A Cautionary Tale of Constitutional Rewrites

Rewriting national constitutions became a trademark of Latin America’s famous “Pink Tide,” or turn towards leftist governments. While this process was frequently seen by supporters as an attempt to give power back to the people, it often resulted in consolidating power within the executive – a problem further exacerbated by many presidents’ attempts to extend their term limits. This process has weakened the democratic process in many of these countries and empowered presidents to make drastic changes in their political institutions. Despite the receding Pink Tide and the rise of right-leaning governments in many Latin American countries, these new governments and the remaining leftist leaders should not rewrite constitutions in their favor as this would further weaken the rule of law in their countries.

Image Courtesy of the Government of Venezuela (c) 2017

One need only look at the ongoing crisis in Venezuela to see the dangers of rewriting national constitutions and concentrating too much power in the executive. In 1999, then-President Hugo Chavez rewrote the constitution to strengthen the role of his presidency. Following a 2002 coup attempt against him, Chavez further consolidated his power through referendums that needed only majority support. Now, clashes between pro- and anti-Maduro protesters, as well as the Venezuelan security apparatus, have led to the death of over 90 Venezuelans. President Maduro claims that the path to resolving the Venezuelan political crisis requires rewriting the constitution… again. Even some of the most ardent Maduro supporters opposed this move, and 98 percent of Venezuelan voters rejected Maduro’s call to rewrite the constitution.

However, Maduro’s choice to ignore public opinion and proceed with the constitutional rewrite continues this troubling trend in many Latin American nations. Constitutional rewrites pose a direct threat to some of the central tenets of democratic governance, including maintaining a standard set of rules, fair elections, and strong checks and balances. Making constitutional changes that disproportionately benefit one side of the political spectrum, or that are based on immediate political considerations, can lead to future democratic crises.

Establishing a set of electoral practices is a critical element of democratic governance and reduces the likelihood of democratic crises. Democracy requires that different perspectives and candidates are presented so that the people can select what they believe is in their interest. This premise only functions if all politicians have the opportunity to engage in the electoral process. Changing the rules of the electoral game makes the process inherently unfair, as winners can manipulate the rules to their advantage.  When they are skewed in favor of one political ideology, rather than reflecting the popular will of the people, those at a disadvantage are more likely to use non-democratic mechanisms to gain power. Political scientist Guillermo O’Donnell refers to an “impossible game” in which the political right uses military force, or other questionable legal mechanisms, to gain power when they believe they are unable to electorally win power. Changing the rules of the democratic game only exacerbates this possibility.

Furthermore, such a move may be a short-term fix and lead to larger problems. While the changes may benefit one political party at first, it is unlikely they will be in power perpetually and eventually may have the unfair set of rules turned upon themselves. Maintaining an appropriate balance of power between the branches of government, as well as between political parties, is critical to proper democratic governance.

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