To classify Argentina as a majoritarian or consensual institution, it is
necessary to identify certain characteristics presented by Lijphart in his
book, Patterns of Democracy. Specifically,
it is important to focus on the electoral system, the executive and federalism.
A thorough examination of the Argentine constitution indicates a governmental
structure modeled on primarily consensual institutions with a contradicting
infusion of majoritarian principle.
First and foremost, the Argentine constitution implies in the preamble
the establishment of a federal government, stating the keyword “provinces (1). Government
power is distributed in Argentina between the national state and 23 provinces
(and an autonomous city, Buenos Aires) (2). Although the national state is delegated
a number of powers and responsibilities in the constitution, the provinces that
compose Argentina still maintain a considerable level of autonomy. Article 5 of
the Argentine constitution details this autonomy, stating “Each Province shall
adopt for itself a constitution under the republican, representative system, in
accordance with the principles, declarations, and guarantees of
the National Constitution, ensuring its administration of justice, municipal
government, and elementary education. Under these conditions, the Federal
Government guarantees to each Province the enjoyment and exercise of its
institutions (1). While federalism is a major component of Lijphart’s
consensual model (3), the executive structure presented in the Argentine
constitution is quite contradictory of traditional consensual characteristics. Section
II is devoted to the outlining of the executive. The composition of the
executive includes both the President and the Vice President of Argentina. The
President is the head of state and the head of the government. The president is
elected via a two-round system by which the winning President-Vice President
ticket has to receive either more than 45% of the overall votes, or at least
40% of it and a 10% lead over the runner-up (1). If the situation demands it,
the two leading tickets faceoff in a second round whose victor will be
determined by a simple majority. The contradiction to the consensual model is
the “laundry list” of powers delegated to the President, an inclusion in the
constitution that exudes majoritarian sentiments. In a typical consensual
institution, the power of the executive is limited by a system of checks and
balances, a system that simply does not exist in the Argentine constitution. While
the President of Argentina is the supreme leader of the nation, the second-tier
of power is regionally distributed.
The remaining features
of the Argentine constitution embody Lijphart’s consensual model. Other central
characteristics of the consensual model are a multiparty system, bicameralism,
minority representation and . Article 38
of the Argentine constitution reveals the multiparty system of Argentina,
stating, “Political
parties are fundamental institutions of the democratic system. Their creation and the exercise of
their activities are free, so long as they respect this Constitution, which
[hereby] guarantees their democratic organization and operation, the
representation of minorities [within the party], the authority [of parties] to
nominate candidates to elected public office, access to public information and
the dissemination of their ideas” (1). Article 44 describes the formation of a
bicameral legislature, stating, “A Congress consisting of two Chambers, one of
Deputies of the Nation and the other of Senators of the Provinces and of the
City of Buenos Aires, will be vested with the Legislative Power of the Nation." Article 45 outlines the Chamber of Deputies. The Chamber of Deputies has
257 seats and one-half of the representatives are elected every two years to
serve four-year terms using proportional representation (1). Article 45
provides details on the Senate: three senators are elected from each province,
two from the majority and one from the minority, for a period of six years (1).
The form in which senators are elected allows local minority parties, which
only have support in the provinces, to play an important role in national
politics.
Overall, the framework provided by the constitution relates to the ideals
mentioned in the preamble. The preamble mentions a provincial system in
Argentina (1). Therefore, the remainder of the constitution is dedicated to
outlining the provincial system along with the other features of government.
(3)
Lijphart (Chapter 3)
By exclusively reading the preamble of the Argentine Constitution, a consensual governmental framework is apparent. One component of Lijphart’s consensual model of government is found within the first few lines of the preamble, “by the will and election of the provinces which compose it” (1). This Federalist principle set forth by Lijphart indicates that power will not only be concentrated in the Federal government, but provinces exercise powers and have their own elected representatives (2).
ReplyDeleteAlthough the preamble and institutions described in the Constitution generally follow a pattern characteristic of a consensual model, such as proportional representation (3), multiparty system (4) etc., certain institutional practices appear majoritarian in nature. For example, the President has a significant list of powers, characteristic of a majoritarian model (5). While the Argentine Constitution may be guilty of including some majoritarian principles in its “overall” consensual model, I would like to investigate whether these consensual principles implied in the preamble are what is actually practiced in terms of the Judiciary.
In order to assess whether a mixture of majoritarian principles and consensual principles exist in the Argentine Judiciary, it is important to define these concepts. According to Lijphart’s consensual model, the judiciary can declare national laws and Federal actions unconstitutional, referred to as Judicial Review (2). The Argentine Judiciary incorporates Judicial Review in a different way, instead, “The Supreme Court of Justice [and] the lower courts of the Nation have jurisdiction over and decide all cases that deal with matters governed by the Constitution and the laws of the Nation” (6). As inferred from Article 116, there is decentralized judicial review in which the Supreme Court and lower federal courts determine the constitutionality of laws (7) while still remaining consensual. Despite the consensual description of Judicial Review, some aspects in practice are majoritarian, for example the judiciary does not appear to be independent of the Executive (as is expected of a consensual institution). One Executive power is to appoint Supreme Court Justices in addition to lower court justices (8). The lack of independence of the Judiciary from the Executive was evident in 1989 when President Menem expanded the Supreme Court from five justices to nine justices, in order to “court pack” and fill the Court with, allegedly, incompetent justices who would strictly support his policies (9). The flexibility the Executive exercises in practice to appoint a justice therefore does not resemble traditional judiciary independence expected of the consensual model.
1. Argentine preamble
2. Lijphart Ch. 3
3. Article 45
4. Article 38
5. Lijphart Ch. 2
6. Article 116
7. Chavez (2004) The Rule of Law in Nascent Democracies: Judicial Politics in Argentina http://books.google.com/books?id=f4YhaWgxDLcC&pg=PA43&lpg=PA43&dq=does+argentina+have+judicial+review&source=bl&ots=i2SwyXoIUA&sig=aQcm30riiwpdVTRvBP6uVC6BO4Q&hl=en&sa=X&ei=dzlJVMqvHsG3ON3PgNgE&ved=0CD4Q6AEwBA#v=onepage&q=does%20argentina%20have%20judicial%20review&f=false
8. Article 99
9. The Economist http://www.economist.com/blogs/americasview/2012/12/argentinas-courts
by Sabrina Weeks-Brittan
ReplyDeleteThe Argentine Constitution incorporates features key to Lijphart’s consensus model of democracy: bicameralism, a multiparty system, proportional representation, decentralization, rigidity, and Judicial Review (1). However, as both Sean and Allisa similarly concluded, the extraordinary powers delegated to the Executive contradict strict consensus, resulting in select, seemingly majoritarian, practices (2). As evidenced by the characteristics illustrating a more consensual institution and the relative autonomy of Argentina’s provinces, the United States Constitution greatly influenced Argentina’s (3).
Though both have a three-branched federal government and a bicameral legislature, the two countries’ institutions differ in their balance of powers. The Argentine federal government boasts greater powers over provinces than the U.S. over states, and, the Argentine Executive is likewise more powerful (3). However, recent reforms were made to the Constitution to lessen its inflated presidentialism (3). Doubling its length, the 1994 constitutional reforms added central provisions regarding term duration, human rights, an increased role for the Senate, and more support and positions for opposition groups (3). These changes followed a century of governmental instability riddled with coups and rigged elections. The 1994 amendment passed through a long process of institutional consensus.
While I agree with most of Allisa’s assessment of Argentina’s Judiciary, I think it now has more consensual principles than majoritarian. Her example of the 1989 court packing illustrates why the 1994 constitutional reforms were so crucial. Lijphart makes the success of the ‘94 amendment on judicial review evident; the strength of the Argentine Judicial Review post-2003 is on par with that of the U.S. (4). Though the Argentine Executive remains uncharacteristically powerful in the presence of the institution’s opposing consensual characteristics, the ’94 amendment attempted to diffuse certain presidential powers, and Judicial Review is now significantly stronger as a result of its autonomy (3).
1. Constitution of the Argentine Nation
2. “How Consensual Are Consensus Democracies?” by Brian D. Williams
3. “The Argentine Republic” by Jonathan M. Miller
4. “Patterns of Democracy” by Arend Lijphart
I do agree with Sean’s assessment of the Argentinian Constitution being “a governmental structure modeled on primarily consensual institutions,” but I think it is first important to look specifically at Arend Lijphart’s definition of The Consensus Model of Democracy. Lijphart’s definition is a “democratic regime that emphasizes consensus instead of opposition, that includes rather than excludes.”(1) After just reading the preamble of the Argentinian Constitution it became extremely apparent that Argentina does indeed specify consensual institutions.
ReplyDeleteJust as you mentioned, Lijphart specifies one of the key aspects of The Consensus Model of Democracy as a “Federal and decentralized government.”(2) In the preamble, the Argentinian Constitution paves the way for a federal and decentralized government. The preamble reads, “gathered in the General Constituent Assembly by the will and election of the provinces which compose it,”(3) and the constitution further establishes a federal and decentralized government in Section 5 of Chapter 1, “each province shall enact its own constitution under the republican, representative system, in accordance with principles, declarations, and grantees of the National Constitution,”(4) and the constitution continues to firmly establish a federal and decentralized government in Sections 6 and 8 of Chapter 1.
A more specific example of a consensual institution in the Argentinian Constitution is the election for The Senate. The constitution specifies that, “The Senate shall be composed of three senators from each province, and three from the City of Buenos Aires, who shall be jointly and directly elected, corresponding two seats to the most voted political party, and the other seat to the political party following in number of votes.”(5) This is a clear example of one of Lijphart’s core component of consensual institutions, “proportional representation.”(6) In the instance of the senate in Argentina both large and small parties are represented regardless of the number of votes each receive. Even if a small party loses the Senate votes in a province they are still guaranteed one representative, clearly showing aspects of proportional representation, and therefore consensual institutions in Argentina’s Constitution.
After reviewing Arend Lijphart’s definition of The Consensus Model of Democracy, it became very evident that the Argentinian Constitution heavily specified consensual institutions. This can be seen through both the federal and decentralized government that the provinces create, and the proportional representation in the Senate.
(1)Lijphart, Arend, Patterns of Democracy, p.33
(2)Lijphart, Arend, Patterns of Democracy, p.38
(3)Constitution of the Argentine Nation, Preamble
(4)Constitution of the Argentine Nation, Chapter 1 Section 5
(5)Constitution of the Argentine Nation, Chapter 3 Section 54
(6)Lijphart, Arend, Patterns of Democracy, p.37
I agree with Sean’s assessment of the Argentine constitution. If one were to solely read the preamble it would be a safe assumption that Argentina intended to run a consensual government with the power distributed amongst the provinces rather than concentrated at the executive level. However, and as Sean pointed out, the executive branch does seem to be given a large amount of power, which contradicts Lijphart’s idea of consensual government (2).
ReplyDeleteIdeally the consensual model of government has a divided executive (2). In Argentina, it is not entirely clear to me whether or not that is the case. In Article 87, the constitution makes it seem as though the executive branch contains only the president. “The Executive Power of the Nation shall be discharged by a citizen with the title of ‘President of the Argentine Nation.’ (1).” The scope of the executive branch becomes unclear to me around the third entry in Article 99, when it starts mentioning the Chief of the Cabinet of Ministers. This becomes especially troubling given the title of Chapter IV, “Concerning the Chief of the Cabinet and Other Members of the Executive Branch. (1).” Considering it is among the President’s enumerated powers to appoint the Chief of the Cabinet and other Ministers of the Cabinet, it seems highly unlikely that a divided executive will ever occur in Argentina. It seems strange to me that the Cabinet is partially supposed to check the power of the president when he is the one who appoints them. See Article 100, which gives the Cabinet of Ministers responsibility for “the handling of the Nation's business,” and says they “shall endorse and legalize the acts of the President through their signatures, without which the [President's] acts have no effect (1).”
Granted, the Cabinet is not the only check/balance on the power of the president, but I did think it was an interesting and somewhat contradictory section of the document.
Citations:
(1) Constitute https://www.constituteproject.org/constitution/Argentina_1994
(2) Lijphart (Chapter 3)
written by Jackson Oelke