The Transformative Potential of Constituent Power: A Revised Approach to the New Latin American Constitutionalism (original) (raw)
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In the last thirty-five years all countries in Latin America have replaced or reformed their constitutions. Most of these processes were carried out with scant regard for the law. Rather it may be said that often they were the result of actions that were bestowed ex post facto with political legitimation through constitutional change (Brewer Carias 2004). Changes in the rules of the game that favour the promotors of change and the legal controversies that such processes engender are by no means a novelty. However, three recent experiences have attracted special attention from both local and international researchers. These are the constitution-making processes that have occurred in Venezuela (1999), Bolivia (2006 and Ecuador (2007-08). There are a number of reasons that explain the interest in these cases, most notably the fact that the three countries have experienced a political revolution through the elaboration of new constitutions that emanated from a constituent power embodied in a constituent assembly. Furthermore, the three cases share in common both that the parties or movements that pioneered the changes had recently assumed political power and that inequality, social crisis, corruption and the discrediting of party politics were all evident. Such a generalisation may hide certain relevant differences, but reveals a common underlying theme: the insertion of a political conflict into the constitutional process, a conflict between, on the one hand, the elites that had hitherto controlled access to power, and, on the other, an emerging group that promoted far-reaching institutional changes with the support of previously excluded social sectors.
On old revolutions and new constitutions: Constituent power in the Chilean constituent process
Constellations, 2023
In October 2019, the foundations on which Chile rested were shaken to the core. After a slight increase in subway fares, demonstrations against the measure began to escalate. By 10/18, around 20 subway stations in the capital were burnt to the ground, and pharmacies, banks, supermarkets, and shopping malls were raided all over the country (Sehnbruch & Donoso, 2020, pp. 52-54). The upheaval following them was the most massive in the country's history (Garcés, 2019, pp. 483-491). The poster boy of Latin American stability rebelled. The response from the political class outlined a way to channel the unrest: a route to a new constitution. The demand to replace the Constitution of 1980 imposed by the military dictatorship of Augusto Pinochet had been present for years (Heiss, 2021, p. 71). The constituent process, still underway, has numerous characteristics that make it worth studying. This essay will focus on one: The constituent power's role in the country's constitutional problem. It is a propitious moment to reformulate how the country has understood constituent power. Moments of constitutional creation are also moments of conceptual creation. In processes during which the law becomes more malleable, the principles on which it is built show more clearly their contentious and contestable nature. Constituent power is one of those principles. In the following sections, it will be argued that an erroneous conception of constituent power reveals a seemingly irreconcilable conflict. That is the one between the need for an unleashed constituent power capable of erasing the normative vestiges of the current Constitution and that of a process contained and outlined by the existing legal order, shaped to prevent the mistakes made by neighboring countries in recent years. A modern understanding of the purpose of constituent power can overcome this apparent contradiction. Instead of resorting to the concept to enact revolutions and proclaim new constitutions, it should be used to explain the dialectical and open character of democratic institutions. Nonetheless, it will be argued that even modern theories have problems in satisfactorily explaining the particularities of the Chilean process, and that although a "relational" approach has descriptive advantages, it still has normative limitations. The following sections will set out the problem in the following way: Section 2, "Constituent Power in Chile," deals with the theoretical and political problem of the constituent process: reconciling the demand for a "sovereign" constituent power to achieve a legitimate constitution and the need to constrain that power to avoid repeating the mistakes of South American constitutionalism. Subsection 2.1 details
2021
Constitutions are perceived as emanating from the popular will. Once in force, a constitution becomes a 'derived constituent' power built over an 'original constituent' power exercised by the people. But that is a fiction or a founding myth because there is no successful historical case of a first constitution-making process in a modern state engaging the free and fair participation of all or at least the majority of the people in a given community. Not surprisingly, there is a long-standing debate on the rigidity of constitutions addressed or perceived as addressed to protect the interests of a powerful elite (e.g. with rigid clauses to prevent constitutional replacements, perceived as illegitimate tools to protect such interests). More recently, against this background in some places has been postulated that the 'will of the people' should be above the established legal order (e.g., by installing participatory democracies). Accordingly, major constitutional...
Constitution-Building Processes in Latin America
2018
This report seeks to describe and analyse key features of constitution-building and reform processes in 18 Latin American countries during the period 1978-2012. The report, written by Gabriel Negretto, consists of four chapters covering constitution-making procedures, executive powers, citizen rights and constitutional justice, and participatory institutions. Each chapter was originally conceived as a discussion paper for participants in an international seminar, entitled 'Constitution-Building Processes in Latin America', held on 21-22 October 2015 in Santiago de Chile. The seminar was organized by the General Secretariat of the Presidency of Chile, International IDEA and the University of Chile Law School. The chapters take a comparative approach to constitution-building experiences in Latin America, with the central objective of informing deliberations on the creation of a new constitution in Chile. The Annex contains a concluding essay, authored by Javier Couso, which builds on the topics discussed in this report to analyse the constituent process currently underway in Chile. The Chilean case serves as a reminder that constitution-building processes are deeply political affairs, in which correlations of power, strategic behaviour, and even sheer luck, play important roles. Thanks to Sumit Bisarya for his comments and suggestions during the writing of this work, and to the participants at the seminar for their feedback on the different papers distributed for discussion. Thanks also to the International IDEA Publications team for their support in the editing of the text.
The recent transformation of constitutional law in Latin America: trends and challenges
2014
Since the mid-1980s, Latin America has seen an intense period of constitutional change, as almost all countries either adopted new constitutions (Brazil in 1988, Colombia in 1991, Paraguay in 1992, Ecuador in 1998 and 2008, Peru in 1993, Venezuela in 1999, and Bolivia in 2009, among others) or introduced major reforms to their existing constitutions (Argentina in 1994, Mexico in 1992, and Costa Rica in 1989). The new Brazilian constitution of 1988 can be viewed as the starting point of this phase of reforms, which is still developing. Obviously there are important national differences. However, despite these national differences, this wave of constitutional reforms in Latin America seems to have some common features. Despite the intensity of the recent constitutional changes in Latin America, I know of no text that has tried to systematically examine the common features of the development of constitutionalism in the region. There are important reflections on the constitutional evolu...
2009
The paper takes a comparative look at the ongoing processes of rethinking and reworking democracy in Bolivia and Ecuador. It analyzes the new constitutions in both countries as the politicoinstitutional expression of these processes of transforming democracy within democracy. The paper tries to capture the shapes of the democratic institutions and processes as conceptualized by the new Magna Cartas. It specifically asks whether the constitutions comprise elements that deviate from -or go beyond -the mainstream model of liberal democracy and to what extent these constitute alternatives, complements or substitutes to liberal-democratic concepts. The theoretic premise is that each really existing democratic order is a specific blend of contradictory democratic principles (e.g., sovereignty of the people vs. constitutionalism, majority rule vs. protection of minorities, political equality vs. individual freedom, individual equality vs. recognition of cultural differences). The processes of constitutional change in Bolivia and Ecuador can, thus, be read as attempts to readjust and rebalance these principles by strengthening the plebiscitary and participatory aspects of democracy as well as the economic, social and cultural dimensions of human rights.
Constitutional Change and Transformation in Latin America
2019
is usually depicted as a region whose democracies are fragile, 1 where political and economic instability has long spurred institutional breakdowns, 2 and where constitutions are replaced at an unusually rapid pace. 3 In the popular imagination, the region ' s hallmarks include coups, dictatorships, guerilla movements, persistent authoritarian legacies, deep social inequality and corruption infi ltrating all branches of government, but the most well-known may be the regularity of constitutional change. As Peter Smith has observed, ' there were 155 regime changes over the 101-year period from 1900 through 2000-a rate of 1.53 per year '. 4 Consider some examples. Th e Dominican Republic has had 34 constitutions. Venezuela has had 26 constitutions so far, and Ecuador is not too far behind: the 2008 Constitution was its twentieth. Since their independence, Latin American countries have written, in total, 197 constitutions, most of them from 1900 onwards, although this pace has waned in the last decades (from 1978 to 2017, there have been 18 new constitutions in the region). 5 Th e constitutional amendment rate is also high, though it does not diff er much from most established