The main function of a Constitution is to thrive Democratic system that underpins it. In this sense, a broadly shared criterion for assessing constitutional performance is the degree of a Constitution has served to promote some minimal concept of Democracy. This paper seeks to analyse how the so-called transformative constitutionalism has contributed to this effect by comparing three different constitutional settings: Ecuador, Bolivia and Venezuela. I disentangle different parts of the aforementioned constitutions to assess their performance in terms of measuring the change of a minimum core: “a set of institutions, procedures, and rights that are necessary to maintain a system of competitive democracy” (Dixon & Landau, 2016). Particularly I present a Schumpeterian approach that encompasses basic commitments to regular and free elections in which parties compete for access to democratic office, and citizens have the right to decide by casting vote on the basis of adult suffrage.
Constitutional Courts, as specific organs responsible for constitutional matters, are barely over a century old. A great variety of countries have implemented a specific constitutional court following the Austrian model. Judges are called to be guardians of the constitution; hence, the importance of the democratic legitimacy of the organ and the judges is to be observed. This research considers constitutional courts and their judges regarding the state organization, constitutional design and selection process. Is also crucial to consider that judges are not elected, they are selected and appointed by different procedures. The task of this paper is to analyze the Judges' democratic legitimacy in each of the states selected for the probe, namely: Germany, Italy, France, Spain, Peru, Brazil, Colombia and Ecuador. The Analysis is centred in the constitutional design and considers the democratic chain between the people and the constitutional judge that cannot be popularly elected.
This research work proposes to give an account of the types of Constitutional Courts that exist in Latin America. To do this, I build a typology of these cuts in which two institutional variables interact. On the one hand, judicial independence measured through the mechanisms of selection and sanction/removal of judges, which allows observing the so-called legitimacy of origin. On the other hand, the powers or formal competences given to these courts are summarized in two groups: the possible performance as referees of the policy or veto players, and the protection of citizen rights. Taking as empirical reference eighteen countries of Latin America, I build four ideal types of courts: provincial, citizen, vigilant and imperial. Guatemala appears as a reference case of a provincial court, while Costa Rica and Colombia are framed within the imperial courts.
It is often argued that presidents will tend to relax constitutional term limits when institutional and structural conditions allow so. However, most theories attempting to explain term limits relaxation evade the examination of political actors’ actual preferences and motivations. Drawing from the concept of political agency, this article maintains that term limits removal occurs as a consequence of presidential normative and substantive preferences. The more autocratic tendencies the president portrays, the more likely it is that constitutional term limits will be relaxed. Quantitative analysis of an original dataset confirms that the more radical the president is – i.e., intransigent and intolerant in achieving his political goals– the more likely it is that he will alter reelection rules in his benefit, controlling for alternative explanations.
It is said that the main purpose of the “new Latin American constitutionalism” is to design institutions to achieve human rights fulfilment. On the other hand, this new wave has tried to remedy regional serious democratic deficit, proposing diverse formulas, aimed to open greater opportunities and spaces of control facing a society of distrust due to the significant detriment of the role of trust in social and political functioning.
This paper seeks to analyze how transparency is an integral part of this transformative constitutional process, mainly in countries whose Constitutions have been considered within this new trend: Colombia, Venezuela and Ecuador. Starting from an analysis of the instruments related to transparency generated by the OAS, I study the constitutional response to them based on three purposes: Citizen control to combat corruption, the accomplishment of the rights of freedom of expression and access to information, and the strengthening of Democracy.
This article will analyse the phenomena of democratic transitions that take place in “apparent democracies” -in which authoritarianism is exercised through an apparently democratic institutional design. I will question if taking to full force and effect a Constitution that has been used as a façade for authoritarianism is equivalent to exercising constituent power and, thus, if the acts and regulations issued by the authoritarian government -in that context- have to be regarded as public law. Ultimately, the article will question both the legal nature and normative legitimacy of the acts and regulations issued by authoritarian regimes in the context of apparent democracies. For those purposes, it will present and analyse the case of the “Consejo de Participación Ciudadana y Control Social Transitorio” in Ecuador, in which designations of public officials were revoked by a newly created transitional institution, allegedly because they were emitted by an authoritarian government.