Models of Constitutional Review (Reform and Amendments) in Latin America

MODELS OF CONSTITUTIONAL REVIEW (REFORM AND AMENDMENTS) IN LATIN AMERICA. * A COMPARATIVE ANALYSIS Allan R. Brewer-Carías All the Constitutions of the Latin American countries were adopted in the beginning of the 19th century on the occasion of their independence from Spain, by popular will, expressed through elected Congresses, Conventions or Constituent Assemblies, which assumed the original constituent power for the organization of the State with a republican form. As rigid constitutions, the means for their amendment or review were set forth as derived constituent power, being the convening of a Convention or Constituent Assembly an exceptional constitutional review procedure, as it was established in the 1853 Argentinean Constitution, following the North American model. The Latin American Constitutions of the 19th century, during the almost two hundred years that have elapsed since independence, have been reformed or amended several times, but not necessarily following the procedures set forth (derived constituent power) in the Constitutions. Instead, almost all the Constitutions now in force in Latin America have been the result of Constituent Assemblies or Conventions, which in their moment assumed the constituent power without being ruled in an express way in the former constitutions, such as happened in recent years in Colombia (1991) and in Venezuela ( 1999). In any case, as all rigid Constitutions of the current world, the Constitutions in force of the Latin American countries expressly set forth the constitutional review procedures, different from those established to reform the legislation; assuring in them not only the participation of the popular representation organs of the State (Congresses or Parliaments), but also assuring in most of the cases, a direct people's participation through a vote or for the election of a Constituent Assembly or Convention or for the approval through a referendum on the constitutional reform or amendment. Thus, in general terms, in the Constitutions of Latin American countries is possible to distinguish three general constitutional review procedures regulating the derived constituent power, depending on who exercises the constituent power: a procedure hereby the constituent power is exercised directly by the people, or whereby it is exercised by the popular representation organs of the State (Congresses or parliaments) * Paper prepared for the VI IACL World Congress on Constitutional Law, Santiago de Chile, January 2004. on behalf of the people, or whereby it is exercised by a Constituent Assembly or Convention called for that purpose. Some countries have ruled the three constitutional amendment procedures at the same time, as in Colombia, where article 374 of the Constitution set forth that: "The Political Constitution shall be reformed by the Congress, by a Constituent Assembly or by the people through a referendum". All these constitutional review procedures ruled in the Latin American Constitutions are of course obligatory. Therefore, their own texts do not acknowledge a constitutional reform carried out through procedures not foreseen in the Constitution. Thus, for example, article 120 of the Dominican Republic Constitution set forth: Art. 120. "A Constitutional amendment shall be make only in the manner set forth in itself, and shall never be suspended or revoked by any power or authority or by popular acclaim either." In a similar sense, the Venezuelan Constitution set forth in article 333 the following: Art. 333. "This Constitution shall not lost its validity if it is ignored by an act of force or if it is repelled by any other mean different from that foreseen in it. In such a case, every citizen empowered or not with authority shall be obliged to help in restoring its effective validity." On the other hand, being a derived constituent power the one ruled in the constitutional texts, the same has limits not only as to the powers that the constituent organ might assume regarding the constituted Powers of the State, but also as to the matters to be amended or reformed, wherefore many constitutions through very rigid provisions, exclude from revision certain principles and provisions declared immutable and, therefore, not review able and not amendable. For the purpose of studying the constitutional review procedures in Latin America, from a comparative constitutional law approach, this study is divided in two parts, devoting the first part, to analyze the procedures set forth for a constitutional review (amendment and reform); and the second part, to study the limits imposed upon the constituent power. FRIST PART THE DIFFERENT PROCEDURES FOR THE EXERCISE OF THE DERIVED CONSTITUENT POWER (REFORM AND AMENDMENTS OF THE CONSTITUTION In general terms, we can outline three constitutional review procedures in the Latin American Constitutions, whereby the derived constituent power is shown: In the first place, several constitutions grant the constituent power directly to the sovereign people, who express themselves by ratifying the reform or amendment through a referendum or a popular consultation. In some cases, (i) the people's participation as constituent power is set forth in an exclusive way, as the only constitutional review procedure (Uruguay); and in other cases, (ii) it is set forth as one of the alternatives of constitutional review procedures together with others. That is the case, for example, of Venezuela, Colombia, Paraguay, Guatemala and Costa Rica, where it is also regulated a Constituent Assembly; and of Peru, Cuba, Chile, Ecuador and Panama, where additionally, the legislative organ is granted the power of approving the constitutional amendment. In Colombia, as it has been said, in addition to the constitutional review procedure through referendum, it is also regulated a Constituent Assembly and the constitutional reform through Legislative Acts sanctioned by the Congress. In the second place, many other Constitutions grant the derived constituent power to a Constituent Assembly or Convention, (i) as an exclusive constitutional reform process, such as in Argentina; (ii) as an exclusive process for total constitutional reforms, different from the amendments, such as in Costa Rica, Paraguay and Nicaragua; (iii) as an exclusive process for the reform just of certain provisions of the Constitution, such as in Guatemala; or (iv) together with other constitutional review procedures as the popular referendum, such as in Colombia and Venezuela. In the third place, other Constitutions grant the derived constituent power to the Legislative Branch of government (Congresses or Parliaments), (i) some times in an exclusive way, such as in Bolivia and El Salvador; (ii) in other cases also in an exclusive way but combining the work of the national (federal) Legislative organ with the participation of the States legislatures; (iii) in other cases, as an alternative mean of reform other than the procedure of referendum, such as in Panama, Colombia, Cuba, Chile and Ecuador; or (iv) also as an alternative reform mean other than the Constituent Assembly, such as in Colombia, Costa Rica and Nicaragua. 1. Constitutional Review Power Exercised Directly by the People As it has been said, in several Latin American Constitutions, the power to review the Constitution is directly granted to the people. In some cases, this popular participation is set forth to review the Constitution in an exclusive way, and in other cases, it is ruled as one of the constitutional review procedures, combined with others such as the call for a National Constituent Assembly. A. The Constitutional Review Exercised Exclusively by the People: The Case of Uruguay In Latin America, only the Constitution of Uruguay grants the people in an exclusive way, the ultimate power of approving all total or partial constitutional reforms through referendum. (Article 331). Constitutional reform procedures, therefore, only vary according to the initiative for the same, which might correspond (i) to popular initiative, (ii) to the Legislative Branch (General Assembly); (iii) to the Senate, Representatives and the Executive Power, by calling a Constituent Assembly. a. The Popular Initiative. In the first place, there is the possibility that by the initiative of a ten per cent of the citizens, registered in the National Civic Registry, a proposal for constitutional review can be raised before the President of the General Assembly, which shall be submitted to popular approval, in the closest election. In this case, the General Assembly, deciding in joint session of both Chambers (Senate and Deputies), is also entitled to submit alternative proposals that shall be presented for ratification in a plebiscite together with the popular proposal. For the ratification by plebiscite it is required that the absolute majority of the citizens attending the election voted "yes", which must represent at least thirty five per cent of the total registered in the National Civic Registry. In this case, only can be submitted to popular ratification by referendum simultaneously with the closest elections, the proposals submitted six months –at least- prior to those elections or three months prior to them, for the alternative proposals approved by the General Assembly. Those raised after such time shall be submitted to plebiscite in the following elections. In the second place, the constitutional review might be proposed by the General Assembly, in that case, article 331 set forth two constitutional reform procedures: through the ratification of

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