Constitutional Change in Latin America

Constitutional Change in Latin America: Power Politics or Symbolic
Politics?
Detlef Nolte
GIGA German Institute of Global and Area Studies, Hamburg
[email protected]
Conference Draft: Not for Citation
Paper for presentation at the ECPR Joint Session of Workshops
Rennes, April 11–16, 2008
2
‘… en America Latina reina el fetichismos constitucional, la creencia
un poco naïf o cándida de que con una gran reforma constitucional se
puede crear el momento político necesario para construir una
sociedad y un Estado estable y más igualitario’. 1
(Interview with the former President of the Colombian Constitutional
Court and Dean of the Law Faculty of the Universidad de los Andes
in Bogotá, Eduardo Cifuentes)
http://www.voltairenet.org/article149540.html
‘... la idea compartida es que un mejor diseño de los dispositivos e
incentivos institucionales podría mejorar, y mucho, el funcionamiento
de la democracia. ... a diferencia de lo que ocurría hace algunas
décadas, las instituciones no son vistas como un reflejo secundario
de lo esencial, sino como parte de lo esencial.’ 2
(PNUD 2004: 170)
‘… el problema de la relación entre Constitución y democracia en
América Latina no reside tanto en la promulgación de nuevas
Constituciones sino más bien en la aplicación efectiva de las ya
existentes ... Esta es una vía más económica y moralmente más
honesta que la reiterada reunión de asambleas constituyentes.’ 3
(Garzón Valdés 2000: 78)
1. Introduction
Since the democratic transitions of the 1980s, most of the Latin American republics have
reformed their constitutions at least once, and some have done it several times. Sometimes,
the reforms have been quite limited with regard to their scope. But many times the
constitutional reform processes have been very comprehensive, including a constitutional
assembly and a plebiscite to validate the new constitution. New constitutions have been
promulgated in Brazil (1988), Colombia (1991), Paraguay (1992), Peru (1993), Ecuador
(1998), and Venezuela (1999). And the process of constitutional reforms continues in the
twenty-first century: the Chilean constitution was fundamentally overhauled in 2005. In 2007
in three Latin American countries – Bolivia, Ecuador and Venezuela – constitutional
assemblies drafted new constitutions. In all three countries the reform process has been highly
contested. In Venezuela the controversial constitutional reform proposal elaborated by the
1
‘… in Latin America constitutional fetishism prevails: the belief, a little bit naive or candid, that with extensive
constitutional reform you can create the political momentum which is necessary to build a more solid and
egalitarian society and state.’ (translation D.N.)
2
‘… the prevalent idea is that a better design of the institutional provisions and incentives can improve, and
very much so, the mode of operation of democracy … unlike what happened some decades ago, institutions are
not perceived as a secondary reflection of the essential, but as part of the essential.’ (translation D.N.)
3
‘... the problem of the relationship between constitution and democracy in Latin America does not consist so
much of the promulgation of new constitutions but of the effective application of the existing ones … This is a
more economic and a morally more honest way than the recurrent gathering of constituent assemblies.’
(translation D.N.)
3
Chavez-dominated Congress was narrowly defeated in a referendum in December 2007. In
other countries such as Mexico, Nicaragua, and Peru wide-ranging constitutional reforms are
still being discussed.
While in some cases the constitutional reforms have sought a redistribution of power
between different political actors or the perpetuation of the power of certain politicians
(permitting their previously constitutionally forbidden re-election), constitutional reforms
have also been conceived of as a way out of a political impasse or an entrenched status quo.
The latter conception is based on the vague hope that by changing the rules of the game or by
including political promises in the constitution, politics would become re-legitimated in the
eyes of the citizens.
This paper aims to gain a better understanding of the causes, forms (scope), and
consequences of constitutional reform in Latin America. It will provide an overview of
constitutional reform in Latin America. First, it will systematically document the various
constitutional reforms in Latin America since the 1980s, viewing Latin America from a
comparative perspective with regard to constitutional reforms in other parts of world. The
article will describe the different reform mechanisms in Latin America and the regulation
density before and after the reform process. As a second step, it will systematise possible
causes of constitutional reforms. This will be done first in a quantitative way, by investigating
the relationship between constitutional rigidity and reform frequency. In the next step, the
paper will analyse the length and regulation density of Latin American constitutions on the
one hand, and the variation of these indicators during the timeframe investigated on the other.
It will then differentiate between causal factors of constitutional change and provide some
empirical illustrations. Subsequently, some general reflections about the reasons for
constitutional reform in Latin America will be presented.
The paper includes both empirical findings about the numbers and rates of constitutional
reforms in Latin America and conceptual and qualitative thoughts based on the Latin
American cases. It will contribute to the discussion about the causes and patterns of
constitutional change by broadening the empirical base. Constitutional reform is an important
topic not only in the OECD world and Central and Eastern European countries, but also in
Latin America, which, as a region, has a long tradition of constitutional reforms.
The present investigation demonstrates from a comparative perspective that Latin America
is not so different from other regions, for example, Europe, with regard to the number of
reforms in the 1990s. But the results display a great variation in terms of the yearly
amendment rates in different Latin American countries. With regard to their rigidity or the
4
difficulty of reforming them, Latin American constitutions are perhaps slightly less rigid than
in other parts of the world, especially Europe. In comparison with Europe, Latin American
constitutions are quite lengthy: some contain more than 300 articles and more than 40,000
words. Alluding to other studies on constitutional change, we analysed in a preliminary way
the impact of constitutional rigidity and constitutional length on the amendment rates.
Concerning this particular Latin American sample, only a small – but not significant –
positive correlation between the amendment rate and the length of a constitution could be
found, and there was no evidence as to the correlation between the rigidity and the
amendment rate of the constitutions. Thus, this study’s results are in tune with recent studies
on constitutional change in other parts of the world. In a subsequent step more causal factors
that could explain constitutional reform in Latin America were identified: the elimination of
authoritarian legacies in the constitution, good governance reforms, symbolic politics, the
constitutionalisation of policies and subsequent policy-related constitutional reforms, and
power politics by means of constitutional reforms. It is expected that it will be difficult to
identify a common reform pattern for Latin America. The study concludes with some
reflection about future research topics.
2. Constitutional change in Latin America: a new research topic
The subject of constitutional change in developed democracies has seldom been analysed
from a comparative perspective (Lorenz 2004; 2005). There are few studies focusing on the
rigidity of constitutions, their length / regulation density, and the frequency of reforms (Lutz
1994; Lijphart 1999; Lorenz 2004; 2005; Rasch/Congleton 2006).
In this context it is not so surprising that there is also lack of studies on constitutional
change in Latin America. 4 The exception is an unpublished paper by Negretto (2006) which
analyses constitutional stability and constitutional replacements in 18 Latin American
countries between 1946 and 2000, including both democratic and authoritarian constitutions.
Constitutional stability is defined as durability. The lifespan of a constitution is the length of
time that passes between its enactment and its formal replacement by another constitution.
4
But it seems that the topic is attracting more interest. At the last (2007) APSA (American Political Science
Association) and LASA (Latin America Studies Association) conferences, constitutional reform processes in
Latin America were discussed in two panels. For the next LASA conference in 2009 (Rio de Janeiro), at least
two panels on the this topic have been proposed.
5
This means that the longer a constitution survives without being replaced, the more stable it
is. 5
With regard to the empirical findings (Negretto 2006), political instability and regime
change are, not surprisingly, highly correlated with constitutional stability. The same is true
for transformations of the party system (as a result of the emergence of new political actors)
and anti-government demonstrations. In addition, institutional factors embedded in the
constitutional design have an important effect on the survival of constitutions: Bicameralism
as well as the existence of a body responsible for interpreting the constitution reduce the risk
of constitutional replacement. On the one hand, bicameralism may provide representation to a
larger number of actors, who therefore have no interest in changing the constitution; on the
other hand, bicameralism makes it more difficult to reach an agreement on the replacement of
the existing constitution. 6
Constitutions can be altered by means of amendment, replacement, judicial
interpretation, 7 and legislative revision (Lutz 1994). But sometimes it is not so easy to make a
clear-cut differentiation between replacement and amendment: For example, the Chilean
reform of 2005 deleted most of the authoritarian elements of the Pinochet Constitution from
1980, but it did no constitute a complete replacement. On the other hand, Brazil is undergoing
a process of permanent constitutional amendment. Between 1988 and 2007 the constitution
was reformed not less than 62 times, or on average 3 times each year. Its length increased
from approximately 40,000 words in 1988 to about 50,000 words in 2005. Thus, in the Latin
American case, it is not sufficient to focus comparative research only on constitutional
replacements or major constitutional reforms; it is rather necessary to also include piecemeal
reforms in the analysis.
In contrast to Negretto’s (2006) study, this analysis uses a broader focus in looking at
constitutional change in Latin America, including not only constitutional replacement but also
constitutional amendments. It spans the current democratic period (1978–2007).
5
The dataset includes 990 observations representing 62 constitutions, 44 of which were replaced during these
years, and 18 of which were still surviving as of 2000. Of the 62 constitutions, 26 were enacted in democratic
and 36 in non-democratic years. Neither amendments to nor the temporary suspension of constitutions are
included here as events of constitutional failure (Negretto 2006).
6
On Latin American bicameralism see Llanos/Nolte (2003).
7
The different judicial adjudication systems in Latin America are analysed by Navia / Ríos-Figueroa (2005).
6
3. Constitutional change in Latin America: empirical findings
Constitutions were replaced quite often in Latin America during the twentieth century. The
mean number of constitutions adds up to 5.7 for 18 Latin American countries (see table 1 in
the annex). The average duration of Latin American constitutions has been 28.7 years, but
with great variations – for instance, in the cases of Chile and Colombia, with more than 50
years, and Venezuela and Ecuador, with 6 and 13 years respectively. Some constitutions, such
as the Mexican constitution of 1917 or the Argentinian constitution of 1853 (which was
reformed in terms of some basic aspects in 1993), are quite time-honoured.
Do Latin American countries change their constitutions more often than countries in other
parts of the world? A recent study (Lorenz 2005: 339) reveals that 32 of 39 established
democracies 8 amended their constitution between 1993 and 2002. The average rate amounted
to 5.8 reforms in ten years. Moreover, three states (Switzerland, Finland and Poland)
promulgated new constitutions. If we take a look at Latin America for the same time period
(1993–2002) – without differentiating between liberal democracies and more illiberal
varieties of political systems – there were three constitutional replacements (Peru, Ecuador,
Venezuela) and 16 out 18 countries amended their constitution (see table 2 in the annex). The
average rate amounted to 8.6 reforms in ten years (including amendments and replacements).
If we exclude Mexico and Brazil – both countries account for a high percentage of the
amendments – the average is 4.7. There was a total of more than 700 reforms of single articles
(the same article could have been reformed various times) in this period (not counting
constitutional replacements). So at first glance, from a quantitative perspective, constitutional
change in Latin America is not so different from other world regions, for example, Europe.
But Latin America itself presents a great variety of constitutional reform patterns (see
table 2 in the annex). Some countries – such as Brazil, Costa Rica, Honduras and Mexico, and
to a lesser degree Chile and Colombia – have been going through a permanent reform process.
Other countries – such as Argentina, the Dominican Republic and Guatemala – have rarely
reformed their constitutions since the return to democratic rule. These constitutions have a
high level of stability. Paraguay and Venezuela replaced their constitutions once in 1992 and
1999, but passed no other reforms or amendments afterwards. In the Paraguayan case, the
1993 constitution stipulated that any reform would be blocked for 3 (partial reform) or 10
(total reform) years. In Venezuela a far-reaching reform proposal was defeated in a plebiscite
in 2007.
8
The sample includes four Latin American countries: Bolivia, Chile, Costa Rica, and Uruguay.
7
Until now, this discussion has focused on the period from 1993 to 2002 without taking the
democratic quality of the regime in question into account. Unfortunately, illiberal democracy
has become the dominant regime type in contemporary Latin America (Smith / Ziegler 2008).
In 2000 there were six liberal democracies and nine illiberal democracies; another three
countries were classified as illiberal semi-democracies, as repressive semi-democracies, or as
moderate non-democracies in the terminology of Smith / Ziegler (2008). The analysis in this
paper is based on the risky assumption that the constitutional reform process is not decisively
hampered or adulterated in illiberal democracies and liberal /illiberal semi-democracies
because an open violation of the constitutional procedures (such as serious manipulations of
an election) would disqualify the regime as a democracy or semi-democracy. 9
So as a first step, the yearly amendment rates (taking the example of Lutz 1994) per
country were calculated by adding liberal and illiberal (semi-)democratic periods for the years
1990–2007.
4
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Average number of changes per year
Chart 1: Amendment rates (yearly) in Latin America, 1990-2007
* Between 1991 and 1995 non-democracy / repressive semi-democracy
** Countries that passed a new constitution at the beginning of the particular period
Venezuela has been excluded because the only (1999) reform did not comply with the legal prescriptions.
The results display a great variation concerning the yearly amendment rates; Mexico and
Brazil are outliers, with 3.4 amendments per year. This distribution of amendment rates in the
Latin American sample will complicate subsequent statistical analysis.
9
There is also a pragmatic argument. If we take the period since 1978, we can only identify a small number of
clear-cut liberal democracies in Latin America (see table 3 in the annex).In the future the author will compare
constitutional reform processes and patterns in liberal and illiberal democracies as well as in liberal / illiberal
semi-democracies in order to corroborate our assumption.
8
The significant number of constitutional reforms in some Latin American countries as well as
the considerable variation in this paper’s Latin American sample with regard to the number of
reforms could be a hint that different reform procedures cause the variation in the reform
patterns. Thus, the discussion will now take a closer look at the reform procedures stipulated
in the constitutions.
To begin with, it should be mentioned that three (Colombia, 1991; Peru, 1993; Venezuela,
1999) out of five cases of constitutional replacement since 1990 have occurred outside of the
pre-established procedures. (These cases will be disregarded in the statistical analysis).

In Colombia’s March 1990 parliamentary election a reform movement resulted in another
non-binding ballot paper being put on the table (the so-called ‘séptima papeleta’) to
consult the citizens about the need / desire for a constitutional reform. While electoral
participation was low, 90 percent voted in favour of the reform proposal. In the
presidential elections of May 1990 another ballot could be cast about convening a
constituent assembly. Again, 90 percent voted in favour. After the Supreme Court decided
that the reform process was not unlawful, the members of the constituent assembly were
elected in December 1990 and a new constitution was promulgated in July 1991.

In Peru in April 1992, the democratically elected president Alberto Fujimori dissolved
Congress and regional governments, intervened in the judiciary, and shut down the
Constitutional Tribunal. After massive pressure from Latin American neighbour countries
and the Organization of American States (OAS), President Fujimori convened elections
for a constituent assembly in November 1992. The most important opposition parties
boycotted the election. Hence, a compliant assembly passed a reform proposal that
concentrated much power in the presidency and abolished the Second Chamber. In
October 1993 the reform proposal won by a small margin (52 percent).

In Venezuela the newly elected (1998) president Hugo Chavez pushed through the
election of a constituent assembly (after a positive vote of support in a referendum) to
alter the power balance and to disempower Congress where the government did not
command a majority. This kind of constitutional reform mechanism was not envisioned in
the constitution of 1961. Ultimately, Chavez was successful in altering the political
landscape of Venezuela by creating new political institutions and using the momentum of
institutional reform to dominate the political agenda.
These examples demonstrate that in some Latin American countries not only the
constitution but also the rules for reforming the constitution are alterable. In a region with a
9
strong plebiscitary tradition it is always easy to invoke the will of the people, putting aside
procedural formalities.
There are different paths to constitutional reform in Latin America (see table 4 in the
annex). All involve the parliament (most constitutions demand a two-thirds majority), some
stipulate a constitutional assembly – at least in the case of a complete overhaul / replacement
– and some require the citizens to consent in a plebiscite to the reform proposal. Uruguay is
the only case where a constitutional reform by referendum is feasible (article 331 A) without
any previous participation by parliament. Argentina is the only case that stipulates a
constituent assembly for each kind of constitutional reform. In another five countries (Bolivia,
Costa Rica, Nicaragua, Paraguay, Venezuela) only a total reform requires a constituent
assembly. In four countries (Guatemala, Paraguay, Uruguay, Venezuela) each constitutional
reform must pass the test of a referendum; in another six countries a referendum could be
called under certain conditions. Mexico is the only country where the state parliaments of the
federation have to approve the constitutional reforms (the same mechanism applied in
Venezuela under the 1961 constitution). In two countries – El Salvador and Bolivia (until
2004) – two different legislatures had to vote on the reforms proposal.
From a comparative perspective, how difficult is it to reform the constitution in Latin America
countries? As a first approximation at answering this research question here, the analytical
tools devised by Lijphart (1999), Lorenz (2004; 2005), and Rasch/Congleton (2006) were
used to measure constitutional rigidity in Latin America. Afterwards, these scores were
compared with the results of other studies that predominantly deal with constitutional reforms
in developed democracies.
There are two basic approaches to defining the rigidity of a constitution. Both refer to the
difficulty of reforming the constitution. While the first approach focuses on the majorities that
are necessary to reform the constitution (simple majorities or supermajorities), the other
approach counts the number of veto points in the amendment process where a constitutional
reform proposal could be blocked. There is also a third approach which combines veto points
and majorities.
Lijphart (1999) advocates for the first approach. He uses a four-point scale to measure
constitutional rigidity: (1) approval by an ordinary majority; (2) approval by less than twothirds majority but more than an ordinary majority (including an ordinary majority plus a
referendum); (3) approval by a two-thirds majority; (4) approval by a more than two-thirds
majority, or a two-thirds majority plus approval by the state legislature. The analytical tools of
10
Lijphart (1999), with some minor revisions, have been used here. When alternative methods
can be used, Lijphart counts the least restraining method. But in some Latin American
countries, it is not so clear what the least restraining method actually is. The selection of a
method depends on the reform strategy and the legislative majority. When it was not possible
to make a clear-cut decision (for example, for Peru and Chile) for this paper’s analysis, the
mean of the different options / values was counted. In the cases of a two-thirds majority plus a
referendum an extra medium point was given (0.5), because a referendum constitutes one
more threshold. As Latin America demonstrates, governments with a parliamentary majority
can loose referenda. In Lijphart’s (1999) study, when different rules apply to different parts of
the constitution, the rules pertaining to amendments of the most basic articles of the
constitution have been counted. Because the present analysis is focused on the whole
spectrum of constitutional reform in Latin America, it includes scores for both basic and
minor revisions of the constitution. In most cases there is no difference with regard to the
rating. For a better comparison with the results of other studies, the original scoring of
Lijphart as well as this study’s revised score board have been included in the analysis.
Rasch/Congleton (2006) represent the second approach to measuring constitutional
rigidity. They count the number of veto points, defined as the number of governmental veto
players plus an additional point if an intervening election is required and another if a
referendum is normally used to ratify constitutional amendments. The number of
governmental veto players is coded as 0 through 3, with a single point awarded for each
centre of institutional authority beyond parliament that must agree to a proposed amendment:
bicameral, presidential, and federal. This study has adopted Rasch/Congleton’s (2006)
classification but has changed the coding rule, starting with 1 for parliamentary approval only
and progressing to a maximum of 4.
Lorenz (2004; 2005) combines the logic of veto points and voting majorities. 10 To
measure the constitutional rigidity, she adds the scores for the required majorities in the
requisite political arenas (veto points), including referendums. A legislature has to be assigned
a score twice if it has been newly elected between two votes. Lorenz modifies the original
Lijphart scale by treating a three-fifths majority like a two-thirds majority (3.0 points).
Although this author is not convinced of the value of this modification, it has been adopted
here in the interest of being able to compare this paper’s research results with the outcomes of
10
In a certain way, the complicated index of difficulty for amendment processes created by Lutz (1994) also
combines veto points /arenas and majorities. The index is very intricate. It identifies 68 possible actions that
could in some combination be used to initiate and approve constitutional amendments. Together they cover the
combination of virtually every amendment process in the world.
11
other studies. A constitutional court, a government, or the president are assigned 1.0 (for a
simple majority vote) when they explicitly have to consent to an amendment. Lorenz’s (2005)
argument for how a referendum should be counted is not consistent (and her reference to
Lijphart’s scoreboard is mistaken). She proposes 2.0 for an ordinary majority and 3.0. for a
two-thirds majority. In contrast, this author thinks that an ordinary majority should be given
1.0. Based on the Latin American experience, the author does not agree with the assessment
that a vote on the declaration of a need to amend the constitution should be scored with half of
the normal points for the respective action. In Latin America these votes have repeatedly been
highly contested. Moreover, the threshold for a positive vote to start the reform process is
generally very high (two-thirds majority).
How does the rigidity of Latin American constitutions compare with other countries and
regions (see table 5 in the annex)? On average, constitutional reforms in Latin America have
to pass two veto points. In Lijphart’s (1999) study, which covers 36 democracies (1945–1996;
including Costa Rica and Colombia), the mean index of constitutional rigidity is 2.6 and the
median 3.0 points. Lorenz’s (2004) study of 24 mainly European democracies (1993–2002)
results in a mean of 2.8. With regard to this study’s sample of 18 Latin American countries
(1978–2007), the mean is 2.6 (2.5 for minor reforms) and the median 3.0. Applying the index
of Lorenz (2004; 2005), this author has calculated a mean of 4.3 for this paper’s Latin
American sample, compared to a mean of 4.85 for a sample of 39 countries in the case of
Lorenz (2005). Thus, from a comparative perspective Latin American constitutions are not so
different with regard to their rigidity; they are slightly less rigid than those in other parts of
the world, especially Europe.
In his analysis of 50 American state constitutions and 32 national constitutions, Lutz
(1994) confirmed his hypothesis that the more difficult the amendment process, the lower the
amendment rate. In contrast to Lutz’s (1994) findings, in Lorenz’s (2004; 2005) study the
hypothesis that institutional rigidity has an impact on the frequency (and scope) of
constitutional reforms has not been statistically substantiated. There is a weak statistical
correlation between regulation density and the frequency of reforms, but the results are
contradictory when older and newer democracies are compared. The Rasch/Congleton (2006)
analysis, covering 19 OECD countries (based on the amendment rates of Lutz), suggests that
the number of veto points has a systematic effect on amendment rates. In this study’s Latin
American sample, no evidence that could confirm the Lutz hypothesis could be found. There
12
were no statistically significant results 11 concerning the correlation between the rigidity and
the amendment rate of the constitutions.
Kendall’s tau-a was used to calculate the
correlations.
Table 1: Constitutional rigidity and amendment rates
amendment rate (number of reforms per year)
0,0074 (sig. Level:1)
-0.1544 (sig. Level: 0.3859)
-0.1618 (sig. Level: 0.3757)
0
(sig. Level: 1)
Lijphart (minor reforms)
Lijphart (minor reforms, revised index)
veto points
Lorenz
What has the impact of constitutional reforms been with regard to the volume and the number
of regulations included in the constitution? Have the constitutions become leaner? Have the
reforms just replaced parts of the constitutions, or have they added new regulations?
Some Latin American constitutions are quite voluminous, containing more than 300
articles; Colombia and Honduras are the absolute top scorers with 372 and 379 articles
respectively. But other constitutions are quite smart with regard to the number of articles:
some of the older constitutions, such as the Argentinean and Mexican constitutions, contain
less than 150 articles. The same is true of the Chilean and the Dominican constitutions. But
the number of articles only partially captures the number of regulations included in the
constitution, because some articles could be quite lengthy and include many sub-articles. For
example, in the Mexican constitution, article 27 on the use of land and natural resources
includes 20 quite substantial sub-articles. Article 123 on social security covers several pages
and includes more than 40 sub-articles.
Table 2:Latin American Constitutions: number of articles
Number
of articles
Frequency
100–149
150–199
200–249
250–299
300–349
350–399
4
2
2
5
2
3
There are different indicators for measuring the length and regulation density of the
constitutions: the number of articles, the number of words (Lutz 1994) or lines, and composite
indices based on the aforementioned indicators. Following Lorenz (2004), the present study
has calculated the following index: the number of articles has been divided by 100 and the
11
For this calculation Mexico and Brazil were excluded because of their extreme amendment rate in comparison
with the other countries observed.
13
number of words by 10,000, with both values then added together. 12 The main source was the
Political Database of the Americas 13 ; in a few cases other sources were also used. 14
While Lorenz (2004, 2005) has based her analysis on the corresponding English
translations of the constitutions, this study has used the original Spanish or Portuguese
(Brazil) versions, because with regard to the official language, the present study’s Latin
American sample is quite homogenous. 15 This study is interested in the quantity and quality
of constitutional change in Latin America throughout the current democratic period (until
2007). Therefore the first point of measurement is the constitution in force at the beginning of
the democratic transition. This constitution could be the former democratic constitution
suspended during a dictatorship (Uruguay) or a constitution adopted during a military
dictatorship (Chile) or in a transition process (Brazil). The other point of measurement is the
most recent (2007) text of the constitution (depending on the availability of data). Whenever a
new constitution was promulgated or a major constitutional overhaul occurred during the
period of investigation this text has been included as another point of measurement. Only the
words in the text of the constitution have been counted. The headline and the preamble, the
transitory articles, 16 the derogatory articles, and the phrases related to technical aspects
regarding the derogated articles, the legislative basis of the derogation or substitution, and
other aspects which are not related to the regulatory content of the constitution have been
excluded.
On average, the regulation density is quite high in Latin America (see table 6 in the
annex). Lorenz (2004) has calculated a mean (articles plus lines) of 2.9, and the highest values
(4.9 and 5.8) refer to Sweden and Portugal. In Latin America the regulation density (articles
plus words) was 5.0 at the end of the period of investigation. By far the highest values refer to
Brazil, Colombia, and Venezuela (7.4, 7.9, 6.9). In the case of Mexico, the relatively low
number of articles conceals many sub-articles and paragraphs. Therefore, the constitution of
Mexico includes more words than the constitution of Colombia, which has nearly three times
the number of articles.
12
Lorenz (2004) divides the number of articles by 100 and the number of lines by 1,000 and adds both values.
This author prefers the articles/words index principally from a pragmatic point of view; it makes it easier to
compare the texts of constitutions from different Internet sources. Moreover, Lorenz (2005: 352) has found a
strong correlation between words and lines.
13
http://pdba.georgetown.edu/
14
Such as the Biblioteca Virtual Miguel Cervantes (http://www.cervantesvirtual.com/portal/constituciones) and
the Constituciones Iberoamericanas de la Universidad Carlos III in Madrid.
http://turan.uc3m.es/uc3m/inst/MGP/consibam.htm
15
The author compared some English and Spanish versions of Latin American constitutions with regard to the
number of words of the constitution. The differences were minor.
16
In the case of Panama the disposiciones finales have also been included because they refer to the channel
treaties
14
If we compare the constitutions at the beginning and the end of the period of investigation
(depending on the availability of data), the texts of the later constitutions are without
exception more voluminous and the regulation density is higher. Therefore, during the reform
process the volume of text and the number of articles have not been cut down. This could be
interpreted as an inclusion of more regulations in the constitution. In nearly all cases where
new constitutions were adopted (Paraguay 1992, Argentina 1993; Ecuador 1998; Venezuela
1999), the text of the new constitution includes more articles and exhibits a major regulatory
density (articles/words). An exception is Peru, where the new constitution (1993) adopted
after Fujimori’s autogolpe was much leaner than the previous constitution.
Is there a statistical relationship between the regulation density and the number of
reforms? In his analysis of 50 American state constitutions and 32 national constitutions, Lutz
(1994) found a strong relationship between the length of a constitution (counting the words)
and its amendment rate. 17 Lutz’s (1994) results with regard to the impact of the rigidity and
length of constitutions on their amendment rate could not be verified by Lorenz (2005) in her
sample of fully established democracies in the period 1993–2002. With regard to this study’s
Latin American sample, only a small – but not significant – positive correlation (Kendall’s
tau-a: 0.2857 ; significant at 15%) 18 between the amendment rate and the length of a
constitution could be found.
In future it would be useful to analyse which subjects make the constitutions so
lengthy/voluminous and which parts have been reformed. Alternative explanations for
constitutional change should also be sought, including factors that capture the political
dynamics of constitutional reform processes. Perhaps it would be useful to act on the
assumption of different reform patterns and causes.
4. Explanations of constitutional change in Latin America
What have been the reasons for constitutional change in Latin America since 1978? There are
at least five possible interpretations that are not mutually exclusive.
17
According to Lutz’s (1994) analysis, the variance in amendment rates is largely explained by the interaction of
the length of the constitution (in words) and the difficulty of the amendment process (measured by an index of
institutional devices).
18
For this calculation only 15 out of 17 observations were used because there was no data for the index-variable
(length / regulation density of constitution) available for Mexico and Costa Rica. The correlation between
amendment rate and length of constitution was calculated with Kendall’s tau correlation for two reasons: Pearson
couldn’t be used because one of his key assumptions (normal distribution) was violated by this study’s two
variables, which were due to the small sample.
15

First, the transition to democracy and the authoritarian legacies has made it necessary to
reform the constitution or to pass / adopt a new constitution.

Second, within the framework of an international discourse about good governance and a
growing awareness of the importance of institutional design, Latin American governments
have embarked on a course of constitutional reforms to improve the performance of the
political systems.

Third, the reforms are purely symbolic, because there is no consensus on major political
issues and there is a blockade with regard to major policy reforms. The focus on a
constitutional reform can deflect the political frustrations of the citizens with regard to
material reforms.

Fourth, in some countries many articles of the constitution refer to policies (in contrast to
political rights and rules). Therefore, a change of policies requires a change of the
constitution.

Fifth, the reform of the constitution is part of power politics. On the one hand, the new
rules included in the constitution can benefit some actors (for example, a new re-election
clause for the presidency). On the other hand, a newly elected constituent assembly can
compete with the acting parliament, claiming a superior legitimacy, and in extreme cases
replace it.
Next, the discussion will analyse constitutional change in Latin America in a qualitative and
descriptive way with the aim of making a first assessment of how far the different causal
interpretations presented are reflected in the reform processes.
1. Democratic Transition: One possible hypothesis to explain constitutional reforms in Latin
America refers to the transition process. After a period of authoritarian rule, the new
democratic governments have had to create new institutions or to reform the existing political
structures.
The Latin American experience is mixed, but there are many examples to substantiate the
hypothesis. In Latin America, only a few transition processes have started with the adoption
of a new constitution (Ecuador, 1978; Honduras, 1982; Brazil, 1988). In Paraguay the
constitution was reformed some years after transition (1992). Many countries reverted to
former democratic constitutions that had been abrogated during military rule (Argentina,
Bolivia, Peru, Uruguay). In some countries the adoption of a new constitution was part of a
16
transition process that subsequently took several more years (El Salvador, 1982; Guatemala,
1983; Nicaragua, 1987). Chile, Peru, and the Dominican Republic are special cases.
As a result of internal and external pressure to institutionalise its rule, the Chilean
military junta presented a new constitution in 1980 that would legitimise the regime and
constrain a future democratic government. 19 The constitution was ratified in a referendum that
did not comply with basic democratic standards. Nevertheless, based on the constitution and
repressive practices, the military managed to stay in power until March 1990. In 1988 General
Pinochet’s plot to obtain pseudo-democratic legitimacy for his rule and to stay in power was
defeated in a plebiscite. Under pressure from the triumphant opposition, the authoritarian
government accepted reforms to the constitution that eliminated some of its non-democratic
elements. The amendments were voted on in another plebiscite (1989). The authoritarian
government had crafted a constitution to hedge the socio-economic transformations that had
been imposed on Chilean society since 1973 against future reform efforts. The constitution
comprised so-called ‘authoritarian enclaves’ (Garreton) and conferred a special status on the
armed forces. The electoral system made it difficult to win a clear majority in both houses of
Congress and gave advantages to the first minority. While Pinochet lost the plebiscite 1988,
he held the command of the armed forces until March 1998. In this difficult context, the
democratic governments since 1990 have tried to dismantle the Pinochet constitution step –by
step, starting with the democratisation of the local governments. Finally, in a last reform
thrust in 2005, nearly all remaining authoritarian elements of the constitution were eliminated.
In Peru, the constitution reluctantly hammered out by Fujimori 1993 eliminated many
elements of political decentralisation and political participation in sub-national territorial
units. Thus, some of the reforms after the hasty resignation of Fujimori in 2000 concerned the
rights of the regions and municipalities.
The 1994 presidential election in the Dominican Republic, won by Joaquín Balaguer, was
tainted by widespread electoral fraud. As a solution to the institutional crisis, the constitution
was reformed: Immediate presidential re-election was foreclosed, and in a transitory article
the presidential period was reduced from four to two years. By this means, future presidential
and parliamentary elections were also separated.
2. Institutions Matter: The quotation at the beginning of this article from the UNDP study on
democracy in Latin America is persuasive. Institutions matter in Latin America, at least in the
public and academic discourse. Moreover, international financial organisations such as the
19
On the origins and making of the Chilean constitution of 1980 see Barros (2002).
17
World Bank or the Inter-American Development Bank (IADB) have stimulated governments
– by offering financial initiatives – to reform basic political institutions. What is more, the
IADB has financed academic studies on the operation and performance of democratic
institutions in Latin America as well as on possible and desirable reform paths (for example,
Payne et al. 2007; IADB 2006). But one has to concede that the reforms have not always
reflected the advice of academics and international financial institutions.
There have been at least four reform cycles since the late 1980s, which have often
overlapped and which have been reflected in constitutional reform processes. The first reform
cycle referred to the decentralisation of political functions and power (including the
democratisation of sub-national administrative structures). Constitutional articles that define
the administrative state structure or the territorial allocation of power, financial resources, and
state functions were often reformed. The second cycle concerned the reform of judicial power
and the creation of new institutions of horizontal accountability. So in some cases the judicial
independence was bolstered. Some countries created new specialised constitutional courts
(Lösing 2001; Navia / Ríos-Figueroa 2005); sometimes the reform of the criminal code or the
introduction of new criminal law proceedings (with independent public prosecutors) made it
necessary to reform the constitution. In other cases, new institutions for the protection of
citizens rights were created (ombudsman / defensor del pueblo). Another reform cycle
concerned the promotion of political participation by changing the electoral system or by
creating new participatory channels (direct democracy). The fourth reform cycle encompassed
all the constitutional changes supporting the neo-liberal economic reforms of the 1990s
(deregulation, privatisation of state enterprises, social security reforms, etc.).
If we were to take a closer look at the constitutional reforms in Latin America in the
1990s, we would expect to find certain reform clusters around the topics of decentralisation,
judicial reform, participation, and neo-liberal institutional reforms.
3. Symbolic Politics. The quotation from Garzón Valdés (2000) at the beginning of this
article describes a basic problem in many Latin American countries: On the one hand, there
are (too) many laws as well as quite meticulous and comprehensive constitutions. On the
other hand, there is a widespread lack of respect for the law. This may explain why the
constitutions sometimes include all kinds of political rights and obligations that are quite
difficult to comply with and often disconnected from the social and political reality of the
country. For instance, article 22 of the 1991 Colombian constitution delineates that ‘peace is a
right and an obligation that has to be complied with mandatorily”. And article 52 recognises
18
the right of each person to recreation, practising sport, and using his leisure time. Perhaps
nobody expects that these norms will be put into practice.
Thus, on the one hand, the real effect of constitutional reforms may be quite limited. On
the other hand, constitutional reforms or new constitutions could be a cheap way for
politicians to deliver some symbolic goods, thus avoiding the necessity of carrying out real
policies. It may therefore be interesting to analyse more precisely the political situation before
and after constitutional reforms. Major reforms such as those undertaken in 1991 in Colombia
and 1998 in Ecuador had little long-term impact on the political dynamic in these countries.
If the Freedom House scores – a crude indicator for democratic quality – are taken into
account, there are only a few cases of major constitutional reforms (for instance, the cases of
democratic transitions) where there has been a positive change in the scores one year after the
reform compared with the year before the reform.. With regard to the long-term effects (five
years after the reforms), there are many more additional factors that have had an influence on
the Freedom House scores.
Table 3: Democratic quality before and after major constitutional reforms
Country
Argentina
Bolivia
Chile
Colombia
Dom. Republic
Ecuador
El Salvador
Guatemala
Honduras
Nicaragua
Panama
Paraguay
Peru
Venezuela
Replacement or
major reform
1994
1994
2005
1979
1991
2003
1994
1983
1998
1983
1985
1993
1982
1987
1995
1983
1992
1993
1983
1999
Freedom House
1 year before
2/3
2/3
1/1
2/3
3/4
4/4
3/3
2/2
3/3
4/5
5/6
4/5
4/3
5/6
4/5
5/4
3/3
6/5
1/2
2/3
Freedom House
1 year after
2/3
2/4
1/1
2/3
2/4
4/4
4/3
2/2
2/3
3/5
3/3
4/5
3/3
5/4
3/3
4/3
3/3
5/4
1/2
3/5
Freedom House
5 years after
2/3
1/3
-2/3
4/4
3/3
2/3
2/2
3/3
3/3
3/4
3/4
2/3
4/3
3/3
6/5
4/3
5/4
1/2
3/4
4. Constitutionalisation of Politics: Many Latin American constitutions are quite
voluminous. They not only delineate political rights and the basic rules of the polity, but they
may also provide the baselines for certain policy areas. Thus, a change of policies may require
19
a change of the constitution. This is especially the case in Brazil, but is also true of other
countries (for example, Mexico and Colombia).
In a comprehensive study, Couto and Arantes (2003; 2006; Arantes/Couto 2007)
demonstrate that approximately 70 percent of the constitutional amendments during the
governments of President Fernando Henrique Cardoso (1995–1998, 1999–2002) in Brazil
concerned public policies. The reason for this policy of constitutional reform – which
demands broader majorities in parliament (three-fifths) – instead of ordinary legislation is the
constitutionalisation of public policies in the Brazilian constitution of 1988. The rationale for
this feature of the Brazilian constitution was the decentralised nature of the constitutional
reform process in 1987–1988, which facilitated the articulation of particularistic interests and
regulations. Major changes in political orientation – because of political swings in parliament
or a new political temperament – resulted in constitutional amendments, creating a specific
modus operandi of the constitutional reform process in Brazil.
Based on the Brazilian experience, Couto and Arantes (2003; 2006; Arantes/Couto 2007)
make a distinction between the policy- and polity-oriented aspects of a constitution. The
polity-oriented characteristics refer to the definitions of the state and nation, the basic
individual rights, and the rules of political game. In a maximalist definition they also include
material rights related to welfare and equality as well as to the corresponding state functions.
In addition, the authors add two exclusionary criteria which should verify inclusion as a
polity-related norm: the generality of the corresponding constitutional norms and their noncontroversial status. The last criterion refers to the question of whether these constitutional
provisions have been part of the day-by-day political disputes.
According to these criteria, out of 1,627 provisions (in 245 articles) in the 1988 Brazilian
constitution, 30.5 percent are related to policies and 69.5 percent to the polity. Of the
constitutional amendments, 68.8 percent were policy related and only 31.2 percent polity
related; 60.8 percent of all amendments aggregated new provisions to the constitution, and of
these amendments, 82.7 percent were policy related. Thus, during the government of F.H.
Cardoso the volume of the constitutional text was augmented through the addition of 250 new
policy-oriented provisions. In this way, President Cardoso constitutionalised even more the
government agenda of future presidents. It is therefore no surprise that President Lula,
Cardoso’s successor, has continued the practice of legislating by means of constitutional
amendments and of governing by supercoalitions in order to bolster a three-fifths majority in
Congress.
20
Future research should take a closer look at policy-related regulations in Latin American
constitutions, especially in reference to the cases of Colombia and Mexico but also
concerning other constitutions. Contrary to this article’s approach of excluding transitory
regulations, an analysis of the policy content of constitutions should perhaps include the
transitory dispositions because in some cases these transitory articles include policy
instructions for future governments.
5. Power Politics: A constitution defines the basic rules of the political game. Sometimes
political actors try to change these rules for their own benefit / advantage. This can certainly
be the case with regard to the electoral rules. 20 Thus, in Latin America in the 1990s the
articles that regulate /define the rules for presidential re-election have been reformed quite
frequently. Traditionally, direct re-election has been proscribed. Since 1992, ten countries
have reformed their constitutions with regard to the rules governing presidential re-election 21
and three have changed them twice (Colombia, Dominican Republic, Peru). In general, the reelection rules have become less restrictive, changing from prohibited to not immediate or
immediate re-election. Sometimes the reforms have been passed for the direct benefit of the
incumbent president. For instance, the entire Argentinian constitutional reform process in
1994 had at its core the re-election ambition of President Carlos Menem (1989–1999). In
Peru, President Alberto Fujimori (1990–2000) disbanded Congress in an autogolpe (1992).
The constitution that was promulgated afterwards endorsed his immediate re-election. 22 The
1998 constitutional overhaul in Venezuela authorised immediate re-election, and Hugo
Chavez, notwithstanding his defeat in a referendum, is still battling for another constitutional
reform that will allow permanent re-election. Two popular presidents, Fernando Henrique
Cardoso in Brazil (1995–2002) and Álvaro Uribe in Colombia (2002–2010), secured their reelection after the reform of the constitution. Only the former president of the Dominican
Republic, Hipólito Mejía (2000–2004), did not succeed with his re-election bid after he had
reformed the constitution. However, his successor, Leonel Fernández, will probably take
advantage of the reform and be re-elected.
20
A recent study lists more than 50 reforms to the electoral laws for the upper and lower houses in Latin
America in the period 1978–2005 (Payne et al. 2007). Some reforms were part of a constitutional reform
package..
21
In Costa Rica non-immediate re-election was prohibited by referendum. The Constitutional Court restored
non-immediate re-election in 2003, because it decided that the process of reforming the re-election rule was
unconstitutional.
22
The 1993 constitution limited the presidency to two consecutive terms. The politically manipulated Peruvian
electoral bodies permitted a third candidacy. After Fujimori won a highly contested and fraudulent election, he
had to resign some months later after a political scandal involving the director of his secret service.
21
Table 4: Constitutional Change in Latin America: Re-election of Presidents
Country
Argentina
Brazil
Colombia
Dominican Republic
Ecuador
Nicaragua
Panama
Paraguay
Peru
Venezuela
Year of reform
1994
1997
1991
2005
1994
2002
1996
1995
1994
1992
1993
2000
1998
Nature of reform
not immediate to immediate
not immediate to immediate
not immediate to prohibited
prohibited to immediate
immediate to not immediate
not immediate to immediate
prohibited to not immediate
immediate to not immediate
not immediate: increasing the
required interval from one to
two presidential terms
immediate to prohibited
not immediate to immediate
immediate to not immediate
not immediate to immediate
Source: Payne et al. (2007: 32).
In a few cases, the procedures of a constitutional reform have been used to alter the power
distribution by creating a new power center in the form of a constitutional assembly. By
claiming a higher democratic legitimacy than parliament, the constitutional assembly could
try to replace parliament. This was the master plan of Hugo Chavez in Venezuela in
1998/1999. The script has been copied more or less successfully by Enrique Correa in
Ecuador (2007–2008) and Evo Morales in Bolivia (2006–2007).
In Nicaragua in 2005 an oppositional majority tried to disempower the president by means
of a constitutional reform. An institutional crisis was avoided through another constitutional
reform, which postponed the original reform and suspended any constitutional reform until
2008.
We can find empirical illustrations of all the aforementioned causes of constitutional reform.
Moreover, the explanations are not mutually exclusive. In general, there will be a mix of
motives for constitutional reform. In the future it would be useful to statistically assess and
weight the relative importance of the different causes of constitutional reform. However, it
will also be necessary to do more qualitative research with regard to the factors that provoke
or facilitate constitutional reform. Perhaps it will be possible to identify certain reform
patterns or country profiles.
22
5. Future Research Topics
Future research on constitutional change in Latin America – including replacements as well as
amendments – should focus on a differentiation of the database (and statistical analysis), more
qualitative research on specific reform processes, and the identification of causal factors in
order to obtain a more dynamic picture of the constitutional reform processes in Latin
America.
With respect to the databases, it will be necessary to differentiate between major and minor
reforms (combining qualitative and quantitative criteria)23 , between reform topics (for
example policy- and polity-related reforms, and also sub-categories), between different
reform periods, and between reform processes in liberal and illiberal democracies / semidemocracies. There should be some qualitative research on selected constitutional reforms in
specific countries in order to better capture the dynamics of constitutional reform processes
and to identify more push and pull factors. Moreover, it will be necessary to take a closer look
at the political constellation (minority/majority status of government, divided government,
political discontent, demonstrations, etc.), additional institutional factors (for example, the
role of constitutional courts), economic trends (growth rates, etc.), and social developments
(protest movements, etc.) in the context of constitutional reforms.
It is likely that it will be difficult to identify general trends to explain constitutional change
in Latin America; it will be more plausible to identify certain time-bound or country-specific
constitutional reform patterns.
23
It would be interesting to weight statistically the extent of constitutional reforms, as Lorenz (2004) has done
for developed democracies. However, this would be quite complicated: There is great variation with regard to
the scope of the reforms – from one article to a nearly complete overhaul of the constitution (with more than 30
articles, or in one case more than 100 articles, reformed without constitutional replacement). And sometimes a
small number of reforms to the basic parameters of the political game (polity) can be more important than a
higher number of policy-related constitutional reforms.
23
Annex
24
Table 1: Constitutional Reform in Latin America in the Twentieth Century
Country
Argentina
Bolivia
Brazil
Chile
Colombia
Costa Rica
Dominican Republic
Ecuador
El Salvador
Guatemala
Honduras
Mexico
Nicaragua
Panama
Paraguay
Peru
Uruguay
Venezuela
Total
Mean
Source: Negretto (2006).
Constitutions, 1900–2000
4
6
6
3
2
4
4
8
7
5
8
2
8
4
4
5
6
16
102
5.7
Average duration
36.75
20.00
18.20
55.70
57.00
32.25
28.25
12.90
16.30
24.20
13.25
71.00
13.40
24.00
32.50
26.60
28.30
6.30
28.70
25
Table 2: Constitutional Change in Latin America, 1978–2007
Country
Argentina
Bolivia
Year of
actual
constitution
1853
Number of
replacements
since 1978
Year
Articles
reformed
1
1994
43
in process
2008
1
1
1
1
total: 4
1994
2002
2004
2005
29
16
14
1
total: 60
2
2
6**
5
6
2
3
4
7
4
4
3
3
3
5
3
total: 62
56 EMC*
and 6 (1994)
EMR**
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
3
10
9
9
11
7
50
17
20
14
11
35
35
6
14
4
total: 255
1
1
1
1
1
1
1
1
2
total: 10
1989
1991
1997
1999
2000
2001
2003
2005
2007
30
22
30
9
2
2
1
58
2
total: 154
1988
1
Chile
Amendments
partial
reforms
1967
(1)
Brazil
Year
1980
1
1988
1980
26
Colombia
1991
1
Costa Rica
1
1
1
1
total: 4
1979
1981
1983
1986
68
3
1
6
total: 78
2
2
1
1
1
2
4
4
4
2
5
total: 28
(1991–2007)
1993
1995
1996
1997
1999
2000
2001
2002
2003
2004
2005
2
3
2
1
1
2
8
9
57
5
5
total: 96
1
1
1
1
1
1
1
1
1
1
3
3
2
2
1
2
total: 23
(since 1978),
31 (1949–
1977)
1981
1982
1984
1987
1989
1991
1993
1994
1995
1996
1997
1999
2000
2001
2002
2003
1
1
1
2
4
1
1
1
2
2
6
4
2
2
6
3
total: 39
(since 1978),
46 (1949–
1977)
1
1
1994
2002
6
2
1991
1949
Dominican
Republic
1966
Ecuador***
1998
total: 2
1
(1)
El Salvador
total: 8
1
1983
58
1
1
1
total: 4
1994
1995
1997
4
10
13
total: 27 (85)
1
1
2
1
1991
1992
1994
1996
16
3
3
6
1998
in process
2008
1983
1
1983
27
Guatemala
1
6
total: 35
1
1993
34
1
1
1
2
2
1
1
1
2
1
1
1
3
1
1
1
4
2
2
total: 29
1984
1985
1986
1987
1988
1990
1991
1993
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
12
2
1
2
3
2
1
3
2
4
4
1
18
2
19
13
25
4
3
total: 121
3
1
3
3
3
5
2
4
6
1
2
4
7
3
1
2
1
10
3
1
2
2
5
5
4
9
1978
1979
1980
1981
1982
1983
1985
1986
1987
1988
1990
1992
1993
1994
1995
1996
1997
1999
2000
2001
2002
2003
2004
2005
2006
2007
3
1
3
5
19
10
2
10
22
1
12
8
33
29
1
23
3
20
3
5
3
3
8
9
5
25
1985
1982
1
Mexico
1999
2000
1985
1
Honduras
1
2
total: 8
1982
1917
total: 266
total: 92
Nicaragua
1987
1
1987
1
1995
65
28
Panama
Paraguay
Peru
Uruguay
1
3
total: 5
2000
2005
19
8
total: 92
1
1
1
1
1
total: 5
1978
1983
1993
1994
2004
2
150
9
7
4
total: 172
---
---
---
2
1
1
1
3
total: 8
(1993–2005)
1995
2000
2002
2004
2005
2
1
12
4
8
1
1
1
1
1989
1994
1996
2004
1972
1992
(no reform or
amendments
1978–1991)
1
1992
1
1993
(no reform or
amendments
1992–2007)
1993
no reforms
or
amendments
(1979–1993)
total: 27
1967
total: 4
Venezuela
LA
1999
(no reforms /
amendments
1961–1982)
1
11
1
1
4
1
total: 7
---
---
---
1
1983
32
1999
*EMC – Emenda Constitucional; **EMR – Emenda Constitucional de Revisao; ***Ecuador enacted a
new constitution in 1978.
29
Table 3: Political Regimes in Latin America, 1978–2007
Country
Argentina
Bolivia
Brazil
Chile
Colombia
Costa Rica
Dominican Republic
Ecuador
El Salvador
Guatemala
Honduras
Mexico
Nicaragua
Panama
Paraguay
Peru
Uruguay
Venezuela
Liberal / illiberal
democracy
Liberal / illiberal semi- Non-democracy /
democracy
repressive semidemocracy
1983–2001, 2003–2004
2002
1978–1982
(2005–2007)
1983–2004
1978–1982
(2005–2007)
1990–2004
1985–1989
1978–1984
(2005–2007)
1989–2004
1978–1988
(2005–2007)
1978–2004
(2005–2007)
1978–2004
(2005–2007)
1978–2004
(2005–2007)
1979–1995, 2001–2004
1996–1999
1978, 2000
(2005–2007)
1994–2004
1980, 1985–1993
1978–1979, 1981–1984
(2005–2007)
1996–2004
1986–1990
1978–1985, 1991–1995
(2005–2007)
1997–2004
1981–1996
1978–1980
(2005–2007)
2000–2004
1988–1999
1978–1987
(2005–2007)
1990–2004
1988
1978–1987, 1989
(2005–2007)
1994–2004
1984–1985, 1990–1993 1978–1983, 1986–1989
(2005–2007)
1993–2004
1990–1992
1978–1989
(2005–2007)
1980–1991, 2001–2004
1994–2000
1978–1979, 1992–1993
(2005–2007)
1985–2004
1978–1984
(2005–2007)
1978–1998
1999, 2002–2004
2000–2001
(2005–2007)
Source: Smith / Ziegler (2008) and addendum D.N. (2006–2007) based on Freedom House 2006-2007.
30
Table 4: Instruments of Constitutional Reform in Latin America
Country
Argentina
Bolivia 1967
Bolivia 2002
Bolivia 2004
Brazil
Chile
Colombia
Costa Rica
Dominican Republic
Ecuador
El Salvador
Guatemala
Honduras
Mexico
Nicaragua
Panama
Paraguay
Peru
Uruguay
Venezuela 1961
Venezuela 1999
Vote of Congress
(majority)
x
(2/3)
x a
(2/3)
x a
(2/3)
x
(2/3)
x
(3/5)
x
(3/5; 2/3)
x
(majority)
x
(2/3)
x
(2/3) d
x
(2/3)
xa
(2/3) e
x
(2/3)
x
(2/3)
x
(2/3)
x a
(60%; 2/3)
xa
(majority)
x
(majority)
(2/3)
x
(majority)
(2/3)
x
(2/5)
x
(majority)
x
(2/3)
x
(majority)
x
(2/3)
x
(majority)
x
(2/3)
Constituent assembly
Plebiscite
Vote of state
parliaments
x
x
(x) c
(x) b
(x) b
(x) b
(x) c
(x) b
(x) b
(x) f
x
x
(x) c
(x) b
(x) c
x
(x) b
x
x
x
x
x
x
x
x
(x) c
a) two different legislatures have to approve the reform; b) constituent assembly or plebiscite not obligatory; c) constituent
assembly only in the case of a total/general reform; d) in a common session of both houses of Congress as National
Assembly; e) first vote simple majority, in the next legislature two-thirds majority; f) only in the case of reforms of the basic
rights.
Source: Political Database of the Americas.
31
Table 5: Constitutional Rigidity in Latin America, 1978–2007
Country
Lijphart
Argentina
Bolivia 1967
Bolivia 2002
Bolivia 2004
Brazil
Chile
Colombia
Costa Rica
Scores
Veto points
major minor revised
reform reform minor
reform
3.0
3.0
3.0
3.0
3.0
3.0
3.5
3.0
3.0
<3.5>
2.0
2.0
3.0
2.0
2.5
1.0
1.0
3.0
3.0
<3.5>
Dominican Republic
Ecuador 1979
Ecuador 1996/98
El Salvador
Guatemala
Honduras
Mexico
Nicaragua
Panama
Paraguay
Peru 1979
Peru 1993
Uruguay
Venezuela 1961
Venezuela 1999
Latin America (mean)
taking the lowest value
most recent constitution
Source: Political Database of the Americas.
3.0
3.0
3.0
3.0
3.0
3.0
4.0
2.0
<3.0>
1.0
3.0
3.0
3.0
3.0
3.0
3.0
3.0
4.0
2.0
1.0
2.0/3.0
2.0
1.0
2.0/3.0
2.0
3.0
1.0
2.0
<3.0>
3.0
3.0
2.6
2.5
3.5
3.5
<3.5>
2.0
3.5/2.5
2.0
2.5
<3.5>
3.5
Lorenz
(modified)
2
4
5
4
<2>
2
3/4
2/3
4.0
9.0 (12.0)
10.0 (13.0)
9.0 (12.0)
<4.0>
6.0
9.0 / 10.0
2.0 /3.0
1
<2>
3
2/3
2/3
2
2
1
3
1
<2>
2/3
3
4
2 /1
2/3
3
<4>
2
3.0
<4.0>
5.0
5.0
6.0 /7.0
3.5 (4.0)
4.0
3.0
7.0
3.0
<2.5 (4)>
2.0 / 3.0
3.0
<7.0>
4.0
2.0 / 3.0
2.0 /3.0/7.0
5.0
<9.0>
4.0
2.1
4.3
< > total replacement / reform
/
different options / procedures
Argentina: Congress has to vote by a two-thirds majority on the necessity of a reform; afterwards a constituent
assembly is elected.
Bolivia: The original 1967 constitution provided only for partial reform. The reform (first the necessity of a
reform and second the reform proposal) had to be approved by a two-thirds majority in each chamber in two
independent legislatures. The 2002 reforms added a referendum on the reforms voted in Congress. The 2004
reforms included the possibility of total reform by a constitutional assembly. The modus of reform had to be
approved by a two-thirds majority of Congress.
Brazil: Majority of three-fifths in both houses.
Chile: The reform proposal has to be approved by a two-thirds or three-fifths majority, contingent on the
importance given to these topics by the authoritarian constitution makers in 1980 to preserving the stats quo. The
president can veto the reform proposal or part of the reforms, but Congress can insist with a two-thirds majority.
In this case the president has to promulgate the reform or call a referendum.
32
Colombia: There are three options: majority vote in both houses (with regard to certain topics the citizens can
demand and initiate a referendum); majority vote in both houses to elect a constituent assembly; by initiative of
the government or the citizens and a law approved by the majority of both houses with a subsequent referendum.
Costa Rica: Two-thirds majority in two ordinary legislative period; total reform needs approval of a two-thirds
majority of Congress to elect a constituent assembly.
Dominican Republic: The necessity of reform is declared by a law (simple majority in both houses); then it
requires approval by a two-thirds majority in a common session of both houses (with the participation of more
than half of the members of each house).
Ecuador: 1979: Two-thirds majority of members of parliament; referendum if a constitutional reform proposal
from the president is rejected by Congress or if the president objects to a constitutional reform proposal approved
by parliament. 1996: two-thirds of the members of parliament, but the president can veto or alter parts of the
reform proposal. Parliament can overrule the presidential veto with a two-thirds majority. The president can call
a referendum on the parts not approved or overruled by parliament. According to the 1998 reform, with the
consent of the president and the majority of parliament, the reform proposal could be voted on in a referendum
after parliament had approved it with a two-thirds majority.
El Salvador: A reform proposal has to be approved by a majority of parliament and ratified by a two-thirds
majority in the subsequent parliament.
Guatemala: Articles referring to individual rights, two-thirds majority and constitutional assembly; other articles,
two-thirds majority and referendum (consulta popular).
Honduras: Two-thirds majority in two ordinary legislative periods.
Mexico: Two-thirds of the present members of Congress and majority of the state assemblies.
Nicaragua : A partial reform must be approved by 60 percent; the necessity of a total reform must be approved
by a two-thirds majority. Afterwards, a constituent assembly will be elected.
Panama: Absolute majority of the members of parliament in two successive legislatures. There will be a
referendum if the text is modified in the second legislature.
Paraguay: The constitution could only be removed 10 years after its promulgation (1992) and could only be
amended three years after. Total reform or major reform: through a two-thirds absolute majority vote by its
members, the two chambers of Congress may declare the need for constitutional reform and, afterwards, the
election of a constituent assembly. Amendment: absolute majority in both chambers, afterwards referendum.
Peru: 1979: absolute majority in both houses in the first period of two consecutive legislatures. 1993: absolute
majority and approval by referendum or two-thirds majority in two legislative periods (legislaturas ordinarias
sucesivas).
Uruguay: There are four procedures of constitutional reform (including by popular initiative of 10 percent of the
electorate). Each reform proposal has to be voted on in a referendum. Parliament can initiate a constitutional
reform with a two-fifths majority in a common session of both houses, with a two-thirds majority in each
chamber, or with a majority in a common session of both houses and a constituent assembly elected afterwards.
Venezuela. In the 1961 constitution amendments had to be approved by an absolute majority in both houses of
Congress as well as by two-thirds of the state assemblies. The necessity of a total reform had to be approved first
by a two-thirds majority in a common session of both houses of Congress. Afterwards it had to be approved in an
ordinary legislative procedure and voted on in a referendum. The 1999 constitution includes different forms of
constitutional reforms: partial reforms must be approved by a two-thirds majority of Congress and a referendum
(simple majority). The president or 15 percent of the electorate as well as Congress can initiate amendments of
one or a few articles of the constitution as well as the election of a constituent assembly. The stipulations in the
constitution with regard to these two options are quite vague.
33
Table 6: Length / regulation density of Latin American constitutions
Country
Argentina 1957
Argentina 1993
Bolivia 1967
Bolivia 1994
Bolivia 2005
Brazil 1988
Brazil 2005
Chile 1988
Chile 1989
Chile 2005
Colombia 1979
Colombia 1991
Colombia 2005
Costa Rica 1981
Costa Rica 2003
Dom. Rep 1966
Dom. Rep. 1994
Dom. Rep. 2002
Ecuador 1978
Ecuador 1984
Ecuador 1996
Ecuador 1997
Ecuador 1998
El Salvador 1983
El Salvador 2000
Guatemala 1985
Guatemala 1993
Honduras 1982
Honduras 2005
Mexico 1988
Mexico 2004
Nicaragua 1987
Nicaragua 1995
Nicaragua 2005
Panama 1983
Panama 1994
Panama 2004
Paraguay 1967
Paraguay 1992
Peru 1979
Peru 1993
Peru 2005
Uruguay 1967
Uruguay 2004
Venezuela 1961
Venezuela 1973
Venezuela 1981
Venezuela 1999
Mean
(most recent date)
Articles
Words
Index
articles +
words
110
129
235
235
233 a
245
251 b
119
117 c
126 d
7,349
11,328
14,989
16,525
18,223
39,531
49,141
21,439
21,425
24,371
1.8
2.4
3.8
4.0
4.1
6.4
7.4
3.3
3.3
3.7
380
379 e
34,819
41,024
7.3
7.9
177
115
120
120
15,544
10,955
11,954
11,957
3.0
2.2
2.4
2.4
144
181
181
284
249
273
280
280
375
372 f
136
136
195
195
195
311
318 g
318 g
231
291
307
206
206
332
332
252
254
263
350
247
12,917
16,055
17,171
26,584
19,771
20,822
24,195
25,799
22,576
24,616
2.7
3.4
3.5
5.5
4.5
4.8
5.2
5.4
6.0
6.2
44,625
10,079
16,278
16,983
21,925
23,158
23,257
13,405
24,464
18,362
16,692
17,725
25,200
26,932
16,833
17,029
17,667
34,489
25,438
5.8
2.9
3.6
3.6
5.3
5.5
5.5
2.6
5.4
4.9
3.7
3.8
5.8
6.0
4.2
4.2
4.4
6.9
5.0
a) BOL: two articles without content, therefore not included in the counting
b) BRA: three articles (117, 171, 233) derogated, but number still included in text. Five new articles (103 A, 103
B, 111 A, 146 A, 149 A).
c) CHI: two derogated articles (8, 118) without content
d) CHI: one derogated article (118) without content; one subdivided, numbered 80 A to 80 I
e) COL: two derogated articles (261, 265) without content; one new, numbered 263-A
f) HON: six articles derogated, but numbers in still included constitution text
g) PAN: two derogated articles (196, 197) without content
34
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