iconnectblog.com http://www.iconnectblog.com/2015/06/on-abusive-constitutionalism-two-critical-impulses/ Jorge González-Jácome On Abusive Constitutionalism: Two Critical Impulses —Jorge González-Jácome, Universidad Javeriana, Bogotá, Colombia The relationship between constitutionalism and authoritarianism is not simple. Some might argue that they are opposing concepts but a very suggestive article by David Landau has coined the term abusive constitutionalism to refer to the use of tools of constitutional amendment and constitutional replacement used by would-be autocrats to undermine the democratic order and perpetuate their own power. These mechanisms undermine “democracy” to the extent that they affect the possibility of holding fair elections where all parties are on equal ground to dispute power. Abusive constitutionalism has become more common in the last couple of decades. During the twentieth century, authoritarian leaders generally came from the military and used coup d’états as well as sheer force to rule their countries for many years. In Latin America, Pinochet comes to mind as the epitome of this type of old authoritarianism. Landau’s point is that the new authoritarianism is harder to detect because it does not use mechanisms that blatantly infringe the principles of liberal democracy; instead, abusive constitutionalism has a façade of legality because it uses constitutional means to achieve its goals.[1] I believe the term is suggestive because it captures a set of facts that actually occur in the world today, especially in Latin America, the place where I am writing from. However, I would like to offer a mild criticism of the term in order to deepen the insights it provides. The criticisms are based on two impulses, building off of my own recent work and my current research agenda. The first impulse is “this is not new, there is a longer story to this picture.” The second one is “how ‘strange’ that the Global South is generally the site where this pejorative category is applied.” 1. The this-is-not-new impulse. It is true that since the era of democratization and human rights that swept the political world after the late 1970s, military coup d’états have become less common. Since the 1990s, Latin America, which was the paradigmatic zone in this regard, has changed its political landscape. When the military stepped in as in Honduras in 2009, the rejection from the region through the OAS was swift and harsh. However, there is part of the new story that is not entirely a departure from traditional Latin American constitutional ideas, practice, and institutions. Old style authoritarianism, taking Pinochet in Chile as the example, had a complex relationship with the Constitution in two different respects. First, the coup against Allende was justified using the constitutional jargon of states of exception which was an integral part of Latin America legal debate since the nineteenth century.[2] Second, one of the first debates after Pinochet took power was what to do with the 1925 Constitution. Thus Pinochet appointed a Comisión Constituyente that was staffed with some of the most prestigious jurists who initially discussed, among other things, the scope of emergency powers and whether the Junta had constituent power.[3] When one delves into the debates of the Comisión and even into Pinochet’s speeches, it is surprising how both included a rather sophisticated and complex discussion about the role of law in the new regime and the status of Constitutions. Another example is the infamous Acordada from the Supreme Court in Argentina in 1930, through which the tribunal adapted a theory from administrative law –the de facto theory– to argue that courts were incapable of challenging the legitimacy of the new military government that ousted a civilian president. However, they would supervise whether the new regime was following the Constitution. The document apparently justified future coups insofar, but at the same time it was an assertion that once in power the incumbents were under and not above the Constitution. In 1966 and 1976 the military coups created a legal hierarchy to overcome the limitations of the Constitution by enacting two documents of constitutional hierarchy (the Acta and Estatuto) that limited the interpretation of the Argentine Constitution. But curiously, the Constitution was not formally abrogated.[4] Thus, abusive constitutionalism might have a longer genealogy than what Landau suggests. Coups were coupled with complex discussions about constitutional status. What may have changed is the existence of a military coup, but