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 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.

ABOUT THE AUTHOR

  • Ludovico Feoli

    Executive Director - Center for Inter-American Policy & Research

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Upcoming Events

Noon-Time Talk on Behind Closed Doors, Art in the Spanish American Home, 1492-1898 with Lucia Abramovic

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Join Lucia Abramovich, NOMA's curatorial fellow for Spanish colonial art for a Noontime Talk on the exhibition Behind Closed Doors, Art in the Spanish American Home, 1492-1898.

Noontime Talks are brief, informative discussions on exhibitions and installations in NOMA's galleries. Wednesdays are free admission days for Louisiana residents. Please visit the NOMA website for more information.

MARI Brown Bag: Marcello Canuto, "The Tombs of La Corona: La Noblesse Oblige"

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Marcello Canuto, Director of the Middle American Research Institute at Tulane University, will present about his recent investigations at La Corona. The talk will focus on tombs discovered during the 2014 field season and the information these tombs provides about the broader socio-political relationships at La Corona.

M.A.R.I.'s Brown Bag talk series is meant to provide a venue for students and faculty focusing on topics related to Mesoamerica to discuss their latest research in an informal and friendly setting. If you are interested in presenting, please email Marcello Canuto (mcanuto@tulane.edu) for more information. For the current speaker list of this talk series, please click here.

Please remember to bring your lunch!

Mining, Privilege, and Artistic Production in the Colonial Andes: Short Film and Roundtable Discussion

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This program includes a screening of Harun Farocki's film The Silver and the Cross (20 min), which examines a 1758 painting by Gaspar Miguel de Berrío that depicts the city and the surrounding silver mines of Potosí, Bolivia. A roundtable discussion featuring three local scholars of Colonial Latin America will follow the film. The discussion will employ the film's description of colonial Potosí as an anchor for a broader discussion about colonial Andean economics, history, and art, particularly as it relates to Behind Closed Doors: Art in the Spanish American Home, 1492-1898.

The goal of this event is to better understand the mechanisms that created the level of wealth exhibited in Behind Closed Doors, and to shed light on an often overlooked city that was essential to the economic success of Spanish America for hundreds of years.

The roundtable discussants are Dr. Kris Lane, the France V. Scholes Professor of Colonial Latin American History, Department of History, Tulane University; Dr. John Charles, Associate Professor of Colonial Spanish American Literature and Director of Graduate Studies, Spanish and Portuguese Department, Tulane University; and Dr. Ari Zighelboim, Lecturer, Spanish and Portuguese Department, Tulane University. Lucia Abramovich, NOMA's Curatorial Fellow for Spanish Colonial Art, will moderate the discussion.

About Dr. Kris Lane
Kris Lane holds the France V. Scholes Chair in Colonial Latin American History at Tulane University. His books include Quito 1599: City & Colony in Transition, Colour of Paradise: The Emerald in the Age of Gunpowder Empires, and Pillaging the Empire: Piracy in the Americas, 1500-1750. He is currently writing a history of the great Potosí mint scandal of 1649, along with an annotated translation of early writings on Potosí.

About Dr. John Charles
John Charles is Associate Professor in the Department of Spanish and Portuguese at Tulane University. He is the author of numerous articles on colonial Andean literature and history, and the book Allies at Odds: The Andean Church and Its Indigenous Agents, 1583-1671 (University of New Mexico Press, 2010).

About Dr. Ari Zighelboim
Ari Zighelboim (Lima, 1960) studied in Peru, Israel and the United States, graduating with a Bachelor's degree in history and East Asian studies, an MA in cultural anthropology and a PhD in Spanish and Latin American literature. His masters paper dealt with scenes of human sacrifice on mountains in Moche iconography, and his PhD thesis with the surviving Inca nobility during the colonial period in Peru and its cultural and social strategies. He has written about Ruben Dario, Juan de Espinosa Medrano, the drama in Quechua Ollantay, Potosí and other topics. He has also published a volume of poetry. He is now senior lecturer in the department of Spanish and Portuguese at Tulane university.

Reimagining Race, Class, and Identity in the New World

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Assistant Professor Mia Bagneris will lecture on "Reimagining Race, Class, and Identity in the New World," on Friday, September 12 at 6pm at the New Orleans Museum of Art. The lecture will be held in conjunction with the exhibit, Behind Closed Doors: Art in the Spanish American Home, 1492-1898.

Professor Bagneris teaches African American/Diaspora art history and studies of race in Western Art. Her own work concentrates on the construction of race in British and American art and visual culture of the eighteenth and nineteenth centuries.

Performance by Afro-Cuban band Sintesis

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The Cuban and Caribbean Institute presents: Sintesis

Afro-Cuban group Sintesis, founded in 1974 by Carlos Alfonso Valdes, is one of Cuba's musical emblems. The contemporary band has elements of ethno-fusion rhythms mixed with a core of jazz and rock and roll. In the 1980's, Sintesis grew in popularity, and by mid-late decade, the band was a staple of world music festivals. In 1989, they released their first album "Ancestros," and since then have released many more. Their album "Habana a Flor de Piel" was nominated for a Latin Grammy Award in the category of Best Contemporary Tropical Album in 2002.

All are welcome to attend.

Guantánamo Post-9/11: Human Rights & Constitutional Law in Modern America

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Guantánamo Post-9/11: Human Rights & Constitutional Law in Modern America

Guest speakers:
Jess Bravin: Wall Street Journal, author of Terror Courts: Rough Justice at Guantánamo Bay
Denny Leboeuf: ACLU, Tulane JD
Chaplain James Yee: Former U.S. Army Chaplain, author of For God and Country: Faith and Patriotism Under Fire

The Guantánamo Public Memory Project is a traveling exhibit that examines the history of the U.S. naval base in Guantánamo Bay, Cuba, from multiple perspectives and raises questions about U.S.-Cuban relations, civil liberties, national security, and public memory in the past, present, and future. The guest speakers will be giving a talk on the titled event. All are welcome to attend.

For more information about the Guantánamo Public Memory Project, visit http://gitmomemory.org.