Towards a taxonomy of the use of constitutional reform and the constituent power in Latin America in the era of populism

Many of the recent processes of constitutional making and constitutional reform in Latin America have been framed in the so-called populism era. Thus, since the constituent process of Venezuela in 1999, the constituent assembly of Ecuador (2008) and the Constitution of Bolivia (2009), profound modifications have been made based on a proposal to strengthen social human rights, environmental issues within the framework of pluralism.

However, in these same countries, as well as in Colombia, Nicaragua and Honduras, constitutional reform was used to allow presidential re-election and thus consolidate popular leaders with ideologies of left or right that falls within the framework of populism.

The paper will analyze the use of the constituent processes and the constitutional reform, to make a taxonomy of the ways of using these mechanisms and thus verify if they comply with common patterns and what may be the aspects that differentiate them.

Unconstitutional constitutional amendment: hyper presidentialism, indefinite re-election and democratic system

The proliferation of populist governments has generated the multiplication of hyper-presidentialist regimes that encourage constitutional reforms to gradually concentrate the power and slowly erode the democratic system. According to their vision, people would lose their track and capacity for sovereign action without a strong and eternal figure-leader.

Understanding that the constitutional amendments should be studied taking into account the historical, political and social circumstances where they occur, this paper will be based on the 2012 proposed Argentinian constitutional reform, which would be probably discussed next year depending on the presidential elections of this year, to support i) the ontological foundations of a democratic constitution, ii) that the protection of democracy as part of the machine room fundamental for the guarantee of fundamental rights, and iii) the need for strong courts able to protect the constitution and democracy from unconstitutional reforms.

How unamendable is the Brazilian Constitution? Lessons from the past and guidelines for the present after 30 years of unconstitutional constitutional amendments

The Brazilian Constitution specifies substantive limits to amending power, however, it does not expressly authorizes the competence of judicial review of constitutional amendments. This fact was not an obstacle for the Supremo Tribunal Federal (STF) to assume such jurisdiction. In order to understand how the Supremo Tribunal Federal interpreted the unamendable clauses in the last 30 years, we developed an empirical research and collected all its decisions on the (un) constitutionality of constitutional amendments. There is an urgent importance on that issue since the new presidential government proposed a constitutional reform on pension rights, which, if approved, could be subject to judicial review in the STF. Based on a quantitative and qualitative survey, this paper demonstrates the level of judicial interference on the amending power in Brazil and indicates how the STF will protect the unamendable clauses if it follows its own precedent rulings in the next cases.

Electoral system – a lifeboat to constitutional changes in Latin America

Each constitution contains a “grundnorm” concerning the modern representative democracy, a model of political representation based on periodic elections, carried out under conditions of equality and freedom.
The presence or absence of express constitutional provisions on the electoral system, with its different position in the system of sources of law, has effects on constitutional revision because each review should enhance the implicit or explicit limit to the constitutional revision represented by the democratic form.
The substantial feature of the electoral law is drawn by the founding principles of the legal system, in relation to the influence it makes to the functioning of fundamental mechanisms in the form of state and the form of government, avoiding backslidings and constitutional changes of illiberal matrix or systems based on overconstitutionalism. In this perspective, this investigation explores the Latin American experiences in comparison with some European system.

Participatory democracy in the Constitution of the Bolivarian Republic of Venezuela and the “undue external influence”

In recent years the focus of comparative legal scholarship has been increasingly attracted to Latin America as a living laboratory for the development and implementation of innovative constitutional systems. The recent Constitution of the Bolivarian Republic of Venezuela is an experimental and fascinating constitutional text, striking a fundamental balance between energy, ecology, economy and glocal, counterhegemonic, control of democratic processes. The clear contradiction between these elements and the political crisis in Venezuela undermines the pursuit of the social and environmental objectives dictated in the constitutional text. The extraterritorial financial powers and rules leaves local political authorities without instruments and not sufficient means to face the constitutionals problems, influencing the horizontal control of the powers of the “liberal tripartition”, above all following strong social reforms or nationalization policies. This is answered, by necessity or will of power, with abusive constitutionalism and leaderism that risks impoverishing the strong constituent participatory processes.

Consensus or polarization? constituent power versus populism

The Constitution is a political agreement, an expression of the constituent power, oriented towards guaranteeing human rights and limiting power. Constituent power is the embodiment of the People, made of all the members of a political community who, having the same rights, create the Constitution. The Constitution does not erase diversity but instead allows coexistence based on minimum consensus. Hence, both the Constitution and constituent power are incompatible with populism and the violent imposition of one group’s vision over the others. This logic has not been followed throughout Colombia’s history, but the 1991’s Constitution has been the most authentic expression of constituent power to this day. Despite this fact, attempts to manipulate the Constitution using populist strategies have been noticed, seeking to nurture violence and polarization. The Constitutional Court has obtained a leading role in solving political differences in order to solve this tension.