Constitutionalism or Populism, Authoritarianism or Democracy: Latin American Perspectives on Access to, and Exercise of, Power.

In Mexico, there were two possibilities to face the health crisis caused by the COVID-19 global pandemic. To deploy the effects of the suspension of rights, or to install the so-called General Health Council for cases of “epidemics of a serious nature.“ The federal government excluded the first. However, this paper argues that it was possible to think of a different solution: a) formally declare a constitutional state of emergency, with the identification of rights and freedoms with reinforced protection - and b) to bring together both mechanisms with a constitutionally adequate understanding of the health crisis. The declaration of exception was strategically treated in the official discourse as a route to suspend rights indiscriminately and for military actions, to generate a social rejection of the suspension. The said dual course of action would have limited government authorities to submit to exceptional controls, with the participation of the three branches of the Union.

Neo-authoritarian political developments have reignited interest in the division of powers. Our paper focuses on Mexican constitutional agencies (OCAs), comprising nine institutions as varied as the electoral agency (INE), the ombuds (CNDH), the Central bank (Banxico), the anti-trust bodies (COFECE, IFETEL), or the transparency agency (INAI). Our analysis suggests that OCAs have contributed to democratic politics by generating various political goods, well beyond the “technical“ responsibilities that supported their initial creation. In our view, they provide crucial institutional spaces in the quest to find bottom-up democratic venues that help constrain neo-messianic presidents, operating not only reactively and ex post, but in a decentralized and structural way. Promising as it may seem, taking this stance versus OCAs also forces us to ponder what reforms and adjustments may guarantee accountability and boost their positive political contributions while minimizing their risks.

We provide a clear analytical framework that considers authoritarian constitutionalism as a mix of two seemingly incompatible components: a regime type commonly known for its tendency to abuse power with a centuries-old lineage of theories and practices seeking precisely to place limits on how it be used. Based on the distinction between regime type and effectiveness of institutional limits on power, we analyze the constitutional trajectory of Colombia during the intricate years between 1930 and 1974. Our analysis highlights the role of powerful actors that are required to enforce otherwise mere words on paper, such as the armed forces and the Catholic church, and their interaction with social and political forces, to understand the varying degrees of constitutional limits on the use of power across the different regimes that Colombia experienced during these years: from (limited)democracy, to civil dictatorship, to military dictatorship, and back to (limited)democracy again.

Reviewing the recent literature on the crisis of democracy and its institutions, it is common to find references to How Democracies Die by Steven Levitsky and Daniel Ziblatt, and to their preeminent example of the erosion of norms. In that sense, I am especially interested in revisiting the term limits, not only of elected officials, which can certainly be reelected, and even non-elected officials, such as the Justices of a Supreme Court, which can have life-appointments (as in the United States), or a mandatory age of retirement or even a fixed term of 15 years (as in Mexico before and after the constitutional reform of 1995). In addition, I would like to emphasize some recent cases including reforming the term limits of the electoral magistrates and nominating high ranking officials and even justices to the Supreme Court, who were ineligibles, but that got into office regardless of the opposition by civil society, among others.

Discussant