Latin America: Constitution Crazy

Monday, October 06, 2008
Latin America: Constitution Crazy

HOW MANY DO YOU HAVE? Presidents Rene Preval of Haiti and Leonel Fernandez of the Dominican Republic in Miami last week. Did they boast how many constitutions their countries have? (Photo: Dominican President's Office)
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The Dominican Republic holds a world record in constitutions, while Panama has had the fewest in Latin America.
BY JOSE LUIS CORDEIRO
Ecuador recently approved a new constitution, the 20th for the South American country. However, Ecuador is not the regional leader when it comes to the number of constitutions. That honor goes to the Dominican Republic, according to Venezuelan economist Jose Luis Cordeiro, who has followed the issue for many years. In fact, the Dominican Republic holds a world record, beating even countries like Thailand, which has had “only” 17 constitutions.  This paper takes a closer look at the constitutional history of Latin America.
Around the world, on average, Latin America has had the most convoluted constitutional history. The Dominican Republic has had a total of 32 constitutions, the largest number of constitutions of any country, since its independence in 1844. Three other countries have also had 20 or more constitutions throughout their history, all of them in Latin America: Venezuela (26), Haiti (24) and Ecuador (20). On the other hand, there are economies and societies that do not even have codified constitutions, like the United Kingdom in Europe, Hong Kong in Asia and New Zealand in Oceania. The United States has had only one constitution, even if it has been amended several times. There is also the special case of Israel and Saudi Arabia, both in the Middle East, that do not have official written constitutions for historical and religious reasons. Comparative constitutional numbers and history help to explain several things about the stability of political systems, but not necessarily their quality. (...)
HAITI
After the United States, Haiti was the second nation to become independent in the Americas. Its first constitution was drafted in 1801, while Haiti was still a French colony, a condition that only changed at the end of 1803. This constitution followed some revolutionary ideas and it finished with the French revolutionary calendar: “Given at Cap-Français, 14 Messidor, year 9 of the one and indivisible French Republic”. That first constitution of Haiti was drafted by three mulattoes and seven whites, had 77 articles and recommended that Toussaint Louverture became ruler for life. It is ironic that such undemocratic idea was suggested by one of the most conservative of American revolutionary figures, Alexander Hamilton. Toussaint Louverture died in 1803, and his follower, the then Governor-General of Haiti, Jean-Jacques Dessalines, created the Empire of Haiti when he proclaimed himself Emperor Jacques I in 1804. His constitution of 1805 set out the way for the Empire in 53 main articles plus 28 general dispositions.
In over two centuries of independence, tiny Haiti has been an empire, a kingdom and a republic, with alternating, reelected and lifetime presidents as well. It has had a total of 24 constitutions, the last one with 298 articles approved in 1987.
VENEZUELA
Venezuela, one of the first countries to become independent during the Napoleonic invasions of Spain and Portugal, had the second written constitution of Latin America in 1811. It had 228 articles and was partly modeled after the European Enlightenment ideals and the North American revolution, but Francisco de Miranda, then vice president and independence hero, warned that the constitution was not “adjusted” to the population and customs of then Latin America. Indeed, since that time, Venezuela has had a total of 26 constitutions, the last one with 351 articles in 1999. The 1999 constitution of Venezuela was called by his promoter Hugo Chavez “the best constitution of the world.” Additionally, Chavez tried to modify unsuccessfully his “best constitution” in 2007, which could have become the constitution number 27 of Venezuela.
DOMINICAN REPUBLIC
The Dominican Republic was a colony of Spain until 1795, then a colony of France and later a colony of Haiti until 1844, when it became independent, but was still invaded by Haiti in several occasions (1844, 1845-49, 1849-55, and 1855-56). The first constitution of the Dominican Republic was written in 1844: it had 211 articles that defined the country as a republic following the democratic ideals of the United States constitution. From 1861 to 1865, the Dominican Republic signed a pact with the Spanish Crown which reverted the Dominican nation to a colonial status, the only Latin American country ever to do so. From the 1865 Spanish withdrawal to 1879, there were twenty-one changes of government and at least fifty military uprisings until the Second Republic was founded. The history of the Dominican Republic was characterized by many caudillos, the United States intervention and occupation, and the Rafael Leonidas Trujillo era from 1930 to 1961, who wrote and rewrote many times his own constitutions, just like previous “caudillos” in the Dominican Republic.
Due to its convoluted history, the Dominican Republic has had a grand total of 32 constitutions since its first in 1884 to its most recent one in 1994 with 120 articles (plus 2 transition articles), which has already been modified in 2002. Obviously, many Dominican constitutions are modifications of previous constitutions, mostly based on the first one in 1844, but some authors count up to a total of 37 separate documents. This makes the Dominican Republic the country with the largest number of constitutions, followed by Venezuela with 26 and Haiti with 24.
ECUADOR
Ecuador is fourth in number of constitutions in Latin America and the world.
Independent since 1822, Ecuador separated from Colombia and Venezuela in 1830, and its first constitution as a separate nation had only 75 articles. The 1998 constitution was number 19 and it had 284 articles (plus 46 transitory articles). In 2007, Rafael Correa became president with the promise of a new constitution to solve “all the problems of Ecuador“. Thus constitution number 20 of Ecuador became the largest of all its constitutions with 444 articles in 2008.
BOLIVIA
The fifth country with most constitutions in Latin America is Bolivia, independent since 1825. It is sometimes confusing to formally count the Bolivian constitutions, but the 1967 constitution had 235 original articles and underwent major reforms in 1994, 1995, 2002, 2004 and 2005. A new Bolivian constitution was proposed in 2006 by Evo Morales, also to solve “all the problems of Bolivia“, but it has not yet been approved.
CENTRAL AMERICA
Three Central American countries, independent from Spain since 1821, follow
together with 14 constitutions each: El Salvador with 274 articles in its 1983 constitution,Honduras with 375 articles in 1982 and Nicaragua with 202 articles in 1987. (Notice also that some authors consider 16 instead of 14 constitutions for Honduras.) Two other Central American countries have had 9 constitutions since their independence in 1821: Costa Rica with 197 articles in 1949 and Guatemala with 280 articles in 1986. (Additionally, Guatemala had a national referendum for a new constitution in 1999, which was not approved.) Panama has had 4 constitutions since its more recent independence from Colombia in 1903: its fourth constitution had 311 articles in 1972 and was reformed to 322 articles in 1994.
MEXICO
Mexico has had a total of 7 constitutions since its declaration of independence in 1810. Its current constitution was the result of the Mexican revolution in 1917 and has 136 articles, plus 16 transitory articles. Argentina has had 6 constitutions between 1816 and 1853. The last has 107 original articles and it was based on the work of Juan Bautista Alberdi, a classical liberal thinker that wrote Bases y puntos de partida para la organización política de la República Argentina (1852). Since 1853, the constitution has had 6 major reforms, and the 1994 version included 129 articles.
COLOMBIA
According to different authors, Colombia has had from 6 to 10 constitutions. It partially depends on which constitutions to count, particularly from 1810 to 1830, when there were several constitutions for different parts of the country. The constitution of 1886 (following the national constitutions of 1832, 1858 and 1863, and three major reforms in 1843, 1853 and 1876) was a landmark document that, despite 8 major reforms, was valid for slightly over a century. The current constitution of 1991 is the longest in Latin America, with 380 articles, plus 61 additional transitory articles.
PERU
Peru has also had a confusing constitutional history, with a total of between 9 and 18 constitutions, depending on the views of different authors. Juan Vicente Ugarte del Pino, a very famous legal historian, considers 18 constitutions including several constitutional texts that were not officially called constitutions, like special statutes during military governments. Other historians, like Enrique Chirinos Soto, consider only 9 constitutions since they exclude short-lived constitutions like those of 1823 and 1867, and that of 1834 that was created for the Peruvian-Bolivian Confederation. On average, 12 constitutions are considered by most legal historians (like Domingo García Belaunde, the most prolific constitutionalist in Peru during the 20th century). The current constitution of 1993 had 206 original articles, plus 8 amendments until 2005.
CHILE
Chile has had between 7 and 11 constitutions, but most of them were before 1833, when Chile became remarkably stable compared to other Latin American countries. Most scholars consider the constitutional texts of 1811 with 19 articles, 1812 with 27 articles, 1814 with 13 articles, 1818 with 143 articles, 1822 with 248 articles, 1823 with 277 articles and 1828 with 134 articles. The constitution of 1833, with 168 articles and considered the eighth by many authors, lasted until a new one was written in 1925 with 110 articles (which was later substituted by the constitution of 1980, with 120 original articles and 29 transitory provisions). The current constitution of Chile is formally that of 1980, which after several amendments in 11 years, now has 129 articles and 21 transitory provisions.
BRAZIL AND URUGUAY
Brazil and Uruguay have had a simpler constitutional history, and each country counts 7 constitutions. In both countries, each constitution is now clearly defined as the first, second, third, fourth, fifth, sixth and seventh constitutions, which eliminates any ambiguities about the previous historical constitutions. The seventh constitution of Brazil was written in 1988 and contains 250 articles, while the seventh constitution of Uruguay was enacted in 1997 with 332 articles (as a comparison, the first constitution of Uruguay had only 159 articles). Nearby neighbor Paraguay has had 6 constitutions since its independence in 1811, and the current 1992 constitution has 291 articles (the previous 1967 constitution had 239 articles).
CUBA
Cuba has had a total of 5 constitutions since it declared its independence from Spain in 1868. The current constitution of Cuba in 1976 has 141 articles. Puerto Rico has had only two constitutions since it became independent, the smallest number of constitutions in Latin America. Its current basic law of 1952 is also the shortest in the region with only 9 articles.
FASCINATING DIVERSITY
A quick overview of the number of constitutions, and the number of articles of those constitutions around the world, shows a fascinating diversity throughout the continents. Some countries have had no written constitutions and do not seem to need one now (like the United Kingdom). A few do not have them now but might need one later. Still other countries seem to have had too many constitutions and might do better with less constitutional documents, or even going back to using their first (like Indonesia did) or some previous version (like the Philippines had done too) in their constitutional history.
The particular constitutional experience of Latin American shows that the answer to the economic and political crises is not more laws, especially if they are bad and are not even applied or applicable. It is better to have fewer laws that in turn are good and respected. Laws that are neither institutionalized nor respected are useless laws. As a result, the legal systems in Latin America have become a very expensive rhetorical game where often times the legal does not coincide with the just, and when it does coincide, is not enforced. The real constitutional problem is not based on the quantity, but rather on the quality, of the laws. Puerto Rico is the wealthiest economy in Latin America and it has had only 2 constitutions, the current one with just 9 articles. The other extreme is represented by nearby poor Dominican Republic with its 32 constitutions and current 120 articles.
INSTABILITY INDICATOR
Concerning the total number of constitutions, it seems that a large number of
constitutions is almost always a good indicator of political instability in the country. Some countries of Latin America (e.g., the Dominican Republic, Venezuela, Haiti, Ecuador and Bolivia) are examples of political instability since their independence, just like Chad in Africa or Thailand in Asia, and even France had a complex constitutional history during its revolutionary days. On the other hand, it is also important to emphasize that a small number of constitutions is not necessarily a good indicator of political development, and it could also indicate a lasting autocracy or theocracy (like in some African and Middle Eastern countries). It can thus be argued that a few good laws are better than a few bad laws and much better than many bad laws.
Concerning the number of articles per constitution, there has been a worldwide trend to increase the size of each new national constitution. Almost all new constitutions, approved recently in any country, tend to be larger than the previous ones that were replaced. Every time that there is a new constitution, more articles are added including such diverse topics as the environment, same-sex unions, animal rights, and special considerations about indigenous groups, for example. Thus, substituting constitutions seem to be increasing in size and complexity, proving that Confucius was right about his old dictum: Life is really simple, but we insist on making it complicated.
Jose Luis Cordeiro is a visiting research fellow at the Institute of Developing Economies, IDE-JETRO, Japan; Venezuela Chair of The Millennium Project and the author of several best-selling books on Latin America.