Democracy Undermined Constitutional Subterfuge in Latin America
Trejos, Forrest D. Colburn and Alberto
Democracy Undermined Constitutional Subterfuge in Latin America FORREST D. CO LBU RN AND ALBERTO TREJOS Early in the morning of June 28, 2009, the president of Honduras, Manuel "Mel" Zelaya, was...
...Laws and edicts proliferated, many of them deliberately vague, and spread uncertainty into many corners of everyday life...
...Venezuela and Bolivia have even expelled their U.S...
...But Hitler is an extreme case, and Weimar Germany is very distant from, say, the highlands of contemporary Bolivia...
...National resources—prominently petroleum and natural gas—have been placed under state control...
...Opportunistic political elites don't have to break the law when the rule of law is so weak—and public and private institutions are so pliable—that the constitution can simply be refashioned...
...Correa maintains a constant and thunderous verbal assault on opposition figures and institutions, doles out state resources in exchange for political support, and presents Ecuador as a victim of international machinations...
...Public administration— and law enforcement in particular—became less "rule-bound," less predictable...
...Morales's political party is, in fact, named Movement Toward Socialism (known by its acronym MAS...
...Throughout the long twentieth century, aspirations for socialism were, in so many different corners of the world, frustrated...
...What would Marx say...
...In August 2007, Chavez proposed additional legal changes, including measures to reorganize the government and "redefine" private property...
...There is, in fact, no economic plan or strategy, but certain policies of Marxism-Leninism, nationalization in particular, are found to be politically useful...
...What is novel about these three is their command of the law...
...Chavez's victory in the election was more than a triumph for him...
...This appears to be the case today in Venezuela, Ecuador, and Bolivia...
...Elections do matter, but rulers who use the law to undermine the "rule of law," impinge on human rights, persecute their opposition, and govern capriciously and recklessly forfeit their claim to being democrats...
...it is a deliberate, well-designed project to deconstruct democracy and substitute something else in its place, poorly defined as that may be...
...Democracy Undermined Constitutional Subterfuge in Latin America FORREST D. CO LBU RN AND ALBERTO TREJOS Early in the morning of June 28, 2009, the president of Honduras, Manuel "Mel" Zelaya, was rousted out of his bed by soldiers and sent out of the country in his pajamas...
...The unraveling of democracy, cloaked as it is in legal garb, suggests that one can't define a government solely by the means through which it entered office...
...Enemies of the United States—Iran, in particular—have been courted...
...Such a strategy seems legitimate...
...In Costa Rica, one of Latin America's most mature democracies, the losers in the 2006 election and the 2007 referendum made persistent yet vague charges of fraud and refused to accept the mandate of the voters, even though they could not describe the location, nature, or magnitude of the alleged fraud...
...Adolf Hitler came to power through a crisis of existing democratic institutions and his own skillful participation in those same institutions...
...In the last two decades, elected presidents have been unable to finish their terms of office in Argentina, Bolivia, and Ecuador—and now in Honduras...
...Elections were held the following year, in 1993, and Rafael Caldera was elected to serve a term from 1994-1999...
...In Bolivia, Evo Morales was a leader of the opposition that, through roadblocks and riots, forced President Carlos Mesa to resign...
...The prevailing calm came to an end in 1989 with riots sparked by an economic austerity program...
...The most notable—or notorious—case of constitutional subterfuge in Latin America is that of Venezuela...
...Anti-imperialist rhetoric is constant...
...it is an ongoing practice...
...It is this uncertainty that is unnerving...
...Outsiders" fared well in challenging traditional political parties and their candidates...
...Chavez promptly convened a National Constituent Assembly to write a new constitution, approved by the electorate at the end of 1999, which provided for a six-year presidential term of office and allowed for the president's reelection (previously the term was five years with no immediate reelection...
...Caldera's term was marked by economic crises and "zig-zags" in economic policy...
...After winning the election, Morales pushed for a constituent assembly, one in which members of his party had more than half of the seats...
...Even a superficial knowledge of political history in other parts of the world suggests that democracy does not always produce good outcomes or, more pointedly, that popular elections do not always produce desirable results...
...Aside from their rhetoric, what claims do Châvez, Correa, and Morales have for being progressive...
...The administration of President Carlos Andrés Pérez was ineffectual and unpopular...
...there are shortages of everything from milk to truck parts...
...Indeed, the economic results to date in the three countries are unimpressive: economic growth is flat in Ecuador and Bolivia and falling in Venezuela...
...Unlike most other Latin American countries, Venezuela did not fall prey to military authoritarianism in the heady decades of the 1960s and 1970s...
...There is nothing comparable to the fall of Weimar in Latin America's recent political history that might lead one to question the acceptance of free, openly contested elections...
...And for himself and his allies, Chavez pushed through a constitutional amendment ending term limits for all elected officials...
...What they did was wrong, and yet there is an alarming trend in Latin America toward dismantling democracy by legal subterfuge under the cover of populist or even socialist rhetoric...
...Of late, legislation serves specific political purposes...
...He and his colleagues had a hand in the similarities of the three constitutions—an emphasis on "re-founding" to correct historical injustices, a focus on public policy and spending for the poor, and—most controversial—a strengthening of presidential power...
...Forrest D. Colburn and Alberto Trejos teach in the graduate school of management, the INCAE Business School, which has campuses in Costa Rica and Nicaragua...
...It is more than a "ratcheting up" of the assault on democracy...
...Public employment soared, and so did the proliferation of programs that concomitantly provided immediate benefits to the poor and tied them to political organizations...
...This new constitution, by reducing the number of key officials and the frequency of their election, concentrated political power and scaled back the ability of citizens to hold their governors accountable...
...The region-wide transition to democracy and unfettered markets in the 1980s produced uneven and inegalitarian results, leading to a loss of credibility for liberalism...
...Zelaya in Honduras made a brash bid...
...Other countries in the region, though, also have state control of their natural resources, and some, such as Chile, Brazil, and Costa Rica, spend even more per capita on social services...
...He also proposed a constituent assembly to rewrite Ecuador's constitution...
...An unrepentant Chavez emerged from prison in 1994—having been pardoned after two years of incarceration—with enough of a name for himself to run for president in the 1998 elections...
...There is a wide gamut of social programs...
...These politicians take advantage of the weakening of democratic institutions, but at the same time their self-serving behavior further weakens the same institutions...
...The recasting of the constitution was accompanied by a continuing, blistering attack on all opposition groups, framed in an egalitarian discourse: you are either "with the poor" or "with the rich and privileged...
...The state oil company, the largest enterprise in Latin America, was brought firmly under political control, as were other state entities...
...Elections were held in November 2009...
...Venezuela's Hugo Châvez, a former military officer, found a way to success that is now being emulated: refashion weak democratic institutions into a self-protective cocoon...
...All three leaders have benefited from the quiet help of a team of Spanish legal scholars led by Roberto Viciano Pastor, a constitutional law professor at the University of Valencia...
...The next month, taking advantage of his dominance of the National Assembly, Chavez asked deputies for "special constitutional powers" to rule by decree on a broad range of issues...
...Support for democracy is best described as "anemic" or "grudging...
...He pledged to end corruption and to press for the election of a constituent assembly to write a new constitution...
...With the passage of the referendum, Correa became bolder, attacking the private sector—and other groups—and employing newly granted legal authority to demoralize, intimidate, or silence critics...
...Especially in poor countries with marked income and wealth disparities, which frequently overlap with race, how do you in good faith oppose the political projects of those who not only speak in the name of the oppressed, but who have the electoral support of the oppressed...
...These projects pose a political and moral dilemma: how do you oppose political change that has been approved by a majority, sanctified by elections...
...Is this really socialism...
...Although Caldera ran as an independent, he was very much a member of the country's traditional political elite, and his presidency further discredited the state...
...Chavez has taken to heart an old Brazilian quip, "For my friends, everything...
...However, the tactic worked—a new constitution was speedily approved...
...A well-educated Ecuadoran laments, "Today we only have an illusion of democracy...
...The loser in Peru's 2006 election, Ollanta Humala, was similarly defiant...
...The National Assembly moved from being a bicameral to a unicameral body, with deputies serving five-year terms...
...By wrecking democratic institutions, presidents like Châvez, Correa, and Morales are not only subverting the rights of their opponents, they are also leaving tomorrow's majority without a voice...
...What was novel, in fact, about the ouster of Zelaya was the fear that prompted it—what can be called "constitutional subterfuge...
...and the national currency has been devalued...
...The constitution spells out an appealing list of "rights" to food, water, free education and health care, sewer service, electricity, gas, mail and telephones, cultural self-identification, privacy, honor, and dignity...
...As the nature of the Chavez regime unfolded, the opposition grew increasingly frustrated...
...Just how all these rights are to be fulfilled in what remains one of Latin America's poorest countries is unclear...
...In 2008, the electorate was asked for a simple "yes" or "no" to Correa's proposed constitution, which contained 444 articles...
...Many of the articles were enticing to voters, such as one mandating free health care for older citizens...
...it was a stinging indictment of Venezuela's democracy...
...Frequently, they were derailed by powerful leaders who insisted that they "know best," but who mistook their own political glory for their country's welfare...
...Public opinion polls regularly reveal a distrust of established political institutions, above all toward the legislative branch and all the political parties...
...At the start of his 2006 presidential campaign, Correa presented himself as a nontraditional candidate, espousing political and economic sovereignty and relief for the poor...
...Former and sitting presidents have frequently taken advantage of the discrediting of political institutions to press for repealing constitutional barriers to their own re-election...
...A two-party democracy held sway, beset by cronyism and corruption...
...After winning the presidential election, Correa called for a referendum, asking for a constituent assembly with broad powers...
...Invoking the example of Hitler marks one as an alarmist (even if the "Red Ponchos" in Bolivia do have an uncanny resemblance to the Nazis' "Brown Shirts...
...In Ecuador, Rafael Correa has followed a similar strategy...
...The coup d'état seemed out of place because democracy has taken hold everywhere in Latin America except Cuba...
...Democratic means are used to dismantle democracy and install in its place something new, something that looks—in Venezuela, Ecuador, and Bolivia—decidedly like a new form of authoritarianism...
...In all three countries—Venezuela, Ecuador, and Bolivia—there are ample references to "socialism for the twenty-first century...
...There are special rights for children, the elderly, families, the disabled, and eighteen different rights for indigenous groups...
...Elsewhere in the region there is a frequent questioning of the legitimacy of political institutions, including elections...
...Yet in the absence of a cogent economic strategy, something truly persuasive, men like Châvez, Correa, and Morales just look like the latest and most fashionable incarnation of dictatorship...
...With this legal maneuvering, Correa was able to consolidate control over the state, sweeping aside traditional—and democratic—checks and balances on the executive...
...The ideological cover for the project comes from the detritus of Marxism-Leninism: a "dictatorship of the proletariat" controlled through "democratic centralism" is necessary to fend off the "bourgeoisie" while the needs of the struggling masses are addressed...
...In a country that has long suffered from political instability, with three recent presidents unable to finish their terms, Correa was reelected in April 2009...
...Chavez won a six-year term in July 2000...
...Something similar happened in Mexico in the 2006 elections, when the defeated candidate, Andres Manuel Lopez Obrador, refused to accept his defeat, asserting that he would form an alternative government...
...Yet the sprawling constitution, which has 350 articles (the U.S...
...Morales was reelected in December 2009...
...Back in Honduras, the leaders of the coup d'état waited out international opprobrium and Zelaya's complaints...
...His party won a majority of seats in the assembly, which summarily dismissed Congress, and, in addition to drafting a new constitution, began changing the personnel and structure of a wide variety of state institutions, including the Supreme Court...
...The military in Honduras acted in a clumsy way to avert a very real threat to democracy—Zelaya's move to call an unprecedented special election to remove a term limit on the presidency—in that country and elsewhere in the region...
...It used to be said of Mexico's long-ruling Institutionalized Revolutionary Party (PRI) that "it runs its foreign policy with its left hand, and it runs its domestic politics with its right hand...
...and, in principle again, presidents leave office after completing their term— only then, but definitely then...
...In the latter country, for example, oil production has declined 25 percent since Châvez began his tenure as president...
...In principle, now, elections are the only sanctioned route to the presidency...
...All opposition, real or imagined, existing or potential, was lumped together and held to be illegitimate...
...Embedded in the constitution, too, was a clause permitting the reelection of presidents—and a provision that Morales's present term was not to be "counted," so that he can serve two more five-year terms...
...Critics proliferated...
...The scheduled December 2007 elections were then moved up to December 2005...
...Caldera had been sympathetic to the attempted coup, and one of his campaign promises was, in fact, to secure Chavez's release from prison...
...it disarms critics...
...ambassadors...
...for my enemies, the law...
...Efforts to reduce the credibility of electoral processes have taken a toll, not just on the victorious candidates but on the legitimacy of democracy itself...
...The enactment of a new constitution was followed by elections...
...So great was the loss of legitimacy that Chavez, an outsider who had attempted to use violence to seize control of the state, was elected...
...Chavez won reelection in December 2006...
...Constitution has 7), was publicly touted as a "refounding" of the nation-state, necessary to correct historical injustices and to focus public policy on meeting the needs of the impoverished majority...
...What is new here—and completely unanticipated by the legions of academics who wrote in the 1980s and 1990s about the "transition" to democracy—is the use of democracy to dismantle democracy...
...Authority was quickly granted, and Chavez used it to do things previously not legally possible, such as nationalizing the telecommunication industry...
...The lure of egalitarianism remains powerful, all the more so in Latin America, the most inequitable region of the world...
...Nearly all opposition groups boycotted the August 2005 National Assembly elections, giving Chavez a political windfall— near complete control of the legislature...
...Presciently, he had proclaimed, "The problem is not winning elections anymore, but knowing how to rule the country...
...Some of these outsiders self-destructed, such as Alberto Fujimori in Peru and Abdalâ Bucaram in Ecuador...
...For example, in early 2009, a series of new laws included a bill to strip the opposition mayor of Caracas of much of his authority and resources...
...In his campaign, Morales endorsed the rewriting of the country's constitution to give Bolivia's indigenous people more political and economic rights...
...Since the decade of the 1980s, when so many Latin American countries made a transition from authoritarianism to democracy, there has been widespread political disenchantment...
...In 1992, officers, led by thenLieutenant Colonel Hugo Chavez, attempted a coup d'état, but were foiled and arrested...
...The argument is that all-knowing individuals, or as Arias put it (presumably describing himself), "strong leaders," are more important than carefully nurtured institutions...
...The constituent assembly also began passing legislation...
...Châvez, Correa, and Morales have no credible social "payoff" for their attacks on established political and economic institutions...
...The opposition was stubborn, though, and in November 2007 Morales had the deliberations moved to a military academy that was surrounded by soldiers and the militia-like "Red Ponchos...
...inflation is high...
...One assumes that the new president, Porfiro Lobo, has learned a lesson in democracy from the fate of his predecessor...
...and it even provides a protective shield for the emerging regime...
...It has 411 articles...
...But the constitution also allowed the president to stand for a second four-year term and granted him extensive political prerogatives, including the ability to dissolve Congress within the first three years of its four-year term...
...It was an old-fashioned coup d'état, evoking, seemingly, a bygone era...
...The majority of today does not have the right to overrule or overpower the majority of tomorrow...
...Two hundred lives were lost, and so was the regime's legitimacy...
...Although democracy is being questioned and even battered throughout Latin America, what is happening in Venezuela, Ecuador, and Bolivia is qualitatively different...
...Democracy is more than a regime type...
...His newly formed political party, in fact, did not run congressional candidates...
...Viciano may have noble intentions, but there are many historical examples of the dangers of entrusting power to a single individual...
...The opposition was not permitted to enter...
...Other examples can be found on all sides of the political spectrum, from Fujimori in Peru, to Fernando Henrique Cardoso in Brazil, to Oscar Arias in Costa Rica, to Âlvaro Uribe in Colombia and Daniel Ortega in Nicaragua—as well as Chavez in Venezuela, Rafael Correa in Ecuador, and Evo Morales in Bolivia...
...Democratic rights have been eroded, but what has been gained remains largely symbolic—or, as is said in the region, making use of an English word, "un show...
...Riots broke out, with four killed and hundreds wounded...
...As one Venezuelan put it, "If there is a law that says it is illegal to insult the president, who defines what is an insult...
...Moreover, in each of the three countries, there is constant political conflict, inducing widespread anxiety and distracting the nation from finding sustainable solutions to the problems that beset the poorer countries of the world...
Vol. 57 • July 2010 • No. 3
