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February 21, 2009 [LINK / comment]

Ghost-written constitutions

Last Monday's Washington Post had a very interesting story on the new constitutions that have been adopted in Venezuela at the insistence of Hugo Chavez (1999), Ecuador under Rafael Correa (Sept. 2008), and Bolivia under Evo Morales (Feb. 2009). In each case, they are lengthy, detailed scripts that have less to do with defining government powers (as in the U.S. Constitution) than with rebuilding their respective social systems from the ground up. The radical populist agenda that each of those three countries is following is well known by now, but the legalistic origins of their new political charters is not.

The article in the Post demonstrates that for all three countries, legal advisers from Spain played a key role in the process of drafting the documents. A team led by Roberto Viciano Pastor, a professor at the University of Valencia, influenced not only the wording but the ideological underpinnings of the new constitutions. In other words, those countries relied upon foreign "ghost-writers" to draft their own constitutions! There is such a strong resemblance among the documents that one might almost regard it as a case of "plagiarism."

Constitutional law scholars point to several similarities among the constitutions of Venezuela, Bolivia and Ecuador, including the emphasis on "re-founding" those nations to correct historical injustices, to solidify the power of the leader and to focus public policy and spending on the social needs of classes traditionally overlooked by the government.


One Spanish newspaper, ABC, described Viciano in a 2007 article as Chavez's "gray matter" and the "principal ideologue" of Venezuela's constitutional amendments. Viciano objected, and the paper later retracted the assertions.

It is clear that the reliance upon an authoritarian leader to carry out these radical transformations has undermined the culture of pluralistic democracy that had been spreading in Latin America from the mid-1980s until the turn of the century, roughly. Instead of resolving disputes in a peaceful manner by impartial courts, the new radical populist leaders are inciting their followers to wreak revenge, taking their grievances to the streets, intimidating their opponents by crude displays of force, and wrapping themselves in the flag whenever some international human rights group calls attention to such despotic practices. It's a monumental tragedy, but we haven't seen the final chapter yet...

Some background

To understand why Latin Americans would be so willing to abandon the progress they had made toward establishing constitutional republics [-- i.e., political systems in which government power is limited so that no one faction dominates -- once] and for all, a little history is necessary. Peruvian scholar Javier Alcalde notes that Latin American countries follow the Roman law tradition, in which legal statutes are written in extreme detail to cover every conceivable circumstance in advance. In contrast, the Anglo-American follow the more pragmatic common law tradition, which allows for flexible interpretation as new conditions arise. Constitutions in Latin America are often "expressions of aspirations and political ideals," and rights are spelled out with no regard for the possibility of enforcing them. From the inevitable clash between law and fact in Latin America emerges the common phrase, "Law is obeyed, but not carried out." For example, free public education is guaranteed for everyone, even though few governments in that region could actually afford decent public schools for the poor. There is a widespread belief in the "magic power" of constitutions to change reality. Once the dream is exposed as untenable, disillusion sets it, reinforcing the vicious cycle of cynicism.

Another Latin American scholar, Prof. Keith Rosenn, examined the social and cultural aspect of this issue. Most Latin American constitutional regimes only last for a few decades at the most, and the periodical revamping of the fundamental charter undermines respect for the rule of law. This in turns fosters a culture of "cheating the system," because confidence in the duration and enforceability of the laws is so low. Rosenn argues that the failure of constitutionalism in Latin America stems partly from the absence of a genuine social revolution at the time of independence. Unlike the United States, the existing aristocratic elites held on to absolute power. Another flaw, he noted, was that many constitutional provisions have an "imported flavor," which this current episode in Venezuela, Ecuador, and Bolivia illustrates perfectly. The persistence of militarism goes hand in hand with the lack of experience with effective checks on executive power.

SOURCE: The U.S. Constitution and The Constitutions of Latin America, Kenneth W. Thompson, ed., (Lanham, MD: The University Press of America, 1991)

Posted (or last updated or commented upon): 22 Feb 2009, 5: 26 PM

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