Latin America's Constitution Problem

(Bloomberg View) -- There are many ways Brazilians could be rid of their much reviled president, Michel Temer, who was recently caught on audio tape allegedly consorting with a bent business man in the basement of the palace residence. Congress could impeach him, or send him to trial in the Supreme Court. Or, more likely, Brazil’s electoral court could convict him for taking illegal campaign money in the 2014 election. And yet because such solutions would mandate the scandal-tainted congress, not the voters, to pick a successor, Brazilians aren't pleased. And so the familiar refrain quickening pulses on the Brazilian street:  Direct elections, now!  

As catchy as that slogan may be, government is not an Etch A Sketch, and trying to sort a political crisis by retouching the national constitution is no more effective than changing roadmaps to avoid a cliff.  Latin America has been here all too often before. Whenever strong-headed national leaders felt cramped or willful, the default mode has been to revamp the legal foundations.  Haiti has drafted 24 constitutions and Ecuador, 20. Venezuela is on its 26th constitution since independence, and that version may get scrapped too, if President Nicolas Maduro gets his way. The Dominican Republic, which has sanctioned 32 rewrites since 1844, beats out its neighbors.

Such legal logorrhea puts Latin America in a category all its own, according to Daniel Lansberg-Rodriguez, a constitutional scholar at Northwestern University's Kellogg School of Management. "Latin America doesn't have elections, only revolutions," Lansberg-Rodriguez told me. With some honorable exceptions -- Argentina and Mexico, both with enduring constitutions – Latin American leaders are always "refounding" the nation. "New leaders want to imprint their image on their nations, throw out the ancien regime and recreate things in their own image," said Lansberg-Rodriguez. Hence, the proclivity to treat constitutions like Wikipedia pages, where every political supremo gets a shot at the copydesk. Little wonder the average Latin American constitution lasts around 29 years.

Overhauling the highest law of the land is hardly trivial. The "Wiki-constitutionalism" that Lansberg-Rodriguez describes can upend public policy, roil labor relations, and send mixed signals to investors. What's worse, ginning up amendments whenever emergencies loom cheapens the constitution itself, converting what ought to be the foundation of the social contract into a philosopher’s stone for all social afflictions. And if even the national constitution can be whatever the prevailing crisis demands, there's no compelling reason for competing interests to follow its script.

Consider strife-torn Venezuela, where calls to stray from the constitution have come from both government and opposing camps: The opposition demands early presidential elections, even as the embattled Maduro government calls for a constituent assembly to rewrite the national charter. In a country already on the brink of social conflagration, such constitutional improvisation is political kerosene. As Lansberg-Rodriguez puts it, "The only way Veneuela is going to improve is if the rule of law is relevant again."

Brazil is not the Bolivarian Republic. It has drafted a relatively modest eight constitutions since independence in 1822. However, the political elite is no less enamored of the constitutional cure-all. The last constitution, unveiled 29 years ago, was a monster, and now runs to more than 250 articles, some so crammed with specifics that they ought to have been published with an expiration date. Hence the  95 amendments Brazilian lawmakers have puttied onto the original since 1988.

Prolific at amendments, politicians are far less adept at refereeing the conflicts they manufacture, a failing that too often sends them scrambling to the highest court -- which now handles a staggering 70,000 cases a year. "Brazil's culture of political standoffs has turned the Supreme Court into national mediator, for even the most ordinary of issues," Michael Mohallem, a constitutional scholar at the Getulio Vargas Foundation in Rio de Janeiro, told me.

In some cases, outright amendments were the only way to purge outdated concepts. Former President Fernando Henrique Cardoso might never have stopped hyperinflation and pulled off his transformative economic stabilization plan had he failed to rework the constitution to unshackle foreign investment and end monopolies of government companies, such as Petrobras and the state telecoms. Likewise, the Senate's decision on Thursday to approve a draft a amendment to scale back parliamentary immunity, a constitutional shield that has rescued countless suspect lawmakers from criminal prosecution, practically guaranteeing impunity, was long overdue.

In a way, the current clamor to tweak the constitution again sounds eminently reasonable. After all, the sitting legislature, five dozen of whose members are under Supreme Court investigation in the rolling Carwash corruption probe, hardly seems fit to choose the next national leader. Hence, the two separate amendments coursing through the legislature to scrap the electoral calendar and jump-start the 2018 ballot.

And yet Brazil's historic effort to root out corruption has come not at the expense of the constitution but because of it. More than 100 executives, money men and political bosses have already been jailed in the Carwash probe, brought to justice on the principle that Brazil is -- or ought to be -- a land of laws not kingpins or caudillos. The same spirit has taken hold across the region, as Brazil helps its neighbors root out their own crooked elites who partook in the same corruption scheme. Who knew that the rule of law could be Latin America's new soft power?

Hewing to the rules makes good political sense, as well. Form-fitting the constitution to bypass the elected congress in the name of "direct democracy" is a sure recipe for prolonging Brazil's political agony. Enacting a constitutional amendment requires the approval of both houses of congress by three-fifths majority, in two separate ballots each, and can drag on for months -- a leisure the turmoil-stricken Brazilian economy doesn't have.

With elections just 17 months away, and traditional political leaders in disgrace, the truncated campaign would be a gift for adventurers and exotic outsiders, whose only merits are a silver tongue and no rap sheet. That’s a familiar problem for which there's no easy constitutional fix.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Mac Margolis writes about Latin America for Bloomberg View. He was a reporter for Newsweek and is the author of “The Last New World: The Conquest of the Amazon Frontier.”

To contact the author of this story: Mac Margolis at mmargolis14@bloomberg.net.

To contact the editor responsible for this story: James Gibney at jgibney5@bloomberg.net.

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