[Editor’s Note: This is Part II in our Externado symposium on “Contemporary Discussions in Constitutional Law.” The Introduction to the symposium is available here, and Part I is available here.]
–Sabrina Ragone, Associate Professor of Comparative Law, University of Bologna; Senior Research Affiliate, Max Planck Institute for Comparative Public Law and International Law
The study of Latin American constitutionalism is one of my main research interests; the region is today one of the most lively and original in the world in terms of constitutional developments and innovation[1].
Within this framework, I have started a new line of research dealing with presidential re-election in several jurisdictions, paying special attention to the role played by the corresponding supreme and constitutional courts. The theoretical and factual premises are the following: a) one of the main features of Latin American constitutionalism is the presence of presidential systems; b) the (constitutional) regulation of the re-election of the president should be considered as an element of the constitutional identity according to part of the scholarship; but c) this identity can go in both directions, towards permission and prohibition; d) numerous constitutional courts have dealt with the issue using two main parameters: the separation of powers and the principle of equality.
In the past two decades, there have been different constitutional approaches to regulating or prohibiting re-election: through i) constitutional amendment; ii) the election of a Constituent Assembly; iii) a popular consultation plus National Review Assembly); iv) referendum or Constituent Assembly plus referendum; finally, v) judicial intervention[2].
Concentrating on the hypothesis sub v), the main case study is the jurisprudence of Colombia whose constitutional court permitted a second term (judgments C-1040 to C-1057/2005) but not a third (judgment C-141/2010). This can be compared to Ecuadorian and Venezuelan judgments that allowed unlimited re-election, as well as to the Nicaraguan judgment of the constitutional chamber of the Supreme Court (and then its plenum) that legalized a third term; or to the Costa Rican decision from 2003 which enabled non-immediate re-election.
Concerning the Colombian case, in December 2004, Congress passed a reform eliminating the immediate reelection prohibition, so that a second consecutive candidacy of the President Álvaro Uribe Vélez became possible. This amendment was challenged before the Constitutional Court, which applied what I would define as a “loose” replacement test in its 18 judgments. The actions brought against the 2004 reform were based on the replacement of the constitution for violation of several essential elements: the principle of equality; political pluralism; legal certainty; and separation of powers. Overall, consistently with the logic of the claim, the Congress was accused of having gone beyond its limits in the exercise of the amending power acting ultra vires.
The Court held that the reform had not implied a replacement of the constitution, because the element affected was relevant but the power to choose the president still belonged to the people through popular vote; at the same time, all checks and balances existing in the form of government regulated in the constitution of 1991 were maintained. Only one norm was struck down: the Council of State had been allotted the power to pass a law on election and presidential campaign, if the Congress did not adopt the regulation in time; this was considered a violation of the separation of powers.
A new amendment in 2010 would have permitted a third presidential term. In this case, the intervention of the Court was obligatory as the reform was the object of a petition of referendum. Through a “strict” replacement test, the Court finally held the amendment unconstitutional. The main arguments, briefly put, were that a third mandate of the president would impede political alternation and let officers appointed by the administration with the spoil system keep their offices for too long. From the perspective of “rights, principles and values”, it would affect negatively the equality among candidates, the freedom of the electors and the position of the minority. Finally, it would increase the power of the president and minimize checks and balances, weakening the separation of powers. Therefore, there would have been a replacement of the constitution[3].
A fascinating comparable judgment is the one issued by the Ecuadorian Constitutional Court in 2014, which used four arguments in order to permit unlimited re-election: a) non-discrimination; b) the non-constitutional value of the principle of political alternation; c) the importance of democratic participation; d) the sufficiency of the checks and controls established in the legal system concerning the electoral process. Nicaraguan case law refers also to the “right to be elected” as one of the grounds for the decision.
Without delving into other judgments from different jurisdictions, I will conclude this brief presentation saying that the main outcome of the research will be based on a critical comparative analysis of the case law. I will focus on the ambivalent use of the principle of equality and separation of powers, through the application of the theoretical framework of the so-called “abuse of constitutionalism”, every time that formally constitutional mechanisms are used with the aim of positioning the dominant political force in a situation of privilege in comparison to the rest.
I am very grateful to Externado University of Colombia for letting me present this new line of research in the symposium and welcome any comments or suggestions on this work in progress.
Suggested Citation: Sabrina Ragone, I-CONnect Symposium–Contemporary Discussions in Constitutional Law–Part II: Presidential Re-Election in Latin American Case Law: A Work in Progress, Int’l J. Const. L. Blog, November 2, 2018, at: http://www.iconnectblog.com/2018/11/i-connect-symposium-contemporary-discussions-in-constitutional-law-part-ii-presidential-re-election-in-latin-american-case-law-a-work-in-progress
[1] L. Pegoraro, “América Latina como categoría y objeto de comparación (Coordenadas metodológicas para el estudio comparado de los sistemas jurídicos latinoamericanos)”, in Pensamiento Constitucional, n. 22, 2017, pp. 175-202.
[2] A comprehensive classification in M. Rodríguez Saldaña, “Reformas constitucionales y reelección presidencial en Iberoamérica”, in J.M. Serna de la Garza (ed.), Contribuciones al Derecho Constitucional, UNAM, 2015, p. 599 ff.
[3] See the analysis by S. Ragone, El control judicial de la reforma constitucional. Aspectos teóricos y comparativos, Porrúa, 2012.
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