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 Chavez’ 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 Chavez’ reelection established the “administrative continuity” of the Executive, rendering a new inauguration “unnecessary”. 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 president’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 legislature’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 “discipline” 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 region’s progress towards democracy. They must be subject to credible enforcement and they must be accepted and internalized by political actors.

• Rule of Law
• Institutions

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  Ludovico Feoli

  Executive Director - Center for Inter-American Policy & Research