Landau, who in a recent piece argues that “In the Mexican Constitution of 1917, for example, which was one of the first charters in the world that recognized social rights, for a long time it was thought that those norms were not susceptible to be adjudicated by the courts. Those rights have been fundamental for the ideology of Mexican constitutionalism, but it was thought that they bound the political branches of power, not the courts.” See Landau (2016), page 268. My translation.

The “economic constitutions” of Latin America

351

prevent the (partial) dismantling of the welfare state when marketoriented ideologies displaced social democratic ones, in the late twentieth century. Contrasting with the experience of social constitutionalism in Europe and Latin America, in the United States a long tradition of judicial review allowed the Supreme Court to jurisprudentially create a laissez-faire economic constitution, in the so-called “Lochner Court” era (1905– 1937).9 What is important about this experience, is that the entrenchment of such an economic model was not the inevitable result of the economically significant clauses of the Constitution of 1787, but instead a consequence of the activist role played by the Supreme Court. In other words, the crucial factor was the willingness of a majority of the justices of the Court to read into the Constitution – and then actively enforce – a particularly radical form of market economics. As is well known, the Lochner Court eventually came to an end when it clashed with a president determined to introduce an economic model utterly incompatible with the economic constitution that the Supreme Court had crafted. What is interesting is that, soon after the traumatic experience that led to the defeat of the Lochner Court, the US Supreme Court came to the conclusion that the 1787 charter had not established an economic constitution, thus leaving that domain for the political branches to deal with (Shapiro, 1986). As the radically different experiences of social constitutionalism and the Lochner Court suggest, the very existence of an economic constitution critically depends on an activist use of constitutional adjudication by the courts, not just on a robust set of constitutional clauses of an economic character. To put it bluntly, the experience of the relationship between constitutional law and economics in the twentieth century suggests that no matter how explicit the constitutional regulation of the economy is, if there is not an active control of the constitutionality of legislation by the courts, the inclusion of an economic constitution will be largely inconsequential, coming down to a series of value statements of an economic nature, compatible with a rather large set of economic models. Having said this, and given the fact that we live in an era characterized by “the global expansion of judicial power” (Tate and Vallinder, 1995), the relevance of introducing economic clauses in constitutional texts is now higher than before, since they are more susceptible of being invoked by the courts to block the implementation of economic policies deemed to go against the constitution. 9

For an account of the “Lochner Court,” see Kens (1998).

352

Comparative constitutional law in Latin America

V. A TAXONOMY OF THE “ECONOMIC CONSTITUTIONS” OF CONTEMPORARY LATIN AMERICA After the general observations on the relation between constitutional law and economics made in the previous sections, I now turn to an analysis of how this relationship has played out in Latin America, a continent which, in spite of its many common historical, social, economic, and cultural features, nonetheless exhibits important differences in terms of the political and constitutional outlook of its different states (Couso, 2014). The first element that any analysis of the relationship between constitutional law and the economic domain in Latin America has to take into account is the fact that this is a region which has been historically marked by chronic inequality. Indeed, even though in recent decades many Latin American countries have been able to reduce poverty quite dramatically, economic inequality continues unabated. This reality is critically important for both democracy and constitutionalism in the region, raising the question of how much inequality a constitutional democracy can bear. Of course, given recent economic and political developments, this issue has also become relevant in the context of the consolidated democracies of Western Europe and the United States, but in Latin America the problem of the compatibility of constitutional democracy with high levels of inequality seems more pressing, perhaps due to the fact that democracy is still fragile there. With this background in mind, one can identify four prototypical ways in which the relation between constitutional law and economics is organized in Latin America: (a) (b) (c) (d)

the the the the

neoliberal constitution; social rights constitution; Bolivarian constitution; and minimalist constitution.

This is, of course, a schematic taxonomy and, admittedly, there are some Latin American countries that can be regarded as having hybrid economic constitutions. Recognizing this, I submit that these prototypes are helpful to understand the main elements that organize the relationship between economics and constitutional law in this region. Starting with the “neoliberal constitution,” it approximates to the one defended by Sunstein for the new democracies of Eastern Europe, and

The “economic constitutions” of Latin America

353

has been promoted in Latin America by international financial organizations such as the World Bank and the International Monetary Fund (IMF). In essence, this approach to the relation between constitutional law and economics aims at isolating from democratic politics a rather radical version of free market economics. Aside from a strong protection of property rights, Sunstein’s “economic constitution” includes, among other clauses: (a) a general ban on wage and price controls; (b) the protection of the free entry into occupations, trades and businesses; (c) the prohibition of government monopolies; (d) the principle of non-discrimination against private enterprises; (e) a ban on tariffs and duties; (f) a clause requiring a balanced budget; (g) the restriction of taxing powers; and (h) a ban on control on export or import of currency, among other market-friendly constitutional clauses. These norms, he submits, would provide nations without a long tradition of markets with a “strong constitutional protection of private property and economic markets.”10 At present, Chile’s Constitution of 1980 represents the most egregious example of a neoliberal constitution in Latin America (Couso, 2017). Even though it does not reach the level of detail proposed by Sunstein, it does include a constitutionally autonomous central bank, a “right to economic initiative,” and the prohibition of a preferential treatment for state-owned companies. The second economic constitution found in Latin America, the “social rights constitution,” is the dominant one in the region. Looked at from the perspective of mainstream economics, its support of judicially enforced socioeconomic rights represents an attempt to constitutionalize a brand of social democratic economic policy, as well as other perspectives akin to the latter. Indeed, as a respected expert on socioeconomic rights has recently noted: “[The] formulation of economic and social rights has evolved out of disparate origins, having … been shaped by the tenets of first-world social democracy, second-world Eastern socialism and third world developmentalism.”11 Given the affinity between social rights constitutionalism and the left-of-center economic doctrines just mentioned, it should come as no surprise that mainstream economists in Latin America tend to oppose the inclusion of socioeconomic rights in the constitution, particularly if they are made justiciable. In the case of the Bolivarian Constitution, the situation is peculiar. Perhaps due to the fact that the political regime they have implemented concentrates most state power around the executive branch (Viciano and 10 11

Sunstein (1997), pages 217–221. See Young (2012), page 1.

354

Comparative constitutional law in Latin America

Martínez Dalmau, 2010), something which involves the subordination of the courts to the president (Couso, 2014), the economic constitution of those regimes is often incoherent with their economic policies. Consequently, what one finds in the Constitutions of Venezuela, Ecuador, Bolivia, and Nicaragua is a hybrid of traditional liberal rights, socioeconomic rights, and, occasionally, economic clauses more functional with the so-called “Socialism of the twenty first century.” The reason this hybridity is innocuous to the economic policy making of those countries is that the courts lacking any autonomy from the political branches, the formal economic constitution makes no difference in terms of altering the economic policies set by the government. Finally, there are a few Latin American countries which exhibit a “minimalist constitution,” that is to say, constitutional texts with almost no economically significant clauses. In those countries, constitutional law has remained neutral vis-à-vis the economic domain, maintaining their fundamentally political character. Therefore, while on the one hand, the constitution has no explicit consecration of the institutions underpinning the market economy, on the other hand, it does not include judicially enforced socioeconomic rights. What is interesting to note is that precisely one of the Latin American nations exhibiting a minimalist constitution (Uruguay) has been able to implement one of the most progressive economic models of the region.

VI. THE “SOCIAL RIGHTS CONSTITUTION” IN OPERATION: THE COLOMBIAN EXPERIENCE Considering that the dominant approach concerning the relationship between constitutional law and the economic sphere in Latin America is the “social rights constitution,” that is, the one which features judicially enforced socioeconomic rights, in this section I deal with this approach in more detail. As was already anticipated, this type of economic constitution aims at somehow harmonizing market economies with justiciable socioeconomic rights, representing a type of social democratic understanding of constitutional law (Vásquez, 2012). As anticipated above, Latin American mainstream economists tend to object to this type of economic constitution. The problem for them, however, is that – for reasons that I cannot analyze here – the inclusion of such rights in the constitution represents

The “economic constitutions” of Latin America

355

something of the zeitgeist of contemporary Latin American constitutionalists.12 In other words, it represents an idea that, at least for the foreseeable future, will be impossible to resist in the epistemic community of constitutional scholars and practitioners. What is interesting concerning this approach is that, almost exactly at the time when the ideology of justiciable socioeconomic rights managed to become hegemonic (around 1990), neoliberal economics became pre-eminent in a sizable portion of Latin America. Of course, in recent years this perspective has encountered some resistance (particularly after the 2008–2009 global economic crisis), but it has nonetheless proven to be resilient. Given the “cohabitation” between neoliberal economics and the “social rights constitution,” what we are likely to see in the following years is a constant tension between the demands of the constitutional ideology of socioeconomic rights and the economic ideology of neoclassical economics – a tension in which the former will most likely only attenuate the excesses of the latter, but not seriously challenge its existence. This point has been recently advanced by Landau (2016), in his insightful analysis of the actual impact of socioeconomic rights implementation in Latin America: “Even though courts defend the justiciability of socioeconomic rights with an ever growing zeal, in many cases they enforce them in such a way as to make it improbable that they will have a transformative role.”13 The lack of transformative power exhibited by Social Rights Constitutionalism is well illustrated by the experience of one of Latin America’s best exponents of this approach, Colombia. As is well known, in 1991 this country introduced a new constitution filled with socioeconomic rights that, although originally non-justiciable, became so thanks to the activist jurisprudence of the Colombian Constitutional Court.14 The problem, however, is that while in the constitutional sphere the country was enacting a social democratic economic constitution, in the economic domain it aligned itself with the so-called “Washington Consensus,” a 12

David Landau makes this point with regard to the field of international human rights: “In International Human Rights Law, the default position has changed, and academics and policy-makers are ever more likely to consider positive rights as judicially enforceable rights.” See Landau (2016), page 269. My translation. I would add that this understanding has also become the default position among most constitutional scholarship in Latin America. 13 Landau (2016), page 276. My translation. 14 Ibid., page 272.

356

Comparative constitutional law in Latin America

neoliberal economic agenda sponsored by the United States and international economic organizations such as the World Bank and the IMF. The clash of perspectives that these parallel processes generated has been highlighted by two important Colombian jurists, who note that: It would be way too simplistic to say that the (Colombian Constitutional) Court has just played the role of the defender of individuals against the majority: it is much more exact to point out that it has defended a conception of the Colombian society markedly different from the vision which the executive branch aims to introduce through its economic and social policies.15

Given the inevitable tension between the – left-of-center – ideology underpinning the notion of justiciable socioeconomic rights, and the – right wing – economic model based on the pre-eminence of free markets, the result has been a kind of “war of attrition,” in which the Colombian Constitutional Court tries to attenuate some of the most socially disruptive effects of the neoliberal economic policies advanced by the government, while the latter continue to implement the core of its program. The fate of the “social rights constitution” of Colombia (which is, by the way, similar to that of South Africa, another champion of this approach where the latter has clashed against the neoliberal policies advanced by the government) raises the question of what happens when justiciable socioeconomic rights are inserted into a neoliberal economic system. The answer seems to be that courts can achieve something in terms of individualized justice, nothing in terms of transforming the overall neoliberal model, and much in terms of raising consciousness regarding the injustices and other problems that the latter generates.

VII. CONCLUSION Two decades ago, in the midst of the optimistic 1990s (when democracy, constitutionalism, peace, and economic progress seemed to be within reach), an insightful observer noted at a conference on Latin American politics and society that there were two basic “normativities” at work in the post-Cold War world: on the one hand, that of free markets; on the other hand, that of human rights. The problem, the analyst continued, was that in some fundamental respects these two normativities were utterly incompatible with each other. She offered no prescriptions on how 15 See Uprimny and García Villegas (2006), quoted by Yamin et al. (2013), page 131. My translation.

The “economic constitutions” of Latin America

357

to manage (let alone resolve) this tension, suggesting instead that it would be important for the liberal-democratic world to learn to live with this dichotomy in the following decades.16 This episode came to my mind while analyzing the ways in which contemporary Latin American constitutions deal with the intersection of economic policy-making and social rights. As we have seen above in this chapter, in spite of the constitutional convergence that can be identified in the region, there are still many variations in the way different countries conceive the role of constitutional law with regard to the economic domain. Having said this, one of the four basic approaches that I have identified as the prototypical ones in Latin America, the “social rights constitution” (which is also the dominant one) seems to me to reproduce exactly the tension between the normativity of free markets and the normativity of human rights described above. Another conclusion that the study of the intersection between constitutional law and economics in contemporary Latin America reveals is the impulsion exhibited by both the Left and the Right in terms of attempting to use the constitution as a means to entrench the basic tenets of their preferred economic models. This is apparent in neoliberals who want to isolate “technocratic” policy-making from daily politics (on the grounds that otherwise populism would prevail), to social-democrats who want to advance their agendas through the language of socioeconomic rights. At this point it seems appropriate to inquire what the sources of the impulsion of trying to entrench in the constitution the main tenets of a given economic model are. Is it because of a desire to embed one’s preferred economic system in higher-level norms? Or is it because of the projection in time that including a particular economic system in the constitution would provide? It seems to me that instead of being a matter of hierarchy, what is really at stake for the advocates of the entrenchment of economic models in the constitution is the attempt to prevent the alteration of them by future majorities. This becomes clear when one realizes that even people with radically different economic ideologies nonetheless share the notion that the constitution should include an economic section. The search for the invariability of the economic model one thinks superior to others is, of course, a natural inclination. But what is 16

The person who gave this talk was the well-known sociologist Saskia Sassen, who gave it at Stanford University some time during the second half of the 1990s. To my knowledge, she did not publish that talk.

358

Comparative constitutional law in Latin America

surprising is that those who support the existence of economic constitutions do not realize that, given the fundamental disagreements that democratic societies have on the best way to organize the economy, it is unreasonable to use the constitution to try to ensure the projection in time of one’s preferred economic system. As Couto and Arantes (2006) have eloquently shown in their study of the Brazilian case, that strategy could lead to a process of constant amendment of the constitution (in countries with flexible ones); or, in the case where constitutions are hard to reform, to a dangerous attempt to capture the justices of constitutional or high courts, so they can effect a constitutional mutation through their jurisprudence. Some could object to what has just been said by arguing that it is one thing to entrench a particular economic system in the constitution and quite another to incorporate justiciable socioeconomic rights in the bill of rights. The problem with this argument is that the line that distinguishes between the outright constitutionalization of an economic model and the mere introduction of some economically relevant rights is a fine one. This because it can take just a few rights clauses to block a change of an economic system, as both the “Lochner Court” era and Chile’s recent experience reveals. Indeed, in the case of the latter, supporters of neoliberal economics have made extensive use of the protection of economic initiative rights included in the “economic constitution” of the 1980 charter to prevent the legislative dismantling of the most extreme elements of the country’s neoliberal system. In concluding, the Latin American experience reveals that, when it comes to the intersection of constitutional law and economics, the old question of whether a constitution should regulate the economy remains as difficult and controversial as ever, although often disguised behind debates about new fundamental rights or the fight against populism.

REFERENCES Beard, Charles. 1965. An Economic Interpretation of the Constitution of the United States (Macmillan, 1913; Free Press, 1965). Correa Sutil, Jorge. 2013. “Ha llegado la hora de una nueva Constitución?” in Anuario de Derecho Público 2013 (Ediciones Universidad Diego Portales). Couso, Javier. 2014. “Las democracias radicales y el ‘nuevo constitucionalismo latinoamericano’,” in Derechos humanos: posibilidades teóricas y desafíos prácticos (Libraria y SELA-Yale Law School). Couso, Javier. 2017 (forthcoming). “Constructing ‘Privatopia’: The Role of Constitutional Law in Chile’s Radical Neoliberal Experiment,” in Ben Golder

The “economic constitutions” of Latin America

359

and Daniel McLoughlin, eds., The Politics of Legality in a Neoliberal Age (Routledge). Couto, C. G. and Arantes, R. B. 2006. “Constituição, governo e democracia no Brasil,” Revista Brasileira de Ciências Sociais, 21(61), 41–62. Dicey, A. V. 2013. Comparative Constitutionalism (Oxford University Press). Huneeus, Jorge. 1890. La Constitución ante el Congreso. Primera parte (Imprenta Cervantes). Kens, Paul. 1998. Lochner v. New York: Economic Regulation on Trial (University Press of Kansas). Landau, David. 2016. “Los derechos socioeconómicos sin transformación social en América latina: la teorización de los tribunales favorables a las ideas mayoritarias en la sociedad,” in Bonilla, D. ed., El constitucionalismo en el continente americano (Siglo del Hombre Editores and Universidad de Los Andes). Marx, Karl. 1959. Economic and Philosophic Manuscripts of 1844 (Progress Publishers). Novoa Monreal, Eduardo. 1993. Una Crítica al Derecho Tradicional (Ediciones del Centro de Estudios Políticos Latinoamericanos Simón Bolívar). Proudhon, Pierre-Joseph and Amédée Jérôme Langlois. 1840. What is Property: An Inquiry into the Principle of Right and of Government, Volume 1 (London: William Reeves). Shapiro, Martin. 1986. “The Supreme Court’s ‘Return’ to Economic Regulation,” in Studies in American Political Development, 1 (Cambridge: Cambridge University Press) 91–141. Sunstein, Cass. 1997. Free Markets and Social Justice (Oxford University Press). Tate, Neal and Torbjörn Vallinder, eds. 1995. The Global Expansion of Judicial Power (New York University Press). Vásquez, Rodolfo. 2012. Consenso socialdemócrata y constitucionalismo (ITAM & Fontmara). Viciano, Roberto and Rubén Martínez Dalmau. 2010. El nuevo constitucionalismo en América Latina (Corte Constitucional del Ecuador). Yamin, Alicia, Oscar Parra-Vera and Camila Gianella. 2013. “Colombia: la protección judicial del derecho a la salud. ¿Una promesa difícil de cumplir?,” in Alicia Yamin and Siri Gloppen, eds., La lucha por los derechos de la salud. ¿Puede la justicia ser una herramienta de cambio? (Siglo Veintuno Editores S.A.). Young, Katherine. 2012. Constituting Economic and Social Rights (Oxford University Press).

Index abortion 131, 198, 223, 243 Abrão, P. 91 absolute monarchy 58 Ackerman, B. 37 Acosta, Alberto 78, 80, 81 Acuña, R. 100 Adams, John 58 adjudication, constitutional 144–5, 186, 253–73, 256–60, 276–95 Argentina 98, 242, 257, 279, 281–2, 310, 334, 339 reasonableness 336, 337–8 strategic defection theory 284 Bolivarian constitutions 149–51, 354 Bolivia 257, 282, 288 Brazil 257, 282, 334 convergence, constitutional 232, 237, 238, 239, 241, 243, 246–8 Supreme Federal Tribunal (STF) see separate entry Chile 233, 235, 236, 239, 241, 242–4, 248, 254, 257, 279, 282, 319, 339 Colombia 232, 239, 240, 241, 242, 243, 245, 248, 276–7, 282 Constitutional Court see Colombian Constitutional Court Costa Rica 235, 257, 282, 334, 335–6 Sala Cuarta 233, 277–8, 279–81, 282, 284, 285–7 ‘economic constitutions’ in era of 350–351 Ecuador 140–141, 277, 282, 288, 340 El Salvador 281 formal and informal dimensions 278–84 Guatemala 279

Honduras 277, 279, 294 Mexico 232, 233–6, 239–40, 241, 242, 244–5, 248, 279, 282, 334 Nicaragua 288 Panama 279 Paraguay 277, 281, 282, 294 Peru 101, 257, 279, 282 political distrust and judicial power 259–60 politicization 277, 283–4, 288–9, 290–293, 294 property 154 social and economic rights 227–8, 231, 232, 235–8, 243, 244, 245, 246, 247–8, 325–9 common circumstances 329–33 convergence and divergence 338–40 standards of adjudication 333–8 South Africa 236–7, 254, 337 standing 236, 239, 281, 286, 339 Bolivarian constitutions 148, 150 Brazil 239, 258–9, 272, 339 Colombia 239, 259, 272, 339 types of systems 279–81 Uruguay 282, 320 Venezuela: Supreme Tribunal of Justice 145–6, 288, 319, 340 Sala Constitucional 277, 278, 281, 284, 288–93, 294 see also convergence, constitutional; judiciaries affirmative action 150, 191–2, 266–8 Africa 89–90 Afro-descendant 154, 155, 160–162, 165–9, 181, 191, 267–8 agriculture 170 Aguilar, G. 190 Aguilar, J.A. 200 361

362

Comparative constitutional law in Latin America

AIDS/HIV 236 Alexy, R. 329 Alfaro, Eloy 131, 212, 213 Alfonsín, Raúl 98, 99 Alfonso, T. 165, 167 Alter, K.J. 302, 322 Althusius, Johannes 58 Alvarez, Juan 182 Alviar Garcia, H. 89, 96, 155, 157, 170 American Convention on Human Rights 100 see also Inter-American Commission on Human Rights; Inter-American Court on Human Rights amicus curiae 257, 259 amnesty laws 90–92, 95, 97, 98, 101, 303, 306, 316–17, 320 amparo 3, 100, 233–4, 236, 240, 244–5, 286, 288, 309, 318 Amuchastegui, A. 199 Anaya, James 195–6 Andean Court of Justice 322 Andolina, R. 77, 81 Anschütz, G. 327 Ansolabehere, K. 245 Antkowiak, T. 304 Arango, J.H. 162 Arango, R. 67 Arato, A. 36, 69 Argentina 19, 23, 24, 29, 232, 242, 254, 333 adjudication see under adjudication, constitutional disestablishment 204, 208, 212, 215–16 equality 178–9, 180, 181–2, 186, 187, 188, 190, 192 Inter-American Court 309, 310, 312, 321 transitional justice 93, 96, 97–8, 99, 101, 103 Arias, Oscar 287 Aristotle 178 Arjona, M.P. 161 Atencio, R. 223

Bachelet, Michele 243 Bakiner, O. 94, 95, 96, 98 Balint, J. 98 Barak, A. 337 Barco Vargas, Virgilio 25 Barker, R.S. 285, 286 Barragán, R. 72, 73 Barrientos Ortuño, René 72–3, 75 Barroso, L.R. 258 Basabe-Serrano, S. 277, 283, 284 Bassa, J. 329 Batlle y Ordóñez, José 213 Baxi, U. 254, 255 Bazan, V. 338 Beard, C. 346–7, 348 Bejarano, S. 27, 50 Benedict XV, Pope 203 Benedict XVI, Pope 222, 223 Bensoudo, F. 312 Bergallo, P. 187, 192 Bernal, C. 326 Bernal-Pulido, C. 100 Berrios, J.A. 288, 289, 293 Bible 58, 64 Bickel, A. 267 Bilchitz, D. 334, 337 biocentric approach 148 biofuels 168 Blancarte, R. 207 Blass, A. 281 Blount, J. 32 Boesenecker, A.P. 94 Böhrt Irahola, C. 24 Bolivar, Simón 109, 126, 128, 131, 201, 202, 205, 222 Bolivarian constitutions 108–24, 121–3, 353–4 environment 147–8 length of 114–16 mold-breaking vs mold-preserving 117–21 standing, rules of 148, 150 textual analysis 126–51 enforceability of rights 149–51 ‘the good way of living’ 131, 132, 138, 148, 150 learning 142–8, 151

Index

plurinationality and role of indigenous peoples 133–8 preambles 128–32, 138 presidential powers 140–141 public participation 138–9 transformation 111–13 Bolivia 253, 257, 282, 288, 309, 338 Bolivarian constitution 108–11, 121–4, 354 length 114–16 mold-breaking vs mold-preserving 117–21 presidential powers 140–141 standing 148, 150 textual analysis 126–8, 129–30, 132, 134–6, 139, 140–141, 143, 145, 149, 150–151 constituent power and constitution making 82, 83 1967 Constitution 57, 62, 71–6 disestablishment 209, 210 equality 186, 187, 188, 189, 190, 192 plurinational approach 110, 127, 130, 132, 134, 136 procedural rules and constitution making 19, 24, 27, 29, 30, 31, 32, 49, 50, 51 property: social and ecological function 169–73 transitional justice 101, 103 Bonilla, 254 Botero, S. 284 boundary commissions 145 Bowen, R.E. 277, 285 Brazil 72, 122, 253, 255–6, 333 adjudication see under adjudication, constitutional disestablishment 207–8, 212, 217–18 equality 180, 181–2, 186, 187, 190 Inter-American Court 308–9, 320 procedural rules and constitution making 19, 23, 27, 31, 32, 49, 50 transitional justice 90–91, 93, 101, 102–3 Brewer-Carías, A.R. 3, 25, 37, 62, 64, 77, 239, 278, 281, 288, 289, 290, 291, 292, 293 Brinks, D.M. 237, 247, 283

363

Bucaram, Abdalá 24, 76–7 bureaucratic entrenchment 144 Burt, J.-M. 97 Bushnell, D. 68 Cadavid, P. 66 Cajas Sarria, M.A. 249 Caldera, Rafael 289 Canada 139 Cancino, K. 198 Canova Gonzalez, A. 288, 291 capitalism 170, 347, 349 Carbonell, M. 337 Carey, J. 35, 40, 41, 46 Caro, M.A. 68–9, 70, 80 Carozza, P. 220 Carpizo, J. 87, 100, 103 Casanova, J. 213 Castaldi, L. 288, 289, 291 Catholic Church 62, 64, 66, 70, 75, 91, 103, 186 disestablishment see separate entry Central American Court of Justice 322 Cepeda, M.J. 246, 256 Cepeda-Espinosa, M.J. 284, 309 Chávez, Hugo 37, 100, 108, 109, 110, 111, 117, 127, 140, 210, 215, 288, 289, 290, 291, 292–3 Chávez Reyes, S. 71 Cheibub, J.A. 2 Chemerinsky, E. 220 Chiassioni, P. 216 children 137, 202, 219, 224, 328, 353 Chile 190, 254, 344, 347–8, 349, 358 adjudication, constitutional 233, 235, 236, 239, 241, 242–4, 248, 254, 257, 279, 282, 319, 339 disestablishment 205, 212 Inter-American Court 307, 309, 311, 312–13, 314, 319, 320 procedural rules and constitution making 19, 23, 32, 49, 52 transitional justice 92, 93, 94, 95, 96, 97, 98, 101 Chilton, A. 231 Cho, H.S. 148 Choudhry, S. 2

364

Comparative constitutional law in Latin America

civil society 81, 146, 232, 239, 245, 281 Colombia 257, 266, 272 organizations 31, 94–5, 97 transitional justice 89, 91, 93, 94–5, 97, 98 class 59, 63, 81, 93, 172, 178, 188, 335 Brazilian legal process 237, 238 working 147, 185, 186 Cleves, R. 71 clientelism, judicial 284 Cobban, A. 61 Coelho, M.D. 91 collective rights 147–8, 154, 155, 159–63, 166–7, 169, 178 Bolivia 150, 172–3 Collier, R. 112 Collins, C. 87 Collor de Mello, Fernando 263, 333 Colombia 2, 196, 198, 253, 255–6, 317, 328, 333, 354–6 adjudication, constitutional 232, 239, 240, 241, 242, 243, 245, 248, 276–7, 282 Constitutional Court see Colombian Constitutional Court constituent power and constitution making 76 Constitution of 1886 57, 62, 66–71 convergence, constitutional 232–3, 234–5, 237–8, 240, 241, 242, 243, 245–6, 247, 248 disestablishment 199, 204, 205, 207, 212, 214–15, 217 equality 179, 180, 181–2, 187, 188, 190, 191–2, 196 Inter-American Court 301, 308–9, 310–312, 314, 317 International Criminal Court 322 peace accord with FARC 311–12 procedural rules and constitution making 19, 24–5, 29, 30, 31, 32, 49, 50 property: social and ecological function 154, 173 classical view of property 163–5

constitutional, judicial and legal developments 155–63 Curvaradó and Jiguamiandó 165–9 transitional justice 92, 94–5, 96, 97, 100 Colombian Constitutional Court 253, 254–5, 257, 258–9, 272–3, 279, 300, 303, 355–6 cases 260–261, 305 affirmative action: women 266–7 constitutional reform process 261–3 prison conditions 269–70 constituent power and constituted power 261–3 constitutional block 310–311, 314, 319–20 convergence, constitutional 245–6, 247 same-sex marriage 234–5 socioeconomic rights 237–8, 247 disestablishment 214–15 Inter-American Court 308–9, 310–312, 314, 319–20 pro persona principle 311 property 155–9, 162–3, 168 socioeconomic rights 334–5, 339 structural cases 237–8, 247, 335, 336 standing 239, 259, 272, 339 tutela 237, 240, 246, 339 Colón-Ríos, J. 33, 60, 76 colonialism 202, 204 Combellas, R. 80 communism 208, 209, 349 constituent power and constitution making 57–83 Bolivian Constitution of 1967 57, 62, 71–6 Colombian Constitution of 1886 57, 62, 66–71 Ecuadorian Constitution of 2008 57, 62, 76–82 exclusion principle 59–60, 63, 64, 68, 69, 72, 75 God, nation and people 57–61, 69, 70, 83

Index

nation approach, constituent power of the 60, 82 Bolivia 74–5 Colombia 69–71 Ecuador 79–80, 81 non-democratic context 75 Venezuela 63–6 participation principle 61, 70, 75, 81 people approach, constituent power of the 60, 82–3 Bolivia 75–6 Ecuador 81, 82 representation principle 59, 60, 61, 69, 75, 76 Venezuelan Constitution of 1811 57, 62–6, 75 see also procedural rules and constitution making Constitutional Courts see adjudication, constitutional consultation 31, 187, 190 prior 194–7 Contesse, J. 236, 316 Contiades, X. 337 contract, freedom of 345, 348 convergence, constitutional 227–49, 257 convergence thesis 229–31 judicial role and resistance to 238–49 Brazil 246–8 Chile 242–4, 248 Colombia 245–6, 248 concept of judicial role 228, 239–42, 248–9 Mexico 244–5, 248 same-sex marriage 227, 231–5, 244, 245, 246, 248 socioeconomic rights 227–8, 231, 232, 235–8, 243, 244, 245, 246, 247–8 entrenchment 326–9 explaining convergence and divergence 338–40 standards of adjudication 333–8 Correa, Rafael 77, 79, 80, 108, 109, 117, 140, 210, 288 Correa Sutil, J. 344

365

corruption 51, 95, 101, 144–5, 146–7, 224, 272, 339 Cossío, J.R. 244 Costa Rica 205, 235, 253–4, 257 adjudication, constitutional 235, 257, 282, 334, 335–6 Sala Cuarta 233, 277–8, 279–81, 282, 284, 285–7 equality 180, 186, 233 Inter-American Court 287, 309, 312 social and economic rights 287, 334, 335–6, 339 Courtis, C. 330 courts see adjudication, constitutional Couso, J. 230, 243, 244, 254, 282, 309, 329, 352, 353, 354 Couto, C.G. 358 Crahan, M. 209 Crenzel, E. 96 Cuba 186, 209 cultural rights 77, 135, 147, 150–151 Dahl, R.A. 283 Davis, D.M. 2 Davis, J. 97, 103 De Dominis, Marco Antonio 58 de Soto, H. 164 de Sousa Santos, B. 169–70 death penalty 265 democracy 58, 224, 273, 326, 332, 335, 353, 358 adjudication, constitutional 277–8, 279, 282, 285, 288, 290, 294 Bolivarian constitutions 109, 110, 111, 114, 139 corruption scandals 51 Costa Rica 285 direct 82, 109, 110, 139 economic crisis 51 indigenous peoples: communitarian 136 inequality and 352 institutions supporting 145, 146–7 Inter-American Court 301, 315, 316–18, 320 judicial independence 100–101

366

Comparative constitutional law in Latin America

judicial power and political distrust 259–60 presidency 339 procedural rules and 22, 23–4, 26–7, 28–9, 32–3, 43, 49, 51, 52 constituent assemblies vs constituent legislatures 37, 38, 39, 48 elite vs participatory processes 42, 50, 52–3 inclusive vs exclusive processes 41, 48 legal continuity vs legal break 36–7, 49 single or main dependent variable 35 proportional representation (PR) 28–9, 38, 49, 78 substantive clauses to protect 256 transitional justice 87, 88, 102 developmentalism 353 neo- 195 Dicey, A.V. 345–6 dignification of victims 92 Dimoulis, D. 256, 258 disability 142–3, 150, 287, 328 disappeared persons 97, 102, 143–4, 303, 306 discrimination 142–3, 150, 187, 223, 265, 271, 330 see also equality disestablishment 198–224 anticlerical 205–10, 218 establishment 201–6, 220 as friendly cooperation 206, 215–18 as laicidad 206, 211–15, 218 religious freedom 200, 201, 206, 214, 218 concepts of 218–22 conflicts over sexual and reproductive rights 222–4 Dixon, R. 2, 5, 6, 229, 256, 263, 273, 330, 331 Domingo, P. 283 Dominican Republic 19, 27, 29, 35, 113, 118, 278, 311, 319 Dugas, J. 30 Dulitzky, A. 301, 313, 316, 318

Dussell, E. 200 Dworkin, R. 189, 330 Eastern Europe 90, 104, 348–9 ‘economic constitutions’ 343–58 constitutions and the economy 344–5 in era of constitutional adjudication 350–351 from ‘political’ to ‘economic’ constitution 345–50 ‘social rights constitution’: Colombia 354–6 taxonomy of 352–4 economic crisis 51, 355 1930 184 economic development 89 property 154, 155, 164, 168, 173 economic rights see social and economic rights Ecuador 103, 169–70, 253, 338 adjudication, constitutional 140–141, 277, 282, 288, 340 Bolivarian constitution 108–11, 121–4, 354 length 114–16 mold-breaking vs mold-preserving 117–21 presidential powers 140–141 textual analysis 126–8, 130–131, 132, 136–8, 140–141, 142–3, 145, 146–8, 149–51 Comptroller General 146–7 constituent power and constitution making Constitution of 2008 57, 62, 76–82 disestablishment 209, 210, 212 equality 142–3, 180, 186, 187, 188, 190, 192 Inter-American Court 308–9 nature, rights of 82, 110, 147–8 plurinationalism 131, 136–8 procedural rules and constitution making 19, 24, 25, 31, 32–3, 49, 50 education 66, 179, 188, 202, 206, 207, 210, 211, 212, 213, 219, 223 Eisendstadt, T. 35, 42

Index

El Salvador 19, 23, 31, 180, 281, 320 transitional justice 95, 97, 101 electoral commissions/councils 145, 146 electoral fairness 145, 244 Elias, J.S. 87, 98, 99 Elkins, Z. 34–5, 40, 42, 51, 108, 229, 230, 231 Elster, J. 27, 33, 34, 37–8, 39, 42, 60 emergency, states of 100, 140–141, 245, 246, 272 Engle, K. 96, 99, 161 environment 147–8, 150, 286 Colombia 158–9, 165, 166 Ecuador: rights of nature 82, 110, 147–8 see also social and ecological function under property Epp, C. 259 equality 5, 9, 176–94, 214, 219, 332 beginning of constitutionalism and formal 177–81 second period: equality of opportunity 181–3 third: social period 184–8 affirmative action see separate entry aspirational rights 193 convergence, constitutional 230 same-sex marriage 232, 233, 234 ‘engine room’ of constitution 193–4, 196 example: prior consultation 194–7 inequality 154, 192–3, 327, 352 learning, constitutional 142–3 substantive 177, 188–92 Etchichury, H. 338 European constitutions 120 European Court of Human Rights (ECtHR) 234–5, 300, 301, 304, 305, 307, 316 European Union: ECJ 301 evangelical congregations 198 expression, freedom of 230, 264, 304 Fabricant, N. 172 Fajman, E. 285 Falcão, J. 259

367

Faundez, J. 242 feminism 97, 199, 222 Fernandez, V. 309 Ferraz, O. 254, 272 Filmer, Robert 58 Finkel, J. 282 folk festivals 93 food security 170 Forsyth, M. 65 Fowler, W. 179 France 60, 61, 88, 176, 203, 206, 208, 310, 327 Francis, Pope 198, 223 freemasonry 207–8 Fujimori, Alberto 217 Gáfaro, M. 164, 165 Garavito, C. 254, 272 García, Alan 333 García, O. 311 Garcia-Godos, J. 93, 96 Garcia-Villegas, M. 256 Gargarella, R. 3, 75, 117, 182, 184, 200, 208, 254, 301, 316–17, 320 Garrett, S.A. 94, 98, 99 Gauri, V. 283, 334 Gaviria, César 25, 333 gender 178, 180, 186–7, 223 affirmative action 191, 192, 266–7 non-discrimination 142–3, 150, 187 general principle of international law: consultation 195 genocide 92 Gerardi, Archbishop 94 Germany 177, 327, 332, 349 gerrymandering 144 Gerstenberg, O. 330 Ginsburg, T. 5, 25–6, 34, 41–2, 45, 46, 112, 260, 276, 291 globalization 220, 229, 259 God, nation and people 57–61, 69, 70, 83 Gómez Farías, V. 179, 180 Góngora Mera, M.E. 230, 301, 310 González Domínguez, P. 314 González, H. 64 González-Bertomeu, J.F. 3

368

Comparative constitutional law in Latin America

Green, S.K. 220 Gregory XVI, Pope 203 Grijalva Jiménez, A. 76, 140–141 Gros Espiell, H. 88 Guatemala 20, 23, 186, 187, 194, 211, 213, 279, 307 transitional justice 89, 92, 94, 96, 97, 98, 101 Gutiérrez, R. 330 Haarstad, H. 172 habeas data 102–3 Halperín Donghi, T. 185 Hamburger, P. 220 Hammergren, L. 276, 283, 289 Hammons, C.W. 40, 51 Harding, A. 4 Hébrard, V. 63, 66 Helmke, G. 3, 276, 279, 281–2, 284 Hernández, A.M. 100 Hilbink, L. 241, 279, 282 Hirschl, R. 1, 2, 253, 259, 277 Hobbes, T. 176 Hoffmann, F.F. 237, 247 Holmes, S. 34, 181 Honduras 20, 23, 191, 198, 277, 279, 294, 304 Huber, E.R. 327 Huneeus, A. 306, 312, 346 Huntington, S. 253 hyperpresidentialism 141, 339 Iberian constitutionalism 88 Ikawa, D. 268 import substitution 185 independence institutions supporting democracy 146, 147 judges see under judiciaries India 2, 254 indigenous peoples 142, 178, 181, 185, 187–8, 202, 208 Argentina 179, 188 Bolivarian constitutions 109, 110, 127, 133–8, 147, 148, 149 Bolivia 72, 75, 109, 110, 134–6, 149, 188, 194

consultation, prior 194–6 Costa Rica 286 Declaration of Rights of the 188 Ecuador 77, 81, 82, 136–8, 188, 194 exclusion 59, 72 Guatemala 92, 187, 194 Inter-American Court 301, 304 property 154, 155, 159–60, 190 Venezuela 127, 133–4, 188, 194 individualism 154, 169, 172, 178 industrialization 185 inequality see equality information Bolivia 140 corruption 146–7 habeas data 102–3 Ingram, M. 283 Inter-American Commission on Human Rights 167–8, 230, 303, 305, 311, 318, 321, 338 transitional justice: Paraguay 95 Inter-American Court of Human Rights 195, 230, 287, 292, 300–322, 338 judicial dialogue, rise of 308–9 constitutional block 309–12 decade of conventionality control 312–15 structural problems 303–6 constrained capacity and impact 307–8 judicial remedies 306–7 transitional justice 89, 90, 96 amnesty law 91–2, 97, 101 Brazil 91–2, 103 Chile 92 Peru 101 treaty law in domestic law, status of 313–14 who’s afraid of 315–17 realist intervention 317–21 internally displaced persons 92, 238, 305, 336 International Criminal Court (ICC) 89–90, 311, 312, 322 international human rights law 96, 99, 195, 220, 230, 236, 245, 338 International Labour Organization (ILO) 187–8, 195, 196

Index

International Monetary Fund (IMF) 333, 353, 356 Iraq 129 Ireland 129, 132, 149 Isaacs, A. 93, 94 Issacharoff, S. 2 Italy 203, 208, 220–221 Jackson, v. 229, 325 Jacobsohn, G.J. 111–12 Jaksic, I. 200 Jewish communities 219 Jiménez Campo, J. 328 John Paul II, Pope 219, 222, 223 judiciaries 45, 173, 278, 279 Brazil 246–8, 253, 257, 258, 265 clientelism 284 Colombia 245–6, 248, 253, 257, 258 constitutional convergence 227–8, 248–9 concept of judicial role 228, 239–42, 248–9 judicial role and resistance to 238–49 same-sex marriage 227, 231–5, 248 socioeconomic rights 227–8, 231, 232, 235–8, 248 thesis 229–31 court cultures 240–241 ideology 241, 283–4 independence 100–101, 104, 127, 144, 277, 279, 283–4, 294, 339 Argentina 101, 284 Brazil 253, 257 Colombia 253, 257 Costa Rica 287 ECtHR 307 Ecuador 142 institutional variation and 281 Inter-American Court 304, 307, 320 strong-party systems 241 Venezuela 145–6, 281, 290, 291–2 Inter-American Court and 306, 307, 316, 319, 321–2 Mexico: insurance theory 282

369

political distrust and judicial power 259–60 pro persona principle 311 training 241, 242 Venezuela 145–6, 281, 289, 290, 291–2 women 192 see also adjudication, constitutional Jung, C. 327 justice 356 distributive 272 global 88, 89, 96, 104 indigenous peoples 135–6, 137–8 social 155, 255 transitional see separate entry victors’ 99 Kahn, H.A. 2 Kant, I. 177 Kapiszewski, D. 240, 256, 279, 281, 282, 283 Kay, R. 22 Kelsen, H. 260, 340 Kens, P. 351 Khosla, M. 2 Kirchner, Néstor 339 Klatt, M. 337 Kleiber, J. 208, 217 Klein, C. 22 Koppelman, A. 220 Korea 113 Kosar, D. 306, 307 Krennerich, M. 327 Kyle, B.J. 98 Landau, D. 2, 6, 39–40, 236, 238, 240, 245, 246, 247, 249, 335, 350, 355 Larkins, C.M. 279 Law, D.S. 229, 230 Leach, P. 305 learning and ‘new’ constitutions 142–8, 151 Lee, H.P. 142 Leguía, Augusto B. 208 Lehoucq, F. 29 Lemaitre, J. 198, 223 Leo XIII, Pope 186

370

Comparative constitutional law in Latin America

Lerdo de Tejada 182–3 Lessa, F. 91, 94, 96 Levitsky, S. 37 LGBTI rights 199, 222, 304, 317 same-sex couples see separate entry Liebenberg, S. 337 Lixinski, L. 89 Llanos, M. 283, 284 Locke, J. 177 López, Leopoldo 292 Loughlin, M. 59 Lozano, G. 233 Lübbe-Wolff, G. 331 Lula da Silva, Luiz Inácio 265 Lynch, J. 200, 202, 203, 204, 208, 212, 213 McConnell, M.W. 220 Macgregor, E.F. 313, 315 Maduro, Nicolás 141, 288, 293 Mainwaring, S. 277, 288 Malarino, E. 301 Maldonado, D.B. 1, 3 Malloy, J.M. 72, 73 Mariátegui, José Carlos 208 Marquez Luzardo, C.M. 293 Marsilius of Padua 58 Martínez-Barahona, E. 92, 94, 95, 98, 101, 287 Martínez-Lara, J. 23 Marx, Karl 147, 346 Maxwell, John 58 May, J.R. 148 Maya, Manuel Vicente de 65 Mecham, J.L. 200 media: transitional justice 94 Meertens, D. 92 Melo, C. de C. 101, 103 Melo, J.O. 67 memorials, memory sites and shrines 92, 93 Menchú, Rigoberta 97 Menem, Carlos 333 Mexico 254, 327, 333, 334, 350 disestablishment 198, 199, 203, 205, 207, 209, 211, 213, 217, 219

equality 177, 179–80, 181–3, 186, 188, 189, 190 Inter-American Court 301, 304, 305, 306–7, 309, 314 maturation 124 Partido Acción Nacional (PAN) 244 Partido Revolucionario Institucional (PRI) 241, 244, 282 procedural rules and constitution making 20, 35 sexual and reproductive rights 198 social constitutionalism 349 Supreme Court 279, 282, 334 convergence, constitutional 232, 233–6, 239–40, 241, 242, 244–5, 248 transitional justice 101, 102 Mezzetti, L. 89 Michelman, F.I. 329 Miller, L.E. 32 Miller, Z. 89, 93 Mitlin, D. 2 monism 338 Montt, Ríos 98 Mora, José 179 Morales, Evo 108, 109, 117, 140, 172, 210, 288 Moreno, García 212 Mothers of the Plaza de Mayo 97 Motta Ferraz, O.L. 237, 238 Moustafa, T. 229 Mujica, J. 223 multiculturalism 129, 132, 133, 134, 188 Murray, John Courtney 221 NAFTA (North Atlantic Free Trade Agreement) 333 nation, people and God 57–61, 69, 70, 83 natural law 59, 64 nature, rights of 82, 110, 148 Navia, P. 239, 277, 278 necessity 337 Negretto, G. 24, 25, 28, 34, 41, 44, 45–6, 49, 50, 51 neo-colonialism 126

Index

neo-developmentalism 195 neoliberalism 127, 331, 332–3, 343, 352–3, 355–6, 357, 358 Bolivia 126, 172, 173 Ecuador 77 Neuman, G.L. 301, 316 Neuman, L. 29 Neves, Tancredo 91 Nicaragua 72, 180, 187, 190, 288, 338, 354 disestablishment 209–10, 211–12, 213 procedural rules and constitution making 20, 23, 27, 31, 32, 50 Nino, C. 256 Nolan, A. 335 non-governmental organizations (NGOs) 200, 230, 328 Novoa Monreal, E. 347–8 Nunes, R.M. 284 Nuñez, Rafael 67, 68 Nussio, E. 92, 95 O’Donnell, G. 36, 276, 277 Olsen, T.D. 90 ombudsman 100, 145, 150, 166, 168, 279 Orango Olaya, M. 310 Organization of American States (OAS) 303, 305, 319, 321 Orozco Henríquez, J. 101, 102 Ortega, Daniel 288 Paine, Thomas 64 Palti, E.J. 180 Panama 20, 23, 32, 49, 190, 279 Paraguay 103, 253, 277, 281, 282, 294, 308, 308–9 equality 180, 187, 188, 190 procedural rules and constitution making 20, 23, 32, 34 transitional justice 94, 95, 103 Parejo Alfonso, L. 328 Parlett, W. 39–40 parliamentary sovereignty 79, 144, 145 Partlow, J. 109 path dependence 173

371

Paz Estenssoro, Víctor 72 peasants: property 154, 155, 162–3, 170, 172 pensions 93, 216, 237, 238, 328 people, nation and God 57–61, 69, 70, 83 Pereira, L. 338 Peretti, T. 283 Pérez, Carlos Andrés 288–9, 333 Perez-Linan, A. 283 Perez-Perdomo, R. 289 Perón, Juan 208 Peru 93, 103, 253, 257, 279, 282, 330, 333, 339 disestablishment 198, 204, 208, 216–17, 223 equality 188, 190, 191, 196 indigenous peoples: consultation 196 Inter-American Court 307, 308–9, 320 procedural rules and constitution making 20, 31, 32 same-sex couples 198 transitional justice 92–3, 95–6, 97, 101, 103 Piatti-Crocker, A. 232 Pillay, A. 334 Pinochet, Augusto 96, 243, 254, 282 Pisarello, G. 61, 77, 78, 79, 82 Pius IX, Pope 203, 207 Plan Cóndor 95 plurinationalism 110, 127, 130, 131, 132, 133–8, 148, 151 police 313 political constitutionalism 144 Pop-Eleches, G. 2 Popova, M. 284 Portugal 177 positivism 207 Pozas-Loyo, A. 40 precedent 229, 234, 240, 318 presidential commissions/advisory councils 26, 39 presidential powers 246, 265, 339 Bolivarian constitutions 140–141 Colombian Constitutional Court 261–3 Prieto, V. 216, 218, 222

372

Comparative constitutional law in Latin America

prison conditions 269–70, 336 privatization 189, 331, 332, 333 pro persona principle 311 procedural rules and constitution making 17–53 causality, dubious 17–18, 42–52 constitutional choice 43–6 constitutional durability 46–7 democracy 48 historical overview 18–21 citizen participation 31–3 constitution-making body 25–8 legality of process 22–5 proportional representation 28–9 quorum and voting rules 29–30 rules of representation 28–31 linking rules to outcomes 33–6 constituent assemblies vs constituent legislatures 37–40, 44–5, 47, 48, 49, 51, 52 elite vs participatory processes 41–2, 46, 47, 49–50, 52–3 inclusive vs exclusive processes 40–41, 45–6, 48, 49, 51, 52–3 legal continuity vs legal break 36–7, 47, 49 see also constituent power and constitution making property 4, 8, 179, 182–3, 229, 234, 345, 348, 349 disestablishment 207, 211, 212, 219 formal titles 92, 164–5 indigenous peoples 154, 155, 159–60, 190 non-propertied exclusion 59, 63, 64 protests 189–90 social and ecological function 153–73 Bolivia 169–73 classical view of property 163–5 collective titles 154, 155, 159–63, 166–7, 169, 172–3, 178 constitutional, judicial and legal developments 155–63 Curvaradó and Jiguamiandó 165–9 transitional justice: land titling 92

proportional representation (PR) 28–9, 38, 49, 78 proportionality 230, 267, 268, 334, 336–7 Proudhon, P.-J. 346 public participation 255, 256 Bolivarian constitutions law-making and enforcement 138–9 constituent power: participation principle 61, 70, 75, 81 procedural rules and constitution making 31–3 elite vs participatory processes 41–2, 46, 47, 49–50, 52–3 race 178, 191, 267–8 Ramirez, S. 133, 134 Rausch, J.M. 66 Rawls, J. 188–9 reasonableness: social and economic rights 334–5, 336, 337–8 referendums 32–3, 41–2, 50, 60, 80, 82 Bolivia 32–3, 139 Chile 32, 52 Colombia 25, 32, 76, 261–3 communities 196 Ecuador 24, 32–3, 77, 78, 80–81, 82 France 61 Panama 32 Paraguay 32 Peru 32 recall 82, 291 Uruguay 28, 51, 97 Venezuela 25, 32–3, 76, 139, 291 religion 94, 97, 179, 182–3 Catholic Church see separate entry church members: special legal protections 178, 179, 182 disestablishment see separate entry evangelical congregations 198 freedom of 179, 200, 201, 206, 214, 218 Bolivian Constitution of 1967 75 convergence, constitutional 230

Index

disestablishment, conflicts over sexual and reproductive rights and 222–4 modes of disestablishment and concepts of 218–22 Renwick, A. 39 reparations 92–6 reproductive rights see sexual and reproductive rights Restrepo, J.C. 164 revolution, definition of constitutional 111–12 rights similarity: Bolivarian constitutions 117–24 Riley, P. 60 Ríos-Figueroa, J. 44, 240, 247, 279, 281, 282, 285 Rivera, S. 72 Robespierre, Maximilien 61 Rodas Morales, H. 74 Rodilles, A. 311 Rodríguez-Garavito, C. 3, 190, 196, 237, 238, 305, 335 Rodríguez-Raga, J.C. 285 Roht-Arriaza, N. 93 Rolla, G. 100–101, 102 Romero, S. 109 Roniger, L. 93, 98 Roscio, J.G. 64–5, 66 Rosenberg, G. 302, 321 Rosenberg, T. 90 Rosenfeld, D. 61 Rosenn, K.S. 23, 246, 278 Rousseau, J.-J. 60, 61, 64, 65, 66, 81, 177 Rousseff, Dilma 103 Roux, T. 2, 241 Rueda, P. 237 Ruibal, A. 199 Rulfo, Juan 153 Russell, A. 331 Rutherford, Samuel 58 Sábato, H. 180 Saez, M. 232 Salazar Ugarte, P. 309 Salgado, C. 330

373

Salgado Pesantes, H. 77 Salgar, Eustorgio 66 Salinas de Gortari, Carlos 333 Salinas,Y. 165 same-sex couples 198, 223, 270–271 marriage 198, 219, 227, 231–5, 244, 245, 246, 248 Samper, José María 68, 69, 71 Samuels, K. 34 Sánchez de Lozada, Gonzalo 24 Sanchez Urribarri, R.A. 277, 281, 283, 284, 288, 289, 290, 291 Sanguinetti, Julio María 333 Santa Anna, Antonio López de 180, 182 Santos, M.H. de C. 91 Saranyana, J.-I. 68, 69 Sarlet, I. 256 Sassen, S. 357 Schmitt, C. 58–9, 149 Schneider, H. 59 self-determination 147 separation of powers 34, 35, 100, 101, 256, 262, 263, 269, 273, 292, 326, 335 sexual and reproductive rights 198–9, 200, 205, 206, 222–4, 304, 317 abortion 131, 198, 223, 243 same-sex couples see separate entry Shapiro, M. 351 Sharp, D.N. 90 Siavelis, P. 243 Sieder, R. 309, 317 Sieyès, E. 59, 65 Sikkink, K. 90 Silivia, P. 257 Silverstein, G. 229 Skaar, E. 100, 101 slavery 178, 182 social constitutionalism 186, 349–51 social and economic rights 3, 4–5, 147, 150–151, 182, 309, 325–40, 349–51, 353 Argentina 334, 336, 337–8, 339 Brazil 237, 247–8, 256, 328, 336 budget allocation 256 Chile 235, 236, 243, 244, 328–9 Colombia 235, 237, 240, 246, 247, 256, 328, 331, 339

374

Comparative constitutional law in Latin America

minimum core 334–5 structural orders 237–8, 247, 335, 336 common circumstances for adjudication of 329–33 convergence, constitutional 227–8, 231, 232, 235–8, 243, 244, 245, 246, 247–8 common circumstances 329–33 entrenchment 326–9 explaining convergence and divergence 338–40 standards of adjudication: divergence and 333–8 Costa Rica 287, 334, 335–6, 339 duty-bearers 330, 331, 332 Ecuador 82, 328, 330–331, 338 Mexico 186, 235–6, 244, 245 paradox of the social state 332 remedies 236–8, 246, 247–8, 335–6 see also ‘economic constitutions’ socialism 173, 208, 209, 210, 338, 349, 350, 353, 354 Solís Delgadillo, J.M. 93, 97 Sommerville, J.P. 58 South Africa 2, 145, 236–7, 254, 330, 334, 337, 356 Soviet Union 34, 220, 350 Spain 96–7, 177, 203, 208, 309, 328, 332 Stabili, M.R. 94, 95, 103 Staton, J. 282 Steinberg, C. 334 stigma 102 stock markets 90 Stokke, K. 2 ‘stone clauses’ (cláusulas pétreas) 102, 256, 262, 273 Stone Sweet, A. 337 Stroessner, Alfredo 95 Suarez, Francisco 58 Sunstein, C. 348–9, 352, 353 Supreme Federal Tribunal (STF)(Brazil) 253, 254–5, 257–9, 272–3, 339 affirmative action 191 amnesty law 91–2 cases 260–261

affirmative action: race 267–8 constitutional reform process 263–5 same-sex couples 270–271 convergence, constitutional 237, 247–8 jurisdiction 257, 272–3 standing 239, 258–9, 272, 339 structural cases 336 television 259 Svampa, M. 190 Tang,Y.S. 91, 92 Tate, N. 276, 351 taxation 168, 171, 211 Teitel, R. 87, 89–90, 96, 100 Ternavasio, M. 180 Ticona Alejo, E. 72 Tierney, B. 58 Torelly, M. 91, 93 tourism 149 transitional justice 87–104 civil society 89, 91, 93, 94–5, 97, 98 constitutional responses beyond transition 99–100 fundamental rights and specific remedies: habeas data 102–3 structural impacts: judicial independence 100–101 military participation 89, 90–91, 94, 96, 98 models 89–90 clean-slate 90–92 investigate-prosecute-punish 88, 90, 96–9, 103 moral reparations and broader policy programs 92–6 transparency 145 Trochev, A. 284 Trujillo, Rafael 35 truth commissions 91, 92, 93, 94, 95–6, 103 Tushnet, M.V. 2, 229, 309, 327 unemployment 189 Union of South American Nations (UNASAR) 322

Index

United Kingdom 96, 184 United Nations 89, 90 Declaration of Rights of the Indigenous Peoples 188, 195 United States 88, 113, 120, 129, 131, 139, 184, 305, 346–7, 348, 352 courts and political system 283–4 equality 176 Nicaragua 209 religion 199, 201, 206, 209, 218, 220, 221 sexual and reproductive rights 199 Supreme Court 303, 318, 321, 351 transitional justice 96, 97 Washington Consensus 332–3, 356 Universal Declaration of Human Rights (UDHR) 78, 120, 230, 310, 350 Uprimny, R. 235, 253, 257, 309, 356 Uribe, Álvaro 261 Uribe de Hincapié, M.T. 66 Uruguay 180, 186, 213, 232, 333, 354 Inter-American Court 316–17, 320 procedural rules and constitution making 20, 23, 24, 27–8, 49, 51–2 transitional justice 93, 97, 98 utilitarianism 179 Vaggione, J.M. 199, 223 Vargas Cullel, J. 285 Vásquez, R. 354 Veçoso, F.F.C. 92, 99 Venezuela 100, 253, 333, 338 Bolivarian constitution 108–11, 121–4, 354 length 114–16 mold-breaking vs mold-preserving 117–21 presidential powers 140–141 textual analysis 126–9, 132, 133–4, 138–9, 140–141, 143, 145–6, 147–8, 149, 150–151 constituent power and constitution making 72, 76, 82 Constitution of 1811 57, 62–6, 75

375

disestablishment 209, 210, 215 equality 178, 180, 188, 190 Inter-American Court 292, 301, 304, 307, 308–9, 319, 321 procedural rules and constitution making 21, 25, 27, 29, 32–3, 37, 49, 50 Supreme Tribunal of Justice 145–6, 288, 319, 340 Sala Constitucional 277, 278, 281, 284, 288–93, 294 Verner, J. 276, 287 Versteeg, M. 6 Viciano Pastor, R. 25, 37, 353–4 Vieira, O. 257, 260 Villegas del Castillo, C. 157 Voigt, S. 35, 40, 41–2 von Bogdandy, A. 315 Waldron, J. 322 Washington Consensus 332–3, 355–6 Webber, J.R. 75, 172 welfare state 350, 351 Weyland, K. 109 Wheatley, J. 26, 35 Widner, J. 36, 42 Williamson, J. 333 Wilson, B.M. 282, 286, 287 Witte, J. 220 women 142, 178, 181, 185, 186–7, 199, 223 affirmative action: Colombia 266–7 Bolivia 136, 187, 192 Brazil 181, 265 Colombia 181, 187, 266–7, 328 Ecuador 131, 137, 181, 187, 192 gender quota 78 exclusion 59, 63 Inter-American Court 305 transitional justice 92, 97 voting rights 180 Woolman, S. 334 World Bank 333, 353, 356 World Trade Organization (WTO) 333 World Wars 184–5 Wray Reyes, N. 25

376

Comparative constitutional law in Latin America

Yamin, A. 356 Young, K.G. 2, 328, 335, 353 Yrigoyen Fajardo, R.Z. 188

Zamora, S. 236, 240, 244 Zelaya, José Santos 211–12 Zunino, M. 101