The recent decision
of the Supreme Court of Honduras – which essentially excised that country’s
strict one-term limit from its constitution – has raised hackles from scholars
concerned that it will open the door to would-be authoritarians seeking power.
Indeed, the temptation for political leaders to extend their terms has preoccupied
many countries and scholars in Latin America at different periods in history.
Presidents in particular have an obvious incentive to extend their periods in
office in order to consolidate power. The failure of presidents to cede power
can lead to a significant amount of democratic erosion.
At the same time, the specificity of term limits has made them
increasingly difficult for Latin American executives to disregard. Presidents
who simply ignore limits on their mandate send a very loud signal to domestic
and international constituencies of their defiance of the constitution.
Mechanisms like the OAS “democracy
clause,” which allows for possible suspension of member states for an
“unconstitutional alteration that seriously impairs the democratic order” of a
member state, might be activated in such circumstances.
As a result of these cross pressures, recent Latin American attempts to
alter term limits have utilized the mechanisms of constitutional change –
constitutional amendment or replacement. In other words, rather than simply
ignoring constitutional term limits, presidents have friendly legislatures,
courts, or voters alter or erase those limits. These efforts thus represent
classic forms of “abusive
constitutionalism” – the use of the tools of constitutional change to
undermine the democratic order.
The key question is whether, and under what conditions, constitutional
design can combat these threats. Five recent cases of presidential manipulation
of term limits in Latin America – Nicaragua, Venezuela, Honduras, Colombia, and
Ecuador – suggest that constitutional design is unlikely to offer a simple
answer. Sophisticated tools of constitutional theory, such as the
unconstitutional constitutional amendment doctrine, have proven effective in
one key case (Colombia), but ineffective in others. In the extreme cases of
Nicaragua and Honduras, courts acting at the behest of politicians used the
unconstitutional constitutional amendment to abolish rather than protect term limits.
(The very recent
case of Guyana, where a court also eliminated constitutional term limits by
holding that the wrong process of constitutional change had been used to insert
them, is not treated in depth here). And in four out of the five cases,
defenses failed and the term limits were (or are in the process of being) swept
away. It is thus difficult to be overly optimistic, but the existing cases
offer lessons and perhaps some modest improvements in the techniques of
constitutional design.
The rest of this brief essay first discusses the background of all five
cases. Second, I argue that constitutional designers will usually need to count
on poorly-functioning and low-capacity, rather than high-capacity and heroic,
courts when term limits problems come up. Third, I note that this has
implications for constitutional design, and that scholars may be able to help
develop best practices for constitutionally protecting term limits. Finally, I
close by speculating about whether the emergence of modest regional standards –
particularly against the existence of no term limits on executives whatsoever –
would be useful and feasible as a starting point.
The Five Cases
First, the one successful case of Colombia:
the popular, outsider President Alvaro Uribe won election in 2002 and gained
significant popularity through his perceived successes in combatting guerrilla
groups. He used his control of Congress to pass a constitutional amendment
allowing a second consecutive term in office. This required approval by a
simple majority of Congress in one term and an absolute majority in a second, thus
amending Colombia’s fairly long-standing provision allowing only one
presidential term. This amendment was challenged in front of the Colombian
Constitutional Court as a “substitution of the constitution” or unconstitutional
constitutional amendment, as well as for procedural defects, but a majority of
the Court upheld the amendment, and Uribe won reelection in 2006.
In advance of the next presidential election of 2010, Uribe’s allies in
Congress again sought to amend the constitution, in the form of a proposed
referendum, in order to allow a third
consecutive term. This amendment was also challenged in front of the
Constitutional Court, which this time struck down the proposed referendum on
both procedural grounds and as a substitution of the constitution. The Court’s
reasoning focused on the fact that three consecutive terms would allow the
president to dominate all of the various institutions – the Attorney General,
Prosecutor, National Ombudsman, Central Bank, and judiciary, for example – that
were supposed to be independent of the executive by constitutional design. It
also emphasized that two term presidencies were fairly common internationally,
but three term presidencies were considerably less common because of concerns
about the consolidation of executive power and the erosion of democracy.
Now, for the four unsuccessful cases:
Venezuela: President Hugo
Chavez won election in 1998 and quickly moved to consolidate power by writing a
new constitution. The Constituent Assembly, elected via an electoral rule
selected by Chavez, was more than 90 percent dominated by Chavez supporters. It
drafted a constitution over about two months that strengthened presidential
power but also included some interesting elements of popular participation,
including recall provisions, popular participation in the selection of judges,
and referenda. The new constitution lengthened presidential terms from five to
six years and allowed presidents to be immediately reelected one time.
Subsequent referendums demonstrated a clear intent to abolish
term limits so as to allow Chavez to remain in power indefinitely. A first
effort to eliminate presidential term limits in 2007 was bundled with a broader
set of constitutional reforms intended to deepen Venezuela’s transformation
into a socialist country; the referendum was narrowly defeated. A second effort
in 2009 was more narrowly focused on eliminating term limits for the president
as well as governors, mayors, and national and regional legislators: this time
the referendum was successful with 54 percent of positive votes. Despite a
tiered system of constitutional change that might have provided some protection,
the Venezuelan Supreme Tribunal (controlled by Chavez) did not play any
meaningful role in limiting the efforts at constitutional change. Similar to
the Ecuadorian Constitution, discussed in more detail below, the Venezuelan
constitution distinguishes “amendments” from “constitutional reform” and a
“constituent assembly,” establishing three different procedures for these three
devices. According to the constitution, an amendment is not supposed to “alter
the fundamental structure” of the Constitution; while a constitutional reform
is not supposed to “modify [its] structure and fundamental principles.” By implication,
only a constituent assembly can be used for changes that modify the fundamental
structure. Nonetheless, the 2007 amendment was carried out as a “constitutional
reform” while the 2009 attempt was carried out through the “amendment”
procedure. The latter process was strongly contested by the opposition but the
Supreme Court upheld it. Venezuela thus now has no presidential term limit, a
provision that has survived the death of Chavez.
Ecuador: President Correa followed a somewhat similar strategy to that of Chavez – he won election
in 2006 and replaced the Constitution in 2008, in a process controlled by his
supporters. The 2008 Constitution originally created four year terms and
allowed only one reelection; an early reform changed the constitution to allow
three consecutive terms. In 2014, President Correa and his allies sought the
elimination of all term limits on the country. The Ecuadorian constitution
creates a tiered system of constitutional change, distinguishing amendment, partial
reform, and the Constituent Assembly, and creating a different device for each
procedure. Amendment may be carried out either by referendum, solicited by the
president or eight percent of registered voters, or two-thirds vote in the
unicameral Congress. Partial reform must be approved by a majority in Congress
and then by a referendum. A Constituent Assembly must be called by majority
approval in a popular consultation activated by either the president,
two-thirds vote in Congress, or twelve percent of registered voters.
The
text states that amendment of the constitution may not be used to “alter
its fundamental structure, or the character and constitutive elements of the
state, … establish restrictions on rights and guarantees, or … modify the
system of constitutional reform.” Partial reform may not be used to “restrict
constitutional rights or guarantees, or modify the constitutional reform
procedure.” There are no explicit textual limits on the competence of an
elected Constituent Assembly. The text also states explicitly that the
Constitutional Court has the power to determine which route is the correct one
for any particular change.
The debate in Ecuador was thus about which of these procedures needed to
be pursued in order to eliminate term limits – the president sought to utilize
the amendment mechanism, while the opposition argued that at least the partial
reform procedure needed to be used. They argued that a constitutional
elimination of term limits at least “altered [the] fundamental structure” of
the constitution, and likely also “restrict[ed] the constitutional rights and
guarantees” of the opposition. Politically, elements of the opposition noted
that while Correa was personally extremely popular, the elimination of term
limits was not, so they hoped to use the referendum as a way to build
resistance. The Constitutional Court, in late 2013, nonetheless held that the
amendment route could be used, and therefore that Congress could pass the
change unilaterally. Given Correa’s domination of the Assembly, approval of the
amendment appears to be a certainty.
Nicaragua and Honduras: The
courts in Venezuela and Ecuador were ineffective in limiting proposals to
eliminate term limits despite potentially deployable constitutional defenses;
courts in Nicaragua and Honduras played an even more pernicious role,
essentially deploying constitutional defenses themselves to sweep term limits
away. In October 2009, after President Daniel Ortega had sought the elimination
of term limits but lacked the support in Congress needed for a constitutional
amendment to do so, the Supreme Court held that article 147 of the constitution
prohibiting presidential reelection for more than one additional term was
itself “inapplicable.” The Court reasoned that the term limit discriminated
against the president and limited his political rights. Ortega was subsequently
reelected to a third term, and in 2014 the Congress (now controlled by Ortega’s
supporters) amended the constitution to remove the term limits, clearly
allowing Ortega to run for a fourth term.
The Honduran case is even more bizarre and dramatic. The 1982 Honduran
Constitution established a one term limit for presidents, made this term limit
completely unamendable by any means, and removed from office any official who
“attempted” to change the no-reelection rule. In 2009, this provision played a
major role in the coup that removed President Manuel Zelaya. Opponents argued
that the coup was legal because Zelaya was attempting to hold a non-binding
public consultation on whether to replace the constitution, thus “attempting”
to change the no-reelection rule. The coup was nonetheless widely condemned.
In April 2015, the Constitutional Chamber of the Supreme Court issued
a decision holding that all three parts of the no-reelection rule (the rule
itself, its unamendable nature, and the “attempt” clause) were unconstitutional
pieces of the constitution, and thus held them inapplicable. The Court’s
reasoning focused on what it saw as international human rights law: it held
that these provisions limited the right to free speech and of the “free choice”
of voters. Beneath the surface, the Court was likely acting at the behest of
National Party incumbents, who were integral in the removal of Zelaya and who
illegally removed and replaced four of five members of the Chamber in late
2012. Honduras now apparently has no presidential term limit.
“Problematic” Constitutional Courts
The Colombian Constitutional Court, in issuing the second reelection decision
that stopped Uribe’s third term, is often theorized as a heroic court that helped
prevent substantial democratic erosion
in the country. Indeed, both the Colombian Court itself and the broader
political context are clearly unusual, as the other four cases show. The
Colombian Court is a high capacity institution that was able to create a
“substitution of the constitution” doctrine despite the absence of explicit,
textual tiers of amendment in the constitution. The design of the Court,
particularly the judicial selection mechanism, may have helped some. The nine
judges (who serve eight-year non-renewable terms) are selected by the Congress
from lists of three candidates proposed by three different institutions: the
president, Supreme Court, and Council of State (each of whom control the lists
for three seats on the court). The fragmentation of the selection mechanism
made the Court relatively difficult for even a strong president like Uribe to
pack. Moreover, the political context proved important. Uribe was an extremely
popular president, but his legislative support depended on a loose coalition,
and since he won election as a political outsider he lacked the backing of a
durable, cohesive political party or movement. Key political actors who had supported
Uribe acquiesced in the decision and left him with little choice but to do
likewise.
The other cases show what is likely the more typical context of a
“problematic” constitutional court with low independence and low capacity. All
four courts issued rulings that were almost certainly incorrect, and had
serious negative consequences. Courts in both Venezuela and Ecuador should have
held that constitutional changes to eliminate term limits were on a higher tier
because they altered or modified the “fundamental structure.” But neither court
did so. The courts in Nicaragua and Honduras issued bizarre rulings deploying
the “unconstitutional constitutional amendment” doctrine (or something like it)
to themselves eliminate term limits. The arguments in these two decisions are
extremely weak and clearly politically motivated. The Honduran Supreme Court,
for example, swept away the entire term limit provision despite having
arguments that aimed only at the “intent to change” clause, and it seemed
untroubled by the fact that it was utilizing the unconstitutional
constitutional amendment doctrine against an original part of the 1982
constitution, not a later amendment.
Thus, theories of constitutional design that rely on heroic or even
competent courts in these context are likely to fail. Constitutional designers must
figure out regulations of term limit provisions that will work under
sub-optimal conditions.
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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