“Impunity from crimes results in their increased frequency... Leniency with the criminals is an attack against virtue." Simón Bolívar
BY JOSE LUIS CORDEIRO
THE HISTORY OF constitutions in Latin America is the most convoluted in
the world. From the first two constitutions
in the region, Haiti's in 1801 and
Venezuela's in 1811, they seem to have become like shirts - not even suits - that
the rulers put on and take off in a whim.
Two centuries later, Haiti and Venezuela hold the third and second places, respectively, of the highest number of constitutions in the region and the world, with 24 and 26 constitutions each. The
Latin American and international record is held by the Dominican Republic with 3 3 constitutions (see chart). What a
(dis)honor for Latin America!
To create all these constitutions, countless constitutional assemblies, national congresses, local parliaments and legislative meetings were convened and held in every possible color, smell, taste, shape and form. These constitutions have simply enlarged
the cemetery of dead ideas that keep drowning in that vast ocean of good intentions, not to mention the sea of
The 1980's ended with nearly a dozen additional constitutions for Latin America and the 1990's started with five new ones (Colombia in 1991, Paraguay in 1992,
Peru in 1993, the Dominican Republic in 1994 and Bolivia in 1995) as well as a
major constitutional reform (Argentina in 1994). Venezuela is the first country in the region that unveiled a new constitution
IN LATIN AMERICA, on the one hand, there are no longer any century-old constitutions: Colombia in 1991 replaced the one from 1886, and the Argentine constitution from 1853 has undergone major fundamental changes, especially at the end of the 20th century. On the other hand, the United States of America continues with its ratified constitution from 1789 and Hong Kong, New Zealand and the United Kingdom don't even have constitutions.
Obviously, the rule of law is not based on the number of laws (if that were the case, Latin America would be a real paradise, albeit only legally), but in the citizens' attitude towards the law. If the constitutions bring development, the Dominican Republic, Venezuela and Haiti would be the most advanced countries in the world by far. Just the opposite is true: the wealthiest countries are those with institutional stability and few constitutional changes. Case in point: the United Kingdom, which doesn't even have a constitution, and the United States, with its first and only constitution since 1789.
Development can't be decreed or written in a constitution. Development is achieved day by day through education and the honest work of responsible citizens within a rule of law that guarantees private property and individual liberties. No one is in any doubt that law and order is better in the United Kingdom without a constitution than in the Dominican Republic with 33 constitutions! While Augusto Pinochet was detained in England for crimes committed in Chile during his dictatorship, the Dominican Republic has never detained one single fugitive banker... not to mention any corrupt politicians (home-grown or imported).
Few good laws and not many bad laws The Latin American constitutional experience clearly shows that the answer to the economic and political crises is not more laws, especially if they are bad and aren't even applied or applicable, but rather having few laws that in turn are good and respected. Laws that aren't institutionalized or respected are useless. As a result, the legal systems in Latin America have become a game of rhetoric where often times the legal doesn't coincide with the just and when it does, is not enforced.
To get out of this labyrinth requires true legal and judicial reforms along with demands from the citizens and the political will to change. The different regional parliaments in Latin America have also failed to achieve good or bad contributions; they have just produced irrelevant ones. However, since the European Union is now debating a constitution for all of Europe, maybe the time has come to reconsider the regional agreements and laws.
THE REAL LEGAL problem is not based on the quantity, but rather the quality, of laws. Globalization is spurring more legal integration. As a result, various national laws - from agriculture to energy - depend more on both the internal conditions and the global situation. That's why more legal coordination at an international level is required. The individual governments don't have the capacity or time to reinvent the wheel. Instead of each national parliament formulating, for example, its own energy laws, it would be more useful to reach regional agreements on the subject. That way there would be less legal contradictions and inconsistencies, although each local government would always have the ability to make specific modifications depending on their unique circumstances but in accordance with the other governments.
The judicial problem is similar to the legal one. The key is the quality and not the quantity of trials and judicial entities. The process has to start by reaching increased independence for the national judiciaries and more cooperation on a regional level. The speed and transparency of judicial processes are key to re-establishing the credibility of the Latin American courts. It is also necessary to guarantee the same treatment for the public and private sectors, and for national and international parties. A true court of justice should have the capacity to equally try a corrupt head of State, a fugitive businessman or a foreign drug trafficker. The same court should also be able to sanction, and be obeyed, in cases involving public or private monopolies or questionable government procurement.
Only then can individual responsibility within a framework of fair national and regional laws be re-established. The rule of law does not require many laws; it just needs good laws that guarantee private property and individual liberties.
José Luis Cordeiro, a Venezuelan economist, is the author of the bestsellers ¿Pesos o dólares? (Mexico), La Segunda Muerte de Bolívar... y el Renacer de Venezuela (Venezuela) and La Segunda Muerte de Sucre... y el Renacer del Ecuador (Ecuador). He can be reached at firstname.lastname@example.org
Originally published January 2, 2002
|LATIN AMERICAN CONSTITUTIONS|
Number of constitutions. Year of effect of current.
Sources: Pesos o Dolares? by José Cordeiro, McGraw-Hill 2000.