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79Th REGULAR SESSION OEA/Ser.Q 1 – 6 August 2011 CJI/Doc.383/11 Rev.1 Rio De Janeiro, Brazil 2 August 2011 Original: Spanish

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79Th REGULAR SESSION OEA/Ser.Q 1 – 6 August 2011 CJI/Doc.383/11 Rev.1 Rio De Janeiro, Brazil 2 August 2011 Original: Spanish 79th REGULAR SESSION OEA/Ser.Q 1 – 6 August 2011 CJI/doc.383/11 rev.1 Rio de Janeiro, Brazil 2 August 2011 Original: Spanish REPORT OF THE INTER-AMERICAN JURIDICAL COMMITTEE ON MECHANISMS OF DIRECT PARTICIPATION AND STRENGTHENING OF REPRESENTATIVE DEMOCRACY I. Delimitation of the mandate granted to the rapporteur The General Assembly of the OAS, at the session held in Lima in 2010, adopted resolution AG/RES. 2611 (XL-O/10), in which it requested the Inter-American Juridical Committee to undertake “a legal study of the mechanisms of participatory democracy and citizen participation contained in the legislation of some countries in the region.”. In light of which, at its 77th regular session held in Río de Janeiro, Brazil, the Inter-American Juridical Committee decided to designate Dr. Fabián Novak as rapporteur for this theme and also ask the Office of the Committee to remit a communication to the Member States of the OAS for them to cooperate with the Committee by sending all the available information they have on the mechanisms of citizen participation incorporated in their respective juridical systems.1 Likewise, following a broad debate, the Committee agreed that it would be suitable for the paper written by the rapporteur to be of a legislative rather than doctrinaire or theoretical nature in order to show the current status of the mechanisms of direct participation that are incorporated in the various political systems of the region, based on which a set of conclusions and recommendations would be formulated. In this sense the following report to the members of the Committee is based on the analysis not only of the constitutional texts of all the member states of the OAS but also the legislative development made in some of them. 2. Representative democracy and mechanisms of direct participation in the countries that make up the OAS 2.1 Preliminary concepts The so-called representative democracy that is incorporated in all the constitutional systems of the countries that make up the OAS is usually defined as that in which the people elect the governors, to represent them and perform the function of government. In this respect, it has to be added that one of the chief functions of representation is the legitimization of public power. In effect, in representative democracy those who hold the public power are legitimate representatives of the nation. Accordingly, and in principle, all those who possess public power are representatives of the nation and people, and their power is legitimate as long as this is maintained functioning within the limits of this representation.2 As the years have gone by, the total number of countries that make up the OAS have progressively incorporated into their systems of representative democracy a serie of mechanisms of intermediation or direct participation that are peculiar to so-called semi-direct or participative democracy,3 which has unquestionably sought to enhance and strengthen this model of government.4 1 At the moment this report was concluded, the Office of the Committee had already received answers from the Permanent Missions of the Bahamas, Canada, Ecuador, Mexico, Panama, Paraguay, Peru and the Dominican Republic. 2 GARCÍA-PELAYO. Manuel. Obras Completas. t. I, Madrid: Centro de Estudios Constitucionales, 1991. p. 374. 3 Today, professional opinion prefers to use the term semi-direct democracy to differentiate it from direct democracy, which is at present considered impracticable, given the current volume of the local populations and the impossibility of permanently consulting them. In this regard, see CONTRERAS, José. La Democracia Participativa en el Constitucionalismo Latinoamericano. In: USECHE, Luis 2 Some preambles or articles of the Political Constitutions of the region even expressly define the participative nature of the democracy in the State in question, thereby affirming its representative characteristics.5 There is certainly no intention of returning to the direct democracy of the Greeks,6 but to establish greater mechanisms of citizens’ participation and consultation to allow the State to act Enrique. La Participación Ciudadana en el Derecho Constitucional Latinoamericano. In: El Nuevo Derecho Constitucional Latinoamericano, v. I, Caracas: Fundación Konrad Adenauer/CIEDLA/COPRE, 1996. p. 251. As pointed out by MIRÓ QUESADA, Francisco. Democracia Directa: un análisis comparado en las constituciones latinoamericanas. In: El Nuevo Derecho Constitucional Latinoamericano, v. I, Caracas: Fundación Konrad Adenauer/CIEDLA/COPRE, 1996. p. 133: “Direct democracy implies a set of practices, institutions and policies by means of which individuals participate in the political power as directly as possible and with the minimum of intermediation. Direct democracy is more participation than intermediation. […] Accordingly, when we analyze political systems we find none where there is pure direct democracy, in general the institutions of direct democracy appear combined or else mixed with those of representative democracy. That is why we speak of semi-direct democracy”. The same theme is addressed in GARCÍA CHOURIO, José Guillermo. Instituciones de Democracia Directa y Participación Ciudadana. Lima: Cuadernos para el Diálogo del Jurado Nacional de Elecciones, 2008, p. 35-36: “Strictly speaking this is simply a redefinition that uses the prefix “semi” to relativize and set a distance between what in ancient times was an exercise of face-to-face politics and what today has a real possibility of being practiced in the light of the modern institutions of democracy”. Finally, Weber preferred to speak of rationalized direct democracy to distinguish from Athenian democracy the direct-consultation procedures included in representative democracy. WEBER, Max. Economía y Sociedad. México: Fondo de Cultura Económica, 1984. p. 234. 4 This affirmation does not deny the problems that may arise from misuse of these mechanisms on the part of the government in place, mechanisms that have been widely developed by Latin American professional opinion based on certain experiences over the last few years. So, institutions such as the referendum and the plebiscite, among others, can be used to grant more power to the Executive Power in detriment of the Legislative in order to approve populist laws, weaken Congress and the political parties, intervene in the media or control social organizations. Contributing to this is the tendency of many voters in the region to see the figure of the President as the exclusive depositary of democratic legitimacy, to whom they delegate the right and obligation to resolve the country’s problems according to his/her best judgment and understanding. This model is called delegative democracy, that is, a system in which the Head of State uses the mechanisms of direct participation in order to affirm personal rather than institutional projects and consolidate self-affirming and self-legitimizing proposals rather than real demands of the citizens. Another danger is if the mechanisms of direct participation consecrated in the constitutional texts are coupled with other provisions that weaken democratic institutionality; in this case too, the mechanisms of direct participation will by no means strengthen representative democracy. See LISSIDINI, Alicia. Democracia Directa Latinoamericana: Riesgos y Oportunidades. In: Democracia Directa en Latinoamérica. Buenos Aires: Prometeo Libros, 2008. p. 14-15; KAUFMANN, Bruno. Prólogo. In: Democracia Directa en Latinoamérica. Buenos Aires: Prometeo Libros, 2008. p. 10. 5 An example is the Constitution of Costa Rica, which expressly points out in article 9 that “The Government of the Republic is […] representative, participative, […]”; the Constitution of Honduras points out in article 5 that the Government must respect the principle of participative democracy, and article 2 states that the sovereignty of the people can also be exercised directly through plebiscite and referendum; article 1 of the Constitution of Paraguay reaffirms the principles of representative, participative and pluralist democracy, while articles 2 and 7 of the Constitution of Nicaragua define that republic as being democratic, participative and representative, and the Constitution of Venezuela defines Society and Government as being democratic and participative (see the Preamble and Articles 5 and 6). The Colombian Constitution defines the State as a democratic and participative republic (Article 1) which facilitates the participation of all in the decisions that affect them (Article 2), where the people exercise their sovereignty directly or through their representatives (Article 3) and within a democratic and participative legal framework (Preamble). The Constitution of Bolivia establishes that the people exercise their sovereignty in a direct and delegated fashion (Article 7) and that the government is characterized as being democratic, participative and representative (Article 11). 6 This due to the practical impossibility of applying this system in countries with large populations, where direct permanent consultation of each act of the government would prove impossible. Furthermore, Athenian direct democracy involved very few people, who belonged to the dominant classes; women were excluded, and the Eklesia (Assembly) only met about 40 times a year. See USECHE, Luis Enrique. 3 more efficiently in an atmosphere of orderly, democratic and institutionalized channeling of citizens’ demands. Furthermore, a representative democratic system does not imply a divorce
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