Allisa Newman
The original 1853 Argentine Constitution has been amended
six times since its initial ratification by a Constitutional Convention in
Santa Fe (1). The most recent and
significant amendment was in 1994, which occurred through a Constitutional
Convention. In total, the 1994 amendment
reformed 43 articles (2). The 1994
Amendment is arguably the most significant in their attempt to curb
Presidential powers. Although often
times the reforms were not necessarily successful, they are still major in that
it was an impressive step in Argentina’s history to attempt to overcome the
powerful presidency. Significant aspects
of the 1994 Amendment include shortening the presidential term length,
establishing the Judicial Counsel, and introducing the Amparo (2).
As evident by the select reforms within the 1994 Amendment
listed above, most of the reforms I intend to focus on addressed changing the
political institutional structure. As
mentioned, one part of the 1994 Amendment was adjustment of Presidential term
length. The original language of the
constitution stated, “The President and the Vice President shall hold their
offices during a term of six years” (3).
The amendment however shortened the term length to four years and
provided the opportunity for reelection for one consecutive term, with the elimination
of an electoral college (4). The attempt
to redistribute institutional power is seen through the creation of the
Judicial Counsel. The intention for its
creation was the attempt to limit the President’s ability to appoint judges by
creating an independent body made up of legislators, academics and legal
professionals (5). The powers of the
Judicial Counsel include recruiting judges and overseeing the judicial process
(5). This however was not fully
successful as the President still maintained some powers. Although the majority of reforms addressed
organization of political institutions, the introduction of the Amparo
addressed civil rights. Amparo gives
citizens the ability to request that a judge declare a ruling or action
unconstitutional (2).
The main factors leading to the 1994 amendment were
political and were introduced by President Menem through a compromise known as
the Olivios Pact (6). The motivation for
introducing provisions for the amendment was Menem’s reelection (6). He engaged in secret meetings with the leader
of the opposing party in which both parties agreed they would not block the
passage of the provisions in congress (6).
The stimulus for amendment was
primarily an issue of misspecification.
There was a change of heart and Argentina did not want the executive to
retain as much power as he previously had.
This could have also been due to the fact that Argentina had just come
out of a period of coups and military governments. After experiencing that form of government,
they may have wanted a less powerful executive and wanted to ensure the
president’s actions could be checked.
The fact that this amendment went through a formal procedure
as opposed to an informal procedure was due to the nature of what was being
changed. It doesn’t matter whether the
Constitution was specific or vague as the reforms needed were about power. In any country with any time of constitution,
it can be argued that due to the nature of the redistribution intention, it
would need a formal amendment procedure to be changed. In sum, the 1994 Amendment was significant in
that its intentions to redistribute executive power was novel. However in practice the president retained
most of his or her powers.
3.
Comparative Constitution Project, 2008 http://production.clinecenter.illinois.edu/REPOSITORYCACHE/121/Z81kGVRwH1MS78ScLn0Ga15vovlVwEAf46Vii4l89yjqkzgr4db2Iilc6R9s7mYPh69cEzSM2tx59gop0jWMGx3c81f554a6pVi8NY95Zy_25989.pdf
4.
Hyper-Presidentialism:
Separation of Powers without Checks and Balances in Argentina and Philippines,
Rose-Ackerman et.al, 2011
By Sean Smalley
ReplyDeleteIn my comment, I plan to address the consequences of the 1994 reform to the Argentine constitution. As Allisa noted, the 1994 amendment was a major overhaul of executive power (1). The executive branch, via the extensive allocation of powers to the Presidency in the original 1853 constitution, overshadowed the legislative and judicial branches (2). The 1994 reform attempted to curb the existing hyper-presidentialism through a few main points. Contrary to Allisa’s analysis, I believe the amendments were moderately successful in limiting presidential power. It is unrealistic to completely eliminate presidential power in Argentina; however, the 1994 reform established a system of checks on the executive that were nonexistent in the 1853 version of the constitution.
First, the term length of the presidency was shortened from the previous six years to four years; reelection was only allowed once consecutively (1). Therefore, the executive restricted the potential for a situation in which a president abuses power and becomes the leader for life.
The 1994 reform also introduced the office of Chief of the Cabinet of Ministers, established to further diminish the powers of the executive (1). The Chief of the Cabinet of Ministers is outlined in Article 100, as the Constitution states that the office “shall endorse and legalize the acts of the President through their signatures, without which the [President’s] acts have no effect” (3) The Chief of the Cabinet of Ministers basically serves as the direct liaison between the presidency and the legislature. This establishment is significant because it improves coordination and thus perhaps cooperation between the two branches.
As Allisa mentioned, the Judiciary Council was established to increase the power of the judicial branch. The Judiciary Council is now responsible for selecting (and impeaching) the Federal Justices, a power that was previously relegated to the president (1). The creation of the Judiciary Council became a legitimate check on the President’s ability to control the courts to his/her preference. Thus the president surrendered his direct influence in how the judiciary interprets the constitution through judicial review.
Another limitation on the presidency that was enacted via the creation of the Judiciary Council was the regulation of DNUs (decretos de necesidad y urgencia) in emergency situations. Essentially, DNUs are executive powers that the President can exert without congressional approval (2). The 1994 reform addressed the presidential abuse of these decrees, by ensuring that DNUS are subject to judicial review (1). Now, the judicial branch maintains the authority to evaluate these decrees to confirm that the necessary and urgent requirements are fulfilled (1).
Overall, the 1994 reform positioned the Argentine government in an improved situation, in which executive power was limited by checks from the legislature and judiciary.
(1) 1994 amendment of the Argentine Constitution http://en.wikipedia.org/wiki/1994_amendment_of_the_Argentine_Constitution
(2) Constitution of Argentina http://en.wikipedia.org/wiki/Constitution_of_Argentina
(3) Constitute https://www.constituteproject.org/constitution/Argentina_1994
Allisa and Sean discussed the ways in which the 1994 amendments to the Argentine Constitution attempted to curb presidential powers. While the Olivios Pact between Menem and Alfonsin exhibited the strength of the Argentine Executive—extending Menem’s presidency to ten years—amendments did add additional oversight and term length provisions, as Seam mentioned (1). Though the main goal may have been to curtail hyper-presidentialism, the supplementary environmental provisions of Argentina’s 1994 constitutional reform cannot be ignored (2).
ReplyDeleteArticle 41 states, “All inhabitants are entitled to the right to a healthy and balanced environment fit for human development […] without endangering those of future generations” (3). The amendment further mandates that all “have the duty to preserve” the environment (3). Article 41 is a constitutional rarity that charges both the national and provincial governments with the task of protecting this right, as well as, the duty of securing the country’s natural resources (2). A key principle of environmental law, the amendments to the Argentine Constitution encompass a “polluters pay” principle that necessitates the obligation to urgently fix any environmental damage, restoring it to what it was prior to said damage (4).
Some have argued the necessity of a similar provision in the U.S. Constitution. Citing that, without a constitutional mandate, environmental goals specified in Acts and in Policy cannot be achieved (5). However, constitutional ambiguity surrounding the roles of the federal and provincial governments in protecting the environment has prevented decisive measures from being taken in order to best protect Argentina’s resources (2). Though jurisdictional conflicts hamper the complete success of such innovate environmental amendments, the ’94 provisions to the Argentine Constitution established an important environmental precedent, which is absent in many other countries.
1. “Constitution Writing and Conflict Resolution: Argentina 1994,” Princeton University, https://www.princeton.edu/~pcwcr/reports/argentina1994.html
2. “Barriers and Opportunities under the 1994 Argentine Constitutional Amendments for Both Environmental Protection and the Sustainability of the Socio-Economic System” by Juan Rodrigo Walsh and Daniel Sabsay
3. The Argentine Constitution
4. “The Environmental Laws in Argentina,” http://www.alfarolaw.com/tapa/The%20Environmental%20Laws%20in%20Argentina.pdf
5. “The Case for an Amendment to the Constitution of the United States for Protection of the Environment” by Lyton K. Caldwell
As Allisa mentioned in her post, the Argentine Constitution has been amended six times, with the most recent amendment occurring during the Constitutional Convention of 1994. The 1994 constitutional convention ended up amending 43 articles (1). In her post, Allisa focused specifically on the amendments to the Presidential term length, establishing the Judicial Council, and creating the Amparo, but I would like to focus on another amendment from the 1994 Constitutional Convention— the removal of the requirement that the President had to be Roman Catholic.
ReplyDeleteUntil the 1994 Constitutional Convention the Argentine Constitution had a requirement that all Presidents had to be Roman Catholic. In 1994, along with decreasing the Presidents term down to four years, the Constitution was also amended to allow non-Roman Catholic Presidents (1). This amendment was extremely important because it not only changed how institutions distribute political power, but it also was an expansion of civil rights. The political institution of the Presidency changed how it distributed political power by taking a serious step away from the grip of the Catholic Church, and by allowing the power of the Presidency to now be open to anyone in Argentina, regardless of his or her religion. This amendment was also clearly an expansion of civil rights because it removed religious discriminations from limiting who can be President.
Chapter 1, Section 2 reads, “The Federal Government supports the Roman Catholic Apostolic religion,” clearly displaying the strong connection between the Argentine Government and the Roman Catholic Church (2). The Catholic Church in Argentina has always been extremely closely tied with Argentine Government. In the 1940’s and 1950’s the Church and the State were closely unified against the common enemy of Communism (3). In 1954 under the rule of Juan Peron, in order to politically separate themselves from the Vatican, the Argentine Government removed religious education from schools, attempted to legalize prostitution, and pushed for a constitutional amendment to separate Church and State (3). This created strong tension between the Catholics in power in Argentina and the State, and eventually led to a revolution. Relations with the Vatican were repaired though in 1966 when the Argentine Chancellor signed the Concordat agreement with the Vatican (3). In the 1980s, however, tension once again arose between the Church and the Argentine Government during Raul Alfonsin’s presidency. Despite pleas from the Catholic Church, the government approved a law allowing divorce, and further pushed for political separation from the Church (3). It is no surprise then that during the 1994 Constitutional Amendment one of the amendments included further separation of the Argentine Government from the Catholic Church.
The 1994 amendment to allow non-Roman Catholics to be President was promoted by the gradual political separation of Church and State in Argentina. As is evident from the history of Church and State in Argentina, the State and its people are moving away from the Catholic Church as a political institution. This is a change not only in the presidency as a political institution, but it is also a change in civil rights that allows people to separate Church and State, and not be discriminated upon based on their religion. This amendment to the Constitution was brought about by a social movement, which has been building in Argentina over time, to separate Church and State, not due to any relative specificity or vagueness in the Constitution.
(1) http://en.wikipedia.org/wiki/1994_amendment_of_the_Argentine_Constitution
(2) Constitution of the Argentine Nation, Chapter 1 Section 2
(3) http://en.wikipedia.org/wiki/Church–state_relations_in_Argentina