Explaining the FSLN’s Constitutional Reform Proposal
This expert on constitutional law analyzes
the FSLN’s constitutional reform project,
which could soon be imposed
on Nicaraguan society.
Before analyzing the constitutional reform project the FSLN hopes to push through the National Asasembly this year, it would be useful to recall some elemental and fundamental ideas that will help our understanding of what the ruling party has designed.
The legal pyramidContemporary democratic states have a pyramid-structured legal organization involving what has come to be a universally accepted doctrine. The steps on this pyramidal structure are inter-related in a hierarchical way. At the apex is the Constitution, below which comes ordinary law, followed by regulations (normative acts such as bylaws and decrees issued by administrative bodies), with individual acts forming the base. As a result, a juridical act is only legal and legitimate if it is done in accordance with the norms in the step of the pyramid immediately above, which in turn serve as the basis for the norms of the step immediately below. This creates a dynamic relationship known as juridical regularity.
The higher the step on which the norms are located, the more complex the juridical technique they involve, implying greater political consensus. An individual act, such as a fine imposed by a traffic officer, doesn’t require consensus. Decrees, which are normative acts located above individual acts, are issued by the President and must be published in the official journal, known as La Gaceta. Laws, which rank above decrees, are formulated in parliament, imply debates and negotiations and have a more complicated procedure than the decrees and bylaws issued by the executive branch. Finally, the Constitution is located at the top of pyramid. Its formulation is quite similar to that of ordinary laws, but its approval or reform requires a greater quorum and an even more complex procedure.
Types of and reasons for constitutional reformsIn Nicaragua, constitutional reform can be total or partial. A partial reform is approved twice, during two different legislative years, with at least 60% of the representatives’ votes, unlike ordinary laws which only require a simple majority during a single parliamentary year. What are known as constitutional laws—the electoral law, the law of legal protection and the emergency law—also require 60% of the representatives’ votes, but only during one parliamentary year. A total reform of the Constitution, however, must be approved by two thirds of the representatives of a Constituent Assembly. In this case, the sovereign people must give their approval for the reform to take place, which they do by electing the representatives that will make up the Constituent Assembly or through a referendum.
The most internationally accepted doctrine considers that the fundamental function of constitutional reforms is to adjust the juridical reality to the political one. When it becomes obvious that the juridical reality isn’t regulating the political—or “real”—one, then the Constitution is reformed to adjust it to the country’s reality. This is important, because while it’s true that a constitutional reform is a political decision, with the representatives enjoying broad discretion in deciding whether or not it’s necessary, when there’s no friction between the juridical and political realities a constitutional reform is both unnecessary and inappropriate. Constitutions are the big rules of the game governing a country and aren’t established for a short period of time. They’re intended to be atemporal, and can’t be changed every time that some visionary decides the time is right, but rather when there’s a generalized feeling that an adjustment is needed.
The presidential vs. parliamentary systemTo assess the constitutional reform the FSLN intends to make, which will supposedly take us from a presidential to a parliamentary system, we’ll first summarize the main features of each system. Both systems are based on the same rules, the same framework and the same concepts. They aren’t two systems with different ideological suppositions. Both are based on and structured according to the principle of the separation of powers. However, there are nuances in that division. In the presidential system it’s more rigid, with a sharper separation, although there are also mechanisms for interrelation between the executive and legislative branches. That system of interrelations between the powers is what shapes one system or the other. In the parliamentary system, the division of these two branches is a lot more flexible, although that doesn’t mean it’s like the Convention of the French Revolution, in which the executive branch was totally subordinated to the Assembly. And I’m saying this because sometimes some of those promoting constitutional reform in Nicaragua want to give the impression that the executive branch will be subordinated to the legislative one.
The presidential system is established in the US Constitution of 1787, which is where the presidential system comes from. The parliamentary system is the product of the historical evolution of a society, rather than proposals or decisions. The European parliamentary systems have resulted from the evolution of their respective societies, something more clearly seen perhaps in the British parliamentary system, although also true of those in other countries. They don’t emerge as the proposal of a group that meets, discusses and draws up a system. It’s also important to take this characteristic into account: according to the experts, parliamentary systems are linked to requirements that make them viable, such as the tradition and political culture of a nation or people.
I don’t think it’s possible to say that one system is better than another. Sometimes it’s argued that the parliamentary system wouldn’t work in Nicaragua because we still don’t have the necessary development or level to assimilate it. I would like to offer another approach: it’s not that we don’t have the development, but rather that we don’t have the tradition. There are countries with parliamentary systems that don’t have any great democratic development, such as Haiti, while we all know that Hitler was the product of a parliamentary system. And the United States, which doesn’t have a perfect system but does have a great democratic tradition, has been functioning with a presidential system. This means that there are presidential systems and parliamentary systems that respond better or worse to their peoples’ needs, rights and freedoms, to offering a better quality of life, to raising the living standards, and that isn’t directly linked to whether they are presidential or parliamentary systems, but rather depends on other juridical, political, economic and cultural factors particular to each people.
A political system is defined by the relationship between the two political powers: the executive and the legislative branches, whose main functions consist of politically directing society, acting with political criteria and arguing their actions politically, always in the framework of the Constitution. For example, as long as they don’t violate the Constitution, legislators can pass a law criminalizing therapeutic abortion. They can do it within their political conception and will do it if they have enough votes. And they then justify what they do politically. Their margin for political action is greater than that of judges in the judicial branch, because even if the judges are pro-therapeutic abortion, in any concrete case brought before them they can do nothing more than rule in accordance with the law that penalizes therapeutic abortion, even when they know it represents a decades-long political step backward. Neither the electoral nor the judicial branch can act with the same maneuvering room as the executive and legislative ones.
A summary of the parliamentary system…The relationship between the executive and legislative branches determines whether a country is governed by a parliamentary or a presidential system. In the parliamentary system the division of powers is more flexible. And it is the legislative branch, or parliament, that has the direct democratic legitimization. The citizens elect the legislators and the head of government is automatically the leader of the parliamentary majority, i.e. the person with the largest number of citizens’ votes. Another characteristic of the parliamentary system is the division of the executive branch. In this system, it is divided into a head of state and a head of government. If the country is a monarchy, then the head of state is a king or queen, and if it’s a republic, the head of state is a President. But in both cases the functions corresponding to the head of state are essentially symbolic, protocol-based, and express the unity and continuity of the nation, with its own particular nuances in each country. There are parliamentary countries in which the head of state has certain extra powers, but generally speaking it is the head of government, also known as the Prime Minister or President of Government, who has the truly decisive faculties of political leadership and possesses all the juridical instruments for politically directing society. This means that the relationship between these two powers is determined by the necessary political trust between the parliament and the government, which is known as the ”trustee relation.”
In a parliamentary system, the government only governs to the extent that parliament places its trust in it. If that trust is lost, as shown by whatever the mechanism involved, whether a vote of censure or a vote of no confidence, the government falls; it has to resign. But it also works the other way: the government has the power, the faculty, to dissolve parliament early and call new elections, although it always has to be for politically pertinent reasons, such as having lost the support of the majority of the people or because there’s a situation the citizenry is questioning very strongly, and those mechanisms have to be resorted to. There’s also another way: the government can also dissolve parliament if it wants to increase its majority there. In sum, independent of the political motivations, parliament can remove its support from the head of government, while the head of government can dissolve parliament. In both cases it leads to early elections.
That’s the key to the parliamentary system: an executive branch split into two bodies and a government that depends on parliament to govern, but which by virtue of a more flexible relationship can also dissolve parliament.
…and the presidential andIn the presidential system, the President of the republic is the head of state, head of government and head of the armed forces. He or she has direct democratic legitimization and therefore doesn’t require the trust of parliament, but does, however, require the trust, votes and support of the citizens.
There’s a more rigid separation of powers in this system. Thus the head of government, who is also the head of state, doesn’t require parliament’s trust, but also can’t dissolve it under any circumstances. In this system the President is responsible for politically guiding the country, although this doesn’t mean that parliament doesn’t also have its own powers.
The French system is said to be “semi-presidential,” as the head of the state—the President—has atypical powers relative to those held by other heads of state in parliamentary systems. This system includes other interrelations: if the French parliament draws up a motion of censure it can make the government resign, while the President is allowed to dissolve parliament for political reasons. The French system also has other specific characteristics.
Who controls the powersThe main principle of any democratic state, regardless of its logic for organizing the state branches, is the control of the powers, a control basically exercised over the two political decision-making bodies: the executive and legislative branches. This is why in the parliamentary system control is not exercised over the monarch. In Great Britain, for example, Queen Elizabeth may only know there are British troops in Iraq if someone mentions it to her; it’s the Prime Minister who makes such decisions and parliament, not the Queen, that exerts its control over the British Prime Minister.
In the presidential system, while parliament can’t force the President and government to resign, there are control mechanisms involving what are known as “checks and balances.” In this system, the most emblematic mechanism is the President’s ability to veto a parliamentary decision, but parliament can also override a veto with enough votes. The President proposes candidates for the main posts in other state branches and parliament may or may not ratify the people named by the President, based on rigorous hearings. The presidential system contains many mechanisms for a constant relationship between the legislative and executive branches that involves both legislative control over the executive and executive influence in the legislative.
Recent constitutional reforms in NicaraguaIn Latin America, including Nicaragua of course, the tradition has been strongly presidential, or presidentialist, as we call it. And it’s not just tradition. Many authors talk about “Latin American presidentialism,” wanting to stress the exaggerated role played by Presidents and executive branches in our peoples’ political dynamics, which has sometimes led to authoritarian systems.
In the 1987 Nicaraguan Constitution, the presidential system had characteristics that acknowledged the President’s preponderance and hegemony. The President approved states of emergency and was solely responsible for approving the national budget, sending it to the National Assembly only for its information, not its approval. The President issued decrees with the force of law in fiscal and administrative matters, and legislated during National Assembly recesses. It was the President who proposed the Supreme Court justices and posts in the other state branches, then decided who would be the Supreme Court president once the posts had been designated. The President had powers that reached beyond those conferred by other presidential systems, including other Latin American ones, which already offer their Presidents if not exactly more powers, then at least fewer balances in their relationship with the legislative branch, compared to those in the US presidential system, for example.
The constitutional reforms of 1995 redefined and reorganized the Nicaraguan system, bringing it more into line with classic presidential systems. They stripped the President of all of the powers I just mentioned, and re-jigged the system of relations between the two state branches, bringing them more into line with comparative law. It must also be remembered that in the 1987 Constitution the President could be reelected indefinitely and was always elected by a simple majority of votes, regardless of the percentage achieved and even if only by a margin of one vote over the second-place candidate.
What the FSLN is cooking up todaySo what constitutional reforms is the Sandinista National Liberation Front (FSLN) proposing today? And I say “today” because a couple of years ago there was a kind of basic agreement between the FSLN and the Constitutionalist Liberal Party (PLC), which had produced a common document. Today, different circumstances have led the PLC to distance itself from this initial plan, leaving the FSLN pushing the constitutional reform on its own. It has now formulated a draft constitutional reform bill, as announced by the head of the FSLN parliamentary bench. I’ll give you a general explanation of what this project proposes.
They have said on several occasions that they’re proposing to change from a presidential system to a parliamentary one. On other, less frequent, occasions they’ve said it isn’t a change to a parliamentary system, but rather what we could term a “parliamentarizing” one. They’ve also said that the parliamentary system increases, favors and creates the conditions for “direct democracy,” which would be a participatory democracy, allowing Nicaragua to move away from a presidential system that produces authoritarian, caudillo leadership styles.
The FSLN is proposing an executive power divided in two, in the form of a President and a Prime Minister. The President would be elected by the people with a simple majority vote, as was the case with the 1987 Constitution. There’s no prohibition of reelection in the proposal, so it has to be interpreted that the President can be indefinitely reelected, unlike now, when the President can only be reelected once and not for consecutive terms.
Dysfunctional elements Meanwhile, the President proposes the Prime Minister, who is then approved by the National Assembly with 60% of the votes. This already introduces a first dysfunctional element, because in the world’s political systems the majority governs and negotiating an agreement among several political parties to achieve 60% of the votes isn’t normal or typical. It is only relatively normal to seek such qualified quorums to choose top officials in the state branches.
explained by the FSLN-PLC pact
In Nicaragua, this dysfunctional disposition can only be understood in the logic of the FSLN-PLC pact, in which the main partner pledges to take the other’s will into account in the makeup of the state branches: the Supreme Court, the Supreme Electoral Council, etc. That logic is incorporated into the proposal for the election of Prime Minister (head of government). And if the President’s proposal doesn’t achieve 60% of the votes within 30 days, another 30 days are granted to make another proposal. And if the new candidate still doesn’t get the required 60%, the President dissolves the National Assembly and calls new elections for parliamentary representatives.
This provision is in line with the logic of the parliamentary system, where parliament has to be dissolved if there’s no consensus, but is dysfunctional in a country like ours given the economic cost involved, among other reasons. In response to the argument that the citizenry should be consulted about whether they want these constitutional reforms, the FSLN has responded that we don’t have the resources for another election, yet the logic of the proposed model could involve holding elections not every five years, but every time parliament finds itself hobbled.
In the FSLN’s proposal, parliamentarians would be elected from closed slates presented by the parties, as is the case right now. Although not specified in the proposal, it has to be understood that the Prime Minister must be a legislator proposed by the President. Like now, the National Assembly would have 90 directly elected representatives: 20 national ones and 70 departmental ones, plus the presidential candidate who takes second place.
The powers of the executive To assess the FSLN’s proposal, the most important thing is to understand the powers attributed to the executive and legislative branches. The latter would essentially have the same powers it currently has. It doesn’t appear to be true, as the reform’s promoters are saying, that powers currently in the hands of the executive branch would be transferred to it.
and legislative branches
The National Assembly will elect the Prime Minister, which it obviously doesn’t do now as the post doesn’t exist. The Assembly will maintain its power to ratify and dismiss ministers and the directors of autonomous entities with 60% of the vote. That function was already given to it in the 2005 constitutional reforms, which led to a serious conflict during President Enrique Bolaños’ government. It is also a somewhat politically dysfunctional and juridically irrational function, because if finding the parliamentary support needed to elect the Prime Minister won’t be easy, finding the same number of votes to ratify ministers, deputy ministers and ambassadors will be even harder.
The explanation for this is not found in juridical-political rationality, but in the logic of the pact. A parliamentary model’s rationality is that parliament elects the Prime Minister, who then names the ministers in his or her government, who are then ratified by the President (head of state). And if it does need parliamentary ratification, this should be done with a plain majority, not 60%.
The President’s power In the model the FSLN is proposing, the functions of the head of state are to direct international relations and the army and police. These powers don’t correspond to the logic of parliamentary systems, because the President would therefore be directing areas fundamental to political decision-making. In parliamentary systems, heads of state don’t govern or make fundamental decisions, which is why it doesn’t really matter whether they are lifetime monarchs or an elected President. Given that the President will make fundamental political decisions in the FSLN’s proposed model, it’s important to impose limits and controls on that post, but that’s not the case. The controls are not on the President, but on the Prime Minister, which is a very weakened post with no major power.
In addition to international relations and defense and domestic order, in the FSLN model the President has the power to draft both laws and their regulatory laws, powers that correspond to an organ of political direction. They are faculties typical of the legislative branch, but here are given to the executive, providing yet more evidence that this reform follows the logic of neither a presidential nor a parliamentary system. It’s something else. Another example of the hybrid nature of this model is that the President has veto power, which is typical and in fact emblematic of presidential systems, where there’s no negotiating of parliamentary support to form a government or any possibility of dissolving parliament, so the presidential veto is a key mechanism for exercising executive power. But in a parliamentary or semi-parliamentary system, or whatever they want to call it, in which parliament’s political will is presumed to be a key element for governing, it’s absurd for the President to be able to veto that political will. I believe this is where those who designed the new system went over the top. It appears to me that while the whole proposal may lack political-juridical rationality, giving the President power goes beyond just being creative.
This model also gives the President responsibility for managing relations with the judicial branch, which, as happens in any democratic country, has become a fundamental element in Nicaragua and several other countries in the region. Under the rule of law, any norm or act issued by the executive, legislative or electoral branches that are deemed not to be in accordance with citizens’ rights can be challenged in the judicial branch, which hands down resolutions that specialists refer to as having the value of “res judicata.” In other words, once any challenge to the ruling passes through the various appeals levels of the judicial system, the matter comes to an end. Thus it’s very important that the judicial branch be independent and impartial. The model proposed by the FSLN gives the President the power, the authority, to aid the judicial branch in honoring its resolutions, taking this power from the sphere that should correspond to the Prime Minister.
If the logic is supposed to be that of a parliamentary system, then all the juridical-political competencies and instruments corresponding to the true political directing of a society are exceeded or exacerbated in this proposal.
The Prime Minister’s power What would be left to the Prime Minister, who according to the proposal would be the head of government? The proposal establishes that this government head has no power to draft laws, no regulatory power and no veto. The proposal only says he or she would direct the country’s economy and the Council of Ministers. But the Council of Ministers has few responsibilities in Nicaragua’s current system, and the proposed reforms don’t bestow any powers on it. It only functions under two circumstances: when the President is going to decree a state of emergency; or when the President is going to call on the army to collaborate with the police force to maintain public order when the situation is too much for the police to handle alone. So in effect, the Prime Minister would direct both the country’s economy and a council of ministers with very few powers.
The situation the proposal seems to want to achieve is one in which the President governs, deciding on all essential matters, such as international relations, defense and government, while the new figure of the Prime Minister has none of the instruments of government normally allocated to heads of government and is therefore limited to responsibility for day-to-day economic problems such as the price of rice and beans, the lack of water… This is certainly a good umbrella; a good mechanism for sloughing off certain responsibilities.
The proposed reforms thus establish a government in which the head of state would be given the powers to effectively also act as the co-head of government with superiority over the head of government. In other words there would be a real head of government, whose title would be head of state, and a secondary head of government.
Unique, schizophrenic In conclusion, we would have, as former President Arnoldo Alemán put it on one occasion, a “Nica-style parliamentary system.” It has to be recognized that this was a very appropriate way to characterize something that is neither parliamentary nor presidential, or anything in particular. It’s a mishmash perfectly adjusted to President Ortega’s vision. He governed with this same scheme in the eighties and is aiming to promote a constitutional reform with observable dysfunctions that will only function in a pact-governed system in which the logic is always: “If you want my representatives’ votes to ratify your minister, then give me your votes to ratify my deputy minister,” or “I’ll give you the votes for your minister and deputy minister if you give me your votes for that other ministry…”
Nica-style parliamentary system
In this model democracy is cast somewhat into doubt in that it almost doesn’t matter who wins the elections, because unless they get 60% of the Assembly votes they’re going to have to negotiate, making it a bipartite government, in the end. In a multi-party system, it would be significantly dysfunctional, with three or four parties having to reach agreement. A party will be driven to get the 60% to form a government and get its choices appointed to each post. It will also be a system with a strong President who can be indefinitely reelected with a plain majority of votes, because there will no longer be a vote threshold. Because no minimum percentage will be required to win the elections on the first round among a plurality of candidates, the second round will disappear.
There’s no other political model like it anywhere in the world. At one point a model was introduced in Israel that broke with the classic logic of the parliamentary and presidential systems and produced a semi-parliamentary system that was different from the French one. But Israel’s whole institutional structure places the country within the parameters of a classic democracy: the separation of powers, the independence of the judicial branch, its multi-party system. Venezuela’s current model has a very strong President, but there are no pretensions of it being a parliamentary system. President Chávez heads a presidential system with interesting and novel control mechanisms, such as the national-level referendum to revoke a President, but it’s not a schizophrenic system, like the one planned here. Some very atypical and weird experiments were tried out some years ago in Albania… But I really can’t come up with any system similar to the one being proposed here.
Will there be direct democracy The truth is that anywhere there’s a fragile institutionality with pronounced authoritarian tendencies, the power groups tend to be extremely creative in designing systems and models cut to their own measure. So this leaky model evidently aims to clear the path to reelection. Because it’s not a rational system that relies on the logic of parliamentary systems, it allows us to at least have suspicions about the proposal’s real intentions.
or parliamentary control?
Nor does this model have anything to do with “direct democracy.” In reality, the parliamentary system is as much representative democracy as the presidential one because all people do in both systems is elect their representatives. The promoters of this proposal are thus creating a false dichotomy when they call the parliamentary system direct democracy. It is now unanimously accepted that full democracy isn’t exhausted by such representative mechanisms; nobody’s debating this with any real seriousness. While representative democracy is the foundation of democratic systems, it has to be complemented with mechanisms of participatory democracy, which our juridical organization takes into account, although there’s no political will to apply those mechanisms.
In political practice, our system’s current parliamentary control mechanisms aren’t used by either the government or the so-called “parliamentarists.” In fact, examples abound of their daily violation. If parliament doesn’t approve a budget, the President simply approves it by decree, which is grossly unconstitutional, whether done under a presidential or a parliamentary system. Not a single minister or ambassador has been ratified by parliament, as our Constitution requires. There’s not a whit of concern with even appearing to want to comply with the Constitution, which requires the President to give the National Assembly an annual report. The President failed to give any report at all this year, while last year he turned up to distribute a document to the legislators, but it wasn’t a session in which the legislators could debate, discuss or even voice their opinions on what he had or hadn’t done. All these antecedents, the current political praxis, the events, the speeches and even the proposed constitutional reform appear to demonstrate a lack of political volition to establish mechanisms with a parliamentary logic.
A total reform that consults the people?Juridical doctrine, Nicaraguan jurisprudence and our Constitution’s systemic logic indicate that changing the system of government implies a total reform of the Constitution. A Supreme Court ruling has even established this. Although the Constitution doesn’t expressly state what “total reform” and “partial reform” consist of, doctrine indicates that a total reform must be used to modify the main foundations of the political regime or change the system of government. Trying to do it in any other way subverts or bypasses the process, which amounts to pettifogging to stop Nicaraguans from exercising their due right to approve or reject the proposed constitutional changes.
Unlike in other countries, where the people must be consulted through a referendum, a popular consultation isn’t necessary in Nicaragua for a partial constitutional reform. The electoral law neither requires nor excludes it, by regulating referendums and plebiscites in a very parsimonious way, just saying that laws or partial constitutional reforms may be subjected to a referendum, without making it obligatory to do so. In fact, we’ve already had “partial reforms” cooked up in the National Assembly that changed the Constitution’s essential regime without consulting the people. The 1995 reforms made such substantial modifications to the Constitution that they should have been done through a total reform, but were actually made through a partial reform without any consultation. Given the scope and importance of the reform currently being proposed, it would be legally and politically correct to do it through a total reform. But I think it would be very optimistic on our part to believe that the political forces controlling the country would opt for that path. They haven’t done it before and haven’t mentioned it as an objective now. Quite the contrary: they’re saying that the legislators will decide because a consultation is too costly.
Different pact-based scenarios It’s more than reasonable, almost inevitable, to argue that what’s really behind this proposal is the idea that the strongest partner in the pact will hold the head of state position, the presidency, while the minor partner—according to the circumstances, because nothing is automatic—will end up as head of government, the Prime Minister’s post. In principle, the FSLN would control the head of state and the PLC the head of government, although this would depend on the electoral results and the country’s political dynamic. The role of “mosquito” (the term applied when the Conservatives played second fiddle to the Liberals during the Somoza dictatorship) would depend on the makeup of the National Assembly. But there’s absolutely no doubt that no matter how weak it is, how seriously it takes its role of “mosquito,” the second force will have an important role to play as long as it secures enough seats in parliament to stop the victorious party controlling 60% of the votes without it.
for the division of powers
But why do I doubt the automatic nature of this scenario? Because recent events indicate the FSLN is assigning an increasingly weaker role to the PLC in the pact. In the municipal elections, the FSLN ended up with 105 mayoral seats and the PLC with 30. The law was reformed for electing board members for the state-run development bank, Banco Produzcamos, establishing that 60% of the votes are needed to elect its president and vice president. In the end the vice presidential candidate came not from the PLC, but from the Nicaraguan Liberal Alliance, which has to all intents and purposes been co-opted by the FSLN. So there are certain signals that the pact might be in need of some form of recomposing. The minority role the PLC has been reduced to in the pact is making it impossible for former President Alemán to continue imposing the unanimous acceptance of the reforms by PLC representatives, in contrast to a few years ago when they were conceived and his will was still law in the party.
The constitutional reform proposal is barely viable in any event, but doesn’t have a prayer without an agreement between the FSLN and the PLC. So no matter how much we observe the signals right now, in the wake of the municipal elections, the PLC will always have moving room within this model in the medium and long haul.
But this doesn’t rule out a second scenario in which the FSLN doesn’t win presidential reelection, but does manage to reform the system, in which case this wouldn’t be the proposal. The alternative proposal would grant more responsibilities, more powers, to the Prime Minister (head of government), leaving the President (head of state) in a more classic position with respect to parliamentary systems.
The authoritarian element of these dysfunctional, inappropriate reformsThis proposal has an authoritarian and totalitarian element, but it’s not because these reforms intend to subject all institutions and all branches of state to the President. The FSLN-PLC pact has already castrated the independence of the branches of state, subjecting them to the political wills of two very restricted political circles, as is easy to verify by analyzing the contents of different rulings and resolutions. The electoral branch’s cancellation of the legal status of certain political parties with no juridical basis or the judicial rulings that legitimized stripping some directly elected representatives of their seats, to name but a couple of examples, indicate that subordination of the state branches to the executive’s will is not merely a political opinion, but verifiable fact.
The constitutional reforms confront us with a very important political problem, not a merely technical one. Under the rule of law, changes can only be made to the fundamental rules of the game expressed in the Constitution by the sovereign people, not by the constituted powers. The National Assembly is a constituted power that is subjected to the main rules of the game, and when an attempt is made to change their very core, their soul, the will of the people must be consulted.
If constitutional reforms should only be implemented to adjust the Constitution to the country’s juridical and political realities, the ones the FSLN is determined to push through are untimely because nothing has substantially changed the political reality. No national sector is demanding such reforms or believes them necessary to resolve the fundamental economic and social problems affecting the people and the country. Nobody is proposing these reforms outside of the political circles surrounding certain political leaders concerned about their own reelection.
There’s also no obvious juridical need for these reforms, making them not only untimely but also dysfunctional, because when they’re applied, they will generate countless mechanisms that will probably block and at some point collapse the functioning of the system. Furthermore, the reforms are clearly going to intensify the pact, which has been exclusionary, anti-democratic and based on personal loyalty bought with privileges; in the long run they will do nothing to help consolidate either democracy or the rule of law. Last but hardly least they are also illegitimate, because their backers don’t want them consulted with the people given that the people aren’t demanding them. In sum, they clash with the criteria of both constitutional legality and political legitimacy.
Finally, I think that while the constitutional reforms aren’t inevitable at this moment, there’s nothing to indicate that they aren’t going to be imposed. And after what happened in Honduras, the reforms’ backers will probably be in more of a hurry and will press harder, thinking they don’t have the luxury of leaving what are still just plans for later. Only the people, not the institutions, can stop those plans.