Mexican Law Review (original) (raw)
The Greeks in ancient times were in the
habit of asking the wise person Sol�n:
�which is the best Constitution?� He used
to answer: �Say to me first for what
people and for what epoch�.
Charles DE GAULLE, 1946.
I. CONCERNS REGARDING THE SYSTEM OF GOVERNMENT
A. A concern or deep concern exists nowadays for diverse political-constitutional topics in some sectors of Mexican society. One of them refers to the system of government: if from our present presidential system we must transfer to a parliamentarian system. That is to say, the real inquiry exists of knowing if our presidential system is most adapted for the Mexico of today and for the years to come.
Why does this concern exist? In my opinion because in the last decades: a) the balance of power has been inclined decidedly to favor the Executive, b) the Legislative Power has not exercised many of its constitutional powers, c) the president of the Republic has been provided with meta-constitutional attributions that have turned him into the vertebral column of the whole political system, d) the weight and constitutional counterweights have not operated and, e) the freedoms and rights of Mexicans have remained on occasions to the discretion of the Executive Power.
It is possible that we resolve this and other problems with a change to the parliamentary system?
In the last ten years, two of the most important countries of Latin America �Argentina and Brazil� also appeared to question this possibility for reasons similar to those of Mexico. This which can be synthesized in the longing of greater and better controls to the federal Executive to reach a real balance of power that strengthens the democratic systems.
That discussion in Brazil was very important. The Constituent Assembly of 1987, based on the project of reforms of the Arinos Commission, was leaning towards the parliamentary system. However, the above mentioned assembly ratified the presidential system, but not in definitive form since the political forces that were leaning toward the parliamentarian regime could not be ignored. The second provisional article of the Brazilian Constitution of 1993 decreed that on September 7 of 1993, the electorate would define through a plebiscite the form and the system of government of that country: monarchy or republic, parliamentary or presidential system. The Brazilian people decided on the second possibility: republic and presidential.
In Argentina the constitutional reform of 1994 also was leaning for the presidential but attenuated system or with parliamentary subordination �in Nogueira Alcal�s words�1 basically with the creation, in article 100 constitutional, of the chairman of a cabinet of secretaries, with political responsibility before the federal congress and whose principal powers are related to the general administration of the country and the bills of the projects of law.
Consequently, this one is not an easy topic and we are going to verify this in this essay; these discussions were already proofed in Argentina and Brazil as confirmatory.
B. The Argentine professor who is mentioned reminds us that are certain ideas that are true and very widespread: that the type of government of a country is not to define only by the constitutional rules, but it is necessary to think also in the �outside the law Constitution�, which is based on practices, cultural traditions, attitudes and expectations of the political actors, the electoral system and the political parties.2
The well-known constitutionalist Jorge Reinaldo Vanossi alerts us with his customary sharpness:
In the constitutional systems there is a rule of underlying gold, not necessarily written, but inferred from its own structure of equilibrium of the constitutional democracy. According to this, to any increment of power there must be a corresponding strengthening of the controls, an improvement of individual rights or guarantees and emphases of the responsibilities. Saying this with other words: the more power the more control, better rights and superior responsibilities. This rule, which demands a correlation between the problems of the dimension of the power and the problem of qualification of the rights that achieve the equilibrium of that power, is pinpointing the need for an equivalence that, if it breaks, alters the functionality of the system and this one enters a slope. It is that which sociologists properly call cases of anomia [absence of law], in which society is eliminating gradually the frame of reference, society is disillusioned, unmotivated, and pretends ignorance. Even the system itself stops being interested in its own fate, and winds up in what children with their innocence, but with great and accurate clarity say: �it does not matter�. That is to say, there is not anymore a frame of reference or parameter between good and evil, between the lawful and the illicit, between the allowed and the prohibited. These are the processes of legitimatization that have in general a point of take-off in the weakening of the systems of rights.3
Exactly here one finds the great problem of the presidential Mexican system: the almost absolute lack in the reality of controls and the colossal imbalance that is given among the powers in our country, situations to which me I have been referring from 1978, when my book was edited on this topic.4
II. GOVERNMENT SYSTEMS AND POLITICAL PARTIES
A. Now then, the system of government,5 either presidential, parliamentary or semi presidential, operates with the same Constitution in a very different form of agreement with the number of political parties that exist in this country, and in this number the electoral system has a determinant influence.
That is to say, the functioning of the power, specifically of the Executive and of the Legislative, stated in the Constitution, will operate in a diverse form, according to the system of party or political parties in that society. Then, the system of government is a structure in which there develops a political process that is in a very good part marked by the number of political parties and the electoral system.
This way, this system of government will work differently, if it is bi or multi-partisanship, a sole party or a predominant party.6
In Mexico, for decades, we have known the system of a predominant or hegemonic party, in which the overwhelming majority of the federal and local legislators belonged to this party of which the president of the Republic is the actual chief. This fact is more than sufficient to explain, among us the lack of controls for part of the Legislative Power with regard to the Executive and the well-known imbalance between them.
Still it is not clear how the new system of parties will remain defined in Mexico, but nowadays when three big political and other small parties exist, and on not counting on the PRI with the absolute majority in the deputies� federal Chamber, we see how they begin to exercise some of the controls that establish our Constitution from 1917, since it is the case of the called �power of the chamber�, which is so important.
In other words, still we do not know precisely how it will operate in the reality of our current fundamental law and its presidential system with a tripartite system of parties added to others of small size.
B. In turn, any presidential system will work very differently, depending on if:
a) The president and the majority of the legislators of the two legislative chambers �where there exist two� are of the same party.
b) In two legislative chambers, the party of the president does not count with the legislative majority.
c) The president and the majority of the legislators in one of legislative chambers belong to the same party but this is not the situation in the second chamber. Here the relevancy is whether the chamber is the high or the low chamber. This is the situation that is present now in Mexico, the president of the Republic and the majority of the senators belong to the same party, but in the other chamber �that of deputies who are the most important for its powers with regard to �power of the chamber�� no party has the majority, but a coalition of diverse parties to that of the president can form it.
Currently in the United States of North America, in the two federal legislative chambers, the majority of the legislators are of the party opposite to that of President Clinton. It is clear that this system works in a diverse form if the situation was the opposite from the one noted, but the two differences that at the time happen, they are the legislative controls that are indicated by the Constitution operating with more inflexibility and with all fullness and the Executive is bound to negotiate much more with the Congress and to consider it in such form that is feasible that he manages to extract forward his legislative agenda. Negotiation and more negotiation, which results in a better balance among the powers.
C. In the parliamentary system identical situation happens that in the presidential one. The real operation of the system depends on the number of existing parties in the country: two, three, four or more and if the political party that integrates the government counts or not with the majority of the legislators in the Legislative Power, specifically in the chamber of deputies.
In the parliamentary classic system, the English, who really is bipartite, if one of the parties has the majority of the legislators in the Chamber of Common, then the prime minister �that is a part of the Executive Power� is the leader of this party and for this character, for the discipline of party and because the legislators of the majority party do not wish early elections, the prime minister has really the control of the parliament,7 or if it is wanted, no control of the Legislative exists with regard to the Executive;8 situation that weakens if none of two big parties obtains the majority in the Chamber of the Common ones and turns out to be necessary to joint to a small third party to achieve it. Then, the real negotiation is given between both leaders of the parties that jointed to be able to form a government within inside the frame of the political force that its parties have in this chamber.
In these moments already Mister Clinton would like to possess the ten per cent of the effective control that Mister Blair has with regard to the Legislative Power of his country.
On the contrary, if in the parliamentary system exists multiple parties and to be able to form a government it is indispensable the conformation of coalitions that do not turn out to be stable, at the time will arise a cabinet after another, creating a political instability that reverberates negatively in the country, as it happened in the France of the IV Republic and in Italy from the second world war. This way, the worry in these countries was it of introducing elements of the presidential regimen their systems with the purpose of granting stability to them.
D. The same thing that I have affirmed of the presidential and of parliament regimes with regard to the system of parties, it is valid for what is called the semi presidential which a classic example at present is the French Constitution of the V Republic of 1958,9 that has worked well in the reality and in the political circumstances of this great country, but this Constitution in occasions works almost as a presidential system and in other occasions almost as a parliamentarian system.10 Probably would be more accurate to suppress �almost�.
It works almost as a presidential system when the political party or related parties of the president of the Republic counts with the majority of legislators in the National Assembly, because then he designates with freedom the prime minister, who is of his own political party and who recognizes his political hierarchy. It is the president who heads the cabinet and who takes the most important decisions of the government.
But the same French Constitution of 1958 works as an almost parliamentary system, when the political party and the related parties of the president of the Republic not count or count with the majority of the legislators in the National Assembly or can or not form a coalition, then the president will have to designate as prime minister the leader of the party that has this majority or to the leader who can form a government and in this case it is the prime minister who governs. The president, certainly, has his enumerated reserved in the Constitution, but then many of them become more virtual that real because who formulates and controls the budget is the prime minister and not the president, and if the latter does not possess economic resources to exercise his powers, then his role seems to that of a chief of State in a parliamentary system. Certainly there can not be ignore that the personality of the president of the Republic is a factor that influences this entire scheme.
III. THE PRINCIPLE OF NON-REELECTION
An aspect that the Mexicans we must have very much in mind is that in a parliamentarian system, the prime minister can be reelected all the times his party wins the elections. In the last decades we have seen the repeated reelection of several prime ministers or his equivalent, just to mention some, let�s remember to Felipe Gonz�lez, Margaret Thatcher and Helmut Kohl.
In Mexico, an essential part of our constitutional history and experience is represented by the principle of not reelection of the president of the Republic, a principle that has been and it is a very positive factor of our political system. This aspect should be pondered and re-pondered.
The Mexicans we cannot forget that when a president was coming to the power, was perpetuated in it and only it was possible to substitute him for the force of the arms or for his death; such it was the situation with Santa Anna, Ju�rez, Lerdo de Tejada and Porfirio D�az. Among them four, governed 58 of the first 90 years of the independent Mexico.
Neither can we forget that the so called Mexican Revolution took the �effective suffrage, not reelection� as a political motto of, that the Constitution of 1917 did of this maxim, an essential rule of the new constitutional order, but that the above mentioned principle crumbled when the personal force of the commander achieved that to be elected two times and our fundamental law to allow the reelection of the general �lvaro Obreg�n, who after the elections and before to be declared a constitutional president, he was murdered, that saved Mexico of counting with a second Porfirio D�az. Since it would been difficult to extract Obreg�n of the presidential chair, this also would have allow for us to have had in our century a 1890; or, the constitutional reform that would allow the reelection of the president of the Republic without any limit.
Obreg�n�s death made possible that on April 29, 1933 a new reform was appearing published in the Official Diary of the Federation to the article 83 constitutional, again, to prohibit the reelection of the president of the Republic, reform that is the one that subsists until our days.11
We all know that the majority of the Mexican presidents have been very strong, specially from the general L�zaro C�rdenas, but from 1933 none of them really intent to be reelected in spite of multiple rumors about it.12 The principle of presidential not re-election it is base and heart of our constitutional order. It is our evolution and result of the political experiences that are present and incite us to not to commit a political enormous mistake: to forget of the crises and the phenomenal political cost that we have paid when our presidents have been reelected.
It might argue that Mexico has changed very much from 1917 and 1933 and that the democracy implies that the people can re-elect its president all the times it wants. To this specific point I refer later on. Now only I will say that there are human natures �and they are numberless instances� that they love the power and when to they hold it, they are reluctant to retire, it become as a kind of a drug that invades them and dominates them. The universal history speaks for itself and the Mexican history also.
In the last years in Latin America we have seen amazed how the presidents Fujimori of the Peru, Menen of Argentina and Cardoso of the Brazil achieved �because they had the political force for it� constitutional reforms for their reelections, which they obtained, and how after these presidential periods, the first two mentioned tried with all their forces to obtain another presidential period. In this moment Menen already did not reached because of popular rejection and Fujimori is still trying it. Will he achieve it?
Then, it is necessary to remind the supporters of a parliamentary system in Mexico of our political history and to say to them: watch out, be careful, watch out, reflect!
It is not additional also to bring attention to the maxim attributed to Lord Acton: the power corrupts and the absolute power corrupts absolutely. The power needs weight and counterweights; it needs limits and, without any doubt, in Mexico the limit of the time is a historical imperative that our evolution has turned into a political imperative
The moment has come to introduce me to the world of the ideas and of the theories, which is very important because it helps to those who, by electoral mandate, and take the political decisions, specially is so important, in the delicate topics and of the multiple edges that is all related to the system of governing a country.
IV. THE DOCTRINAL DISCUSSION
In the last years it has given importance to a very interesting doctrinal discussion on the advantages and the disadvantages of the parliamentary and presidential systems. From it they have arisen proposals of change specially for the Latin-American countries and the post-communists ones of the Eastern Europe.
This discussion originated for diverse studies �basically from professors Riggs and Linz� from statistical character in which they highlight that, during the sixties and seventies, while diverse democracies of presidential system failed, those of parliamentary system supported its stability. In consequence, it would fit the supposition of which the system of government has something to do with the stability or the instability of the own government and with the later falling disaster of that democracy. Then, the doctrinal propositions to overcome the above mentioned �problem� were not made wait.
Sartori wrote that with regard to the institutional questions the essential question is: what we should reform what and how to we are going do it? His worry rests in to explain if we know what is to that should change and how to change it, and reply not, to which has taken as a consequence that �the realized reforms take the fingerprint of very incompetent reformers�.13
To reform for reforming without a deep reflection, without wide knowledge of the juridical, political, social and economic reality of a community, constitutes a real disorder, because for the political-juridical changes they do not exist �prescriptions�, but the instruments of the law and of the compared politics give ideas to us, they suggest us ways that we must ponder to consider which of them could be useful for the concrete reality of a certain country. To copy successful institutions of a nation to other one without considering the reality of the receptor, generally they drive to a noisy failure that to only effect that they achieve is to magnify the problems that wanted to be solved with this �prescription�. To analyze the systems failures to political institutions sound of profit if we studied the reasons of this failure and the why they did not work in the reality of that country.
In this aspect the expression of Charles de Gaulle that I chose as epigraph for this essay is eloquent, true, and precise.
Let�s see the ideas of some commentators who have intervened in this debate and who in my opinion deserve to be examined.
V. JUAN LINZ�S THESIS
A. A point of essential reference in this debate they are the studies of the very distinguished political scientist Juan Linz, who is a great defender and promoter of the advantages of the parliamentary system over the presidential one. Linz penetrates into aspects little studied of the systems of government and though if one does not agree with him, it is necessary to recognize the undoubted merits of his analyses.
Juan Linz departs from the principle of that can be or not at random that many presidential systems have found serious problems to establish stable democracies. After examining both systems of government and of presenting his arguments in favor of the parliamentary system, he clarifies that a presidential democracy, it can be a stable system though its probabilities in this respect are not really favorable. Likewise, he expresses that the parliamentary systems not always guarantee the stability but they facilitate the indispensable flexibility in the difficult steps towards a democratic transition.
Linz clarifies his thought in asserting: �I am only insisting that the presidential government seems to suppose a greater risk for a stable democratic politic than the contemporary parliamentary�.14
The prudence of this commentator with regard to his affirmations stands out, with to which he proves his talent and he himself accepts that to come to definitive conclusions still are lacking empirical studies. The important thing is that the examination of the systems of government �that was very neglected�, has acquired special presence from serious studies as those of Juan Linz and those of Arturo Valenzuela, who invite to the meditation and to the debate.
B. The principal arguments of Linz, in synthesis, to support his thesis, are the following:
a) In the presidential system there is a democratic dual legitimacy to the being the elect president directly. Democratic legitimacy which also the legislators enjoy and when the majority of they represents a political option different from his, it can develop a conflict among powers that the procedural-constitutional resources difficulty will solve and that enclosed it can lead to the intervention of the army since as �moderating power�.
b) In the presidential system, the Executive is elect for a fixed period, without the possibility of introducing adjustments as is needed by the political, economic and social events. In the parliamentary system in presence of the mentioned events the prime minister can request a confidence vote to the Legislative Power and if this is achieved his authority and democratic legitimacy fortifies; but if it is not obtained, a change of government will happen, to which it grants flexibility to this system. In these cases it is generally the people across the new election, which decides which of the powers had the reason.
c) In the presidential system a game is carried out of �gain everything�, since the victorious candidate, he alone integrates the Executive Power, whereas that in the parliamentary system a first minister who does not reach any more than 50% of the seats, is compelled to forming a coalition government or to having a minority government while this one can survive.
Linz himself accepts that in a parliamentary system such as the English one, when a party reaches at least the majority of the seats in the lower house �a situation of win everything is produced�, which does not happen in a presidential system if the winning Executive does not possess majority in one or in two chambers of the Congress.
This commentator determines that:
The character of sum zero that the political game has in the presidential regime is seen reinforced by the fact that the winners and losers are defined by the period of the presidential mandate, a series of years during which there is no hope to modify the alliances, of modifying the base of support thanks to big coalitions of national unity or of emergency, of dissolution and new elections, in situations of crisis, etc. The losers have to expect four or five years, without access to the Executive Power and therefore neither to the possibility of intervening in the formation of the government, and without access to the opportunity to distribute all kind of advantages and positions among its coreligionists. The game of sum zero increases the attacks in a presidential election both for the winners and for the losers and inevitably increases the tension and the polarization.15
d) In the presidential system, the responsibility and the obligation to be accountable of the stability and of the politics of government, correspond only to the Executive Power. For this it is �very likely� that the political parties of opposition are opposed, criticize and even fiscalize the president, without granting any support to him, not even to answer to his initiatives, even less to take responsibility of them.
If the parties, included that of the own president, lean unpopular measurements of this one, they will not take any remuneration as it. On the other hand, yes they can be in turn electoral punished. This it is the reason for which a president needs to be obliged to use measurements clientelistic and to the allotment of benefits to try to neutralize the opposition.
For Alonso Lujambio, from the perspective of Linz, this one is one of the aspects of major potential of conflict between the Executive and the Legislative one, and the one that can cause the paralysis of the own system of government, without there exist the flexible means that it grants the parliamentary system to overcome this paralysis since they are the dissolution of the legislature for the Executive or the motion of censorship to the prime minister.16
Linz affirms that the presidential system has reinforced in some countries the aspect of not structured, the non discipline and the ideological inflexibility of the political parties.17
e) In the presidential system the concentration of power in the Executive has stimulated in many occasions to limit this one in time �principle of not reelection� to which turns out to be �frustrating� for ambitious leaders who try to reform the Constitution to continue in the power. Sometimes �indicates Linz� the conscience of that the time is limited it has an impact in the style of the politics and the possible distrust to the successor, who stamps a sensation of urgency that contributes to the incorrect design of the politics, to putting them in practice with precipitation, to get impatient with the opposition, to realize expenses that should be distributed across the time and to implant politics that can support tensions and be ineffective.
A person who has occupied the presidency with such a heap of power difficultly is going to resign to not returning to occupy this cargo and any more if his successor fails. It can propitiate that the one that tries to exercise the power behind the throne or to influence the presidential succession with a candidate different from that of the holder of the power.
f) In the presidential system one lacks a king or a chief of State that can intervene symbolically as a moderating power and that can in cases of crisis act as a neutral power that collaborates to overcoming them.
g) In the presidential system it is feasible, not this way in the parliamentary, that a �stranger� accedes to the power, and more if in this country there does not exist a system of strong parties. This �stranger� can be no experienced either in government not even in politics and he can present, even, with hostility to the parties and the politicians. These candidacies can arise suddenly and take advantage of the social discomfort and the frustration, capitalizing the hope of which a �savior� is had. The problem is this kind of presidents does not count with supports in the congress because of being foreign to a political party and generally he does not have the sufficient time to construct a partisan organization. Only in presidential systems, candidates can come to the power such as Fujimori, Collor de Mellor or Aristide.
h) In the presidential system, the elections address aspects that are markedly individualistic, of plebiscitary character; more than for a party and a program is voted by a person the one that is considered to be the best to take responsibility of the destiny of the country and leaves him to govern the nation with enough discretion and up to where the limits that the relations of power support. This mentioned plebiscite character, that allows the candidate to promise everything and of quite everything, often in a irresponsible way, grants to the presidents after the election a very high index of approval that can come to 70 to 80 per cent, to which rarely happens in a parliamentary system.
Linz mentions O�Donnell, who affirmed that to the presidents, �today they are acclaimed as providential figures, tomorrow they are cursed like to fallen gods�. Nevertheless, the own commentator admits that enclosed in the parliamentary systems, every time with more frequency, is voted by the leader of the party that is thought can govern better. That is to say, the personalization of the leadership is nowadays a reality also in the above mentioned systems.
i) In the presidential system, the fact that in many cases there exists a vice-president who substitute automatically to the president in case such as death, disability or dismissal, it can present potential problems because: they can have conflicts between them, sometimes the vice-president is elect in form separated to the president, the vice-president can represent a fraction or to a party different from that of the president, or the latter to chose as companion of formula for the election, not for his qualities to govern, but in order that he or she was helping him to gain the plebiscite election.18
C. It is clear that after this devastating critique to the presidential system, Linz is in favor of the parliamentary because his �presumption� is that this system propitiates: a) bigger responsibility towards the government on the part of the parties and its, leaders; b) bigger obligation to the parties to be accountable �with the exception of a extreme political division�; c) the need of the parties to cooperate and to negotiate commitments �unless than one of them gains the absolute majority of the electoral precincts�; d) that in necessary case of a change in the leadership, this one is carried out without a crisis of regime; and, e) a continuity in the government without the fear of the continuism since it happens in the presidential systems.
Linz realizes a good study of the mixed systems �semi parliament and semi presidential� and is definitely in opposition to them. Nevertheless, he says that in Latin America, these mixed systems constitute an indirect and �surreptitious� way of inclining for the parliamentary system, to incorporate parliamentary practices but preserving the symbols of the presidential government This attitude attributes to the lack of disposition and will to dare to carry out a radical change in the evolution political-constitutional. This author demonstrates �and here he reasons well� that the parliamentary system enjoys neither the favor of the politicians nor of the constitutionalists in Latin America.19
D. This distinguished author exemplifies his affirmations with diverse and abundant cases relating to Latin America. It calls the attention that he does not refer to Mexico, with the exception to the principle of not reelection. Why? Since it is not said, it is possible to speculate: It is because he does not consider that Mexico is a democratic regime? It is because Mexico has taken political stability as decades though the real system that is known is a degeneration of the presidential system? It is because a system that was politically not competitive, it was not useful for his analysis?
VI. THE CRITIQUES TO JUAN LINZ�S THESIS
The thesis and arguments of Juan Linz have received diverse critiques and I add others, but it is necessary to be clear of that the own Linz has realized that some of his arguments can be counter pointed and he has gone forward to several of the objections and has counter argued.
The principal critiques that can be done to the thesis of Linz are the following ones:
a) Several presidential systems in Latin America certainly have been unstable, whereas in Europe the parliamentary systems, in general, have been stable especially from the Second World War though there are exceptions.
Attributing instability or stability to a democracy only for the system of government without referring to other factors, is not correct because in Latin America the political instability of the democracies answers basically to grave problems as the deep social inequality, the poverty, the lack of education in numerous groups, the economic delay, the not integration of ethnic groups, the demographic explosion, the lack of civic culture, immense social remainders and, sometimes the existence of weak political parties.
b) In spite of all the problems mentioned above, in Latin America are and there have been presidential democratic systems that enjoy and have enjoyed stability and Linz does not refer to them or only very fast: for example, Costa Rica from 1948, Venezuela from 1958, Chile between the thirties to 1973 and Uruguay between the forties to 1973. That is to say, in these cases, these presidential democracies have worked or they worked for more than 25 years, or in them stabilizing elements existed.20
c) To compare in Latin America the presidential system �that yes exist� with the parliamentary system �that it is not know and in the past only existed for brief periods and with instability� turns out to be a speculation very favorable for the parliamentarism because when this one existed it was a �truncate system� and not at all successful from the perspective of the stability?21
d) In Latin America from 1978, to which is already a part of its history, many democratic transitions took as a riverbed the presidential system and many of them �with the same constitutional frame in the epoch of the collapse pre-authoritarian�. Certainly that the democratic consolidation and its success is related to the efficiency of the government.22
e) The election of the president for a fixed and rigid period grants stability to the regime because the congress will not be able to interrupt this period with a motion of censorship. The government knows that counts with a certain time �generally not reducible� to develop the program that was proposed during the electoral campaign.
f) In the presidential systems it does not occur a game of �gain everything�, such as was expressed by this author, who admitted that when the party of the president is minority in the congress, this principle is modified radically.
Alonso Lujambio in this aspect demonstrates that the federal system constitutes an important element for �to lessen the majority and exclusive character of the presidential democracy�, since the parties defeated at a national level, they can win state gubernators, local representations and municipalities, with that they reduce its resentment and frustration produced by the defeat to win the presidency and it weakens its possible anti-system attitude since they are governing instead of only being opposed; in governing they get more sensible of the complexity of the social problems and of the functions of government, to which brings in itself an conciliation among the elites, which it is very important for the stability of a democratic regimen.
Besides the parties of opposition to the federal government when win local elections have the opportunity to demonstrate that they are a serious responsible political option and that they know how to govern.23
g) The same Alonso Lujambio and Ulises Carrillo express that the parties of opposition to the president in the congress can cooperate with him because not all the political parties in the presidential systems have the ambition of reaching this cargo in the short and medium term, because they are too small for it though, certainly, if the system of parties has a moderate fragmentation, the parties that aspire to the presidency are more numerous than if the fragmentation is extreme.
Strategies of partisan growth or survival, can find a cooperative behavior profitable, depending on the political situation and the form in which the president and his party are perceived by the electorate. In any case, our argument tries to interlace all these variables: in a system of parties of moderate fragmentation, the parties of opposition do not want to cooperate due to the fact that they prioritize in its strategy of short term the probability of a close victory of the presidential competition, but, at the same time, they can pay the cost of a institutional paralysis derivative of attitudes clearly identified like not cooperative societies or, even worse, obstructionists.24
These authors conclude in preliminary form that the argument of Linz has force in systems of moderate fragmentation in where the parties with presidential ambition feel like electorally costly the cooperation with the president.
However, the same it is possible to affirm that it happens in a parliamentary system if the prime minister does not count with majority of legislators in the lower house and the party or parties that integrate the coalition perceive that to support certain project of the prime minister, it is going to mean a high electoral cost and not to say what of the parties of opposition .In a parliamentary system with that correlation of parties, an initiative like that can bring even with the fall of the own government.
h) The principle of not reelection, which not all the presidential systems have and which acquires diverse shades of agreement with the regime, it can be one of the reasons of political stability like is in the case of Mexico, to which is already referred.
The alternating in the power decided by the people is an element typical of the democracy. Al higher political level is the constitutional evolution of every State the one that determines which it is the norm most adapted for this country in this aspect. In this case, like in many others, the �prescription� fail and smash into the obstinate reality.
The best test of the previous affirmations is presented to us by the United States of North America, where Washington on not having had agreed to be reelected for a third period, it established a constitutional custom that was respected until Franklin D. Roosevelt �a great president, one of the best of his country� managed to be reelected for a fourth term. The subsequent reaction was the reform of the Constitution of this country, through the amendment 22, to limit to two the periods of four-years for the North American presidency.25
In several epochs in this country it has been suggested that the president only must occupy the cargo during an only period of four, six or seven years: in this respect they were raised the presidents Andrew Jackson, Andrew Johnson, Hayes and Taft, likewise Lyndon Johnson y Nixon they did not see with displeasure such a possibility.26
i) Not all the presidential systems count with a vice-presidency. This aspect does not constitute an essential note of the system. What is important is that before the absence of the president, exists a rapid mechanism of substitution that prevents the nonexistence of the central Executive power or federal power. For example, in the constitutional history of Mexico it demonstrates that the vice-presidency has been pernicious in our country, for this reason was created in 1917 a system across which it is not known in advance who replaces the president if he is absent. The times that the above mentioned mechanism has had to be applied, it has been with agility and smoothness. In other words, it has operated well.27
j) There is no empirical evidence to support that in communities social and economically unstable and that politically have been even for little time re-founded on the democratic method, the parliamentary system will help to fortify the democratic consolidation and be really solid. On the contrary, it exists a deep worry for a change in the system of government that can bring with it constant renovations of the government due to the existence of several or multiple parties with certain ideology and polarization.28
VII. GIOVANNI SARTORI�S FORMULA
A. Giovanni Sartori parts from the premise that the presidential systems work badly and have turned out to be very fragile �with the clear exception of the United States of North America� because they have died before coups d�Etat and other �calamities�, and they can not handle the important crises.
The Columbia University�s distinguished professor does not agree with Juan Linz's thesis because �he affirms� the parliamentary democracy does not work if there do not exist parties adapted to the parliamentarianism; it is to say and/or disciplined cohesive parties. The disciplined parties constitute a necessary condition in order that the parliamentary system can work really because with undisciplined parties the above mentioned system falls down in the perversion of the regime of assemblies that always ends in the failure.
For it, a possibility is the substitution of the presidential system for one semi presidential; as the French model, which provides to the system the flexibility that the former one is lacking, though the latter leaves many problems without resolving and it is something fragile.
However, Sartori has a proposal that considers better that the system above mentioned, it is advised for Latin America and specifically for Mexico: the alternative presidential or intermittent presidential governments. This out-standing author indicates that both the presidential and the parliamentarian system are stimulated by an engine. In one, it is the president and in other one, the parliament. The system semi presidential has two engines that go in simultaneous form and carries the danger that they may go in opposite directions or even that they can manage to be one against the other.
His proposal resides in a system with two engines that are not ignited simultaneous but probably in successive form. Both engines are elect at the same time and for the same period. The system starts by operating as member of parliament and, if it works well, continues as such, but if not, the parliamentary engine goes out and it turns on the presidential one and which at the time it takes the own characteristics of the latter. In this form during the parliamentary period, the essential it is to have �a carrot that rewards the good performance and a cudgel that sanctions the bad conduct�.29
Sartori asserts that his formula rests fundamentally in three structural agreements: a) the parliament that has just been constituted, it chooses a government �if the legislature lasts four years, and two if it lasts five years�, to which implies that this system will work in agreement with the rules of the parliamentary normal system, b) if that parliamentary government fails, then it is changed to one presidential �fort-strong� into the rest of the period of the legislature; then, the president is converted also into chief of government to whom, can not be given a vote of censorship but himself can not dissolve the parliament, c) the period of the president, who is elect directly or indirectly for the suffrage of an absolute majority of the popular vote �if it is necessary across second election� and the period of the Legislative Power they coincide. The president can be reelect without any limitation.
Giovanni Sartori completes its formula with other considerations: d) while the parliamentary period passes, the president is a parliamentary normal president whose functions are those who correspond to a chief of parliamentary State, in principle without any of governmental character, e) the president has a �reserved� legitimacy and if the parliamentary system works well, it will not be necessary the alternation to the presidential system because it is useless to use the cudgel against the parliament, f) the parliamentary government will be �more effective and plucky� in order to keep the carrot and to govern really during the whole period, g) the parliamentary seats and the ministerial ones are incompatible among themselves, so that the president is not going to be tempted to compensate the legislators who to have helped to light the engine presidentialist, h) the intermittent president finishes his period to the same time that the legislature, and can not be converted into a presidentialist president in the beginning of each legislature, i) if the second motor is lit engine for the failure of the parliament, then is a strong president but it is probable that his real power is only from two to three years.
The author of Ingenier�a constitucional comparada concludes and questions, in synthesis, if the proposal of the alternative or intermittent presidential system �is it hard to understand it and to put it into practice? By no means. The basic idea is �say� that to a parliamentary system that works it is rewarded by allowing it to continue, while to a parliamentary system that does not work, him it is sanctioned by discontinuing it. Undoubtedly this one is an easily understandable idea�30 and all that will be needed will be a constitutional reform to introduce the parliamentary mechanisms in this system of government, to which Sartori does not find any difficulties.
B. Sartori's proposal constitutes a good intellectual exercise; nevertheless, it is very doubtful that in the practice can have good results. Diego Valad�s has done the following critiques:
a) The parliament would be prepared to tolerate a weak government with the perspective to have to face a strong president,
b) This weak government would be interested in negotiating constant political positions with the parliament to remain as such to even not to be harassed later by the president,
c) The president, with the possibility of really taking the power, would be courted by members the congress or of the government, to that would give him a strong unbalancing influence,
d) The arrival of the presidential system as a consequence of the failure of the parliament, it would accentuate the authoritarian characteristics of the presidential government,
e) There would be political forces interested in the failure of the parliamentary system to legitimize the political hardening,
f) To overcome the failure of the parliamentary system the engine of the presidential one is ignited, but in the following period it is begun again with the parliamentary system that has had in recent times considerable stumbles: how to explain this contradiction?,
g) Instead of obtaining alternatively the advantages of the parliamentary system and of the presidential one, to what would be achieved would be the altering of its faults: weakness and hardness.31
In addition, he would add other critiques:
h) The parliament would fight to continue with the parliamentary system and the president for the restoration of the presidential system. It might give a strong clash between the powers and who decides if the parliamentary system has failed or not? This clash might drive to a political crisis without the existence of instruments to solve it,
i) The president has a democratic legitimacy identical to that of the parliament since both have been elect, direct or indirectly, for the people. It will be possible then that the president resigns himself playing chief of parliamentary State without real power, at having a simple expectation of assuming the power? Would he not try to do all that he can politically in order for the parliamentary government to fail and then he can assume the full power of the government? Sartori�s proposal invites to the confrontation and to the open struggle between the Executive and Legislatively powers: would it be possible that the parliament collaborates with whom arrives to the power on the ashes of the government that it had designated?
j) The own Sartori express that is necessary to the parliamentary system the existence of disciplined parties, characteristic that generally is the opposite one in the presidential systems. Would it will be possible that such disciplines, can it be impose or remove by the parties as a shirt depending on if the system works in that moment as a presidential system or as parliamentary?
C. The previous arguments lead me to conclude that this proposition does not correct the dangers that wish to conquer but it aggravates them: the clash of the powers, the deepening of the political crises and the governmental instability.
For the previous reasons, the proposition of the distinguished professor Sartori is not a route for Mexico; it would be necessary in order for that to function that the politicians were angels and not persons that follows power and chase it to exercise it with diverse means and purposes but, in any case, to exercise it. Generally they have not given proved results, the systems in which in advance is known who is going to replace the holder of the power if this one is absent, it fails because the substitute�s hurry and urgency to occupy this place.
VIII. THE IDEAS OF DIETER NOHLEN
A. Dieter Nohlen supports that changing the system of government in a country is not at all easy because it implies achieving consensus that are difficult to reach since that is the nucleus of the organic part of any Constitution. I agree with this affirmation.
For such a reason it is more feasible to realize a �functional adequacy� to the presidential systems across �institutional and practical steps� in agreement with the reality and the problematic of every country, though common factors exist. In this supposition to what is pursued is �to improve the functioning of the government� introducing mechanisms that they make it more flexible, agile and effective.
The practical steps, to which this author refers, are principally those who move away from the concentrating presidential tendency and follows a �delegatory line in different functions of government and of administration�. The previous thing implies a fracture with the concentrating politic that has been and it is a common practice of the Latin-American systems and of its political culture, as well as a rejection to the impulse that has any president of this region of increasing his or her power because the weakness that in multiple occasions the political parties present.
B. Nohlen�s main proposal to adapt the presidential systems �specially the Latin American ones� is in decentralize the functions of the president into the figure of a prime minister, even though this was for presidential delegation.
It would be necessary to have in count the diverse presidential systems as well as the realities in which they act, but in Latin America, the prime minister inside the presidential system would have basically three purposes:
a) To take the headquarters of government, for presidential delegation, principally the coordination of the cabinet and the supervision of the administration of the State. The president would fulfill his or hers attributions as chief of State and would be devoted to achieve political and social consensus above the differences.
b) The function of bridge and negotiation between the Executive and the Legislative power to overcome possible mutual blockades among them and the harsh of the struggle among the party of the president and those of the opposition.
c) The protection of the presidential figure from the daily wear of the politics, avoiding the danger of which the president is the person in charge of all the politics and of all of the problems.32
Nohlen indicates that in the current discussion between the convenience of a presidential system or the parliamentary in Latin America, is present: a) an overvaluation of the presidential government as a negative legacy, as well as an overvaluation of how positive would it be to have a parliamentary system based on the success that this one has had in the European democracies, and b) the multipartisan reality and the ideological roots of the parties and of the political currents that approach more Europe than to the United States.
C. In my judgment, Nohlen�s offer is more feasible than the examined ones of Linz and Sartori because: a) on the one hand, it is based on a deep knowledge of the Latin-American reality and how difficult that would be to reach the political consensus to transit to a system that us is foreign but guided by the mirage that this is a success in western Europe without considering in account the abysmal differences �by disgrace� in political, social, economic and cultural that separate us from the democracies of the old continent, and b) for other hand, it eludes political experiments that would have high possibilities of failing.
This author is conscious that the current presidential systems in Latin America have to be updated, rejuvenated or reformed; that they could remain such as they exist today, it does not seem to be possible because already they do not answer to the democratic current aspirations and in many cases it gives in itself a clash or blockade among the political powers without existing adequate instruments for its solution. In consequence, Nohlen does a fundamental proposition: the introduction in such mentioned systems in the figure of a prime minister even though it was for presidential delegation.
Now then, the introduction of a prime minister or of a chief of cabinet inside the presidential systems of Latin America has come winning followers and defenders. In principle it is an idea that already is a constitutional norm in countries as Argentina and Peru.
IX. ALONSO LUJAMBIO�S PROPOSAL
A. Alonso Lujambio�s principal concerns on these topics are found: in that �the governability can be conquered through more democratic means�, in that Linz has reason on having affirmed that a presidential democracy is intrinsically unstable, and that there is not contemplated possibly that Mexico travels to a parliamentary system.
For this is indispensable �this distinguish author asserts� to carry out a series of institutional arrangements to achieve the stability of a presidential democracy in Mexico with the purpose to avoid prolong political paralysis.
Among the aspects that there would be necessary to review in our country, Lujambio enumerates: the constitutional power of the president, the functions of the congress, the calendar of presidential and legislative elections, the presidential election by the relative majority in one ballot return and the federal system. Likewise it is necessary to bear in mind the number of political parties and the discipline that exists in them.
This author affirms that: �The combination of a system of three disciplined parties in the frame of an electoral proportional system inside the institutional sphere of the presidential regime of government is a democratic equation possible for the Mexico of today�.
Lujambio proposes to reinforce the formula of proportional representation in the legislative seats in order that the president does not count with an automatic majority in the congress and to be obliged to negotiate with the opposition parties, basically the president worries on the approval of the project of budget.33
Lujambio also suggests other reforms: to increase to 5% of the voting, the percentage in order that a political party has right to popular representatives; if suppressing the intermediate elections of the legislators, it would be necessary to shorten the presidential period from six to five years. This clear and sharp author analyze other elements for the political stability of Mexico, such as the existence of a moderate number of parties, the influence of an authentic federal system in the presidential regime, the preference for a presidential election on at only one turn and resources for the political support.34
B. Lujambio comes closer to a doctrinal current that every day has more defenders because it is realistic, because it does not believe in the �prescriptions�, because part of the examination of the social, political and economic context of the country. One is nonconformist with the faults of our presidential system, though many of its evils are not in the constitutional structure but in meta-constitutional vices and in the system of parties that we have had in which one of them has possessed a special hegemony or predominance.
Of course one wants to and it is imperative to possess a strengthened and renewed democratic regime, without the risks of the political experiments. For it, it is affirm that what is better is the subsistence of the presidential system, but reinforcing its democratic legitimacy and efficiency across the constitutional reforms, to achieve a suitable control of the Executive on the part of the Legislative on changes in customs and corrupted political and constitutional practices. In this current of thought Lujambio is and it is most adapted for our country.
X. DIEGO VALAD�S�S LINE OF THOUGHT
The ideas have continued becoming more refined and being more precise. Diego Valad�s in his last and very important book expresses with great clarity the reasons for which he is partial to a renewed or reformed presidential system. It starts by affirming that any constitutional system well constructed offers conditions of governability and that a constitutional system only is that one that is democratic. The reason is with him.
When radical changes are realized he asserts that there exists the risk that, for the inexperience in the managing of the new institutions as well as for the resistance to change for whom reject this changes, the results are not so rapid, effective and attractive as expected . With depth it one can observe:
It would not be necessary that the parliamentary experiment to fail, it would be enough that the results would be one step behind the promises or wishes, for the tendencies toward restoration to get stronger, which use to revert in virtue the defects of old regimens.
If from this risk would depend the only possibility of a solution, it would be worth to try it. But if experience and reason indicate that there are other solutions, and that it is possible to deepen the route of reform, adopting and adapting even their own mechanisms of parliamentarianism that, with good possibilities of success, might be grafted on the presidential government, it is worth to try it. The political limitations of the sum zero, which have reduced the functionality of the presidential current system, can be overcome.
The reform that Mexico needs must try: to improve the functionality of the organs of power, to attend to the demands, and the reasonable expectations of the collectivity, and to return the general confidence in the above mentioned organs. Any reform that impedes the functionality of the organs of power will have negative effects for these organs and for the community. The reform must be done, precisely, to consolidate the democratic efficiency of the institutions and thus, to recover civil confidence.
If the design that is adopted is insufficient, the objectives of the reform will not be reached, and if it is excessive, it will unleash processes of blockade in the action of the organs of power, with the consequent frustration of the reasonable general expectations of change.
In this context the reform that is tackled will have to have all three following objectives: to re-balance the relations among the organs of the power; to re-define the functions of the organs of power; and to restore the functional legitimacy of power.35
Valad�s examines and enumerates the reasons for which certainly the Mexican presidential government was functional for decades and synthesizes them in that programmatical rules of the Constitution were becoming reality.
At present �he affirms� the Mexican case must concentrate in the transition of a presidential system to another presidential system that consolidates democracy and re-balances the relations of power in our country.
To reach this new rationality of power, Valad�s proposes a series of constitutional reforms such as the reelection of the legislators, the referendum, to summon the secretaries of State, the ratification of the cabinet by the Senate, civil service both in the Legislative Power and in the Executive, the creation of such governmental organizations only by way of the law, the development of new constitutional autonomous organs, the amplification of the ordinary periods of meetings of the presidential legislative Congress, the duration of the presidential and legislative periods, the presence of a head of cabinet and the discussion and approval of initiatives in blocks.36
The initiatives in block, which must be for exceptional cases, are those that the congress approves or rejects in �block�, as a unit, by virtue of which they cannot be partially altered or reformed.
Valad�s concludes with wisdom that the transition of the presidential Mexican system is in the establishment of a new relation among the organs of power, which will have to be stable and lasting; that is to say, that the same one should not be altered constantly across constitutional reforms.
Valad�s�s thought has the merit of being lucid, concrete and intentional. To enumerate �just like Lujambio has done� a series of offers to renew our presidential system, he collaborates elaborating the agenda of the above mentioned renovation, to which the topics are listed that Mexicans must discuss in order to agree to a new presidential system where actually the weight and the counterweights work among the organs of power; that the power stops the power, in agreement with famous Monstesquieu�s ancient and very certain prayer.
XI. MANUEL ARAG�N: �PARLIAMENTIZING� THE PARLIAMENTARY SYSTEM
The worry for the efficiency and the good functioning of a system of government in which a real balance of power exists is not limited only to the presidential systems but exactly the same worry exists with regard to the parliamentary systems in the democratic countries of Western Europe.
I examine some ideas of the distinguished Spanish commentator Manuel Arag�n because these provide to the discussion a more precise perspective that is useful in Mexico. Any comparison turns out to be unjust, but Manuel Arag�n�s worries with regard to the parliamentary European systems are very similar to those which have been expressed in this essay with regard to the presidential system in Latin America and specifically in Mexico.
Arag�n tells us that in Europe there are two contradictory trends with regard to the presidential system: one of the critiques and rejections that appeared mainly during the period between wars �and that still exists� and the other one of appraisal and emulation based on the extension of the personalistic element in politics, which is reinforced with the impact of television, the leadership to the interior of the parties, the weakening of the parliaments and the form of government of the European Union where the protagonism corresponds to the governments. All of the former has strengthened the executive powers and has been creating in Europe a system of government that respects the parliamentary structure, but that grants the indisputable primacy not to the government but to the person who heads, who is called chancellor, prime minister or president of the council. In reality it has given itself a �presidentialization� of the parliamentary systems although not leading to the presidential system, but a hybrid system in which many of the disadvantages of both systems are combined and very few of its advantages; that which exists is a distorted parliamentarianism.
In this hybrid the electoral control survives on behalf of society but not the weight and counterweights that should exist among the organs of power in any democracy, with which a paradox occurs: the Legislative can be weaker and the Executive stronger than in the same presidential regime.
The renowned professor of the Autonomous University of Madrid indicates that a presidential system cannot work without a strong Legislative, and to a much lesser extent can a parliamentary system, and it is because of this that in Europe it turns out to be imperative the strengthening of the parliament to overcome its lack of tone.
The European systems of government, then, need to be imperatively �parliamentarized� because at present, besides, the massive means of communication and the courts of justice occupy the central place of the political life to the detriment of the parliaments.
It is necessary to strengthen the parliaments, which turn out to be the political axles of the system. Aragon suggests diverse measurements with this objective, among the ones that he mentions are: that which is related to the electoral system and the organization of the elections, the organization and the financing of the political parties, the organization and the internal functioning of the chambers and the institutional dignifying of public life.37
Manuel Arag�n�s concerns and his propositions are exactly the same ones to which I have referred in this essay and they are the same ones that the commentators stated and which I have indicated: it is necessary to strengthen the Legislative Power, and it is necessary to obtain a new relationship among the organs of power where balance exists and weight and counterweights among them, as well as the shaping of a system of parties that turns out to be effective in the functioning of the political system.
In other words, the very interesting exhibition of Aragon makes us see that the problem is not in the existence of a parliamentary system or of a presidential one, but in the aspects mentioned in the previous paragraph, though, certainly, the system of government is an important piece, but only one, of the set of the political system.
A system of government should respond to the reality and to the needs of a country, to reinforce and strengthen that balance of powers that is indispensable in any democratic regime, be it presidential or parliamentarian.
XII. MY REASONS AND MY PROPOSITIONS
Of the previous pages it is clear that a priori, in abstract, the parliamentary system is neither better nor more democratic, nor does it help in obtaining a more suitable balance among the powers, nor helps any more the governing of a country than the presidential one, and that these systems work, with the same Constitution in a very different form, in agreement with the party and electoral systems that exist in every country.
The system of government answers to factors and political facts of every State �though there are common factors�, to its political evolution and maturity, to its constitutional customs. There is not in this respect, I assert, �recipes� but it is necessary to be very careful in order for the system of government to be according to the real needs of the country. The general principles of a political system should be fine tuned, adjusted, reformed, and innovated according to the reality, needs and political aspirations of the community.
I agree, for Mexico, with the current thought that is represented by Nohlen, Lujambio and Valad�s and, as the latter one said, in our country the transition must be from one presidential system to another presidential, but reformed or renewed system.
Based on reflections and my own ideas, and those shown by diverse authors outlined in this essay, I manifest, as a synthesis, the reasons for my position and my propositions to reach the presidential renewed or reformed system, in which a balance exists really of the organs of power, that the weight and the constitutional counterweights work correctly, and that the party and electoral system strengthen the political system in order for our democratic evolution to continue our democratic evolution and the way to a political system that eliminates vices and decades of mistakes that resulted from an authoritarian regime, with some democratic elements, whose axle and vertebral column has been the president of the Republic.
B. In Mexico, I am:
a) In favor of a presidential system of government,
b) In opposition to the presidential government,
c) In favor of a renewed presidential system.
I will try to explain my previous statements.
- I am in favor of a presidential system of government, because:
a) The experience of the compared constitutional law demonstrates that with it is possible to achieve balance among the organs of power, a suitable control of the Legislative branch with regard to the Executive and the strengthening of democracy. The current democracies in Latin America have this system of government as one of their foundations;
b) It is possible to have negotiation among the powers and, therefore, its own governing;
c) It is the system that knows the constitutional evolution of our country, and in these so important aspects for political stability it is not necessary to be doing theoretical experiments. There are examples of States with presidential systems that artificially passed to parliamentarian systems and then went back to presidential systems because the medicine turned out to be worse than the illness. An example is the case of Brazil in times of Goulart;
d) I do not find for Mexico any advantage of the parliamentary system over the presidential one. On the contrary, if really we manage to form a multiple party system, the presidential system guarantees better the division of power and the weight and counterweights among them.
- I am in opposition to the presidential government, because:
a) It is a degeneration of the presidential system in which it submits to the other powers and is stretched to dictatorship and to arbitrariness;
b) It injures the democratic regime by reducing the real political actors, concentrating the principal powers in the Executive branch;
c) Generally the president exercises functions that correspond to the Legislative branch, and even ones that are not corresponding to any power, except to the electorate;
d) The freedoms of people can be in danger because in reality it is difficult to stop the arbitrariness of administrators.
In Mexico, during the last decades, the presidential system developed by the Constitution of 1917 has not been in operation, but a form of presidentialism that, like I already had expressed, I tried to analyze in my book El presidencialismo mexicano, edited in 1978.
To what I call presidentialism, Karl Loewenstein has referred to neopresidentialism whose relevant characteristics are, according to this author, the existence of an authoritarian government; concentrating the legislative and executive attributions in the President, and the subordination of the Legislative to the Executive branch; differentiating it from autocracy through the existence of constitutional procedures, and separating it from the autocracy for the existence of constitutional procedures.38
- I am in favor of a presidential renewed system, because:
a) Our country is today very different than that which the constituents of 1916-1917 knew, who conformed a presidential system with its classic mechanisms and its respective controls, attributing broad attributions to he president of the Republic;
b) It is necessary to obtain a better equilibrium of powers which our Constitution currently structures, providing some additional controls to the Legislative Power, but I must clarify that I am not in favor of a weak Executive nor that we transfer the predominance of the Executive to the Legislative. Neither hegemony nor superiority of any of the powers but rather equilibrium, weights and counterweights, among them;
c) It is indispensable to give back to society and to the other powers, the faculties that the federal Executive has usurped in the last decades. He can only act with the faculties that the Constitution specifically lays out for him and with the laws, and with no other;
d) Mexican society wishes to perfect and to strengthen our democracy and the political system that is changing and that is impossible to be again what it once was. Society will not allow it.
C. Within this scheme of renovation of our presidential system, I think that a series of constitutional reforms should be realized; I signal some of the ones that I consider should be discussed, because our fundamental law should not be modified in this aspect until after a truly national discussion that expresses what is the will of Mexican society. I suggest that among some of these topics the following be included:
a) That the Congress posses the attribution of ratification of some of the appointments of the presidential cabinet, in the way that it occurs in the United States of America;
b) The revision of the faculty of the presidential veto so that no doubts exist when the president of the Republic does not possess this attribution or whichever modality he has;
c) The introduction of the figure of the chief of the cabinet of ministers, as it occurs in Argentina since 1994, who is appointed by the president of the Republic but he is politically responsible before the President himself and before the national Congress which can remove him with the vote of the absolute majority of the members of each one of houses;39
d) The revision of the legislative faculties of the President of the Republic in order to determine very important aspects, for example, if he has attribution for creating decentralized and deconcentrated organs such as he has realized, the range of the norms concerning general healthfulness issued by the Executive and the extension of the �executive agreements� in the international scope;
e) The revision of the legislative process so that in the new Mexican political reality there not be a �legislative paralysis�, even less so regarding the budget project. Comparative law can be very useful in this aspect;40
f) The creation of a true and efficient organ of control dependent upon Congress regarding all of those faculties that refer to �the power of stock-market�;
g) The creation of technical bodies of a high caliber in diverse disciplines that help the legislators and those who are assured stability at work in order to foment their experience. Of course they would be bodies of separatist technicians as much is humanly possible;
h) The revision of the constitutional system of responsibility of the President of the Republic so that he does not dare again to exercise the functions that are not his;
i) One formula that permits the reelection of the legislators but with certain limits,41 and
j) The introduction of mechanisms of semi direct government such as the referendum and the popular initiative.
Notes
* Translated by Diana Hern�ndez Holtzman.
** Researcher at the Legal Research Institute.
1 Nogueira Alcala Humberto, �Los presidencialismos puros y atenuados. Los casos de Chile y la Argentina�, Bolet�n Informativo, Buenos Aires, year XIV, num. 144, 1998, p. 5.
2 Ibidem, p. 3.
3 Vanossi, Jorge Reinaldo. �El �habeas data_�: no puede ni debe contraponerse a la libertad de los medios de prensa�, El Derecho. Buenos Aires, year XXI, num. 8580, Universidad Cat�lica Argentina, 1978.
4 Carpizo, Jorge, El presidencialismo mexicano, Mexico, Siglo XXI, 1978.
5 Respect to the characteristics of the presidential or parliamentarian systems, see Loewenstein, Karl, Teor�a de la Constituci�n,_ Barcelona, Ariel, 1965, pp. 105-107; Carpizo, Jorge, �Derecho constitucional�, Las humanidades en el siglo XX. El derecho, Mexico, UNAM, 1976, pp. 120 and 121. Carpizo, Jorge, first work mentioned p. 14. Duverger, Maurice, Instituciones pol�ticas y derecho constitucional, Barcelona, Ariel, 1962, p. 319.
6 Carpizo, Jorge, Derecho constitucional, cit., p. 124.
7 Jennings, W. Ivor, The British Constitution, London, University of London Press, 1966, pp. 179-184. Wade, E. C. S. and Phillips, G. G., Constitutional Law, 7th ed., corrected with A. W. Bradley, London, Longman, 1966, pp. 95, 102, 123, 125, 126, 191 and 192. Carpizo, Jorge, Lineamientos constitucionales de la Commonwealth, Mexico, UNAM, 1971, pp. 37-45.
8 Duverger, Maurice, La Monarchie Republicaine, Paris, Editions Robert Laffont, 1974. Since page 109, it is refereed to the great power that the English prime minister has, who leads a republican monarchy more efficiently than the United States. Currently in the Great Britain �sustain� the legislative elections has become the election of the prime minister, which posses a great authority over the parliament throughhis own majority party and the discipline of the own party. The Parliament approves or rejects the law projects in accord to the will of the prime minister, p. 118.
9 See Ardant, Philippe, Institutions politiques et droit constitutionnel, Paris, LGDJ. 1996, pp. 432-519. Planas, Pedro, Reg�menes pol�ticos contempor�neos, Mexico, Fondo de Cultura Econ�mica, 1977, pp. 293-320. Pr�lot, Marcel and Boulouis, Jean, Institutions politiques et droit constitutionnel, Paris, Dalloz, 1980, pp. 663-721, 805-810 and 845-856. Hauriou, Andr�, Derecho constitucional e instituciones pol�ticas, Barcelona, Ariel, 1971, pp. 532-609.
10 Sartori, Giovanni, Ingenier�a constitucional comparada, Mexico, Fondo de Cultura Econ�mica, 1994, pp. 148 and 149, made a characterization of the semi presidential systems. Lijphart, Arend (�Presidencialismo y democracia mayoritaria: observaciones te�ricas�, in Linz, Juan J. and Valenzuela, Arturo (comps.), Las crisis del presidencialismo. I. Perspectivas comparativas,Madrid, Alianza Universidad, 1997, pp. 153 and 154) he mentions diverse authors who conclude that the semi-presidential system in the reality is an alternative of presidential system and parliamentary system but it is not a mixed or hybrid system: �Raymond Aron wrote in 1981: �The president of the Republic is the supreme authority he is to say, the authentic chief of government while he, should have a majority in the National Assembly; but the reality of the power must yield to the prime minister in case a party that is not his has the majority in the Assembly�. This is exactly to that happened in 1986: the Prime Minister Jacques Chirac was converted into the chief of government and the president Francois Mitterrand was reduced to a mere special role in exterior politics. The systems Finnish and Portuguese� after 1982 they remember to the French model in 1986-1988, and therefore should be classified as parliamentarian. It is possible that a system can be designed as semi-presidential and semi- parliamentarian way �probably specifying in the Constitution that the president and the prime minister head together the government�, but in the reality there are no examples of this intermediate regimens. In concrete, the Fifth Republic is generally presidential instead of semi presidential, and only occasionally parliamentarian. Maurice Duverger, anticipating the step to parliamentarism in 1986 and again to presidential government in 1988 �so as Aron�, he concludes that the Fifth Republic is not �a synthesis of the systems parliamentary and presidential�, but a �_alternation_� between presidential and parliamentary phases�. Of the so called system semi presidential �that is not such� is worth to examine the German Constitution of 1919 and the Spanish of 1931, and more recently the Portuguese of 1982.
11 Carpizo, Jorge, El presidencialismo..., cit., pp. 55-58.
12 See Goodspeed, Stephen Spencer, �El papel del jefe del Ejecutivo en M�xico�, Problemas agr�colas a industriales de M�xico, Talleres Gr�ficos de la Naci�n, 1955, vol. VII, p. 155. Cos�o Villegas, Daniel, La sucesi�n presidencial, Mexico, Joaqu�n Mortiz, 1975, pp. 113, 118-120. Lerner de Sheinbaum, Bertha and Ralsky de Cimet, Susana, El poder de los presidentes. Alcances y perspectivas (1910-1973), Mexico, Instituto Mexicano de Estudios Pol�ticos [Mexican Institute of Political Studies], 1976, pp. 246-248.
13 Sartori, Giovanni, op. cit., p. 12.
14 Linz, Juan J., �Democracia presidencial o parlamentaria: �qu� diferencia implica?�, Las crisis del presidencialismo. I. Perspectivas comparativas, cit., pp. 28, 124 and 137.
15 Linz, Juan J., op. cit., pp. 33, 34, 37, 38, 46, 47, 54 and 55.
16 Lujambio, Alonso, Federalismo y Congreso en el cambio pol�tico de M�xico, Mexico, UNAM, Instituto de Investigaciones Jur�dicas, 1995, pp. 14 and 15. Carrillo, Ulises and Lujambio, Alonso, �La incertidumbre constitucional. Gobierno dividido y aprobaci�n presupuestal en la LVII Legislatura del Congreso mexicano, 1997-2000�, Revista Mexicana de Sociolog�a, Mexico, UNAM, 1998, vol. 60, num. 2, pp. 242 and 243.
17 Linz, Juan J., op. cit., pp. 126 and 127.
18 Ibidem, pp. 48-52, 64-66, 70, 76 and 87.
19 Ibidem, p. 120.
20 Ibidem, p. 66.
21 Nohlen, Dieter, �Sistemas de gobierno: perspectivas conceptuales y comparativas�, in Nohlen, Dieter and Fern�ndez, Mario (eds.), Presidencialismo versus parlamentarismo. Am�rica Latina. Caracas, Editorial Nueva Sociedad, 1991, pp. 20-22. This author argues that respect to the parliamentarian system in Latin America must emphasize three problems: �First, few experiences are negative. In Chile, the period from 1891-1925 is named �parliamentary� although this form only had the capacity of the parliament to censure the ministers (not this way to the chief of government, key characteristic of a parliamentary system), and the predominant knowledge on the period was to have produced a great instability to govern and an oligarchization of the politics. Secondly, the positions favorable to the application of a parliamentary system nowadays are minority, as well as the conditions politically institutional to achieve it. This way it is demonstrated in the debates in several countries in Latin America in the last years and it is demonstrated in the same book, with the only exception of Brazil. Thirdly, several Latin-American Constitutions contain parliamentary elements, but in the practice they have not been established. The case of a pure presidentialism in Latin America is rare�.
22 Ibidem, p. 24.
23 Lujambio, Alonso, op. cit., pp. 23, 24, 51, 52 and 99.
24 Carrillo, Ulises and Lujambio, Alonso, op. cit., pp. 243 and 244.
25 Carpizo, Jorge, El presidencialismo�, cit., pp. 59 and 60.
26 Schlesinger, Jr. Arthur M., The Imperial Presidency, Boston, Houghton Mifflin, 1973, pp. 386 and 387; Taft, William Howard, The President and his Powers, New York, Columbia University Press, 1967, p. 4; Corwin, Edward S., El Poder Ejecutivo. Funci�n y poderes. 1787-1957, Buenos Aires, Bibliogr�fica Argentina, 1959, p. 39.
27 Carpizo, Jorge, El presidencialismo..., cit., pp. 63-68.
28 Nohlen, Dieter, op. cit., p. 33.
29 Sartori, Giovanni, op. cit., pp. 101, 111, 112, 155 and 168.
30 Ibidem, pp. 170-175.
31 Valad�s, Diego, El control del poder, Mexico, UNAM, Instituto de Investigaciones Jur�dicas, 1998, pp. 408 and 409.
32 Nohlen, Dieter, op. cit., pp. 34-36.
33 Carrillo, Ulises y Lujambio, Alonso, op. cit., p. 263.
34 Lujambio, Alonso, op. cit., pp. 94-105.
35 Valad�s, Diego, op. cit., pp. 412 and 413.
36 Ibidem, pp. 404, 409, 410, 416 and 418.
37 Arag�n Reyes, Manuel, Estudios de derecho constitucional, Madrid, Centro de Estudios Pol�ticos y Constitucionales, 1998, pp. 282, 283 and 302-311.
38 Loewenstein, Karl, �La �presidencia� fuera de los Estados Unidos�, Bolet�n del Instituto de Derecho Comparado de M�xico, Mexico, year II, num. 5, 1949, p. 55.
39 Pizzolo (h), Calogero, �Argentina y Chile. Dos modelos de presidencialismo�, Bolet�n Informativo, Buenos Aires, year XIV, num. 145, 1998, p. 6; Nogueira Alcal�, Humberto, op. cit., p. 5.
40 Carrillo, Ulises and Lujambio, Alonso, op. cit., pp. 247-249. Diego Valad�s in an article entitled �Agenda para la reforma del Estado�, Exc�lsior, from July 20, 1998, proposed: �7. To fix clear and predictable rules for the approval of the budget. One thing is the discussion and definition of the policies of public spending and another is using the budget as a political threat to disarticulate the functioning of the institutions. The democratic State of law is weakened when periodically the danger of the total paralysis of the institutions emerges�.
41 I add this question among those that should be discussed in virtue of the wise arguments of Diego Valad�s and Alonso Lujambio; I also thank the latter for his observations concerning my list of topics that should be discussed in the path toward a renovated presidential system.