Roger Thayer Stone Center For Latin American Studies

Tulane University

Rules That Bind Us

By Ludovico Feoli

The standoff presently underway in Venezuela regarding the treatment of constitutional precepts in light of President Chavezâ’‘¬’“¢ illness poses a larger question for regional democracy and the rule of law: how much do rules bind us? The credibility of our laws hinges on the certainty that they will take precedent over individual whims and that, failing this they will be enforced by third parties. However, events underway suggest that the authorities entrusted with this responsibility may lack the necessary autonomy to carry it through, making the separation and balance of powers questionable. And Venezuela is not the only example. Honduras, El Salvador, and even Costa Rica have had recent constitutional crises that raised similar questions, although their resolutions varied.

Hugo Chávez, democratically elected by a significant majority of Venezuelans, was set to take power on January 10, 2013 but he lies ill in Havana and is unable to appear at his inauguration. While the Constitution establishes that in such circumstances the head of Congress should take over temporarily and, if the absence is permanent, call new elections, the Venezuelan Supreme Court of Justice interpreted that Chavezâ’‘¬’“¢ reelection established the â’‘¬Å“administrative continuityâ’‘¬Â of the Executive, rendering a new inauguration â’‘¬Å“unnecessaryâ’‘¬Â. Hence, the Court effectively reinterpreted the election as a renewal of the previous administration, rather than the start of a new constitutional period. This brushes aside the question of whether the presidentâ’‘¬’“¢s absence is temporary or permanent. It also obviates due process, which first calls for the investiture of the president and then for the appointment of the cabinet. Rules do not seem to bind.

Last December, the Honduran Congress fired four of the five magistrates on its Constitutional Court. The proximate cause was a vote by the magistrates, which a congressional investigative commission decided was extemporaneous. However, critics argue that the magistrates were purged for their decisions, which being contrary to the interests of the executive angered the President and generated a reprisal. The removal, en masse, of Supreme Court justices because of the content of their decisions is a gross violation of the principle of separation of powers. Without respect, on the part of the Executive, for the principle of judicial autonomy, there is little hope for the rule of law. Rules do not seem to bind.

El Salvador suffered its own constitutional crisis last summer. Similarly to the Honduran case, Constitutional Court decisions angered political actors due to their effects on their interests. In the case of the Executive, a Court decision limited the use of unsupervised discretionary funds. In the case of political parties, another decision allowed candidates to run independently, weakening the authority of party structures. Political jockeying to control the balance of power in the Court led to a spate of nominations late in the congressional period that ended in April 2012. The Constitutional Court ruled these appointments unconstitutional on the basis that the law only allows each Congress the approval of a single set of justices per term. Rather than accepting the ruling, the majority coalition in Congress challenged it before the Central American Court of Justice, a body whose authority has long been subject to debate. The justices in question also sought to retain their seats, so that two groups of magistrates claimed to be the legitimate representatives of the Court, creating a situation of institutional uncertainty. The crisis was eventually resolved, fortunately, through political means, but not without damaging the credibility of democratic institutions. Neither Congress nor the questioned appointees were bound by the rules that make the Constitutional Court the ultimate arbiter of the Constitution.

A short-lived conflict also took place in Costa Rica during 2012 when legislators voted not to renew a Constitutional Court magistrate in his post. The act was not outside the purview of the legislatureâ’‘¬’“¢s competence, although some procedural aspects remain open to question. What generated the crisis were remarks by some deputies that starkly showed the political intent of their decision. The legislature was seeking to â’‘¬Å“disciplineâ’‘¬Â the Court, renowned for its activism, by signaling that it would punish those magistrates that refused to be compliant. Congressional representatives were not bound by the rules of judicial autonomy and the separation of powers. However, the outcry that emerged and the prompt resolution of the crisis drove the heads of the executive, legislative, and judiciary powers to issue a joint proclamation reaffirming the relevance of those very rules, reminding everyone of the principle that rules should bind us.

These examples show that formal rules are not enough in our regionâ’‘¬’“¢s progress towards democracy. They must be subject to credible enforcement and they must be accepted and internalized by political actors.

ABOUT THE AUTHOR

  • Ludovico Feoli

    Permanent Researcher and CEO, CIAPA, Executive Director - Center for Inter-American Policy and Research at Tulane University

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CIPR Fall Speaker Series

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Please join us Mondays at noon for our Fall speaker Series
Markets, the State, and Democracy in Latin America
October 14, October 21, November 11, and November 18.

In the 2019 fall series, Markets, the State, and Democracy in Latin America, speakers will discuss emerging issues that have surfaced as the result of the opportunities and challenges to democratic governance that markets have brought to the region. Latin America experienced a major influx of investment, particularly in the resource sector, over the past several decades. While this foreign investment helped hasten economic development, it also brought a backlash of resource nationalism and increased calls for redistribution. Moreover, Latin America is now a model in its own right, with other countries in the Global South adopting its state-sponsored development strategies in the resource sector. These presentations will also explore how Latin America is navigating a sea change in geopolitics, with China emerging as a challenger to the United States as the region’s main trade partner and ally.

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Refugee Crises Now: A closer look at the Americas, Syria, and the Rohingya

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The Tulane History department, Jewish Studies program, CELT, and the Altman Program are sponsoring a talk by Jana Mason from UNHCR, the UN Refugee Agency. Mason will be addressing the refugee crises from various parts of the globe, including Venezuela and Central America.

Graduate Student Writing Group

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Weekly structured writing sessions for Latin Americanist graduate students in all departments. Students, who arrive with a project and a goal, work in communal silence during two 45 minute blocks separated by a 10-minute coffee break. All meetings will be held in the Latin American Library Seminar Room. Co-sponsored by the Stone Center and the Latin American Library.

Latin American Writers Series: Alberto Barrera Tyszka

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Ecuadorian writer and Tulane Visiting Scholar Gabriela Alemán interviews Venezuelan writer Alberto Barrera Tyszka about his life, interests, and influences. Their discussion will be followed by an open Q&A and an informal reception. This event will be held in Spanish.

About the Latin American Writers Series

This series brings together Latin America’s most representative creative voices and the editorial entrepreneurs that publish them. By way of interviews conducted by renowned Ecuadorian writer Gabriela Alemán and presentations of various editorial missions, the guests will shed light on a literary world shaped by the contemporary issues of the continent. Moving forward, their conversations will comprise the centerpiece of a digital archive that introduces their ideas to a global audience.

Este serie reúne a los autores más representativos de la escritura continental y los editores que los publican. A través de entrevistas con la reconocida escritora ecuatoriana Gabriela Alemán y presentaciones de proyectos editoriales, los invitados explorarán los vínculos entre el mundo literario y la realidad continental. Sus conversaciones se convertirán después en el eje de un archivo digital que busca llevar estas ideas a un público global.

About the Author

Born in Caracas, Alberto Barrera Tyszka has published over a dozen works of poetry, short story, chronicle, novel, and biography. His most recent publications include the novels Patria o Muerte (2015) and Rating (2011), the poetic anthology La inquietud (2013), the collection of chronicles Un país a la semana (2013), and the short story collection Crímenes (2009). In 2005, he collaborated with Cristina Marcano to write the definitive biography of Hugo Chávez, Hugo Chávez sin uniforme: una historia personal (2005). Patria o muerte won the 2015 Premio Tusquets de Novela, and his novel La enfermedad, translated into English as The Sickness (2010), received the 2006 Herralde Award. Barrera also writes for television and has scripted soap operas for Venezuelan, Mexican, Colombian, and Argentinian networks.

Pan-American Life in New Orleans: Exhibition Opening and Reception

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Pan-American Life Insurance Group and The Latin American Library at Tulane University cordially invite you to an exhibit opening and reception to unveil the Pan-American Life Insurance Group (PALIG) Collection. The PALIG Collection, generously donated to The Latin American Library, documents the company’s 109 years connecting New Orleans with Latin America. The exhibit will feature photographs, manuscripts, and other materials from the PALIG archives as well as other holdings from the LAL that shed light on the long history of commercial and cultural ties between New Orleans and Latin America.

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Bate papo!: Portuguese Conversation Hour

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A weekly hour of Portuguese conversation and tasty treats hosted by Prof. Megwen Loveless. All levels are welcome!

The theme for this semester will be Passion Fruit. So bring your sweet tooth to try this week’s homemade delicacy: Bala de maracujá.