Current Constitutional Developments in Latin America

Dante Figueroa is a Senior Legal Information Analyst at the Law Library of Congress and former Adjunct Professor at the Georgetown University Law Center. He is a member of the Chilean Bar, the New York Bar, and the Washington, D.C. Bar. He holds LL.M. degrees from the University of Chile and American University’s Washington College of Law. He has authored five books and many law review articles. His publications are available online. He is fluent in Spanish, English, French, and Italian, and is conversant in German.

Daniel Rocha de Farias is a Senior State Attorney of Brazil and a licensed professor at the Superior Studies Center of the Plateau in Brazil. He is a member of the Brazilian Bar. His legal career has centered on practice before the Brazilian Supreme Court (eight years) and as Legal Counsellor at the high offices of the Brazilian government. He is currently enrolled in the University of Florence’s Ph.D. program in Comparative Law, and the title of his thesis is “Comparative Law used by South American Constitutional Courts.” In addition, Mr. de Farias holds an LL.M. degree from the University Center of Brasilia, where his dissertation title was “Ativismo judicial, judicialização de políticas públicas e Judicial Review no Brasil: análise crítica da supremacia do judiciário e da quimera dialógica” [“Judicial activism, judicialization of public policies and Judicial Review in Brazil: critical analysis of the supremacy of the judiciary and the dialogical chimera”]. He has published several law review articles that are available online, and he is fluent in Portuguese, English, and Italian, and conversant in Spanish.

All of the opinions expressed herein are the authors’ and do not reflect the views of any organizations they might be associated with. Unless otherwise stated, all translations are by the authors.

1. Introduction

Latin America is an area of the world in constant change, sometimes peaceful, and sometimes not. Political and social changes ultimately find their way into the constitutional framework of Latin American jurisdictions. An examination of constitutional law developments in the region since 1999, when the new Venezuelan Constitution was passed, shows that there are many common aspects to these constitutional developments. Accordingly, this article seeks to identify the new constitutional philosophies underlying the most important changes that occurred in this period of time and determine their commonalities.

This brief examination does not address every Latin American country, nor every aspect of constitutional law. The countries sampled have been selected based on their strong departure from constitutional tradition; the far-reaching effects of their political, social, and economic aims; or because of the high geopolitical relevance of such jurisdictions. The areas of focus cover the economic, social, and political bases of the State; the organization of the State and the distribution of power among the branches of government; and the constitutional protection of personal freedoms. The article also highlights some new areas of attention on constitutional drafting in the region, including the rights of indigenous peoples, third-generation rights, and the validity and influence of international law at the domestic level.

In this context, this survey focuses on the new constitutions of Venezuela (1999); Ecuador (2008); and Bolivia (2009). It also encompasses constitutional amendments passed in Mexico in 2008, 2009, and 2011, related to constitutional guarantees, criminal justice, government corruption, kidnapping, organized crime, the secular character of the country, and human rights. The study further explores the constitutional changes that occurred in Colombia in 2009 and 2012 related to the recognition of third-generation rights, to political parties and movements, to the peace process, and to military jurisdiction. Reference is also made to Peru’s constitutional amendment of 2009 concerning the organization of the legislative branch. Furthermore, two constitutional decisions concerning presidential succession, one from Nicaragua (2009), and another from Colombia (2010), are examined. Similarly, this survey analyzes the Ecuadorian Referendum of 2011 that introduced amendments to the judicial branch. Finally, the constitutional aspects of the political trial against former president Lugo (2012) and the succession of Hugo Chávez after his death (2013) will be examined.

2. What is New in Constitutional Law in Latin America?

A first glance at recent constitutional law developments shows several trends, described below:

2.1. Refoundational Aspirations

It was the Constitution of Venezuela of 1999 that set the stage for new political aspirations to rebuild society. Its preamble declares that the supreme goal of the Venezuelan people is to

“refound the Republic to establish a society that is democratic, participatory, and protagonist, multiethnic and pluricultural in a State of justice, federal and decentralized, that consolidates the values of freedom, independence, peace….”[1]

Following this trend, the Constitution of Bolivia of 2009 provided in its preamble,

“[W]e left behind our colonial, republican, and neoliberal past. We assume the historic challenge to build collectively our Social Unitarian State of Communal Plurinational Law, that integrates and articulates the purpose of advancing toward a Bolivia that is more democratic, productive, and that carries, inspires, and is engaged in peace.”[2]

The preamble continues, saying straightforwardly that “we … build a new State … [and] we … refound Bolivia.”[3]

Coupled with the refoundational aim is a strong reaction against perceived “foreign influence.” This has been an issue long present in Latin American constitutionalism, but only recently has it emerged so strongly. In Bolivia, again, the Constitution expressly includes a prohibition against the installation of foreign military bases in the national territory.[4] Renewed efforts at implementing Simón Bolívar’s aspiration of making Latin America a single political unit in the form of Latin American integration are also noticeable in recent constitutions.[5]

Chile also belongs to the group of countries in which a refoundation is aspired to. On October 25, 2020, the Chilean population approved a plebiscite in which a constituent assembly was formed to draft a text for a new constitutional chart.[6] Within the regulation of the process for the formation of the text, parity between men and women was established among the commission members and also parity between parliamentarians and people elected specifically to compose the assembly.

Thus, unlike ordinary constitutional reforms, the Chilean people aspire to enact a new constitution with only a few presuppositions: a republican form of state, respect for international treaties to which the Chilean state is a signatory, and that the political regime be democratic. It seems, though, all other subjects will allegedly be object of discussion.[7]

In mid-2019, social protests stirred Chilean society. Although it started because of a fare increase for the metro in the capital Santiago,[8] another stated motivation was the fact that the current constitution has been said to establish a regime in which no evolution of rights is allowed, and that the liberal ideology that inspired it consecrated a subsidiary role for the state in the economy, especially in matters related to education, health and, above all, pensions.[9]

The current political and social movements spearheading the constitutional impulse in Chile seem to have agreed to craft a new Chilean state,[10] which is to exhibit profound changes in the role of the state, human rights, and the economy.

2.2. Rupture in the Historical Relationship Between the Catholic Church and the State

With a few historical exceptions,[11] Catholicism has been the constitutionally enshrined official religion of most Latin American countries since their independence. Profession of the Catholic faith was even required in some cases for high officials to assume office.[12] Venezuela signaled a departure in 1999 when it established that, “the State shall guarantee freedom of religion and cult,”[13] and that “freedom of conscience and faith and in the teaching of religion shall be recognized and guaranteed…without any dogmatic imposition.”[14]

Bolivia’s 2009 Constitution, in turn, recognizes “freedom of religion and spiritual beliefs,”[15] and that the “State is independent from religion.”[16] The Constitution goes a step further in replacing the Catholic religion as the moral foundation of the Bolivian society by affirming that the “state assumes and promotes as ethical principles of the plural society, aboriginal mottos such as: ‘don’t be lazy, a liar, or a thief.’ ”[17]

Ecuador’s Constitution, in this vein, recognizes “all diverse forms of religiosity and spirituality, and the wisdom of all cultures.”[18] It too reaffirms the “right to practice, keep, change, or profess publicly or privately, each one’s religion or beliefs [and asserts the State’s duty] to protect voluntary religious practices, as well as the expressions of those who do not profess any religion.”[19]

Following this trend, in 2012 Mexico—a country with one of the most Catholic societies in the world—amended Article 40 of its Constitution,[20] establishing that Mexico is a “secular” country.[21] When discussing the bill at the Mexican House of Representatives, one representative argued that “granting an express secular character to our Mexican State would both continue and confirm the path that our legislators posed when drafting the Constitution of 1857, reaffirmed by the legislators of the Constitution of 1917, because it has been proved, in our collective experience and in the experience of other nations, that secularism is an effective formula for coexistence of pluralism.”[22]

In year 2013 Peru experienced a legal debate regarding a statute passed declaring the Señor de los Milagros (The Lord of Miracles) as Patron of Peru, and further declaring that the Señor de los Milagros is a “symbol of religiosity and popular feeling.” The Señor de los Milagros is an artistic work made by an African slave in year 1661, which consists in an image of a dark skinned Jesus Christ painted on a modest house located in the neighborhood of Pachacamilla, Lima.[23] In that same year the Peruvian Constitutional Tribunal rejected the writ filed by Lucero Robert Tailor Moreno Cabanillas claiming that the Señor de los Milagros Statute was a threat to his religious freedom consecrated in Article 50 of the Peruvian Constitution (Case Docket N° 03372-2011-PA/TC). According to the Court, the Statute did not affect the constitutional principle of separation between Church and State, since it highlights the cultural importance of the Señor de los Milagros rather than its religious character.[24] Furthermore, the Court pointed out that the Señor de los Milagros is embedded in the Peruvian Culture, which is the reason why its celebration was declared as Cultural Patrimony of the Nation by the National Institute of Culture. Specifically, the National Institute of Culture considered that this was a “conjuga religión popular, gastronomía, música, artesanía y saber tradicional de siglos” (translated as “festivity that mixes popular religion, gastronomy, music, handicrafts and traditional knowledge from centuries ago”).[25]

One can also see in Argentina, a notorious movement of distancing between the Catholic Church and the State. In fact, since the promulgation of its first Constitution 1853, Argentina can be characterized as a confessional State, to the extent that the Constitutional Charter itself establishes the duty of the central government to support the Roman Catholic Apostolic Church.[26] In addition, the Catholic Church is considered part of the Argentine bureaucracy.[27]

However, since the last constitutional reform in 1994, and especially within the last few years, some voices have been raised in favor of the State’s distancing itself from the Church. The 1994 Reform, in particular, changed several constitutional norms that gave prominence to the Catholic religion, such as the need for be President of the Republic to be Catholic,[28] as well as changing the terms of the oath before the President of the Senate to remove Catholic references and include tolerance for other beliefs.[29] Likewise, the role of the state in organizing the exercise of patronage throughout the nation,[30] and the need for parliamentary approval for the institution of new religious orders were excluded.[31] Likewise, the Legislative Branch’s competence to promote the conversion of Indians to Catholicism was removed.[32]

Within this trend, one can mention a decision by the Argentine Supreme Court that declared unconstitutional a law in the province of Salta that required students to pray at the beginning of class and that religion should be part of the teaching plan. The Court considered that the teaching and practice of the catechesis of only one religion (Roman Catholic) is habitual. For this reason, the challenged provision, by including religious education in school hours, within the curriculum and with the endorsement of the respective religious authority, was found to favor discriminatory behavior towards children who do not belong to the predominant religious group or any other, thus generating greater inequality.[33]

Recently, a group of parliamentarians presented a bill to prohibit the use of religious symbols in public spaces. The text supporters argued that religious symbology is not only not representative of the totality of the population, but at the same time is not in accordance with the secularity of the Argentinian state.[34] In addition, these parliamentarians affirmed that the project was aimed at achieving equal treatment of cults guaranteed by the state in order to advance in the construction of a public agenda not based on morals, but on citizens’ rights.[35]

On the other hand, the Brazilian Constitution establishes that Brazil is a secular state, thus providing for a clear separation between State and Religion.[36] However, some references to the Catholic religion are still present in the current Brazilian Constitution. As an illustration, in the preamble of the Brazilian Constitution, there is a reference to the constituents being under the protection of God.[37]

Another striking point is the fact that several establishments where public bodies operate contain symbols of the Catholic religion—usually crucifixes. This attitude is the subject of a legal dispute before the Brazilian Supreme Court. It is alleged that the use of religious symbols, as occurs in the Supreme Court itself, would violate the state laicity to the extent that it would promote a specific religion—the Catholic one—to the detriment of others.[38] The outcome of this dispute is yet to come.

Moreover, the Brazilian Supreme Court itself has ruled that the provision of confessional studies in public schools, on an optional basis and during normal school hours, was compatible with state secularity, as long as it did not imply favoring a specific biblical or religious interpretation.[39]

In this field, another important decision to be mentioned was one handed down by the Colombian Constitutional Court in 2016 in which it ruled incompatible with the Constitution a law that reformed the National Education Service. This law had established a representative of the Episcopal Conference as one of the members of both National and Regional Board of Directors of the said Service.[40]

The plaintiff argued that existence of a legal obligation to include a representative of the Roman Catholic Church in the national and regional governing bodies contradicted the secular and pluralistic nature of the Colombian State, which imposes religious neutrality of the State. According to the plaintiff, this provision affected religious freedom since they did not protect beliefs not belonging to the Roman Catholic Church as they were stimulating the participation of the Catholic Church in the construction of public policies and granting a privileged treatment to a certain religious confession.[41]

On the other hand, both the National Education Service and the Episcopal Conference itself recalled the historical relationship between the State and the Catholic Church and the importance of the latter in the development of Colombian education. They also emphasized that the presence of the religious representative on the board was not intended to give preference to the Catholic religion, but to contribute to the improvement of Colombian education.[42]

In its decision, the Constitutional Court affirmed that these provisions represented a constitutional conception that has been superseded today, which considered the Catholic religion as one of the key factors in the cohesion of the nation and which had even granted the Catholic Church special privileges in a sensitive area for the dissemination of its ideas, such as public education. The Court also noted that those provisions had established that public education had to be organized and directed in accordance with the Catholic religion and, through the Concordat, had established the compulsory nature of Catholic religious instruction in public education, under the supervision of the Church. On the contrary, the Court reasoned, under the current Constitution, the public service of education must be secular, as a guarantee that this activity of instruction and training, at different levels, is not instrumentalized as a disseminator of certain beliefs, to the exclusion of others, and in clear disregard of the pluralism that inspires the 1991 Constitution.[43]

In addition, the Court considered that, despite the fact that this participation constitutes a minority stake and does not have by itself the power to make decisions, it should not be forgotten that participation in boards or boards of directors, through the full sending of a representative, is considered as a mechanism of administrative guardianship, which implies that it is undoubtedly an instrument to have influence in the making of fundamental decisions of the entity. Moreover, it is precisely the boards of directors that are responsible for determining the operating policies of the institution, in which the representative of the Catholic Church necessarily seeks to ensure that such public policies are in accordance with the values it defends, as explicitly indicated in the pre-constitutional norms that initially regulated the organization and operation of Nacional Education Service. In definitive, the Court held that the participation of a representative from the Episcopal Conference in the direction of the public institution in charge of the technical training of Colombians, constituted a constitutionally inadmissible confusion between the state functions and the mission of the Church.[44]

2.3. Moralistic Overtone in the New Constitutional Principles

Recent constitutional developments in Venezuela and Ecuador, to name the principal players, are imbued with philosophical and ethical calls to goodness, harmony, social integration, virtue, and other moralistic goals. The Constitution of Ecuador, for example, created an institutional apparatus called “National Equality Councils,” and other special mechanisms “for the control of public ethics and individual moral behavior.”[45]

In 1999 Venezuela had already institutionalized a fourth branch of government attached to the traditional three, called the “Citizens’ Power” (Poder Ciudadano), whose responsibility is to “prevent, investigate, and punish conduct that violates public ethics and administrative morals [and to] promote education as a creative process of the citizenry, as well as solidarity, liberty, democracy, social responsibility, and labor.”[46] The Citizens’ Power is exercised by the Republican Moral Council, composed of the National People’s Defender, the Attorney General, and the General Comptroller.[47]

2.4. Promotion of Indigenous Causes

The promotion of the causes of indigenous peoples is an area where much innovation has occurred in Latin American constitutional law. The pantheistic philosophical bases of this new movement are clearly stated in the constitutions of Ecuador and Bolivia.[48] The preamble of the Ecuadorean Constitution “celebrates the ‘Pacha Mama’ ”—an indigenous concept referring to planet earth—of which, it says, “we are all a part.” The Constitution of Bolivia, in turn, deifies the planet earth under the term, “sacred Mother Earth.”

This ideological conception is intimately connected with a clear repudiation of the “colonial, republican, and neoliberal State.”[49] The Venezuelan charter “condemns all forms of imperialism, colonialism, and neocolonialism,”[50] while the Ecuadoran Constitution galvanizes the “Ecuadoran people” as the “heirs of the social fights for the liberation from all forms of domination and colonialism.”[51] The Bolivian Constitution openly speaks about the existence of original indigenous farming peoples (pueblos indígenas originarios campesinos), who existed “prior to the colonial Spanish invasion.”[52] Several consequences emanate from these new developments:

2.4.1. Constitutional Recognition of the Multiplicity and Plurality of the New Nations

The recognition of racial diversity in the country has accompanied the recognition of the primacy of the aboriginal element. In Bolivia, at least, new electoral districts have been formed to guarantee the representation of indigenous populations.[53] The territorial and administrative decentralization of the Bolivian State is guaranteed at the regional, local, municipal, and other autonomous levels, and is to be achieved based on the presence of indigenous populations.[54] The self-government of local indigenous populations is now constitutionally protected and encouraged.[55]

Venezuela recognizes the preservation of indigenous peoples’ social, political, and economic organizations, as well as their culture, traditions and ancient customs, languages, and religions.[56] This constitutional recognition extends to their “ethnic and cultural identity, values, spiritualities, and sacred and cult places.”[57] The Venezuelan Constitution also guarantees aboriginal representation in the National Assembly and at other subnational levels.[58] Finally, the composition of the National Assembly includes representation quotas for indigenous communities.[59]

2.4.2. Official Language

Consistent with tradition, in 1999 Venezuela recognized Castilian as the official language of the country. However, it stated that indigenous languages are “also of official use.”[60] Bolivia went a step further and stated that, besides Castilian, 37 other indigenous languages are “official languages of the State” as well.[61] The actual implications of these innovations remain to be seen.[62]

2.4.3. Aboriginal Medical Practices

Venezuela gave constitutional recognition to indigenous medical practices, and prohibited the registration of patents involving their ancestral resources and their knowledge related to genetic resources.[63] Traditional and natural aboriginal medical practices are also included in the governmental guarantee of the right to health care in Bolivia.[64] The Constitution of that country also protects the “original and ancestral coca, in its natural nonnarcotic state, as cultural patrimony, [as a] natural renewable resource of Bolivia, and as a factor of social cohesion.”[65]

2.4.4. Creation of Parallel Judicial Systems for Aboriginal Peoples

In an unprecedented move, the Bolivian Constitution created an independent judicial system parallel to, and with the same hierarchical level of, the ordinary judicial system called “Original Farming Indigenous Jurisdiction” (jurisdicción indígena originario campesina), which is in charge of providing civil and criminal justice for indigenous peoples.[66] Several important questions—such as who is subject to this system, how to differentiate indigenous from non-indigenous parties, and whether indigenous persons enjoy more privileges than non-indigenous persons—remain unresolved by the Constitution and need to be developed through implementing legislation.[67] Indigenous representation at the Pluri-National Constitutional Tribunal is mandated by the Constitution.[68]

2.4.5. Enforcement of Constitutional Rights by the Judiciary

Despite the constitutional changes that have taken place in Latin America regarding plurality and multiculturalism in the territory of each state, the implementation of policies to benefit indigenous people still undergoes challenges. In Argentina, for example, the Mapuche Indigenous Community obtained a judicial pronouncement from the Argentine Supreme Court in which it ordered the hearing of the indigenous communities involved in the creation of a new municipality.[69] In the case, the Neuquén Province had enacted a law creating the new municipality without hearing from indigenous peoples affected. The claim of the indigenous communities was to declare that the that the creation of this municipality on territories belonging to the Mapuche communities did not observe the right to consultation of indigenous peoples, failed to recognize their ethnic and cultural pre-existence, and did not ensure their right to participation, thus contradicting the Argentinian Constitution, international treaties with constitutional hierarchy and Convention 169 of the International Labor Organization on Indigenous and Tribal Peoples.[70] The Court, although it did not annul the law because it considered that it would have caused even more detrimental repercussions for the state as a whole, given the passage of more than 10 years since the creation of the new municipality and the exercise of various acts by the authorities invested in it, recognized the need for a hearing of the indigenous peoples.[71] In addition, The provincial government was ordered to design, within a reasonable period of time, in conjunction with the indigenous communities, permanent mechanisms for institutional participation so that they can influence the determination of municipal policies and decisions that involve them and, in this way, adapt the legislation in this area to the needs of the indigenous communities and to ensure that they are able to participate in the development of municipal policies and decisions.[72]

In Colombia, the Constitutional Court has enacted an interesting decision about indigenous rights. Cesar and Guajira Dusakawi Indigenous Councils Association EPSI had filed a suit against the Mayor’s Office of Valledupar on June 12, 2019, for the alleged violation of fundamental constitutional rights. The plaintiff’s allegation was that the Tezhumake indigenous community had no access to water supply provided by the State, and that the request to the mayor to solve the problem had not been answered.[73] The claimants argued that, as a result, the constitutional rights to life and health of the indigenous communities were affected, thus favoring the spread of multiple diseases derived from the consumption of non-drinking water. As a result, they petitioned for the adoption of urgent measures in relation to the consumption of drinking water.[74] Additionally, the claimants also alleged that they are not only an indigenous community subject to special constitutional protection, but that they are also victims of forced displacement, which had already been recognized by the Constitutional Court itself.[75]

The Colombian Constitutional Court initially considered that, although the right to drinking water is not expressly provided for in the Constitution, the fact is that it is inexorably linked to health and, ultimately, to life itself.[76] Therefore, the right to drinking water and sanitation has inviolable minimum characteristics, which make up its essential core, which must be guaranteed to every person in all circumstances.[77] The court also considered that the cultural and historical context of the Wiwa people showed the plights of this ethnic group, and that their cultural tradition and their intimate ancestral link with the territory and water had been also affected as a consequence of the armed conflict, forced displacement, natural resource exploitation projects and severe droughts.[78] This situation had also generated scarce access to drinking water and had affected the Wiwa’s health, both at a nutritional and infectious level.[79] The Court found that the difficulties in access and supply of drinking water for the Tezhumake community, and the cultural and health consequences derived therefrom prevented the development of its agricultural and cultural practices. [80]

For these reasons, the Court ruled that the Municipality of Valledupar violated the right of access to potable water of the plaintiff indigenous community and therefore ordered the municipality to take short, medium, and long-term measures to provide potable water to the Tezhumake community.[81]

3. The Traditional Family

Even the most progressive of the Latin American constitutional regimes have provided constitutional protection to the traditional family as the fundamental nucleus of society.[82] Venezuela and Bolivia provide constitutional recognition of marriage as between a man and a woman.[83] Both countries also recognize stable, de facto unions between a man and a woman as having the same legal consequences as marriage.[84]

Some Latin American countries have legalized same-sex marriage or that have established legal institutions that seek to also protect inheritance and welfare rights of concubines [that is, unmarried co-habiting persons]. For instance, in Argentina homosexual marriage was afforded legal recognition in 2010,[85] and certain States within Mexico allow it: Federal District, Cohauila, and Quintana. However, other Mexican States, such as Campeche, Jalisco, and Colima allowed homosexual marriage but do not recognize it to have the same rights as heterosexual marriage.[86]

In 2015 the Mexican Supreme Court of Justice declared that “homosexual couples are in the same situation than heterosexual couples, thus it is absolutely unjustified their exclusion from the institution of marriage.” Furthermore, the Court stated that “since the goal of marriage is not to procreate, there is no justified reason to establish that the marriage has to be between a man and a woman or to be defined as an act ‘between a man and a woman’ because it would be discriminatory.”[87]

Similarly, in Chile Law N° 20,830 established an institution called Acuerdo de Unión Civil (Civil Union Agreement, CUA) applicable to both heterosexual and homosexual couples. A CUA is a formal act carried out before a public officer with several other requirements. Under a CUA, couples have reciprocal inheritance and social security rights. In addition, couples can regulate certain economic aspects of their relationship, and in case of unilateral termination the law establishes the right to compensation in favor of the civil concubine that could not work because it had to take care of the common children or perform domestic works in their home.[88] All these rights are similar to those established for civil marriages in Chile.

4. Political Participation and Political Parties and Movements

Political participation is an area where constitutional activity is exceedingly strong in Latin America. Two innovations are worth mentioning in this field. First, in 2003 Colombia amended its Constitution to set minimum requirements for political entities to gain legal existence (2 percent of legally issued votes),[89] with some exceptions for electoral districts holding minorities. The measure is effective for elections taking place from 2011 onwards.[90] The same amendment provided for partial government financial contributions to political parties and movements with legal existence,[91] and leaves it to the legislature to establish limits on electoral campaign expenditures by political parties and movements, and on private contributions to political elections.[92] Second, Bolivia’s Constitution recognized the right of expatriates to vote in presidential elections, and in other elections, as determined by law.[93]

5. Personal Freedoms

Latin American countries have faced endemic problems related to corruption and the violation of human rights and freedoms. Recent efforts show a clear intent to tackle these phenomena. In the case of Mexico, multiple constitutional amendments were enacted in 2009.[94] These reforms instituted constitutional due process protections, modeled after the Fourteenth Amendment to the U.S. Constitution, concerning the person, family, and other matters covered by the constitutional right to privacy. Pioneering in Latin America, Mexico recognized a right of protection over personal information held by the government. For this purpose, it created the writ of habeas data (although not so named in Mexico), which allows persons to challenge the information gathered by the government about them, with certain exceptions.[95] The amendment of 2009 requires the finding of probable cause for the issuance of judicial arrest orders.[96]

Constitutional amendments have also entered the era of the protection of third generation rights—namely, environmental, cultural, educational, and economic rights. Venezuela, again, set the tone in 1999 when it guaranteed the right to universal health care and social security,[97] and it also included an extensive list of labor, employment, and social security guarantees,[98] and the human right to a “democratic, free, and mandatory” education.[99] Mexico, for its part, guarantees the constitutional right to the enjoyment of culture, cultural rights, and cultural manifestations.[100] Colombia mandates the State to provide health care and environmental cleanup.[101] Ecuador’s Constitution contains an entire section on consumers’ rights.[102] Finally, Bolivia crystallized the State’s obligation to guarantee food safety by means of “healthy, adequate, and sufficient nutrition for all the population.”[103] Bolivia’s constitutional rights in the areas of education, health care, labor, consumerism, and social security are crafted along the lines of the Venezuelan Constitution as well. Interestingly, the Bolivian Constitution prohibits the privatization or concession of public health goods or services, or of social security benefits.[104]

In the other hand, in 2015 in the case ADPF 347 the Brazilian Supreme Court ruled that in the Brazilian prison system there was widespread violation of the fundamental rights of prisoners with regard to dignity, physical health, and psychological integrity.[105] In reviewing the custodial sentences applied in prisons, the Court held that they would amount into cruel and inhuman punishments.[106] In this context, the Court pondered that the concerned Brazilian public agencies violated several constitutional provisions and international standards recognizing the rights of prisoners (i.e., the International Covenant on Civil and Political Rights, the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, and the American Convention on Human Rights).[107] The decision, however, is still provisional and the final judgment is yet to come.

6. Reforms in Criminal Procedure and Sentencing

Perhaps the most meaningful criminal procedure reform in Latin America took place in Chile in 2005, with the complete replacement of the ancient inquisitorial criminal procedure system by an accusatorial system.[108] Mexico followed suit and in 2008 welcomed a new accusatorial system as well.[109] Mexico’s new procedure is generally conceived along the lines of U.S. criminal procedure, with the notable exclusion of a jury.[110] The amendment also included sweeping procedural guarantees during criminal prosecutions—including the constitutional right to be released on bail and restrictions on incommunicado detentions—and renewed efforts to prosecute organized crime.[111] This new criminal system is to be implemented gradually, along with the implementation of a new juvenile criminal system.[112]

The Mexican amendments include the prohibition against stationing military personnel in private homes without the authorization of the homeowner, with certain exceptions.[113] They also allow Mexican nationals serving sentences in foreign countries to be brought to Mexican territory to complete their sentences, with their prior consent and in accordance with international treaties.[114] Finally, the Constitution abolished the death penalty and prohibited severe corporal punishment, excessive fines, confiscation, and any other unusual and far-reaching (trascendentales) punishments.[115]

In 2012 Colombia passed new legislation pursuant to Article 22 of its Constitution,[116] in an effort to put an end to its internal armed conflict that has lasted almost half a century, leaving millions of casualties. The new legislation is called “Legal Framework for Peace” and is embodied in transitory Article 66 of the Colombian Constitution.[117] This new legislation allows the Colombian Government to establish a transitional criminal justice system for judging members of illegal armed groups (among them left-wing guerillas and right-wing paramilitary groups) and government agents for crimes committed during the armed conflict.[118] This initiative is intended to solve the legal situation of thousands of persons who had demobilized from these armed groups, by prioritizing the prosecution of the most serious cases. This legislation seeks to incentivize more demobilization of members of armed groups.[119]

The new constitutional provision allows the Colombian Congress to pass legislation: (i) to determine selection criteria for the criminal investigation against the main responsible of crimes against humanity, genocide, and war crimes systematically perpetrated in the country; (ii) to establish the conditions and requirements under which the suspension of the execution of sentence would proceed; (iii) to establish cases where extrajudicial sanctions, alternative penalties, and special ways of execution and compliance of the penalties may be applied; and (iv) to allow the conditional waiver of criminal prosecution in all cases that do not meet any of the above selection criteria.[120]

On April 5, 2013, Colombia’s General Attorney filed a constitutional lawsuit requesting the Constitutional Court to declare the unconstitutionality of certain terms mentioned above (“main responsible,” “systematically perpetrated,” and “all cases”) since the current provision would, according to the lawsuit, violate the international obligations of Colombia regarding the investigation and sanction of international crimes, which could activate the jurisdiction of the International Criminal Court.[121]

Furthermore, in 2012 Colombia passed another amendment to the Constitution (particularly to Articles 116, 152, and 221) that expanded the military criminal jurisdiction.[122] The amendment basically creates a new tribunal—Tribunal de Garantías Penales (Criminal Guarantees Tribunal)—that is in charge of (i) controlling the fulfillment of guarantees in any criminal investigation or procedure against a member of the public force; (ii) controlling the criminal accusation against members of the Public Force, in order to guarantee the fulfillment of the material and substantive admissibility requirements to initiate a criminal trial; and (iii) solving the jurisdiction disputes between ordinary tribunals and military criminal tribunals.[123] This is then a preliminary procedure established to control the merits of criminal charges brought against a members of the military.

In addition, new Article 221 of the Colombian Constitution establishes that the violations of International Humanitarian Law will always fall under the jurisdiction of military courts, unless the violations consist in: (1) crimes against humanity; (2) genocide; (3) forced disappearances; (3) extrajudicial executions; (4) sexual violence; (5) torture; or (6) forced displacement.

The abovementioned constitutional reforms introduced in Colombia seek to tackle the effects of the political and criminal violence occurred in that country but have been criticized by the Inter-American Commission on Human Rights (IACHR).[124]

In 2013, the Colombian Constitutional Court issued Sentence C-579/13, which basically addressed the following aspects of the Legal Framework for Peace legislation:

• The transitional justice and the selection and prioritization criteria for crimes are legitimate in order to achieve a stable and long-term peace;[125]
• Focusing criminal prosecution on “crimes against humanity, genocide and war crimes systematically perpetrated, guarantees the fulfillment of international obligations assumed by Colombia,”[126] and “the special application of procedural laws is legitimate, provided that it is assured, at least, the prosecution of the aforementioned crimes.”[127]
• Prosecuting the top responsible of the crimes is valid since (i) it allows sanctioning the persons who had a substantial role in the commission of the crimes, without preventing the investigation of those crimes, and (ii) it “allows dissembling criminal macro-structures and revealing human rights violations patterns, ensuring at least that they are not repeated”;[128] and
• Regarding the conditional suspension of the criminal prosecution (such as quitting to violence, the recognition of responsibility, contributing to the investigations, compensation of victims, release of hostages and demobilization of minors), the Court stated that the suspension does not apply to certain crimes; with regards to the top responsible, the Court held that the conditional suspension of the criminal prosecution is justified since it helps to conciliate the necessity of “investigate, judge and apply penalties, jointly with preventing future human rights violations in the search for a stable and long term peace.”[129]

7. Changes Affecting the Branches of Government

7.1. Executive Branch

7.1.1. Presidential Reelection

Two recent cases illustrating the dynamics of Latin American politics are noteworthy, one affecting an administration with a progressive tilt, where the possibility of reelection of an incumbent president succeeded, and the other concerning a conservative government, where it failed.

The first case is that of Nicaragua, where in 2009 the Constitutional Chamber of the Supreme Court issued a decision allowing the incumbent President to run for reelection.[130] The novelty of the decision resides in the fact that it partially repealed language that had banned such reelection. The Court found that the prohibition of reelection contradicted, among other constitutional guarantees, the principles of unconditional equality in the exercise of the political rights of the office holders to participate in the political affairs of the country, the principle of proportionality, and the principles of sovereignty and national self-determination. All these principles, the Court held, are in accordance with international human rights conventions by which Nicaragua is bound. The argument about equality centered around the fact that under the Constitution the only grounds for limiting the reelection bid of elected officials are age, criminal conviction, or incapacity. The restriction on reelection was established, the Court also stated, by the “derivative constitutional power” reflected in a 1995 constitutional amendment, and not by the original constitutional framers.[131] By extending its powers beyond those expressly granted by the original framers—that is, by restricting the “right” of only certain government officials to run for reelection based on the aforementioned grounds—the derivative constitutional power violated the principle of sovereignty protected by the same Constitution, the Court said.

In another interesting turn of constitutional reasoning, the Court held that the preamble to the Constitution prevails over any constitutional provisions that contradict the philosophical bases expressed in its preamble, stemming from “the revolutionary conquests achieved by the people,” whether in words or in spirit.

The second case involves Colombia, whose Constitutional Court invalidated a law calling for a constitutional referendum on the question of whether incumbent Presidents were allowed to run for a third term.[132] The Court, following the same line of reasoning as the Nicaraguan court, reiterated its precedents holding that the derivative constitutional power may amend the Constitution but not substitute it with a new document. The Court also found a series of irregularities related to the financing of the campaign leading to the adoption of the law and concluded that this violated the principles of transparency and political pluralism that govern elections, according to the applicable election laws. Finally, the Court pointed out procedural abuses in the legislative process leading to enactment of the reelection bill. In sum, the sitting president was not allowed to run for a third term.

In March 2021, the Colombian Federation of Municipalities and 25 congressmen presented a bill that would extend by two years the current term of office of the President and Vice President of the Republic.[133] The goal, according to the proponents, is to unify the election period for all posts in the country.[134] However, besides the strong negative reaction of the political class on the issue,[135] the proposal would challenge a precedent of the Colombian Constitutional Court issued in 2003. On that occasion, the Court analyzed a law that called for a referendum to amend the constitution. One of the points of the referendum concerned a transitional constitutional provision that approved the extension of elective mandates to unify elections. At the time, the Colombian Constitutional Court concluded that it is possible, by means of a referendum, to modify the constitutional rules that structure the political regime and determine the relationship between elected officials and the citizen-voters.[136] Therefore, the Constitutional Charter was held to allow for a modification of the parliamentary regime or another form of government, which would subsequently allow an advance of elections for president or congressmen or otherwise provide for ways to extend or shorten the term of office of popularly elected officials.[137] However, in the same decision, the Court pronounced that there could be no constitutional change only for the shortening or extension of term offices without it being a consequence of a reform in the system or form of government, so that the referendum then proposed would be, in reality, an electoral act disguised as a constitutional change. In the Colombian Constitutional own words, the Constitution cannot be modified by such electoral acts of a plebiscitary nature.[138] Furthermore, the Court held that this type of purely ad-hoc decisions denaturalize the power to reform the Constitution, since it is the materialization of a temporary and incidental rupture or break of the Charter with respect to the distribution of political power.[139] Likewise, the type of decision proposed by this kind of constitutional bills violates the voters’ freedom by forcing them to block vote for or against all territorial governors, even without knowing them, which yet aggravates and disfigures the plebiscitary nature of this point of the referendum.[140]

On January 29, 2014, the National Assembly of Nicaragua approved a Law Nº 854 which partially amended the Nicaraguan Constitution. Article 29 of the Law replaced the text of former Article 147 for a new one which lists the requirements to be President and Vice President. This amendment allowed the indefinite reelection of the President since letter a) of former Article 147 of the Nicaraguan Constitution prohibited the following persons from running for President: (1) a person who is or was President in the period where the election for the next President is held; and (2) the person who was President in two presidential periods.[141]

Likewise, in December 2015, Ecuador’s National Assembly approved several constitutional amendments, which included the indefinite reelection of the President.[142] Article 144 of the Current Constitution establishes that, “The President of the Republic shall remain 4 years in office and will be able to run for reelection.” Previously, the article stated that the President could run for reelection just for one period. However, the population rejected the possibility of continuous reelection of the President of the Republic through a referendum held in early 2018. With the result of the referendum, re-election is still possible, but only for one consecutive term.[143]

On February 21, 2016, Bolivia held a referendum in order to decide the reelection of the sitting President Evo Morales, who was first sworn as President of Bolivia in 2006 and then reelected in 2009 and 2015. The referendum asked whether the people agreed to amend Article 168 of the Bolivian Constitution thus allowing the sitting President or Vice President to be reelected for two consecutive terms.[144] In accordance with the transitory provision of the Partial Amendment of the Constitution Law, it was considered that the first reelection would be the 2015-2020 period, and the second reelection would be effective for the 2020-2025 period.[145] The ultimate goal was to allow the sitting President a fourth presidential period. The proposed amendment was rejected by the electorate. However, a new chapter in this story occurred when the Plurinational Bolivian Constitutional Court understood that Article 23 of the American Convention on Human Rights should prevail over the Article 168 of the Bolivian Constitution. In the decision, therefore, the Court allowed the then President of the Republic to participate in consecutive electoral elections, without the limitation of periods decided by the population. Following these events, and under pressure from the Bolivian military forces, President Evo Morales resigned from office.[146]

7.1.2. Other Amendments Concerning the Executive Branch

Other reforms meriting attention are (1) the incorporation into the Constitution of Mexico of the President’s obligation to render a written, annual state of the nation report to Congress;[147] and (2) Bolivia’s adoption of constitutional provisions that allow the incumbent President to run for a third term,[148] and subject the President to removal by Congress.[149]

In Brazil, two interesting amendments to the Constitution have been approved by the parliament concerning the execution of the public budget by the federal government.[150] Before the amendments were approved, the executive branch submitted a budget proposal to the Parliament for its authorization of public spending for one year. However, because it was an authorization, the Executive often failed to execute expenditures indicated by parliamentarians or groups of parliamentarians of the same State-member because of budget constraints, or even due to political bargaining to execute these funds—for example, to approve a certain matter in exchange for the execution of its budget. Under the amendments, part of the budget is now mandatory for the executive branch in a way that takes significant political power away from the President in relation to Congress. In other words, the amendments corroborate the weakening of the Executive branch in relation to the legislative branch that has been taking place in Brazil during the last decades.

7.1.3. Constitutional Issues Concerning the Executive Branch

In 2012, Paraguay experienced difficult moments when President Fernando Lugo was subject to a political trial (impeachment) under Article 225 of the Paraguayan Constitution,[151] which ended with President Lugo been removed from its office. President Lugo was accused of several charges, but the event that triggered the political trial against him was the case known as “Killing in Curuguaty”, where a group of indigenous land squatters ambushed with firearms by the Paraguayan Police officers that were trying to evict them from the lands, resulting in 11 people dead and 12 injured.[152] Following the removal of Lugo, Paraguay’s Congress and new government were criticized by several Latin American presidents, who argued that the political trial did not have minimum standards of due process, and that the entire situation was a covert coup d’état.[153]

In Venezuela, the recent death of Hugo Chávez caused a constitutional dispute regarding who had to replace him until a new president is elected. On the one hand, Article 231 of the Venezuelan Constitution prescribes that in order to take office the elected president has to be sworn before the National Assembly on January 10 of the first year of his term. On the other hand, the first paragraph of Article 233 of the Venezuelan Constitution establishes that death is considered an absolute absence of the President, and its second paragraph prescribes that when the absolute absence of the President occurs before he or she takes office, there must be new elections within the subsequent 30 days, and in the meantime the President of the National Assembly assumes as President of the Republic.

President Chávez could not be sworn before the National Assembly because of his illness. On January 9, 2013, the Venezuelan Supreme Tribunal of Justice established that President Chávez did not have to take office again because he was the current president. Thus, there were no vacancy in the executive branch and President Chávez could be sworn in a later date established by the National Assembly once the impediments disappear.[154]

Nevertheless, President Chávez was never sworn when he came back to Venezuela on February 18, 2013, due to his serious health problems. Later, on March 5, 2013, Chávez passed away without having been sworn in before the National Assembly. Therefore, in accordance with the plain language of the Constitution, the President of the Venezuelan National Assembly, Mr. Diosdado Cabello should have replaced him as President of the Republic. However, the Vice President of the Republic, Mr. Nicolas Maduro assumed as President of Venezuela until the next presidential elections.

Maduro was appointed as interim President based on the decision of the Supreme Tribunal of Justice of January 9, 2013, which established that despite the fact that the Chávez was not sworn in on January 10, 2013, he continued to be in office. It was considered that in this situation the second paragraph of Article 233 of the Constitution did not apply (rule concerning the absolute absence of the president before he or she takes office); instead, the Supreme Tribunal of Justice held that since Chávez was in office when he died, paragraph third of Article 233 was the one that had to be applied,[155] which prescribes that if the absolute absence of the President occurs within the first four years of his term, the Vice President shall assume as President of the Republic. On December 6, 2015, Venezuela held elections of representatives for the National Assembly, which for the first time in 17 years, resulted in a majority of representatives from the opposition to the government of President Maduro[156].

Also in Brazil, President Dilma Roussef suffered a political process and ended up being impeached during her mandate. The argument used by Parliament was extremely controversial, in that it accused her of committing “pedaladas fiscais,” that is, budget operations carried out by the National Treasury, not provided for in legislation. Pedaladas fiscais, it was argued, consist of delaying the transfer of funds to public and private banks with the intention of relieving the fiscal situation of the government in a particular month or year, presenting better economic indicators to the financial market and experts in public accounts. A considerable part of the legal community sustained that the impeachment was tantamount to a coup d’état.[157] However, the Brazilian Supreme Court examined several requests to annul the impeachment process and rejected them all. However, on the merits of the issue—the so-called “pedaladas fiscais“—the court exercised self-restraint by indicating that it was up to the Senate to promote the trial and not the Court itself.[158]

In Peru, impeachment of President of the Republic Martín Vizcarra in 2020 also occurred on charges of receiving bribes during his mandate as governor of Moquegua Province during the years 2011 to 2014.[159]

All these impeachments seem to demonstrate a trend of rapprochement of the South American presidential model with the European parliamentarian model, to the extent that the loss of control by Parliament has implied the end of the term of the head of government.

7.2. Legislative Branch

Peru’s constitutional law has also touched the legislative branch in important ways. A constitutional amendment approved in 2009, which comes into force for the 2011 electoral process, provides that only Peruvians by birth may run for Congress. The tenure of legislative office is fixed at five years, and candidates for the Presidency of the Republic cannot become candidates for Congress.[160]

Unlike Venezuela, where the legislative power resides in a unicameral National Assembly[161] in keeping with the French model,[162] Bolivia still adheres to the principle of a bicameral Congress.[163] It has also removed all types of immunity for members of Congress,[164] following the pattern established by Honduras in 2003.[165]

On the other hand, in Brazil, the Supreme Court has promoted a substantial change in the regime of immunity of parliamentarians. In fact, the Brazilian Constitution contains provisions indicating that the trial for crimes in which members of the house of representatives are the defendants must be conducted before the Supreme Court.[166] This provision, in practice, has resulted in impunity for accused parliamentarians.[167] In reaction to this, the Supreme Court, interpreting the Constitution, decided that this immunity would only be attributable to a congressman when the offense was committed during the mandate and was related to the duties performed by the congressman.[168] Therefore, if a congressman is accused of a criminal action for crimes that are not related to his parliamentary activities, the case will be heard by the ordinary courts.

7.3. Judicial Branch

The judiciary has likewise been subject to significant changes in recent times in Latin America. As stated in Section 6, above, Mexico overhauled its criminal procedure system and created an integral justice system for juveniles, which has yet to be implemented. In the case of Bolivia, the Constitution has injected the appointment of members of the Supreme Tribunal of Justice directly into the political process. In fact, these magistrates are elected for only one six-year term by universal suffrage in a process that includes a preselection of the candidates by the legislative branch, which is called the “Plurinational Legislative Assembly” (Asamblea Legislativa Plurinacional).[169] Venezuela also possesses a judicial appointment process that is mired in politics. In effect, the members of the Supreme Tribunal of Justice are selected in a complex procedure that requires the intervention of the Citizens’ Power, which prepares a roster with the candidates for the final decision of the National Assembly.[170] The National Assembly retains the power to remove the members of the Supreme Tribunal of Justice at any time.[171]

On February 21, 2011, the Ecuadorian Government called for Referendum and Popular Consultation that took place on May 7, 2011, which had five questions that sought to amend the Constitution. Two of these questions were related to the Judiciary: (i) whether substituting the entire Judicature Council[172] for a Transitional Judicature Council, comprised of three members: one appointed by the President, one by the National Assembly, and one by the Function of Transparency and Social Control. This Council would exercise the functions of the Judicature Council and it would restructure the judiciary, within an 18-month deadline; (ii) whether to modify the composition of the Judicature Council, by amending the Constitution and reforming the Organic Code of the Judicial Function.[173]

A group of scholars criticized this bill because in their opinion it would affect the separation of powers between the judicial branch and the executive branch.[174] They based their opinion in the fact that the Transitional Judicature Council was comprised of three members, two of them appointed by the executive and legislative branches, which would imply that “President Correa and his political movement would have an absolute control over the Technical Commission that will be in charge of restructuring all the judicial function in a deadline of 18 months.”[175] They considered that the situation “…constitute a clear violation of the obligations of ‘separation and independence of public powers’ under article 3 and 7 of the Inter-American Democratic Charter.”[176] For instance, Section 3 of Article 181 of the Constitution, introduced by the 2011 amendment, prescribes that the Council is in charge of “leading the procedures aimed to select judges and other officials of the Judicial Function, and also for their evaluation, promotion, and sanction…”[177] Despite the criticism, both questions were approved by the people with a 52.02% and 52.66%, respectively.[178]

8. Constitutional Emergencies

Latin America has a long history of being governed by autocratic rulers pursuant to emergency provisions established or allowed by their constitutions. Colombia, for example, was ruled under emergency provisions for thirty years between 1958 and 1988.[179] In tandem with this approach, judicial interpretations of declarations of emergency have consistently judged them as a “political question,” and therefore nonjusticiable.[180]

Consequently, constitutional law in the region gives much attention to the declaration of constitutional emergencies. In Bolivia, this power has been granted to the President subject to ratification by the legislature.[181] In Venezuela, the President may declare a constitutional emergency based on political unrest for a period of up to 90 days, renewable once for up to 90 days with the previous authorization of the National Assembly.[182] This Emergency Decree is subject to the approval of the National Assembly within eight days after its promulgation and to constitutional review by the Constitutional Chamber of the Supreme Tribunal of Justice.[183]

9. Economic Model

When it comes to the determination of their economic models, Latin American nations have oscillated between liberalism and central planning since their inception as independent nations. In this context, the case of Bolivia is striking. On the one hand, the Bolivian Constitution contains strong provisions guaranteeing free initiative and a free market. On the other hand, it greatly increases the intervention of the government in the economy. Examples of the first situation include multiple constitutional provisions on the recognition and protection of private initiative in the economy[184] (referred to elsewhere in the Constitution as “free enterprise and entrepreneurial initiative”),[185] cooperatives,[186] and the individual and collective ownership of land.[187] Instances of a growing governmental intrusion into the economy are reflected in a broad government mandate to administer public services and utilities,[188] and the outright declaration of natural resources and hydrocarbons as the property of the Bolivian people, the exclusive administration of which corresponds to the Bolivian government.[189] The Constitution also prohibits the creation of latifundia.[190] The corollary to these provisions is the constitutional provision that punishes anyone involved in a violation of the constitutional precepts regarding the use and administration of natural resources as “guilty of treason to the motherland.”[191]

The aforementioned provisions of the Bolivian Constitution followed their equivalents in the Venezuelan Constitution of 1999 almost verbatim, in both spirit and letter. Both constitutions, for example, contain a norm providing for the punishment of “economic illicit conduct, speculation, entrapment, usury … and other related crimes.”[192] The provisions on the recognition of private initiative and the prohibition of latifundia are similar as well.[193]

10. Fight Against Narcotrafficking and Organized Crime

The tragic reality of the twin social evils of narcotrafficking and organized crime has lately mobilized two of the largest Latin American countries, Mexico and Colombia, to take constitutional action. Through a 2009 constitutional amendment, Mexico’s Constitution granted powers to the federal legislature to issue a general law on kidnapping and to establish punishments against organized crime.[194]

In the case of Colombia, a 2009 constitutional amendment prohibits the carrying and consumption of narcotics or psychotropic substances, except when medically prescribed, and establishes the government’s duty to help addicts recover.[195] Another Colombian amendment of the same year sets forth penalties for political entities that cover up actions of their members convicted during office for crimes related to illegal armed groups and narcotrafficking activities, crimes against democratic participation mechanisms, or crimes against humanity.[196] Finally, the same amendment forbids those convicted of crimes affecting the patrimony of the State, crimes related to illegal armed groups and narcotrafficking activities, crimes against democratic participation mechanisms, or crimes against humanity from running for office, being appointed in government positions, and having contracts with the State.[197]

11. Fight Against Government Corruption

Unfortunately, government corruption is intimately related to the phenomena of narcotrafficking and organized crime in the region. Latin American nations have reacted by strengthening their constitutional frameworks to deal with these situations. Mexico is a good example of this tendency. In 2009, that country approved a wide-ranging modification of the constitutional provisions dealing with the salaries of government employees. The amendment provides that these salaries may not be reduced,[198] or be higher than those of their hierarchical superiors, with several exceptions,[199] and are subject to an overall ceiling equal to the remuneration accorded to the President of the Republic.[200] Finally, the amendment states that no social security benefits, credits, or loans may be granted to government employees without prior budgetary allocations by law, presidential decree, or pursuant to labor contracts.[201] It leaves it to Congress to establish punishments for the violation of these provisions.[202]

In March 2013, the Peruvian Congress approved- in a preliminary stage- a bill that establishes the muerte civil (Civil Death) for the people condemned for corruption crimes that after recovering their freedom, do not pay the corresponding compensation to the State.[203] Those punished with the muerte civil would not have legal capacity to enter into any kind contracts or to manage their own property until they pay their debts, In addition, persons convicted under the proposed bill would not be allowed to ever work in the public sector again.[204] Additionally, the bill would create a Registry of Debtors of Civil Compensation for Crimes against the State, under the Legal Defense Council of the Ministry of Justice.[205]

Another interesting case was heard by the Colombian Constitutional Court regarding the legal provision that made the public servant or the private individual responsible for fiscal management ineligible if convicted of fiscal responsibility, i.e., fiscal fraud.[206] In Colombia, the attribution of the so-called fiscal responsibility is promoted by the public administration and, therefore, is not a criminal conviction or effect thereof handed down by a court. For this reason, the plaintiff claimed such legal measures, among other matters, empower administrative authorities to restrict the political rights to be elected and to hold public office, despite the fact that the American Convention of Human Rights only authorizes the limitation of such rights if there is a criminal conviction.[207]

The Court affirmed that the American Convention on Human Rights must be interpreted harmoniously with a set of international instruments of a universal and regional nature, which, although they do not enshrine human rights nor have as their ultimate goal the defense of human dignity, are intended to articulate, through international cooperation, the activity of states in favor of attaining legitimate ends, such as, among others, the fight against corruption.[208] In this sense, the American Convention on Human Rights must be carried out in a systematic way with other international instruments, considering, in particular, the fight against corruption, in such a way that it does not oppose the adoption by States Parties of other measures that are not deprivation of liberty aimed at protecting the treasury.[209] The Court also considered that public agencies that exercise jurisdictional functions, whether criminal or not, have the duty to adopt decisions in accordance with the guarantees of due legal process.[210]

In addition, the Court considered that the disqualification from holding public office for having been declared liable for tax offenses has a legitimate purpose in constitutional terms, since the fight against corruption as a mechanism for the protection of public assets is one of the main commitments of the State, derived not only from the domestic legal system, but also from the international instruments signed by Colombia, which impose the duty to adopt punitive measures or any other type of measures for those who attempt against the treasury, such as the one established by the Legislator in the questioned provisions.[211]

12. International Law and International Relations

The interaction between domestic law and international law has been a particular subject of tension in Latin America, particularly after World War II. The emergence of the Inter-American Human Rights System has posed colossal challenges to the weak democracies of the region, and these democracies have reacted in recent times by amending their constitutions in order to accommodate the new realities created by the increasing application of international treaties into the domestic legal systems with regard to the protection of human rights.

Argentina first broke ground in 1994 when it granted constitutional rank, a status superior to legislative enactments, to enumerated international human rights treaties. It also allowed Congress to give future treaties such status.[212] Venezuela’s 1999 Constitution was very prolific in incorporating matters of international law into its text as well. In fact, it established the government’s duty to guarantee human rights protected by international treaties,[213] and eliminated the statute of limitations and the possibility of amnesty or pardon for serious human rights violations and war crimes.[214] In addition, the Venezuelan Constitution explicitly creates a cause of action for damages in favor of victims of human rights violations.[215] Finally, in a turn away from international law, that Constitution clarifies the “unique, sovereign, and indivisible concept of the Venezuelan people,” denying “any effect of the international law usage of the word ‘people.’ ”[216]

In 2009 Bolivia followed the path previously set by Argentina and Venezuela but in rather cryptic language:

[T]he international treaties and conventions ratified by the Plurinational Legislative Assembly [Bolivia’s unicameral Congress], that recognize human rights, and that prohibit their limitation during Emergency Situations prevail in the domestic order. The rights and duties established in this Constitution shall be interpreted in accordance with the international human rights treaties ratified by Bolivia.[217]

Also concerning matters related to international law, Bolivia’s Constitution contains a novel provision stating that Bolivian citizenship is not lost by the acquisition of citizenship in a foreign country.[218] The same country, which became landlocked in the late nineteenth century in a war against Chile, included a provision in its Constitution enshrining its maritime claims of access to the Pacific Ocean as “non-waivable.”[219]

In 2011, there were important amendments to the Mexican Constitution concerning international human rights.[220] First, there was a change in the nomenclature of the rights consecrated in the Mexican Constitution, since they are no longer called “individual guarantees”; instead the Constitution now refers to “human rights”, which according to an author was intended to adopt the language used by the main international treaties about the topic.[221] Secondly, the first paragraph of Article 1 of the Mexican Constitution now establishes that “in the United States of Mexico all people are entitled to the human rights recognized in this Constitution and in the international treaties to which Mexico is a party…” The second paragraph of the same provision, states that “the rules concerning human rights will be construed according with this Constitution and with the international treaties about the topic…” Accordingly, an author points that after the amendment, the human rights pertaining to international treaties ratified by Mexico have the same authority than the ones consecrated in the Mexican Constitution.[222]

13. Constitutional Amendment Procedures

The mechanism for reforming the fundamental charter of a country is crucial to determining the allocation of political power in a society, the distribution of wealth, and the overall wellbeing of its citizens. For that reason, this is yet another area that has served as a scenario for heated political fights and even violence in the region. Many experiments and formulae concerning the amendment of the Constitution have been tested during Latin American history, and no single system can be said to have been foolproof. Accordingly, this area will most likely remain one of recurrent interest for Latin American constitutionalism.

Given these considerations, it is worth mentioning several contemporary innovations concerning constitutional amendment procedures in the region. In the case of Venezuela, initiatives to amend the constitution must have the support of at least 15 percent of those citizens registered to vote, 30 percent of the deputies of the National Assembly, and the President of the Republic.[223] Bolivians, in turn, may convene a Constitutional Assembly elected through a popular referendum called by 20 percent of the electorate, by an absolute majority of the Plurinational Legislative Assembly, or by the President.[224] In both countries, to enter into effect, constitutional amendments are subject to ratification by means of a popular referendum.[225]

In October 2013, presidential candidate Michelle Bachelet published her Government Program,[226] which contains several ideas for changing Chilean economic and political system, such as a Tax Reform, Labor Law Reform, and a new Constitution for the country, among others. According to the program, the current Constitution lacks democratic legitimacy, since the process to amend it contemplates high quorums aimed to block minorities and people’s participation and to impose a false sense of constitutional consensus.[227]

President Bachelet’s Program establishes that the process for creating a new Constitution has to be an institutional and democratic process and has to assure the participation of the people, thus it should be carried out as follows: (i) Congress has a co-constituent role with the government, where the former review the projects from latter; (ii) Any differences between the Congress and the government in regards with the new Constitution project has to be solved by the people through a constitutional referendum; and (iii) The project approved by the government and the Congress has to be ratified by the people through a referendum before being enacted.[228] In addition, the Program establishes that the stability and rigidity of the new Constitution would be assured under a mechanism where the Constitution would have to be amended by the vote of the absolute majority of the members of both chambers of Congress, except for special quorums for governmental veto.[229]

In year 2014, President Bachelet was sworn in for her second term as President of Chile. As result of the debate, the government has made some adjustments and precisions regarding the constitutional amendment process. Basically, it recognizes that the Constitution does not contemplate a mechanism to replace it, thus a constitutional amendment is necessary.[230] For that purpose during the second semester of 2016, the government will send to Congress a project to amend the Constitution in order to legitimize her alternatives for the Constituent Processes, which are: (i) A Bi-Cameral Commission comprised by members of Congress; (ii) A Mixed Constituent Convention, comprised by members of Congress and civil society; (iii) A Constituent Assembly (no further details are given); or (iv) A Peoples’ Plebiscite, which will be applied if Congress chooses this option or if there is no agreement regarding the mechanism, in which case the people will choose among a Bi-Cameral Commission, A Mixed Constituent Convention or A Constituent Assembly.[231] Additionally, the Process will comprise the following steps and activities: (1) Civic and Constitutional education for the people[232]; (2) Dialogues with the People in Communes, Provinces and Regions, where they expect that the “People’s Bases for the New Constitution” will arise; and (3) People Counsel of Observers, which are comprised by different actors of the civil society and will supervise that the Dialogues with the People are transparent, free, and with absence of duress.

14. Conclusion

This survey of recent constitutional developments in Latin America illustrates a mix of tradition and innovation in several areas of society. On the one hand, the most innovative constitutions maintain the concept of family as it has been known since time immemorial in the West. On the other hand, on a continent deeply shaped by the Catholic religion, the trend to minimize its influence in the shaping of constitutional and legal institutions is conspicuous. Equally, there is a new resort to an enlightened morality and to the recovery of the ethnic element, which lies at the center of the most sweeping reforms concerning the distribution of powers, and the structure of constitutional guarantees.

With respect to the separation of powers, on a continent where strong presidential power has been the historic pattern the executive branches of government have emerged overall even stronger after the latest changes in constitutional law. The legislative branches, in turn, have benefitted from cosmetic changes vis-à-vis the presidency, and remain, in general terms, as subordinated arms of the executive branch of government. The judicial branches have been, to put it mildly, the less favored of the three branches in this scheme of amendments. In fact, where new individual rights have been spelled out through constitutional reforms in the region, these rights have simply increased the docket of the beleaguered Latin American judiciaries.

The real effects of novelties brought about by the new philosophical background of the constitutional movements shaping recent reforms are yet to be seen. In most cases, such changes have thus far not been implemented. That is the case, for example, for the aboriginal justice system in Bolivia and for the new criminal procedure reform and juvenile criminal system in Mexico.

In sum, Latin America is an area where changes occur often, and sometimes abruptly. The region has also been characterized by the domino effects of reforms that take place in one jurisdiction and are then quickly mirrored in other jurisdictions. In that sense, the effects of the new trends embodied in recent constitutional activity in the region will not likely occur in isolation but will be evident throughout Latin America.

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[1] 1999 Constitución de la República Bolivariana de Venezuela (hereinafter, 1999 Const. of Venezuela), Gaceta Oficial del jueves 30 de diciembre de 1999, No 36.860, available at http://www.asambleanacional.gob.ve/index.php?option=com_content&view=article&id=24728&Itemid=238&lang=es. All translations in this article are those of the author unless otherwise stated.

[2] República del Bolivia Constitución de 2009 (hereinafter, 2009 Const. of Bolivia), available at http://consuladoboliviano.com.ar/portal/node/119.

[3] Id.

[4] Id. art. 10(III).

[5] 2008 Constitución de la República del Ecuador Preamble, at https://web.archive.org/web/20170110074737/http://www.asambleanacional.gov.ec/documentos/Constitucion-2008.pdf (Internet Archives, Jnuary 10, 2017) (hereinafter 2008 Const. of Ecuador). See also 2009 Const. of Bolivia art. 265(I). See generaly, 2008 Ecuador Constitution (revised 2021), https://www.constituteproject.org/countries/Americas/Ecuador?lang=en.

[6] For the entire chronology of events, see https://www.gob.cl/procesoconstituyente/

[7] See https://www.bcn.cl/leychile/navegar?idNorma=1140340

[8] For the chronology of the protests, see https://www.dw.com/es/la-cronolog%C3%ADa-del-estallido-social-de-chile/a-51407726

[9] See Mario Waissbluth, Origenes y evolucion del estallido social en Chile. Availabe at https://www.mariowaissbluth.com/descargas/mario_waissbluth_el_estallido_social_en_chile_v1_feb1.pdf

[10] See https://obtienearchivo.bcn.cl/obtienearchivo?id=documentos/10221.1/76280/1/Acuerdo_por_la_Paz.pdf

[11] E.g., the case of Mexico under Porfirio Díaz, who served as the country’s President in the early nineteenth century.

[12] E.g., the case of former President Carlos Saúl Menem of Argentina, first elected to the Presidency in 1989, who converted from Islam to Catholicism in order to be sworn in because the Constitution of Argentina then required the President be a Catholic. Constitutional amendments adopted in 1994 eliminated this requirement.

[13] 1999 Const. of Venezuela art. 59.

[14] Id. art. 86.

[15] 2009 Const. of Bolivia art. 4 (emphasis added).

[16] Id.

[17] Id. art. 8.

[18] 2008 Const. of Ecuador, pmbl.

[19] Id. art. 66, No. 8.

[20] Mexico’s Official Gazette of the Federation, available at: http://www.dof.gob.mx/nota_detalle.php?codigo=5280961&fecha=30/11/2012

[21] Article 40 of the Mexican Political Constitution states that “it is the will of the Mexican people to constitute itself as a representative, democratic, secular, and federal Republic, comprised by free and sovereign states concerning its internal regime; but united in a federation established in accordance with the principles of this fundamental law.”

[22] Ruperto Patiño, La Reforma del Artículo 40 Constitucional The Amendment of Article 40 of the Constitution, Biblioteca Jurídica virtual del Instituto de Investigaciones Jurídicas de la UNAM 418, available at: http://biblio.juridicas.unam.mx/libros/7/3101/28.pdf.

[23] Religión en Libertad, El Señor de los Milagros es declarado Patrono del Perú [Religión in Freedom, The Lord of the Miracles is declared as Patron of Peru, available at: http://www.religionenlibertad.com/el-senor-de-los-milagros-es-declarado-patrono-del-peru-11604.htm

[24] Peruvian Constitutional Tribunal, Nota de Prensa Nº 059-2013-OII/TC.

[25] Perú 21.PE, Declaran Patrimonio Cultural festividad del Señor de los Milagros (28 de Octubre, 2005), https://web.archive.org/web/20140913003421/http://peru21.pe/noticia/82823/declaran-patrimonio-cultural-festividad-senor-milagros (Internet Archives, Sept. 13, 2014).

[26] 1994 Constitución de la Nación Argentina (hereinafter 1994 Const. of Argentina, originally of 1853, reinstated in 1983 and revised in 1994), art. 2º. Available at http://servicios.infoleg.gob.ar/infolegInternet/anexos/0-4999/804/norma.htm

[27] 2014 Codigo Civil y Comercial de la Nación, art. 146, c. Available at http://servicios.infoleg.gob.ar/infolegInternet/anexos/235000-239999/235975/norma.htm#7

[28] 1853 Constitución de la Nación Argentina de 1853, original text, art. 76. Available at http://www.saij.gob.ar/nacional-constitucion-nacion-argentina-lnn0002665-1853-05-01/123456789-0abc-defg-g56-62000ncanyel

[29] Id. art. 80.

[30] Id. art. 86, 8.

[31] Id. art. 67, 20º.

[32] Id. art. 67, 15º.

[33] Corte Suprema de la Justicia de La Nación Argentina, Expediente CSJ 1870/2014/CS1, available at https://sjconsulta.csjn.gov.ar/sjconsulta/documentos/verUnicoDocumentoLink.html?idAnalisis=742359&cache=1629814320676

[34] See https://www.clarin.com/sociedad/remover-simbolo-religioso-edificios-publicos-nuevo-proyecto-diputados-cambiemos_0_rJhZg17Pm.html

[35] Id.

[36] Constituição da República Federativa do Brasil de 1988 (hereinafter 1988 Const. of Brazil) art. 5º, VI and 19, I. Available at http://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm

[37] 1988 Const. of Brazil, pmbl.

[38] To follow the development of the judicial process, see http://www.stf.jus.br/portal/jurisprudenciaRepercussao/verAndamentoProcesso.asp?incidente=5827249&numeroProcesso=1249095&classeProcesso=ARE&numeroTema=1086

[39] Supremo Tribunal Federal, Decision enacted in ADI 4439, available at. http://portal.stf.jus.br/processos/downloadPeca.asp?id=314650271&ext=.pdf

[40] Colombian Constitutional Court, Sentence C-664-16, available at https://www.corteconstitucional.gov.co/relatoria/2016/C-664-16.htm

[41] Id. Section I, B.

[42] Id. Section I, C, 1 and 3.

[43] Id. Consideration 29.

[44] Id. Consideration 33.

[45] 2008 Const. of Ecuador, art. 176.

[46] 1999 Const. of Venezuela art. 274.

[47] Id. art. 273, para. 2.

[48] See 2009 Const. of Bolivia, ch. IV, “Rights of Original Indigenous Farming Peoples and Nations.”

[49] Id., pmbl.

[50] 1999 Const. of Venezuela art. 416, para. 8. This language is repeated in article 255(2) of the Constitution of Bolivia, which states that one of the principles guiding the negotiation and execution of international treaties is “[t]he rejection and condemnation of all forms of … colonialism, neocolonialism, and imperialism.”

[51] 2009 Const. of Bolivia, pmbl.

[52] Id. art. 30, § 2.

[53] Id. art. 146(VII). It is also worth mentioning that in Bolivia’s neighboring country, Peru, a constitutional amendment bill that would create the Special Electoral District for Native Communities and Original Peoples is pending before the Peruvian Congress. See Bill 04332/2010-CR, of Sept. 23, 2010.

[54] 2009 Const. of Bolivia arts. 270, 303(2) & 391(3).

[55] Id. art. 2.

[56] 1999 Const. of Venezuela art. 119. In the context of advancing the indigenous cause, the Constitutional Court of Colombia rendered a decision in 2010 approving an affirmative action program implemented by a Colombian university for persons with indigenous ancestry. Case T-110/10, Acción de tutela contra la Universidad Industrial de Santander, Ministerio de Educación y el ICETEX, available at http://www.corteconstitucional.gov.co/relatoria/2010/t-110-10.htm.

[57] 1999 Const. of Venezuela art. 121.

[58] Id. art. 125.

[59] Id. The Seventh Transitory Provision of the Constitution enumerates the criteria for the election of indigenous members of the National Assembly, and of State and Municipal Legislative Councils.

[60] Id. art. 9.

[61] 2009 Const. of Bolivia art. 5(I).

[62] In Peru, a constitutional amendment bill that would amend article 48 of the Constitution to officially recognize aboriginal languages is pending before the Peruvian Congress. See Bill 03649/2009-CR, of Nov. 5, 2010.

[63] 1999 Const. of Venezuela art. 124.

[64] 2009 Const. of Bolivia art. 35(II).

[65] Id. art. 384.

[66] Id. art. 179(I), (II).

[67] For more information on this new judicial system, see Bret Gustafson, Manipulating Cartographies: Plurinationalism, Autonomy, and Indigenous Resurgence in Bolivia, 82 Anthropological Q. 985(32) (Sept. 22, 2009).

[68] 2009 Const. of Bolivia art. 199(II).

[69] Corte Suprema de Justicia de La Nación Argentina, Decision enacted in Autos CSJ 1490/2011, available at https://sjconsulta.csjn.gov.ar/sjconsulta/documentos/verUnicoDocumentoLink.html?idAnalisis=763919&cache=1629922251028

[70] Id.

[71] Id.

[72] Id.

[73] Colombian Constitutional Court, Sentence T-058/21, Section I, a, available at https://www.corteconstitucional.gov.co/Relatoria/2021/T-058-21.htm

[74] Id.

[75] Id.

[76] Id. Consideration 33.

[77] Id. Consideration 39.

[78] Id. Consideration 64.

[79] Id.

[80] Id.

[81] Id. Considerations 129-134. See also Vanessa Perez Dias, Corte Constitucional Ordeno Garantizar Agua Potable a Cmunidad Indigena Tezhumake, Asuntos:Legales (13 de Abril 2021), https://www.asuntoslegales.com.co/actualidad/corte-constitucional-ordeno-garantizar-agua-potable-a-comunidad-indigena-tezhumake-3152248.

[82] Id. art. 62.

[83] Id. art. 63(I); 1999 Const. of Venezuela art. 77.

[84] 2009 Const. of Bolivia art. 63(II); 1999 Const. of Venezuela art. 77.

[85] Argentina Aprueba el Matrimonio Gay [Argentina Approves Gay Marriage],BBC Mundo, http://www.bbc.com/mundo/america_latina/2010/07/100715_senado_argentina_matrimonio_homosexual_jueves_rg

[86] Por qué Pasó Desapercibida la Decisión Judicial que Legaliza el Matrimonio Gay en México? [Why did the Judicial Decision Legalizing Gay Marriage Go Unonnoticed in Mexico?], BBC Mundo, available at: http://www.bbc.com/mundo/noticias/2015/06/150623_mexico_matrimonio_homosexual_suprema_corte_silencio_jp

[87] Sentencia Tras Sentencia, Suprema Corte de México Legaliza el Matrimonio Gay [Decision After Decision, the Mexican Supreme Court Legalizes Gay Marriage], The New York Times, available at: http://www.nytimes.com/2015/06/15/universal/es/suprema-corte-de-mexico-legaliza-matrimonio-gay.html?_r=0

[88] See Law N° 20,830, available at: http://www.leychile.cl/Navegar?idNorma=1075210.

[89] Constitución Política de la República de Colombia de 1991 (hereinafter referred to as “1991 Const. of Colombia”) art. 108 rev. through 2005 at https://www.constituteproject.org/constitution/Colombia_2005.pdf and revised through 2013 available at https://www.constituteproject.org/constitution/Colombia_2013?lang=en.

[90] Id. art. 108, para. 1, as amended by Legislative Act No. 1 of 2003.

[91] Id. art. 109, para. 1.

[92] Id. art. 109, para. 4.

[93] 2009 Const. of Bolivia art. 27.

[94] Const. of Mex. art. 16, as amended Aug. 24, 2009, available at http://www.ordenjuridico.gob.mx/Constitucion/cn16.pdf (official website).

[95] Exceptions are based on considerations of national security, public policy, public safety and health, or the protection of third parties’ interests. See Constitución Política de los Estados Unidos Mexicanos, as amended, Diario Oficial de la Federación, 5 Febrero de 1917 (hereinafter, Const. of Mexico), art. 16, para. 2, https://www2.juridicas.unam.mx/constitucion-reordenada-consolidada/en/vigente. See also, 1917 Mexico Cosntitution (revised 2015), https://www.constituteproject.org/countries/Americas/Mexico?lang=en. “Writ of habeas data” is the generally accepted name of the action aimed at protecting this new right in Latin America. Other Latin American countries, including Brazil and Colombia, have a similar writ.

[96] Id. art. 16, para. 3.

[97] 1999 Const. of Venezuela arts. 83-85.

[98] Id. arts. 87-97.

[99] Id. art. 102.

[100] Const. of Mexico as amended by Decree of April 30, 2009.

[101] 1991 Const. of Colombia art. 49.

[102] 2008 Const. of Ecuador arts. 52-55.

[103] 2009 Const. of Bolivia art. 16.

[104] Id. arts. 38(I), 45(VI).

[105] Brazilian Supreme Court, Sentence enacted in ADPF 347, p. 24, available at https://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=TP&docID=10300665

[106] Id. p. 25.

[107] Id. p. 25.

[108] See Kirtland C. Marsh, To Charge or Not to Charge, That is Discretion: The Problem of Prosecutorial Discretion in Chile, and Japan’s Solution, 15 Pac. Rim L. & Pol’y J. 543 (2006); Rafael Blanco et al., Reform to the Criminal Justice System in Chile: Evaluation and Challenges, 2 Loy. U. Chi. Int’l L. Rev. 253 (2005); Carlos de la Barra, Chile: Adversarial vs. Inquisitorial Systems: The Rule of Law and Prospects for Criminal Procedure Reform in Chile, 5 Sw. J.L. & Trade Am. 323 (1998).

[109] Const. of Mexico art. 20.

[110] For more on the differences between the civil law inquisitorial criminal system and the Anglo-American accusatorial criminal procedure, see Rogelio Pérez-Perdomo & John Henry Merryman, “Civil Procedure,” in The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America 112-24 (J. Merryman et al. eds., 2007). See also Robert Kossick, Litigation in the United States and Mexico: A Comparative Overview, 31 U. Miami Inter-Am. L. Rev. 23 (2000).

[111] Const. of Mexico art. 20(B)(II).

[112] Id. art. 18.

[113] Id. art. 16, para. 17.

[114] Id. art. 18, para. 7.

[115] Id. art. 22, para. 1.

[116] Article 22 of the Colombian Constitution states that “the peace is a right and a binding duty”

[117] Legislative Act N° 1 of 2012, Colombian Official Gazette No. in Official Journal 48.508 of July, 31, 2012 and Gazette published in Congress 68/2011, available at: http://www.secretariasenado.gov.co/index.php/antecedentes-deacto-legislativo?id=255:acto-legislativo-1-del-2012.

[118] First paragraph of Transitory Article 66 of the Colombian Constitution prescribes that “the instruments of transitional justice will be exceptional and will have the main goal of facilitating the end of the internal armed conflict and achieving a stable and long-lasting peace, with guarantees of non-recurrence and safety for all Colombians; to guarantee in the greatest possible extent, the rights of victims to the truth, justice, and compensation.
A statutory law can authorize that, within the framework of a peace agreement, a different treatment be given to the different illegal armed groups that have participated in the internal armed conflict, and also to the agents of the State, regarding their participation in that conflict.”

[119] About it, see Colombian Constitutional Court, Sentence C-674-17, Section 5.2.4.2.5 of the Considerations, available at: https://www.corteconstitucional.gov.co/relatoria/2017/C-674-17.htm

[120] In order to apply the above-mentioned measures, the fifth paragraph of Article 66 of the Colombian Constitution sets that the beneficiaries must comply the following requirements: “leave the weapons, assume their responsibility, contribute to establishing the truth and to the integral compensation of victims, release the kidnapped people, and remove the minors that were illegally recruited and are under the control of armed groups outside the law.” In addition, paragraph tenth of the same provision establishes that “the application of transitional justice instruments to armed groups outside the law that had participated in hostilities, will be limited to those who demobilize collectively within the framework of a peace agreement, or individually according to the procedures established under the authorization of the National Congress.”

[121] Procuraduría General de la Nación, Procurador general de la Nación, Alejandro Ordóñez Maldonado, solicita a la Corte Constitucional que se declaren inexequibles expresiones del Marco Jurídico para la Paz [The General Attorney of the Nation, Alejandro Ordoñez Maldonado, request to the Constitutional Court the Unconstitutionality declaration of terms from the Juridical Framework for Peace], available at: http://www.procuraduria.gov.co/portal/Procurador-general_de_la_Nacion__Alejandro_Ord_nez_Maldonado__solicita_a_la_Corte_Constitucional_que_se_declaren_inexequibles_expresiones_del_marco_juridico_para_la_paz.news

[122] Legislative Act N°2 of 2012, Colombian Official Gazette No. 48.657 December 28,2012, available at: http://www.secretariasenado.gov.co/index.php/leyes-y-antecedentes/antecedentes-de-acto-legislativo?id=1356:acto-legislativo-1-del-2015.

[123] 2012 Colombian Const. Article 116

[124] Organization of American States, IACHR Expresses Concern over Constitutional Reform in Colombia, available at: http://www.oas.org/en/iachr/media_center/PReleases/2013/004.asp

[125] Colombian Constitutional Court, Sentence C-579-13, Section 9.4 of the Conclusions, available at: http://www.corteconstitucional.gov.co/relatoria/2013/C-579-13.htm.

[126] Colombian Constitutional Court, Sentence C-579-13, Section 9.5 of the Conclusions, available at: http://www.corteconstitucional.gov.co/relatoria/2013/C-579-13.htm

[127] Colombian Constitutional Court, Sentence C-579-13, Section 9.5 of the Conclusions, available at: http://www.corteconstitucional.gov.co/relatoria/2013/C-579-13.htm

[128] Colombian Constitutional Court, Sentence C-579-13, Section 9.6 of the Conclusions, available at: http://www.corteconstitucional.gov.co/relatoria/2013/C-579-13.htm

[129] Colombian Constitutional Court, Sentence C-579-13, Section 9.7 of the Conclusions, available at: http://www.corteconstitucional.gov.co/relatoria/2013/C-579-13.htm

[130] Sentencia No. 504, Supreme Court of Justice of Nicaragua, La Gaceta – Diario Oficial [Official Gazette], Jan. 18, 2011.

[131] Id. (citing Law 192 of July 4, 1995, Partial Amendment Law to the Political Constitution of Nicaragua, art. 13).

[132] Colombian Constitutional Court, Sentence C-141-10, available at: http://www.corteconstitucional.gov.co/relatoria/2010/c-141-10.htm.

[133] See https://www.eltiempo.com/politica/congreso/proyecto-para-alargar-periodo-de-presidente-y-congresistas-toma-fuerza-574301

[134] See https://www.portafolio.co/economia/extension-del-periodo-presidencial-en-colombia-avances-de-la-propuesta-550175

[135] See https://www.elpais.com.co/ultimo-minuto/se-cayo-proyecto-para-extender-periodo-presidencial-hasta-2024.html )

[136] Colombian Constitutional Court, Sentence C-551-03, Consideration 227, available at: https://www.corteconstitucional.gov.co/Relatoria/2003/C-551-03.htm)

[137] Id.

[138] Id.

[139] Id.

[140] Id.

[141] OAS, Nicaraguan Constitution, available at: http://www.oas.org/juridico/spanish/mesicic3_nic_const.pdf

[142] BBC, ”Ecuador: aprueban enmiendas a la Constitución que incluyen la autorización de la reelección indefinida”, available at: http://www.bbc.com/mundo/noticias/2015/12/151203_ecuador_asamblea_reeleccion_ep

[143] See https://elpais.com/internacional/2018/02/04/america/1517770527_944169.html

[144] Órgano Electoral Plurinacional de Bolivia, “Yo Participo”, available at: http://www.oep.org.bo/

[145] Órgano Electoral Plurinacional de Bolivia, “Yo Participo”, available at: http://www.oep.org.bo/

[146] See https://buscador.tcpbolivia.bo/_buscador/(S(ejuuhn354kahvxo4xfxfy5iv))/WfrResoluciones1.aspx and https://www.bbc.com/mundo/noticias-america-latina-50369434

[147] Const. of Mexico art. 69, para. 1, as amended by Amendment of August 15, 2008.

[148] 2009 Const. of Bolivia art. 168.

[149] Id. arts. 161(7), 171.

[150] Emenda Constitucional n. 86 and Emenda Constitucional n. 100, available respectively at http://www.planalto.gov.br/ccivil_03/constituicao/Emendas/Emc/emc86.htm and http://www.planalto.gov.br/ccivil_03/constituicao/emendas/emc/emc100.htm

[151] Article 225 of the Paraguayan Constitution establishes that:
“The president of the Republic, the Vice President, cabinet ministers, justices of the Supreme Court of Justice, the attorney general, the public defender, the comptroller and the deputy comptroller general of the Republic, and members of the Superior Electoral Court may be forced to undergo impeachment proceedings for malfeasance in office, for crimes committed in office, or for common crimes. The Chamber of Deputies, by a two-thirds majority, will press the respective charges. The Senate, by a two-thirds absolute majority, will conduct a public trial of those charged by the Chamber of Deputies and, if appropriate, will declare them guilty for the sole purpose of removing them from office. In cases in which it appears that common crimes have been committed, the files on the respective impeachment proceedings will be referred to a competent court.” Translation available at: http://www.servat.unibe.ch/icl/pa00000_.html

[152] Allan R. Brewer-Carías, ON THE CONSTITUTIONALITY OF THE POLITICAL TRIAL AGAINST PARAGUAYAN PRESIDENT FERNANDO LUGO, 2 available at: http://livrozilla.com/doc/1554224/revista-debates-n.12; See also Nahem Reyes & Jorge Llano, La Destitución de Fernando Lugo y sus Repercusiones en el Hemisferio: Algunas Reflexiones Iniciales [The Removal of Fernando Lugo and Its Repercussions in the Hmisphere: Some Initial Reflections], Consejo Venezolano de Relaciones Internacionales, 3 (2012), available at: http://livrozilla.com/doc/1554224/revista-debates-n.12.

[153] See Fox News, Paraguay Faces Criticism in Latin America for Removing President Fernando Lugo, available at: http://latino.foxnews.com/latino/politics/2012/06/24/paraguay-faces-criticism-in-latin-america-for-removing-president-fernando-lugo/#ixzz2Pc14NfnS

[154] Tribunal Supremo de Justicia Expediente Nº 12-1358, available at: http://historico.tsj.gob.ve/decisiones/scon/enero/02-9113-2013-12-1358.html. The Tribunal considered that under the “Principle of continuity of the Public Authorities, “the Principle of Preservation of the Popular Will”, and “the Principle of Continuity of the Administration”, the Venezuelan President was able to continue in his office.

[155] Allan R. Brewer-Carías, CRÓNICA XIII. SOBRE LA CONSOLIDACIÓN, DE HECHO, DE UN GOBIERNO DE SUCESIÓN DEL PRESIDENTE H. CHÁVEZ CON MOTIVO DEL ANUNCIO DEL FALLECIMIENTO DEL PRESIDENTE CHÁVEZ EL 5 DE MARZO DE 2013 [Chronicle XIII About the Consolidation of Fact of a Government that Succeed President H. Chávez, in Relation with the Announcement of the Death of President Chavez on March 5, 2013] 7 (2013), available at: https://allanbrewercarias.com/wp-content/uploads/2013/03/96.-CR%C3%93NICAS-CONSTITUCIONALES-XIII.-8-3-2013-1.-Brewer.-Sobre-la-conslidaci%C3%B3n-de-un-gobierno-de-sucesi%C3%B3n-presidencial.pdf

[156] BBC, “Venezuela election: Opposition ‘wins two-thirds majority”, available at: http://www.bbc.com/news/world-latin-america-35033778

[157] About it, see: https://www.conjur.com.br/2016-mar-22/grupo-juristas-planalto-manifestar-impeachment

[158] Brazilian Supreme Court, Decision enacted in ADPF 347, available at http://portal.stf.jus.br/processos/downloadPeca.asp?id=308870644&ext=.pdf

[159] See https://elperuano.pe/noticia/107816-congreso-aprueba-la-vacancia-presidencial-de-martin-vizcarra

[160] Ley No. 29,402, El Peruano (official gazette), Sept. 8, 2009, available at http://www.congreso.gob.pe/ntley/Imagenes/Leyes/29402.pdf (amending article 90 of the 1993 Constitución Política del Perú (hereinafter referred to as “Const. of Peru”), available at https://www.constituteproject.org/constitution/Peru_2009?lang=en (revised through 2009)).

[161] 1999 Const. of Venezuela art. 186.

[162] See Constitution of France of 1791 at http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/la-constitution/les-constitutions-de-la-france/constitution-de-1791.5082.html (in French only), Title III, “Of Public Powers,” para. 3 (unofficial source). See also Constitution of France of 1958, https://www.constituteproject.org/constitution/France_2008?lang=en (revised through 2008). See also J. Merryman et al., “Sources of Law and the Judicial Process in Civil Law Systems,” in The Civil Law Tradition: Europe, Latin America, and East Asia 208 (J. Merryman et al. eds., 1994) (stating that “a cardinal tenet of the French was that all law-making power was to be vested in a representative assembly”). Costa Rica, Nicaragua, and Peru also follow the French unicameral model.

[163] 2009 Const. of Bolivia art. 145.

[164] Id. art. 152.

[165] Decree No. 175-2003 of Oct. 28, 2008, art. 1, repealed art. 200 of the Constitucion Politica de la Republica de Honduras of 1982, which had granted general immunity to the Deputies of the National Congress.

[166] 1988, Const. of Brazil, art. 102, I, “b”.

[167] See Maria Denize Campelo, Foro privilegiado: uma tradição imperialista que rompe o século XXI provocando polêmica. Atualidades jurídicas: Revista do Conselho Federal da Ordem dos Advogados do Brasil. Ano. 2 n. 3 (2012); The decision itself contains this argument, p. 11. http://portal.stf.jus.br/processos/downloadPeca.asp?id=15339218738&ext=.pdf

[168] See http://www.stf.jus.br/portal/jurisprudencia/menuSumarioSumulas.asp?sumula=1588

[169] 2009 Const. of Bolivia art. 182.

[170] 1999 Const. of Venezuela arts. 264, 265.

[171] Id.

[172] Article 254 of the Ecuadorian Organic Code of the Judicial Function defines the Judicature Council as “… the exclusive organism of government, administration and discipline of the Judicial Function [Judicial Branch], which comprise: jurisdictional organisms, administrative organisms, auxiliary organisms, and autonomous organisms.” In addition, under sections 3 and 6 of Article 264 of the same statute, the Council is in charge of the “appointment and evaluation of the Justices of the National Court of Justice and judges of the Provincial Courts, judges of first level, District Attorneys, Fiscal Agents and District Defenders,” and of “establishing the politics for the selection, tenders of opposition and merits, permanency, discipline, evaluation [,] and education and training of the officers of the Judicial Function, in accordance with the general politics issued by the Advisory Council.”

[173] Consejo Nacional Electoral de Ecuador, Resultados del Referéndum y Consulta Popular 2011 [Results of the Refererndum and Popular Consultation 2011] 3-4.

[174] Letter of Douglas Cassel, Pier Paolo Pigozzi Sandoval, Hernán Salgado Pesantes, and Pablo Dávila Jaramillo, to the Executive Secretary of the Inter-American Commission on Human Rights on January 28, 2011, concerning the Referendum and Plebiscite in Ecuador.

[175] Letter of Douglas Cassel, Pier Paolo Pigozzi Sandoval, Hernán Salgado Pesantes, and Pablo Dávila Jaramillo, to the Executive Secretary of the Inter-American Comission on Human Rights on January 28, 2011, concerning the Referendum and Plebiscite in Ecuador.

[176] Letter of Douglas Cassel, Pier Paolo Pigozzi Sandoval, Hernán Salgado Pesantes, and Pablo Dávila Jaramillo, to the Executive Secretary of the Inter-American Comission on Human Rights on January 28, 2011, concerning the Referendum and Plebiscite in Ecuador.

[177] Ecuadorian Constitution, Section 3 of Article 181.

[178] Consejo Nacional Electoral de Ecuador, Resultados del Referéndum y Consulta Popular 2011 [Results of the Referendum and Popular Consultation 2011] 4-9.

[179] Gabriel L. Negretto et al., Liberalism and Emergency Powers in Latin America: Reflections on Carl Schmitt and the Theory of Constitutional Dictatorship, 21 Cardozo L. Rev. 1797 (2000).

[180] Id. at 5.

[181] 2009 Const. of Bolivia arts. 137-138.

[182] 1999 Const. of Venezuela art. 338, para. 3.

[183] Id. art. 339.

[184] 2009 Const. of Bolivia art. 308.

[185] Id. art. 311(5).

[186] Id. arts. 55, 306(II), 330(II), 351(I), 369(I), 370(II), 378(II) & 406(II).

[187] Id. art. 311(II)(2).

[188] Id. art. 20(II).

[189] Id. arts. 9(6), 349(I).

[190] Id. art. 398.

[191] Id. art. 124.

[192] 1999 Const. of Venezuela art. 114; 2009 Const. of Bolivia art. 325.

[193] Id.

[194] Decree of May 4, 2009 (amending Const of Mexico art. 73(XXI), para. 1).

[195] Constitutional Amendment of December 21, 2009, http://www.secretariasenado.gov.co/senado/basedoc/arbol/1001.html (Colom.).

[196] Constitutional Amendment of July 14, 2009, art. 107, https://www.funcionpublica.gov.co/eva/gestornormativo/norma.php?i=36844 (Colom.).

[197] Constitutional Amendment of July 14, 2009, art. 122, https://www.funcionpublica.gov.co/eva/gestornormativo/norma.php?i=36844 (Colom.).

[198] Const. of Mexico art. 123(IV), as amended by Decree of August 24, 2009 (amending and making additions to arts. 75, 115, 116, 122, 123 and 127).

[199] Id. art. 127(III).

[200] Id. art. 127(II).

[201] Id. art. 127(IV).

[202] Id. art. 127(VI).

[203] Available at: http://elcomercio.pe/politica/gobierno/muerte-civil-corruptos-se-aprobo-primera-votacion-congreso-noticia-1652586

[204] Andina, Presentan proyecto de ley para instaurar la “muerte civil” a sentenciados por corrupción, available at: http://www.andina.com.pe/agencia/noticia-presentan-proyecto-ley-para-instaurar-muerte-civil-a-sentenciados-corrupcion-468683.aspx

[205] Peruvian Congress, Aprueban Creación Del Registro De Deudores De Reparaciones Civiles Por Terrorismo y Corrupción The Creation of the Registry for Debtors of Civil Compensation for Terrorism and Corruption is Approved, available at: http://www2.congreso.gob.pe/Sicr/Prensa/heraldo.nsf/Titulares2/2efbfd57328271d505257be3004e9b09/ . See also: Perú Promueve “Muerte Civil“ Contra Corruptos Peru Promotes “Civil Death” Against the Corrupt, América Economía, available at: http://www.americaeconomia.com/politica-sociedad/politica/peru-promueve-muerte-civil-contra-corruptos

[206] Colombian Constitutional Court, Sentence C-101-18, available at https://www.corteconstitucional.gov.co/relatoria/2018/C-101-18.htm)

[207] Id. Section III.

[208] Id. Consideration 74.

[209] Id. Consideration 74.

[210] Id. Consideration 113.7.

[211] Id. Consideration 108.

[212] 1994 Const. of Argentina, ch. IV, “Powers of Congress,” § 75, No. 22.

[213] 1999 Const. of Venezuela art. 19.

[214] Id. art. 29, para. 2.

[215] Id. art. 30.

[216] Id. art. 126, para. 2. The Venezuelan Constitution does not specify what concept of “people” provided by international law it is referring to. One possibility is the concept contained in the 1989 International Labour Organization’s Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries, available at: http://www.ilo.org/ilolex/cgi-lex/convde.pl?C169. The matter remains, however, to be determined in the current Venezuelan Constitution.

[217] 2009 Const. of Bolivia art. 13(IV).

[218] Id. art. 143(I).

[219] Id. art. 267(I).

[220] Mexico’s Official Gazette of the Federation, available at: http://dof.gob.mx/nota_detalle.php?codigo=5194486&fecha=10/06/2011.

[221] Juan N. Silva Meza, El impacto de la reforma constitucional en materia de derechos humanos en la labor jurisdiccional en México [The Impact of the Constitutional Amendment concerning Human Rights on the Work of Judges in Mexico] Anuario de Derecho Constitucional Latinoamericano 2012 Konrad Adenauer Stiftung, 154 (2012)

[222] Silva, supra note at 147, 156 (2012).

[223] 1999 Const. of Venezuela art. 341.

[224] 2009 Const. of Bolivia art. 411.

[225] Id. art. 411; 1999 Const. of Venezuela art. 341(4).

[226] “Programa de Gobierno Michelle Bachelet 2014-2018”, available at: https://siteal.iiep.unesco.org/sites/default/files/sit_accion_files/siteal_chile_0655.pdf

[227] “Programa de Gobierno Michelle Bachelet 2014-2018”, page 35, available at: https://siteal.iiep.unesco.org/sites/default/files/sit_accion_files/siteal_chile_0655.pdf

[228] “Programa de Gobierno Michelle Bachelet 2014-2018”, page 35, available at: https://siteal.iiep.unesco.org/sites/default/files/sit_accion_files/siteal_chile_0655.pdf.

[229] “Programa de Gobierno Michelle Bachelet 2014-2018”, page 35, available at: https://siteal.iiep.unesco.org/sites/default/files/sit_accion_files/siteal_chile_0655.pdf.

[230] “8 conceptos del proceso para la Nueva Constitución” Eight Concepts for the Process of the New Constitution, Government of Chile available at: http://www.gob.cl/2015/10/13/8-conceptos-del-proceso-para-la-nueva-constitucion/.

[231] Gobierno de Chile, “8 conceptos del proceso para la Nueva Constitución”, available at: http://www.gob.cl/2015/10/13/8-conceptos-del-proceso-para-la-nueva-constitucion/.

[232] The Government is already doing efforts to educate people regarding the new Constitution’s Process. See https://www.gob.cl/procesoconstituyente/ and http://www.constitucionario.cl/#mira.