Constitutional Design Under Bad Conditions
Using this lens, the different experiences with “failure” all suggest
potential improvements in constitutional design. Constitutional tiering is a
broad term that encompasses a range of practices: designers sometimes protect a
specific provision or section with a more demanding procedure, while in other
cases they protect a much more abstract concept like the “fundamental
structure” of the state or “constitutional rights.” Both Venezuela and Ecuador
embody the latter approach. Both the specific and abstract approaches have
advantages: the former provides clear, specific protection to particular
constitutional articles, while the latter is more flexible, essentially
providing textual support for a judge-made unconstitutional constitutional
amendment doctrine.
But the two approaches are not mutually exclusive. In both countries, the
flexible system of tiering based on whether a given change infringed on the
“fundamental structure” could and should have been supplemented with specific
reinforcement of the term limits provision. A specific protection of term
limits, requiring any change to the term limit to be passed via a more
demanding procedure, would have been more difficult for problematic courts – or
international actors – to ignore. The broader lesson is that specificity may be
an advantage when dealing with “bad” constitutional courts.
Honduras, of course, embodies a strong form of the more specific method
of tiering: the term limit, along with the provision making it unamendable and
certain other provisions, were specifically singled out in the text and made
completely unamendable. This ultimately provided no protection. One might argue
that the provision was actually too strong. First, as Richard
Albert has argued, complete unamendability may be a counter-productive, as
it provides no route short of legal revolution for actors to achieve their
goals. A more realistic provision might have aimed to make change of the term
limit difficult – both time-consuming and requiring a substantial supermajority
as well as perhaps a referendum – but not impossible. A requirement that
constitutional change of this type be carried out over several years, or take
effect only after an intervening election, may be particularly useful as a
roadblock to authoritarian projects which does not completely frustrate the
possibility of constitutional change. Second, the “intent to change” provision
in the Honduran constitution probably went too far. This provision caused
serious problems during the Zelaya episode and gave the Constitutional Chamber at
least some ammunition for striking down the term limit by arguing that the
provision limited freedom of speech and political debate. The term limit
itself, and a provision making it difficult and time-consuming to change, would
have been sufficient.
The role of referendums in regulating changes to term limits is a topic
that merits additional study. It is fascinating that in Ecuador the
opposition’s arguments were aimed largely at forcing a referendum, which they
thought they had at least an outside shot of winning; in Colombia by contrast
Uribe’s supporters were confident they would have won the referendum, and in
Venezuela, Chavez initially lost a referendum but returned two years later and
was successful. The argument in Ecuador was perhaps overly optimistic – the
evidence from Venezuela and Colombia suggests that referenda regulating term
limits, and promoted by popular leaders, can become dominated by the
personality of those leaders. Still, referenda might become a way for the opposition
to organize and counter incumbents’ arguments in a particularly compelling way.
A referendum, however, might become part of the “more difficult” amendment
process, but it should be paired with other requirements like temporal
limitations and super-majority requirements.
Finally, an alternative (and underexplored) approach might focus on the
incentives of politicians. Absolute term limits like those in the countries
under discussion here require politicians to vacate the presidential office
forever once they have completed their designated term. The severity of this
limit gives presidents a strong incentive to “cheat” on the constitutional
bargain by any means possible. Term limits like those in Chile barring
presidents from serving consecutive terms, but not prohibiting them from
regaining office forever, might alter political incentives in a pro-compliance
direction by lowering the stakes of leaving office.
Towards Regional Standards on Term Limits?
The analysis has focused on the domestic rather than the regional or
international level. It has done so for a particular reason – the OAS in
particular has recently proven reluctant to become involved in these sorts of
issues. In the Honduran case, for example, the OAS (properly) suspended
Honduras after the coup but showed little reaction either to Zelaya’s
machinations or the recent Constitutional Chamber decision eliminating term
limits. Incidents of presidents, legislatures, courts, or voters excising
constitutional term limits raise difficult question of what Rosalind Dixon and
Vicki Jackson call extra-territorial
constitutional interpretation: they require outside actors to make an
independent assessment of difficult constitutional questions, perhaps overruling
domestic courts in the process.
At the very least, external actors should understand that courts can
undermine rather than promote the democratic and constitutional order.
Nicaragua and Honduras are both examples. The fact that a court legitimizes or
carries out a given action should not automatically be a signal that the OAS
should be unconcerned.
The deeper issue is that the OAS’s democracy clause is currently tied to
the “constitutionality” of an attempted democratic erosion. This makes it hard,
without carrying out tricky exercises of extraterritorial constitutional
interpretation, for international actors to complain when domestic courts have
either legitimized constitutional change as in Venezuela and Ecuador or
actually caused it as in Nicaragua and Honduras. European institutions,
particularly the Venice Commission intervening in the recent constitutional
changes in Hungary, have moved further towards seeing that constitutional
changes may be strongly anti-democratic in effect even if they are ambiguously
or probably constitutional in the eyes of domestic actors. Moreover, judging
the anti-democratic effect of a given change can be very tricky, because a
change or package of changes that might be innocuous in one context might be
very dangerous in another. Kim Lane Scheppele used the term “frankenstate”
to describe the 2011 Hungarian constitutional changes where each individual
element was found elsewhere in some form, but the combination of the changes
was – she argued — strongly anti-democratic.
Fortunately, the term limits issue simplifies some of these problems:
changes to term limits are usually easy to observe and their anti-democratic
impact can perhaps be observed more readily in isolation than other changes
like those to the jurisdiction or selection mechanism of a high court. One can
reasonably argue about whether one or two presidential terms is optimal,
whether term limits should be absolute or merely consecutive, and about how
long presidential terms should be. But the danger to democracy of unlimited or
indefinite presidential term limits – which now exist in Venezuela, Honduras,
and Nicaragua, and will soon exist in Ecuador – seems to greatly outweigh
whatever benefit these provisions may provide. Given this, it is time for
regional institutions in Latin America to say that having no presidential term limit is unacceptable.
David Landau is a Mason Ladd Professor and
Associate Dean for International Programs at Florida State University College
of Law. He has published on comparative constitutional law and Latin American
law, focusing on socioeconomic rights, judicial role, and democratic transitions.
In 2011, he served as a consultant for the Truth and Reconciliation Commission of Honduras.
He has also co-authored analyses of this decision with Brian Sheppard for ICONnect (the Blog of the International
Journal of Constitutional Law) and the International Edition of the New York Times.
Disclaimer: The views expressed in Voices from the Field contributions are the author’s own and do not necessarily reflect International IDEA’s positions.
Source link : http://constitutionnet.org/news/term-limits-manipulation-across-latin-america-and-what-constitutional-design-could-do-about-it
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Publish date : 2015-07-21 03:00:00
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