Latin
American Constitutionalism: Social Rights and the “Engine Room” of the
Constitution
Roberto Gargarella
In this essay I shall briefly
review the history of Latin American constitutionalism (1810-2010). My major
interest is to study two of the main features of the region’s Constitutions,
namely their exceptional commitment to social, economic and cultural rights;
and their obstinate insistence with concentrated models of political
organization. My work is divided into three parts. The first one refers to the
“founding period” of Latin American constitutionalism; the second examines the
period of “social constitutionalism” that emerged in the first part of the 20th
Century; and the third one studies the last wave of constitutional reforms that
began at the end of the 20th Century.
I Liberal-Conservative
Constitutions (1850-1910)
Most Latin American countries
entered the 20th Century with liberal-conservative Constitutions,
this is to say Constitutions that were the result of a political compact between
liberals and conservatives. Most of these agreements were signed in the second
half of the 19th Century, a time when liberalism and conservatism
represented the two main political forces in the region. Their constitutional compact,
however, was unexpected, given that the two groups appeared as fierce political
enemies during the first half of the Century.[1] The fact is that after years of severe
disputes, the two rival political factions began to join forces and forge an
alliance that would remain intact during decades.[2]
The Constitutions that liberals and
conservatives created during those years appeared as an imperfect synthesis of
the legal aspirations of the two groups. More specifically, these new
Constitutions reflected, on the one hand, the commitment to a system of checks
and balances and State neutrality (mainly, religious tolerance), which
characterized the aspirations of the liberal group; and the commitment to a
system of concentrated authority, regional centralization and moral
perfectionism, which characterized the aspirations of the conservative group. The
new Constitutions, one could claim, represented a combination between the U.S.
Constitution, which was at the time very influential among liberals, and the
1833 Chilean Constitution, which represented the most influential conservative
Constitution during the 19th Century.
Synthetically speaking, these were
Constitutions that established religious
tolerance, without necessarily affirming State neutrality;[3]
defined a system of checks and balances, which was
however partly unbalanced in favor of the President;[4]and established a centre-federalist model of territorial organization. [5]
In addition, the
liberal-conservative Constitutions rejected the incorporation of either social
clauses in favor of the disadvantaged, or political initiatives favoring mass
participation in the public sphere. This
is to say, the liberal-conservative compact was also an exclusionary compact,
which implied the displacement of most of the institutional initiatives that
radicals groups –frequently inspired by Anglo-American radicals and the example
of the French Revolution- then proposed. During all those years, in fact,
radical groups had advanced numerous constitutional proposals, which included
annual elections; the right to recall; mandatory rotation; mandatory
instructions; etc. In addition, radical groups had promoted different reforms
aimed at addressing the “social question”. However, the triumph of the
liberal-conservative project implied the rebuff of all those initiatives.
II Social Constitutionalism
(1910-1950)
The liberal-conservative
constitutional compact was enormously successful in the establishment of
regimes of “order and progress”. This was particularly so since the 1880s, when
most countries in the region began to massively export primary goods, and Latin
America enjoyed an exceptional period of economic prosperity and political
stability.
Things began to change, however,
with the arrival of the new Century. These changes came as a result of different
reasons, which included a growing and increasingly mobilized working class, and
also a rising discomfort with the levels of inequality and authoritarianism
that distinguished the decades of “order and progress.”
The first and extremely radical
sign of alarm appeared with the 1910 Mexican Revolution. The Revolution, as we
know, had a quite spectacular constitutional outcome, namely the 1917
Constitution. This Constitution was exceptionally long, robust in its
declaration of rights, and strongly committed to social rights, which was at
the time a complete novelty. In fact, the Mexican Constitution became pioneer in
the entire world in the development of social
constitutionalism. It accompanied the enactment of the Constitution of the Republic of Weimar, in
1919; the creation of the International Labor Organization (ILO, 1919); and the
development of the Welfare State and the Keynesian economic model.
Among many other clauses, the Mexican
Constitution included article 27, which declared that the ownership of the
lands and waters within the boundaries of the national territory were “vested
originally in the Nation”; and also article 123, which incorporated wide
protections for workers and recognized the role of trade unions; regulated
labor relations reaching very detailed issues, which in a way covered most of
the topics that later on would come to distinguish modern Labor Law. This
clause made reference, for example, to the maximum duration of work; the use of
labor of minors; the rights of pregnant women; the minimum wage; the right to
vacation; the right to equal wages; comfortable and hygienic conditions of
labor; labor accidents; the right to strike and lockout; arbitrations;
dismissals without cause; social security; right to association; etc.
The 1917 Mexican Constitution decisively
changed the history of Latin American constitutionalism. Since its adoption,
and little by little, most countries in the region began to change their basic
constitutional structure. In fact, and following Mexico’s early example, most
countries began to include long list of social rights in their Constitutions: Brazil modified its Constitution in
1937; Bolivia in 1938; Cuba in 1940; Uruguay 1942; Ecuador and Guatemala in
1945; Argentina and Costa Rica in 1949. This was the way in which Latin
American Constitutions expressed, through the use of the legal language, the
main social change that had taken place in the region during the first half of
the 20th Century, namely the
incorporation of the working class as a decisive political and economic actor.
III Multiculturalism and Human Rights
(1950-2010)
After this first wave of reforms, the region
recognized a second period of constitutional changes, which was fundamentally
concentrated between the end of the 1980s and 2000. In this new epoch, Brazil
changed its Constitution in 1988; Colombia in 1991; Argentina in 1994;
Venezuela in 1999; Ecuador in 2008; Bolivia in 2009; and Mexico in 2011.
Most of these new legal documents were impacted,
in one way or another, by two grim events. The first event was political, and
was the emergence of a new wave of dictatorships that affected the region (notably,
since the military coup against Salvador Allende, in Chile, 1973). The second
event was economical, namely the adoption of neoliberal reforms and programs of
economic adjustment, by the end of the 1980s.
The period of military governments had a
profound effect in the region, at different levels. First of all, it obliged
some countries, after the recovery of democracy, to substantively reconstruct
their constitutional organization. This was, for example, the case of Chile, as
a consequence of the numerous authoritarian
enclaves left by General Pinochet’s 1980
Constitution.[6] And this was also the case of
Brazil, which had to confront the 1967 Constitution, enacted during the
military government of General Humberto Castelo Branco. Among other things, the
1967 Constitution (amended in 1969), imposed severe limitations on the federal
organization of the country and the political and civil liberties of the
population.[7]
In addition, the end of this ruthless
era of dictatorships came together with other
rights-based constitutional reforms. These changes implied giving special, sometimes
constitutional status, to different human rights treaties that the countries had
signed during the last four or five decades. These treaties were designed to protect
the same basic human rights that had been systematically violated by
dictatorial governments (Sikkink 2012, Acuña & Smulovitz 1996). Argentina,
Brazil, Bolivia, Colombia, Costa Rica, Chile, and El Salvador were among the
many countries that tried to ensure more protections for the rights affected by
the recent authoritarian governments.
The decision to provide a special legal status
to diverse human rights treaties created interesting results. In part, these initiatives expressed the
reconciliation of certain parts of the political left with the issue of rights and
constitutionalism, which they had frequently resisted. In addition, the new
legal status many of these Constitutions granted to human rights had an
interesting effect on conservatives. For instance, after these constitutional changes,
many conservative judges began to consider more seriously arguments based on
the value of human rights.
The other fundamental constitutional change
produced in the region, by the end of the 20th Century, came as a
consequence of the application of so-called programs of structural adjustment.
By structural adjustment programs, we mean the harsh economic policies applied
in the region during the 1980s, usually by democratic, post-dictatorial
governments. These were monetary policies that usually implied a drastic
reduction of public expenditures and the elimination of social programs. These
adjustment programs were originally promoted in Great Britain under the
direction of Margaret Thatcher and in the United States during the Presidency
of Ronald Reagan (Etchmendy 2011; Cavarozzi et al 2002; Svampa 2005).
The impact of these policies of structural
adjustment on constitutionalism was enormous. More directly, the launch of
these programs usually required the introduction of legal and even constitutional
changes directed at facilitating the application of economic initiatives.[8] Also -and more significant for our present
purposes- the economic changes of the era provoked an economic and social
crisis that pushed for the introduction of new legal reforms. In effect, the
neoliberal programs provoked social distress and growing levels of unemployment
that were not compensated by the existence of a solid safety net. As a
consequence, millions of people suddenly found themselves in a situation of
complete abandonment, without means to ensure their own subsistence and the
subsistence of their family. The State, which for the previous 40 years had guaranteed
work and social protections for vast sectors of the population, was now shrinking.
Most of its most valuable assets were sold in non-transparent and hasty
transactions. As a consequence, Latin America began to experience a process of
social mobilization demanding the social protections that many Constitutions
still promised.
Social protests and counter-institutional
uprisings exploded in the entire region, from South to the North, East to West.
They included, for example, the insurrection of the Zapatistas of the EZLN in
Mexico (which began in January 1994, one year after Mexico's signature of its free
trade agreement with the United States); but also the "wars" of
"water" (2000) and "gas" (2003) in Bolivia, directed against
the privatization of basic sections of the national economy; the occupations of
land promoted by the Landless Movement (MST) in Brazil; the taking
of lands in Santiago de Chile; the "invasions" of property in Lima,
Peru; the emergence of the piqueteros movement in Argentina; and
also numerous acts of violence against the exploitation of mineral resources in
different parts of the region.
Not surprisingly, some of the most relevant
socio-legal reforms of the last few decades -including those of Colombia,
Bolivia, Ecuador, Venezuela and Mexico- followed the economic crises of the
1990s. The new constitutional changes can be read as a direct response to the
social crisis of the previous years. Thus, by the end of the Century, most
countries in the region had adopted extremely strong Constitutions, at least
with regards to the social, economic and cultural rights that they included. A first look at the prevalent
organization of these Constitutions’ bill of rights allows us to recognize the
dimension of this phenomenon. According to a recent study, present Latin
American Constitutions guarantee the protection of the environment, culture; health;
education; food; housing; work; clothing; etc. (Gargarella, Filippini &
Cavana, 2011). In addition, some of the
new or reformed Constitutions included guarantees for gender equality;
incorporated mechanisms of participatory democracy; created the institution of
referendum or popular consultation; introduced the right to recall; or
recognized the right to affirmative action. Still more notably, many of the
renewed constitutional documents affirmed the existence of a pluri- or
multi-cultural state or national identity; provided special protection to
indigenous groups; and established the duty to mandatory consultation to
indigenous communities, before the development of economic projects that could
affect their communal organization.
The “engine room” of the Constitution
Examples as the ones that we
revised in the previous pages make us clear how important, but also how
limited, it was the task of those who got involved in processes of
constitutional reform. Legal reforms could not or did not want to go as far as
they could have gone, in order to ensure that those reforms had the
transformative character that they (so declared) wanted them to have. To state
this does not deny the value of what has been achieved in the region, in
constitutional terms, in recent years. Many of these reform processes managed
to advance the interests of the most disadvantaged at least in the books. Better
than that, the practice of these Constitutions showed that the changes
introduced in the section of rights were far from innocuous. In the last few
years (although –and this is a problem- only
in the last few years), the Latin American countries that had adopted more
socially robust Constitutions developed an interesting and imaginative practice
of judicial enforcement of social rights (Cepeda 2004; Gargarella et al 2006; Gauri
& Brinks 2008¿ Wilson 2005). However, it seems also clear that these
reforms were, in the best case, very limited in their scope and achievements.
And one of the main reasons that explain this conclusion is the fact that the
reformers seemed to have concentrated their energies in the section of rights,
without taking into account the impact that the organization of power tends to
have upon those very rights that were then (extra) protected. Notably, legal
reformers dedicated most of their work to the creation of new rights, leaving
the organization of powers basically untouched. By acting in this way, legal
reforms maintained the doors of the “engine room" of the Constitution
closed: the core of the democratic machinery was not changed, the engine
of the Constitution did not become the main object of their attention, as if
their mission concluded with their work on the rights- section; as if the main
controls could only be touched by the closest allies of those in power.
It is interesting to contrast
this remarkable omission, typical of recent reformers, with what their old
intercessors used to do, when engaged in a process of constitutional change. For
example, the engineers of the liberal-conservative compact showed no doubts
about what they were required to do, in order to ensure the life of their most
cherished rights -say, basically, the right to property. For them, it seemed
totally clear that in order to guarantee protections to, say, the right to
property, the first thing to do was to get into the "engine room" and
introduce some necessary modifications first. Typically, then, they proposed
the restriction of political liberties in order to ensure the enjoyment of
broader economic freedoms. This was, for example, Juan B. Alberdi's main
constitutional lesson for his time: it was necessary to temporarily tie the
hands of the majority, so as to ensure protection for certain basic economic
rights (Alberdi 1920). The “mistake” of recent reformers also contrasts with
what old radicals used to do, when engaged in processes of constitutional
change. Radicals concentrated all their energies in producing certain basic
political and economic changes (typically, an agrarian reform; a government by
assemblies) through the political mobilization of the masses. In so doing, they never subscribed the (conservative)
model of concentrated authority (as contemporary radicals tend to do), and they
never spoke the liberal language or rights (as contemporary radicals usually
do).
Of course, the problem with the new
Constitutions is not simply that they did not go far enough, so as to reach the
“engine room” of the Constitution –if that were the problem, the solution could
have simply been to wait until the next reform. The problem is that, by preserving
an organization of powers that is still arranged under the 19th
Century model of concentrated authority, the new Constitutions put at risk the
same initiatives that they advance through the rights-section of the
Constitution (Nino 1996, 1997). Thus organized, the new Constitutions tend to
present a contradictory design: they look democratic and socially committed in
their section of rights, while at the same time they seem to reject those same
social-democratic ideals through their traditionally vertical political
organization. Not surprisingly, and as a consequence, the old hyper-presidentialist
political organization has tended to block all the initiatives directed at
setting in motion the initiatives for popular empowerment included in the new
Constitutions. For example, Argentina’s political authorities refused to
implement the participatory clauses incorporated in the 1994 Constitution;
Ecuador’s President systematically vetoed all the initiatives directed at enforcing
the newly created mechanisms for popular participation; in Peru, Chile, Mexico
or Ecuador, indigenous leaders suffered prison or repression every time they
wanted to put in practice their newly acquired rights.
The "mistake" committed by those who
wanted to promote social reforms with the help of the Constitution, but without
effectively touching the "engine room” of the document appears clearly in
an extraordinary piece of self-criticism written by Arturo Sampay. It is
important to recall that Sampay was the main (Peronist) jurist who worked in
the writing of the 1949 Argentine Constitution, during the government of
General Perón. That Constitution, we know, incorporated a profound social
commitment manifested in a long and innovative list of social rights. However,
in an article that the same Sampay published some years later, the jurist
challenged part of his previous initiatives. This is what he said:
The Constitutional reform of
1949 was not properly conducive to the predominance of the people, by favoring
the exercise of political power by the popular sectors. This was due, first, to
the faith that the triumphant popular sectors had in the charismatic leadership
of Perón. Secondly, this was due to the same vigilant attitude of Peròn, who
made everything possible to prevent the popular sectors to achieve an actual
power that could impair the power of the legal government. These facts helped
the government to stay in power until the time that the oligarchical sectors,
in accordance with the armed forces, decided to put an end to his government.
That was, then the Achilles heal of the reform. And this explains why the
Constitution died, like Achilles, died at an early stage, by his enemy: it was
vulnerable precisely in the most significant part, this is to say in that part
that had to provide for its support (Sampay 1973, 122).
With unusual virtue, Sampay recognized the
fatal mistake that he and other members of his generation committed, by not
paying sufficient attention to what he himself described as the Achilles heal
of the Constitution. Social reformers like Sampay should learn from him that
important lesson. The new Constitutions need to make consistent the
organization of powers with the new social impulses that they incorporated through
the Bill of Rights- section of the document. In other words, in order to
introduce social changes in the Constitution, one needs to primarily affect an
organization of power that was designed for old, elitist, 19th
Century societies.
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[1] We may recall, in this
respect, the brutal way in which Chilean conservatives treated their opponents,
since the beginning of the Conservative Republic, in 1833; the bloody
confrontations between unitarios and federales, in Argentina; the Federal War
in Venezuela, which also divided liberals and conservatives; the cruel
confrontation between the two groups in Colombia, which included episodes of
Civil War; the battle of the Mexican liberals
puros, in Mexico, against the forces of the conservative Santanistas. I
reviewed some of these events in Gargarella (2010).
[2] Thus, by the mid-19th
Century, we begin to see liberals and conservatives coming together,
politically speaking. Among many other examples we find the 1853 Constitution
in Argentina, the Mexican Constitution of 1857 and also the 1886 Constitution
in Colombia, which were written by representatives of both the liberal and
conservative groups. Another interesting case of convergence between these two forces
appears in the liberal-conservative “fusion” in Chile (1857-1873); and there
are other similar examples in Venezuela and Peru.
[3] Most of the new Constitutions resisted the
conservative pressures in favor of establishing a particular religion, and
replaced that requirement for some alternative formula. On some occasions, like
in Argentina, the liberal-conservative Constitution reserved a special place
for the dominant, Catholic faith (art. 2 of the Constitution, which ambiguously
maintained that the State “supports” the Catholic religion), while at the same
time affirming religious tolerance (art. 14). In other occasions, like in
Mexico 1857 (or, similarly, in Ecuador 1906), the Constitution remained silent
on the subject, which was a way of affirming the impossibility of either group
to consecrate its own viewpoint on the subject. In Chile, the strongly
religious profile of the 1833 Constitution was moderated after some decades,
when an interpretative law (from 1865) opened room for (relative) religious
tolerance.
[4] Most of the liberal-conservative
Constitutions favored the traditional system of division of power, accompanied
by a system of checks and balances, in line with the U.S. constitutional model.
However, and as a consequence of the conservatives’ pressure, the new Latin
American Constitutions introduced some significant changes with regard to the
U.S.’s inspiring example. Typically, they created a too powerful Executive
power, which challenged the structure of equilibriums that characterized the
traditional system of checks and balances.
[5] The liberal-conservative Constitutions
emerged after a violent period of disputes between centralist and federalist
groups. This is why, in most cases, these Constitutions did not want to
consecrate either a purely centralist or federalist territorial organization of
the country. What they tended to do, instead, was to adopt mixed or more ambiguous
solutions in this respect.
[6] Those enclaves included the
institutions of life-tenured senators (which allowed Pinochet to be part of the
Senate during the democratic period) and of "designated Senators"
(which allowed members of the coercive forces to be part of the Senate); a
National Security Congress; an extremely exclusionary electoral system (which
made it very difficult for minoritarian forces to participate in electoral politics);
and the requirement of qualified majorities in order to change basic aspects of
the institutional system (for example, education, the organization of Congress,
or the regulation of the Army).
[7] Large meetings
were subject to previous governmental authorization; political parties were
restricted (only the official party, namely the National Renovating Alliance
-ARENA- and an opposition party, the Brazilian Democratic Movement, MDB, were
allowed to function as such); direct suffrage was directly suppressed in the
main cities for security reasons. In 1969, a provisional military junta
introduced a profound amendment of the Constitution, which strengthened the
repressive character of the previous document. It for example introduced the
institution of death penalty; suppressed habeas corpus; created new military
courts; and opened the door to new repressive laws, such as the Law of National
Security, or another that came to regulate the press.
[8] In this respect we can mention, for
example, to the 35 amendments to the 1988 Brazilian Constitution that were
promoted by former president Fernando Henrique Cardoso (amendments that came to
facilitate the privatization process); the reform of Article 58 in the
Colombian Constitution of 1991 (which was promoted by the conservative
government of Andrés Pastrana, in order to provide more guarantees to foreign
investment); the modification of Article 27 of the Mexican Constitution (which
came to put limits to initiatives for the distribution of land); the Peruvian
constitutional reform in 1993 (which was advanced by President Fujimori -after
his auto-golpe- and directed at eliminating many of the social
commitments assumed by the 1979 Constitution); and the guarantees given to the
value of the money in Argentina through the constitutional reform elaborated by
Carlos Menem (Pisarello 2011, 186-7). Similarly, one could mention the many
different initiatives for judicial reform promoted by the World Bank and other
financial multilateral institutions during the 80’s, which were mainly directed
at providing a more stable framework to the new types of economic transactions
that dominated the period (Domingo & Sieder 2011).
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