CABINET GOVERNMENT AND LATIN AMERICAN NEOPRESIDENTIALISM
I. Preliminary considerations: one aspect of common constitutional law in Latin America. II. Rationalized presidentialism. III. Appointment Procedure. IV. Composition. V. Functions. VI. Coordination. VII. Attendance and participation in the Congress. VIII. Confidence, interpellation, and censure. IX. General considerations on the presidential system. X. Final considerations.
To eminent professor Peter Häberle
I. PRELIMINARY CONSIDERATIONS: ONE ASPECT OF COMMON CONSTITUTIONAL LAW IN LATIN AMERICA
Many of the distinct features of common constitutional law in Latin America have been clearly identified by Peter Häberle.1 Among the elements that characterize the constitutional State we find democracy and, in the words of professor Häberle, the idea of "cultural democracy" is also present when molding a constitutional system. The presidential system occupies a central position in the context of Latin America’s constitutional culture. That is why in the "workshop on the constitutional State", to use another Häberlian expression, there have been many adjustments that tend to tone down the authoritarian aspects of Latin American presidentialism.
There have been democratic changes mainly in three directions: institutional reform, human rights, and electoral systems. Institutional reform includes new forms of organization and operation of the State’s governmental, judicial, and representative bodies. There have been various experiences, on the national and continental levels, in the domain of human rights that include issues such as protection of minorities and access to justice. Finally, the main social demands, arising from long periods of enduring an arbitrary exercise of power, referred to the exercise and guarantee of basic rights, and to the existence of effective and impartial electoral institutions.
The topic discussed here is developed along the lines of reflections supported by Peter Häberle, particularly based on the premise that democracy is the organizational consequence of human dignity.2 In this case, one relevant common aspect of law in the Americas refers to overcoming endemic militarism and party authoritarianism, and building an institutional democracy on the basis which it is sought to renovate the presidential system. This renovation consists essentially of reducing extreme concentration of power, which has traditionally characterized presidential systems.
That issue covers a very broad scope, but in this paper we will discuss only that which pertains to the organization and operation of the presidential cabinet,3 as it represents one of the elements that allows the evaluation of the level of concentration of presidential power. Throughout Latin America’s political history, from the independence attained by most of the States during the early decades of the 19th century, the main political problem was the high degree of concentration of presidential power. Such power associated in many cases the political investiture and the military hierarchy. The consequences of that concentration of power severely damaged individual and public liberties, and led to considerable democratic deficits in the region.
From a legal standpoint, the means of concentrating power allow us to identify today three models of presidential systems in Latin America: the traditional system, the transitional system, and the democratic system. The traditional system involves the authoritarian exercise of power, highly concentrated in the individual who occupies the presidency, and under whom political and judicial controls do not effectively guarantee basic rights. The transitional system involves a stage in development where effective judicial controls do exist, but where political controls have not been fully developed. In a democratic system, political and judicial controls stand.
The central element used to identify the type of presidential system from a legal standpoint refers to the validity and effectiveness of control instruments. The judicial control exercised by courts and the political control interactive between government and congress,4 are the clearest points of reference. To determine, according to legal bases, the level of concentration of presidential power, I have taken into consideration the cabinet’s organization and operation. Two necessary elements refer to organization: that there should exist the constitutional figure of a cabinet, with specific powers and in some cases even a coordinator, and that there be political controls in place for its operation. With regard to functions, I only mention those pertaining to the cabinet as a whole; I do not include those which, constitutionally, must be enacted by each minister individually. Nor is reference made to the ministers’ role in declaring states of emergency, because traditionally they participate in such cases. In some constitutional systems, such as the Colombian (art. 212), they become involved even in declaration of war. However, this function of the ministers more than a mechanism to decentralize presidential power, has protected the presidential figure from the political effects of enforcing a state of emergency.
II. RATIONALIZED PRESIDENTIALISM
The structure of executive power being vested in a single individual, as contemplated in the Philadelphia Constitution (art. 2), vastly influenced Latin America.5 However, a very important factor is usually underestimated: unlike the presidential system of the United States, the Latin American presidential system is plebiscitary. This feature does not derive from the United States Constitution, which since 1789 has maintained the same indirect election procedure, but from the French Constitution of 1848 (art. 46), whose popular system to elect the president was a result of the strong pressure exerted on this point by Louis Napoleon Bonaparte.6 The plebiscitary type of presidential government is a Bonapartist creation that fulfilled authoritarian aspirations in Latin America, and found constitutional justification in the principle regarding the separation of powers, which allowed for the intangibility of those in government.
The eight Latin American constitutions that abandoned the original position of one person exercising the executive power, lea to more effective control mechanisms with regard to acts of government. As in the case of absolute power of monarchs who began to decline with the separation of the functions performed by the head of State and the head of Government, which gave rise to the parliamentary system and the constitutional monarchies, the highly centralized power of presidents tends to diminish following a gradual decentralization of the government’s responsibilities.
III. APPOINTMENT PROCEDURE
The procedure to appoint the members of the president’s cabinet is not usually spelled out in Latin American constitutions. Generally speaking, sixteen constitutions establish the power of the president to appoint and remove freely the members of his cabinet, except in Peru and in Uruguay. The Peruvian constitution (art. 122) provides that the president appoints and removes the chairman of the Council of Ministers, but that it is the council which proposes the designation of the other ministers. In Uruguay, the president distributes the ministries among citizens who, because they are supported by Parliament, are sure to remain in their position (art. 174) or otherwise, the president may remove ministers when he deems that they lack parliamentary support (art. 175).
The common features of Latin American constitutionalism, related to the system of government, consist of the generalized adoption of the presidential system. There are significant differences only in the case of Uruguay, which are referred to in item 6. Moreover, international territorial struggles, the fight for power which often turned into civil wars, the expansionist threat of the United States,7 and the difficult relationship between the State and the Catholic Church, produced throughout the 19th century a clear trend in terms of militarizing political power.
New factors appeared in the 20th century: the social struggles that led to adopt standards and policies granting workers benefits; international Nazi Fascist and Soviet Communist pressure; extreme poverty and the concentration of income; and the repression of social nonconformity and political dissent, among others, which gave rise to caudillismo and to populist governments, by definition authoritarian, with either a military or civilian profile. Many such governments were the result of military coups, while others used electoral fraud as a hypothetical instrument of legitimization; but all of them were characterized by a high concentration of power as a common denominator. In particular, social norms and policies, which in many cases opened the way for corruption, led to the emergence of patriarchal styles that strengthened the authoritarian exercise of power. The greater the capability to do favors, to satisfy social demands, to provide assistance to people and groups in need, to solve collective differences, to develop and implement social rehabilitation programs, the greater the concentration of power in the hands of presidents. Furthermore, the threats from abroad were also used to reinforce theses in favor of the existence of a strong government. One of the most negative effects of this phenomenon was the restriction of individual and public liberties.
The fact that basic rights were affected was something common in Latin America and, in particular, it became the standard to restrict the right to information, corrupt the media, suffocate or repress universities, and persecute or co-opt intellectuals. In short, to maintain conditions of uncontested authority, it was necessary to control the information and cultural machine as much as possible.
Such situation was reflected in the composition of the Latin American presidential cabinets which, in time, gave rise to three main groups: the group of technical experts, that where politically neutral and allowed satisfactory responses to issues such as public services, sound finances, and a reasonable interlocution with foreign governments and agencies, for example; the group of clients, which opened the cabinet to those who showed the greatest ability to obey and rewarded the purveyors of special services (including fraudulent actions) for the president to come to power. And finally the group of prestige, through which it was possible to include in the cabinet individuals whose presence would soften the image of technocracy and the rigors of political patronage, and would allow the structuring of a politically acceptable discourse.
Another area directly related to presidential discretionary authority in Latin America to appoint and remove direct collaborators is that pertaining to the public prosecutor (Staatsanwltschaft). In this aspect it is very symptomatic how, as other changes regarding the cabinet have been taking place, the public prosecutor has become autonomous. This process is directly related to the culture of human rights that has permeated the region, and to the disappearance of the military regimes. The public prosecutor tends to cease to be an instrument of government frequently used as a mechanism of political coercion. Currently, it is autonomous in most of the Latin American countries (Argentina, art. 120; Bolivia, art. 124ff.; Brazil, art. 127ff.; Chile, art. 80 A; Costa Rica, pursuant to the 1982 Organic Law of the Attorney General of the Republic; Colombia, art. 249ff.; Ecuador, art. 217; El Salvador, art. 191; Guatemala, art. 251; Honduras, art. 228; Paraguay, art. 266; Peru, art. 158; Venezuela, art. 273 h and 284); it is subordinate to the president only in Mexico, Nicaragua, Panama, the Dominican Republic, and Uruguay. However, the personal effect of the appointment is mitigated in some systems: in Nicaragua (art. 150.14) the president proposes a short list to the Assembly; in Panama (arts. 155, 200 and 221) the proposal is made by the Council of the Cabinet, and in Uruguay the appointment is proposed (art. 249) by the Council of Ministers. The most ancient patterns exist only in Mexico and the Dominican Republic.
As to how cabinets are organized, half of constitutions provide that this is a legal issue and the other nine refer to the cabinet’s composition.8 It is an important issue because those constitutions that do not regulate this matter, assign the government’s responsibility to just one individual: the president, a matter which confirms that this archaic form of concentration of power are still very much alive.
On this specific point we must bear in mind that the figure of the British monarch was present when the presidential system was molded in the United States; the idea of linking the figure of the president to a personal sway of power arose due to the necessity to provide the constitutional State with a functional axis. The same reason was put forward or perceived during the emancipation process of Latin American countries. The position on effective power preceded, in these cases, the doctrine on democratic power.
The non-personalist trend in terms of the president of the government began in Uruguay. Gradually, the plural integration of the cabinets is vanishing as an exclusive feature of parliamentarian systems.9 The need to establish institutions that allow the harmonization of interests is common to all democratic constitutional systems, and it is precisely in this direction that the presidential systems in Latin America are moving.
Although only nine constitutions assign the functions of government jointly to the president and the ministers, thirteen refer to the functions of the cabinet. This apparent contradiction is interesting. The Brazilian constitution is one of the nine constitutions under which the president exercises government jointly with the ministers; however, it is the only one out of those nine that does not specify the responsibilities of the cabinet, leaving them to legal provisions. On the other hand, the government falls on one individual in Argentina (art. 87), Honduras (art. 235), Nicaragua (art. 144), Paraguay (art. 226), and Peru (art. 110), but these constitutions, assign government powers to the cabinet in spite of the fact that they have maintained the United States tradition of power vested in one individual. Although in some cases the United States constitutional formula still exists, there are actually fourteen countries whose constitutions decentralize presidential power. It is only in Chile, Ecuador, Mexico, and the Dominican Republic where the concentration of power is still regulated constitutionally according to the original presidential model.
The substantive functions of cabinets include: drafting the bills projects sent to the Congress (Argentina, Paraguay, Peru, Uruguay); being involved in the discussion of treaties (Uruguay); being involved in budgeting (Argentina, El Salvador, Uruguay); be involved in drafting development programs (Guatemala, Honduras, Venezuela); arranging loans (Panama, Venezuela); countersigning executive orders (Argentina); exercising parliamentary power (Venezuela); making appointments (Costa Rica, Panama, Uruguay); removing government officials (Uruguay); granting pardons (Costa Rica); convening the Congress (El Salvador, Uruguay, Venezuela); entering into administrative agreements (Panama, Venezuela); establishing tariffs (Panama); spelling out and coordinating the government’s responsibilities (Paraguay, Uruguay); requesting reports from government officials (Panama); deliberating matters of public interest (Peru); acting as an advisory body to the president (Nicaragua); commanding the armed forces (Uruguay); exercising the veto (Uruguay); granting industrial concessions (Uruguay); authorizing the establishment of banks (Uruguay) .
This wide range of functions constitutionally assigned to cabinets shows that, gradually, the inertia of the traditional presidential government is being overcome and that cabinets are ceasing to act merely as an administrative authority to become a place where to discuss and adopt political definitions of government. Several of the constitutions leave open the possibility for cabinets to establish their own working regulations, for ordinary legislation to expand their attributions, and for presidents to submit to cabinets matters in addition to those mentioned. These clauses of democratic development allow for a wider sphere of competence for cabinets and, consequently, reducing the concentration and discretionary exercise of presidential powers.
It could be argued that as long as presidents have power to remove ministers, agreements reached by cabinets can only be a mere formality. With regard to this point, it is interesting to note that the Uruguayan Constitution provides (arts. 161, 164 and 165) that decisions handed down by the Council of Ministers are adopted by a majority and in the case of a tie, the president has a double vote. Furthermore, both cabinet and presidential resolutions are revocable by the absolute majority of the Congress. Nevertheless, if this norm is an exception in Latin American presidentialism, the doubt remains about the effectiveness of the norms pertaining to the sphere of competence of cabinets.
The efficiency of constitutional norms regarding the powers of cabinets does not depend only on the presidents’ receptiveness or on the autonomy of the ministers; it also depends on the political and cultural environment involved. The quality of an authoritarian system depends on the behavior of its rulers; the quality of a democratic system depends on the behavior of its citizens. The higher the levels of information and incentives to participate in political decisions, the more propitious the circumstances are for constitutional systems to reach their full potential. Conservative theses that prematurely disqualify regulatory changes because they do not lead to an immediate transformation of reality, are not aware of the relationship between norms and culture.
Coordination is one of the key problems of cabinets in presidential systems. In this regard, one should take into account that the difference between head of government and head of State that arises in parliamentary systems does not exist in presidential systems. This is one of the features that significantly distinguish one system from another. However, the trend in presidential systems is that, without reaching a dichotomy of both functions, it is possible for presidents to have assistants to perform many administrative tasks.
Of the many ills that affect traditional or archaic presidential systems, the most evident are those that lead to the reappearance of the old type of favorites, who allowed prolonging for a while the style of absolute monarchs. Assuming powers beyond what can sensibly be solved, only allows two kinds of solutions: de facto and de jure. With regard to de facto solutions, without institutionally decentralizing power, current presidents, like past monarchs, transfer a number of undetermined attributions to close collaborators. In this case, power is not decentralized; the president simply exercises it through intermediaries. Thus, two serious problems arise: presidents tend to accumulate even more attributions, because they have paraconstitutional mechanisms that provide some relief in their workloads, and those responsible for carrying out such functions, do so on the fringes of the electoral system and of political controls. Delegating attributions to staff alien to political control by the Congress and who are not exposed to the media is, in reality, one way for presidents to concentrate further their exercise of power. This underground power, or cryptopower, vitiates the presidential systems which are not changing, and threatens to dismantle the unstable system of relations between the government and congress.
The contemporary model for transferring attributions to individuals outside the cabinet comes from the United States, where the political weight of White House staff exceeds that of secretaries. This is due to a centripetal logic with regard to power, which tends to monopolize government decisions to the utmost, with the least participation possible of ministers and, therefore, reduces the scope for a constructive relationship between government and congress. Such decisions damage the structure of the constitutional state because far from rationalizing the exercise of presidential powers, they intensify their propensity to centralize.
As has been seen, several constitutional systems in Latin America have adopted the figure of the cabinet; some, furthermore, include the presence of a coordinator, while others give the president freedom to appoint a coordinator, if he deems it necessary. The systems that include the figure of the cabinet chief are those of Argentina, Peru, and Venezuela; those which provide the possibility of having a government official perform such function are those of Chile, Guatemala and Nicaragua.10 The oldest Latin American case with a cabinet chief is Peru. According to the Constitution in force, the chairperson of the Council of Ministers is appointed by the president of the republic; his functions (art. 123) are: to act as the government’s spokesperson, "after the president"; coordinate the functions of the other ministers, and countersign executive orders. Profound changes are proposed in the 2002 draft Constitution, written by the Constitution Committee of the Congress of the Republic, with regard to the chairperson of the Council of Ministers, including: that he implement general government policy; that he be responsible for relations with the Congress and with governments in the region, and that he carry out intersectorial policies related to the national development plan, decentralization, the modernization of the State, environmental policies, and other policies as determined by the Council of Ministers. Regardless of what is decided on this matter, it is clear that there is a marked interest in strengthening this important government body.
In the case of Argentina, the institutional establishment of the cabinet chief was the result of a negotiation between the Justicialista and the Unión Cívica Radical parties, headed respectively by then president Carlos Menem and former president Raúl Alfonsín.11 The Pacto de Olivos, which embodied the bases for the 1994 constitutional reform, contained among the basic elements for reform, the establishment of the figure of the cabinet chief of ministers. Nevertheless, as seen in the performance of that official, once the reform was implemented, his presence has not been important.
Formally (art. 100), the cabinet chief is responsible for the general management of the country; he issues regulations; is in charge of appointing the Administration’s staff; prepares and convenes cabinet meetings and chairs them in the absence of the president of the country, and handles relations with the Congress. It is quite a long list of responsibilities; however, his actual role is not as clearly defined. Two predominant circumstances have contributed to this phenomenon since the constitutional reform was carried out: first, the exercise of a plebiscitary presidency to its utmost possibilities, during Carlos Menem’s administration (1989-1999); second, the economic crisis that affected the government’s stability and led to the resignation of President Fernando de la Rúa (December 2001), with three interim presidents in just one month (the same month of December) and the adoption of emergency measures that denatured the Rule of Law.12 From the beginning, the figure of the cabinet chief did not have the support of President Menem, and it was necessary to overcome considerable resistance to include said position in the constitutional framework.13
Although some grandiloquent expressions state that "the cabinet chief is to presidentialism what the prime minister is to the parliamentary system" and very inaccurately identify the cabinet chief as "a toned down prime minister",14 the truth is that the design of Argentina’s constitutional reform only went halfway. Notwithstanding that the list of attributions of the cabinet chief is very long, the cabinet has not been assigned its own sphere of competence, and therefore, the cabinet chief is caught between the president and the ministers since there is no constitutional basis for the collective operation of the ministers. Governments committed the mistake of creating the position of chief of an entity —the cabinet— which does not in itself exist constitutionally.
In the case of Venezuela, the Constitution solved the problem of filling in for the president and coordinating the cabinet through a vice-president freely appointed and removed by the president (arts. 233, 238, 239, and 242). In the first case, the vice-president only fills in for the president during the latter’s temporary absences, or if it becomes necessary to replace him definitively during the last two years of the presidential period; with regard to his functions in the cabinet, the vice-president is involved in managing the government and coordinating the Administration, chairs the Council of Ministers in the absence of the president, and handles relations with the National Assembly. This is a new function for vice-presidents15 that not only changes the nature of the presidential system,16 but also adds to the president’s power since it authorizes him to appoint a kind of successor. This type of president appointed by the predecessor, in the case of a temporary or definitive replacement, has been frequent in Latin American constitutionalism and reduces the temptation to carry out a coup that was frequently harbored by vice-presidents. In the case of Venezuela, the centralized conditions in which power is exercised are evident;17 but during this country’s political crisis in the final months of 2002 and the early months of 2003, the presence of the vice-president became especially important. This is a good example of how, without presidents losing their powers to govern, congresses increase their potential to control, as we will see in the section referring to motions of censure.
Regarding to Chile, the Constitution provides (art. 33) that the president may order that one of the ministers is to act as cabinet coordinator; in Guatemala, (arts. 191 and 195) and in Nicaragua (art. 151) the vice-president of the republic is part of the cabinet and, when the president is absent, may preside over it. In these three cases the coordinating role is greatly diminished, but the principle is accepted that in addition to the president there is another competent official to organize the collective work of the ministers.
Cabinet coordinator is not equivalent to a head of government; he is a presidential delegate that makes it possible to achieve several goals: adjust the president’s workload, lessen the concentration of powers, have a functional liaison before the Congress, and reserve to the president a new responsibility: to act as a political mediator. This last function is not viable when the president is systematically involved in making political and administrative decisions, but becomes a very important means of conciliation in a rigid system such as the presidential system. The problems faced by democratic societies with presidential constitutional systems include the difficulty in absorbing the tension normal in highly competitive electoral systems whose main protagonists, the parties, tend to colliding positions.
The negative impact of this systematic tension on constitutional order makes the defects in its structure more evident. This is what happens with the concentration of presidential powers. In a parliamentary system, for example, it is accepted as being natural that a head of government is also the head of a party; in a presidential system, on the other hand, such a dual role gives rise to an imbalance the size of which is not compensated by the fragile instruments of political control that have to confront the president.
VII. ATTENDANCE AND PARTICIPATION IN THE CONGRESS
Unlike presidential system in the United States, all Latin American constitutions include the possibility of having the congress summon ministers. This right to be exercised by congress exists since some of the very first constitutions in the hemisphere, whereby a means of political control was adopted that was originally established in France. In turn, the ministers’ right to participate in the deliberations of the congress, which also originated in France, has been included in many Latin American constitutions since the 19th century.18
Currently, ministers can participate in congressional debates in Argentina (arts. 100.9 and 106), Brazil (art. 50), Chile (art. 37), Colombia (art. 208), Costa Rica (art. 145), Ecuador (art. 179.4), Guatemala (art. 168), Peru (art. 129), Dominican Republic (art. 38) and Venezuela (art. 245). In the case of Bolivia, ministers can attend the debates, but they can not participate in them. In all of the remaining countries, the congress can summon ministers when it deems it convenient, but ministers do not have the right to participate of their own free will. Furthermore, in Chile ministers may amend the concepts put forward by the legislators as grounds for their vote, and in Guatemala even parliamentary groups can make ministers appear before Congress. In Argentina and Peru the cabinet chief must regularly attend congressional sessions. In Argentina, he must appear on a monthly basis, alternating, before the Chamber of Deputies and the Senate; in Peru, the chairperson of the Council of Ministers or at least one of the ministers must periodically attend congressional control sessions.
As can be observed, the number of Latin American presidential systems that maintain the tradition of ministers attending congressional sessions only when expressly required to do so by Congress is growing smaller. The presence of ministers in Congress does not affect the structure of the presidential system, but it does help to improve the quality of cabinet members, who cannot seek refuge behind silence and must be able to argue issues proposed by the legislators. It is evident that in order to be able to debate in a representative assembly, ministers must have ample information concerning government policies, which is essentially achieved when the cabinet works periodically and systematically.
Another advantage of such an interaction between government and congress is the strengthening of the representative system. Long before electronic communication media existed, Bagehot19 had already forewarned, as far back as the 19th century, of the danger of having the British Parliament and the United States Congress displaced by the press if they did not recover the centrality of political debate.
The political centrality of congress does not affect the importance of the media; it simply makes them transfer their interest from government to congress. This is an important step to counteract media control by the president, for this control strengthens his position as a center of power. When designing new constitutional models, one must bear in mind that media attraction is also a factor that helps concentrate power. Therefore, when forming a cabinet, the existence of a coordinator and a frequent and systematic relation with Congress play an important role in the rationalization of presidential power.
VIII. CONFIDENCE, INTERPELLATION, AND CENSURE
The instruments traditionally identified as being used exclusively in parliamentary systems are the vote of confidence, interpellation, and the motion of censure. Currently, most Latin American constitutions have adopted such institutions from European constitutionalism. Therefore, a new model has been created that brings together features of the parliamentary and presidential systems. There have been gradual changes in Latin American constitutionalism that show to what degree it is possible to adapt institutions coming from various systems. The institutional versatility shown in this subcontinent surpasses what could be attained by incorporating just one specific model. None of the Latin American constitutional structures have been disseminated to such an extents as to become a paradigm; but all of the constitutions as a whole provide a perspective that conveys the intense search and imagination used to find new solutions to the problems posed by the consolidation of democracy.
None of the countries involved in this process has decided to take the semantic step toward changing the name of their system. None of them has even departed from the presidential configuration of the constitutional system. However, many States have stamped a new configuration on presidentialism. Deliberations concerning denomination have been put to one side and, with an eminently pragmatic sense, they have sought to adapt some European parliamentary institutions in the context of harsh, centralizing, and authoritarian presidential systems. It must be underlined that this process has taken place in spite of a moment in history when, due to various political, military, commercial, and cultural reasons, the presence of the United States is of high influence throughout the continent. Nevertheless the source to identify proper institutions to consolidate democracy, has been sought in European constitutionalism. Common constitutional law in Latin America has focused on two areas: expanding fundamental rights, with their guarantees, and consolidating democracy. It is symptomatic in both cases that, in contrast to the formative period of the independent States in Latin America, the recreation of institutions today is more closely related to the drafting of European constitutions than to the development of the United States institutions, in spite of the ties of harsh economic dependence.
The explanation for this phenomenon lies in Latin America’s cultural vocation. Each country, autonomously, has adopted institutions that strengthen the life of the constitutional State, and today they form a Latin American model with its own characteristics. During the past decades pieces from different places have been put together, but the effect has been the creation of a new type of constitutional order characterized by its receptiveness and flexibility. It is noticeable that there are certain trends present in the region; in this case, it is noted that South America and Central America share some common characteristics, while, in general terms, the Caribbean and Mexico remain isolated with regard to the experiences of the rest of Latin America. In the Caribbean, this can be explained because there is a wide range of influence, which, among other things, maintains Puerto Rico in a unique situation; and because of the tension caused by the presence of an undemocratic system in Cuba and another State where it has not been possible to assimilate contemporary constitutionalism: Haiti. In the case of Mexico, everything indicates that there are sufficient bases for a change in the same direction taken by the other countries in the hemisphere, but it was postponed only because of the repositioning of political forces.
The clear way to become aware of this new current is in the institutions related to confidence and censure. Confidence, interpellation, and censure are already well established in the Latin American constitutional norms. A vote of confidence is possible in Peru (art. 130) and in Uruguay (arts. 174 and 175); it is possible to address interpellations to ministers in Costa Rica (art. 121.24), El Salvador (arts. 131.34 and 165), Guatemala (arts. 166 and 199), Honduras (arts. 205.22 and 251), Nicaragua (arts. 138.4 and 151), Paraguay (art. 193), Peru (arts. 131 and 132), Dominican Republic (art. 37.22) and Venezuela (art. 225). Furthermore, censure is permitted in Argentina (art. 101), Costa Rica, Ecuador (art. 130.9), El Salvador, Guatemala, Panama (art. 155.7), Paraguay (art. 194), Peru, Uruguay (arts. 147 and 148), and Venezuela (arts. 240 and 246). To sum it all up thirteen out of eighteen constitutions include already one or several forms of control that for a long time were considered typically parliamentary. It is only in Bolivia, Brazil, Chile, Colombia, and Mexico that none of these institutes have been incorporated.
In Ecuador, censure does not mean removing a minister, who remains in cabinet at the discretion of the president. They have sought to reconcile the authority of Congress to evaluate the performance of a minister, with the presidential prerogative to appoint and remove ministers. Even if a congressional order is not legally binding for the president, the political effect is clear. Something similar happens in El Salvador, where the Assembly has power to recommend to the president that a minister be removed, without requiring a special majority for that purpose; ministers can also be questioned and, if they do not go to the Assembly to duly respond, they are automatically removed from their positions.
The procedure is different in Guatemala. The motion may be submitted by four congresspersons, but must be approved by an absolute majority of the total number of congresspersons. If the president believes that there are reasons that justify the minister, the latter may ask Congress to reconsider its vote. After the minister has been heard and there has been a new debate, the motion becomes effective if it is approved by two-thirds of the total number of members of Congress. Another limitation is that in no case a motion may refer to four ministers at the same time.
With regard to Argentina, the Constitution provides (art. 101) that the cabinet chief may be removed by the absolute majority of the total number of members of each chamber. The original proposal of the Radical party20 included a mechanism for constructive censure, similar to the German system.21
The censure procedure in Peru may be addressed against the entire Council of Ministers or against just one of its members; in any case it must always be submitted by a minimum of twenty percent of the of the total number of congresspersons. To provide time for reflection, the matter is debated and voted on between the fourth and tenth day after it was submitted, and must be approved by more than half of the members of Congress. If approved, those censured are removed from their positions. If Congress censures or refuses to give its vote of confidence to two councils of Ministers, the president may dissolve the Council (art. 134). We find here another parliamentary institution which has also been adopted in Uruguay and Venezuela.
In Uruguay censure may be individual, plural, or collective and has to be approved by a majority vote of the total number of members of the Assembly. If the motion of censure was approved by less than two-thirds of the total number of votes in Congress, the president may veto the decision. The Assembly requires a vote of more than three fifths to override the veto; but if it is passed by a lower percentage and the president insists on keeping the minister or ministers that were challenged, the Assembly is dissolved and elections are called. Although this mechanism makes censure extremely difficult, it offers a possibility which, on its own, is an important institutional innovation.
In Venezuela the president may dissolve Congress when three vice-presidents have been removed in the same period of government. The dissolution of Congress leads to elections for a new Congress. This measure is reasonable since it obliges the Congress to act responsibly and, in extreme situations, allows taking the difference to the voters.
IX. GENERAL CONSIDERATIONS ON THE PRESIDENTIAL SYSTEM
Among the most evident distinct features of the presidential system is the set duration of the periods; in contrast, in the parliamentary system how long the government remains depends on its maintaining a majority in Congress.22 Another factor that is usually added, is the composition of the government: mainly homogeneous in the presidential system and normally plural in the parliamentary system. This difference is related to the stability of the governments. Since the support of Congress is not required in presidential systems, presidents have a very wide margin to form their governments from among those in whom they have absolute trust; while parliamentary systems, which do depend on the confidence of the majority, use the composition of the government as mechanism for alliances. These are just general approximations, because political reality may place a different emphasis on these presumed rules. The political fact is that all governments require the support of the legislative bodies, and therefore on many occasions presidents have to be more receptive and include in their government members of other parties, as when the majority is assured by the voters, prime ministers can turn the government into an exclusive field for their party.
Following the post World War II period, constitutional borrowing has become more common. Orthodox forms are becoming less frequent. The same concern exists in both parliamentary and presidential systems: ensuring the stability of governments. For this purpose, presidential systems tend to make their relationship with Congress more dynamic, while parliamentary systems tend to safeguard the government from political shifts in Congress. In presidential systems this can be seen, basically, in the more open composition of the cabinet and its more dynamic relation with the Congress; in parliamentary systems, in the constructive form of censure originally adopted by the Federal Constitution of Bonn.23
The two main examples of flexible presidential systems, which we would call "neopresidential", are found in Latin America and in some countries that were part of the former Soviet Union. In the latter case, we are talking about the constitutions of Armenia, of 1995 (art. 55), Azerbaijan, of 1992 (art. 109.4), Belarus, of 1994 (arts. 95 and 100.4), Lithuania, of 1992 (art. 84.4 and 5), Moldavia, of 1994 (arts. 77, 98 and 101), Russia, of 1993, (arts. 80 and 83) and Ukraine, of 1996 (arts. 106.9 and 113). It is significant that the post-Soviet and Latin American constitutions coincide in time and trend. The same applies to the constitutions of Nigeria, of 1999, and of South Africa, of 1997. Both constitutions established reformed presidential systems; in Nigeria’s case (art. 130) ministers must be confirmed by the Senate, and in South Africa (arts. 66, 83, 85.2 and 91) most of them must be members of Parliament, and the president must appoint a cabinet coordinator.
In most cases, renovations in the presidential systems have tended to originate through new constitutions or substantial changes in existing constitutions, since the ninth decade of the 20th century. Regarding Asian countries, changes have been less significant; some are linked to parliamentary tradition, such as India, while others, for political or religious reasons, maintain the authoritarian model such as China, Iran,24 Iraq and Syria. These cases cannot be analyzed from the perspective used in this study.
X. FINAL CONSIDERATIONS
The democratic development clauses are usually implicit in constitutional norms and produce similar effects to those leading to the development of human rights; its implementation involves a cultural process. Therefore, even if many constitutional mandates do not have an immediate result in the political conditions of a community, they still have a potential effect which, thanks to cultural evolvement, can progressively lead to their enhancement. This potential of the norms is what I call democratic development clauses.
In this study we have seen that in most cases the norms establishing decentralization of presidential power have not produced the results expected. Even if some rules of political organization and operation still need to be developed, as long as they remain in force they are a potential for change in democratic presidential systems. The magnitude of the resistance that must be overcome would increase if, in addition to the weight of the inertia, there were no regulatory elements to counteract it. Constitutions have a regulatory value, but they also contain a cultural aspect, as has been shown by Peter Häberle.
Häberle’s theses reserve many different paths to be explored. The one I am more interested in highlighting with regard to the subject discussed in this study is that it may occur in a specific time in history that there is no similarity between the norms and what is normal; but if the norms arose as a result of political deliberation and did not later lead to a specific behavior on the part of the bodies of power, they are still valuable as provisions leading to democratic development. The enforceability of the norms may result in a gradual evolvement of the institution since its existence serves to produce new behavior patterns.
Removing the deeply rooted presidential tradition is not a task that can be carried out easily or quickly. In this study we have been able to see the existence of various institutions which, although in several cases they have not achieved more than nominal results, they require an aging process that, as long as the constitutional order is not interrupted, will provide many of the results for which they were envisaged.
Latin American neopresidentialism rests to an ever-increasing extent on a cabinet government, more than on a personal exercise of power. Shared responsibility tends to point toward the consolidation of a democratic presidential system. Under no circumstances should it be forgotten that constitutionalism lays the foundation for political reality on significant abstract concepts: the sovereignty of the people, the social contract, and representation are only formidable theories that have allowed the building of reasonably functional democratic systems. One must keep in mind, and work based on such premise, that in the presence of the normative force of the facts, there is also the transforming strength of the norms. Goethe25 maintains that the law wages an unequal struggle with power, and therefore its main objective is to rationalize the exercise of such power and mitigate the effects of the hybris of the powerful. This is the challenge faced by all constitutional systems.
* Director and full time researcher at the Legal Research Institute, UNAM.
1 In a brilliant lecture given on February 26, 2003 at the Instituto de Investigaciones Jurídicas of the National Autonomous University of Mexico. "México y los contornos de un derecho constitucional común americano: un ius commune americanum". See Häberle, Peter and Kotzur, Marcus, De la soberanía al derecho constitucional común: para un diálogo europeo-americano, translated by Héctor Fix-Fierro, Mexico, UNAM, 2003.
2 Häberle, P., El Estado constitucional, Mexico, UNAM, 2001, pp. 193ff.
3 We shall not examine aspects that are part of very traditional studies on the subject, such as the referendum on presidential acts by ministers. Nor will we discuss either the issue of the responsibility of cabinet members because in general terms it refers to a criminal matter. However, we will see what pertains to political responsibility, through the obligation to appear before Congress and those cases in which it is possible to interpellate ministers, the vote of confidence, and the vote of censure.
4 See Valadés, Diego, El control del poder, Mexico, UNAM-Porrúa, 2000, pp. 437ff. It is preferable to refer to "political control", rather than "parliamentarian control", because in a constitutional state all bodies of power must be controlled.
5 Currently, the United States formula is still included in the constitutions of Argentina (art. 87), Chile (art. 24), Ecuador (art. 164), Honduras (art. 235), Mexico (art. 80), Nicaragua (art. 144), Paraguay (art. 226), Peru (art. 110) and the Dominican Republic (art. 49), while the constitutions of Bolivia (art. 85), Brazil (art. 76), Colombia (art. 115), Costa Rica (art. 130), El Salvador (art. 150), Guatemala (art. 182), Panama (arts. 170 and 189), Uruguay (art. 149), and Venezuela (art. 225) provide that the executive power is exercised by the president jointly with the ministers.
6 Bonaparte would argue in 1851, that he had only circumvented legality to enter the law supported by millions of votes. Cfr. Saint-Bonnet, François, "Technique juridique du coup d’État", in Bluche, Frédéric, Le prince, le peuple et le droit. Autour des plébiscites de 1851 et 1852, Paris, PUF, 2000, p. 123.
7 One should keep in mind the Monroe Doctrine: "America for the Americans", expressed in 1823.
8 Bolivia (art. 85: the executive power is exercised by the president and the ministers), Brazil (art. 76: the executive power is exercised by the president and the ministers), Colombia (art. 115: the government is formed by the president, the ministers and the heads of the administrative departments), Costa Rica (art. 130: the executive power is exercised by the president and the ministers), El Salvador (art. 150: the government is formed by the president, the vice-president, the ministers and the vice-ministers), Guatemala (art. 182: the president must work with the ministers), Panama (art. 170 and 189: the government is formed by the president and the ministers), Uruguay (art. 149: the president must work with the Council of Ministers or with the ministers), and Venezuela (art. 225: government is exercised by the president, the vice-president and the ministers).
9 With regard to this aspect see, among others, Lanzaro, Jorge, "Tipos de presidencialismo y modos de gobierno en América Latina", in Lanzaro, Jorge, (comp.), Tipos de presidencialismo y coaliciones políticas en América Latina, Buenos Aires, CLACSO, 2001, pp. 15ff.
10 In Brazil this subject was widely discussed following the report issued by the Afonso Arinos Comission, in 1985, which included this position among the proposed constitutional reforms. The discussion pertaining to this matter has been related to the possible adoption of a parliamentary system, which has not been supported by the people. Cfr. Lamounier, Bolívar, "Parlamentarismo o presidencialismo atenuado: el debate actual en Brasil", in Nohlen, Dieter y Fernández, Mario, Presidencialismo versus parlamentarismo. América Latina, Caracas, Nueva Sociedad, 1991, pp. 121ff.
11 See Alfonsín, Raúl, Democracia y consenso, Buenos Aires, Corregidor, 1996.
12 With regard to this subject, see Dalla Vía, Alberto, Estudios sobre Constitución y economía, Mexico, UNAM, 2003; Hernández, Antonio María, Las emergencias económicas y el orden constitucional, Buenos Aires, Rubinzal, 2002; and Ferreyra, Raúl Gustavo, La Constitución vulnerable, Buenos Aires, Hammurabi, 2003. These are three well-written papers that describe, from different points of view, the institutional ravages of Argentina’s economic crisis.
13 They are extensively reviewed in Alfonsín’s work, op. cit.
14 Dromi, Roberto and Menem, Eduardo, La Constitución reformada, Buenos Aires, Ciudad Argentina, 1994, pp. 352 and 353.
15 Although one must keep in mind the precedent of Peru’s Constitution of 1826.
16 With regard to this subject, see Brewer-Carías, Allan, Golpe de Estado y proceso constituyente en Venezuela, Mexico, UNAM, 2002, pp. 280ff.
17 See Kaplan, Marcos, Neocesarismo y constitucionalismo. El caso Chávez y Venezuela, Mexico, UNAM, 2001.
18 French Constitution of 1791 (III, iii, iv, 9): ministers could attend and participate in the debates of the Assembly or be summoned by the Assembly; this principle was also included in the constitutions of Ecuador 1835 (art. 70), Peru of 1836 (arts. 89 and 92), Mexico of 1843 (art. 98), Argentina of 1853 (arts. 60 and 89), Nicaragua of 1858 (art. 51), and Colombia of 1886 (art. 134).
19 The English Constitution, Oxford, Oxford University Press, 2001, p. 18.
20 Alfonsín, op. cit., pp. 312 and 471.
21 Art. 67 of the Federal Constitution has influenced the Constitutions of Belgium (arts. 46 and 96) and Spain (art. 113).
22 However, we must keep the case of Holland in mind. Parliamentary procedures are of legal, not constitutional nature. According to the strict terms of the Constitution of the Netherlands (art. 43), "the prime minister and other ministers shall be appointed and removed under a royal decree"; the Constitution also provides (art. 81) that laws shall be drafted by the parliament and the king together, and none of its norms establish confidence, interpellation, or censure procedures.
23 The idea that cabinet governments produce weak presidents no longer exists. F. R. Allemann’s words Bonn is nicht Weimar (cit. by Blondel, Jean, Cabinets in Western Europe, London, McMillan, 1997, p. 17) does not do justice to the Constitution of 1919, but it does confirm however the idea of the stability sought by the Fundamental Law of 1949.
24 Iran’s Constitution of 1979, amended in 1995, for example, provides (art. 57) that the legislative, judicial, and executive powers shall work "under the supervision of the absolute religious leader".
25 Die Natürliche Tochter.