FROM THE ‘STATUS QUO’ PROBLEM TO THE ‘FACTIONAL’ PROBLEM CONSTITUTION-MAKING IN VENEZUELA, ECUADOR AND BOLIVIA
Constitutions are perceived as emanating from the popular will. Once in force, a constitution becomes a ‘derived constituent’ power built over an ‘original constituent’ power exercised by the people. But that is a fiction or a founding myth because there is no successful historical case of a first constitution-making process in a modern state engaging the free and fair participation of all or at least the majority of the people in a given community. Not surprisingly, there is a long-standing debate on the rigidity of constitutions addressed or perceived as addressed to protect the interests of a powerful elite (e.g. with rigid clauses to prevent constitutional replacements, perceived as illegitimate tools to protect such interests). More recently, against this background in some places has been postulated that the ‘will of the people’ should be above the established legal order (e.g., by installing participatory democracies). Accordingly, major constitutional changes appear as opportunities for rebuilding a ‘real democracy’, as happened in Venezuela (1999), Bolivia (2006) and Ecuador (2007) under the governments led by Hugo Chávez, Evo Morales and Rafael Correa. In the three cases inequality, social crisis, corruption, and the discrediting of party politics were all evident. The constitutional replacements that took place there sought, in theory, to give citizens back their voice in public affairs. But did they do so? And is it possible to renovate democracy ‘only’ backed by the majoritarian rule? This work analyses, first, the process of constitutional change in relation to four elements: 1) the legal framework, considering the extent to which it was respected, 2) the dispute between political and institutional actors, or the extent to which problems were resolved by consensus or by imposition, 3) the citizens’ voice in the debate, or the extent to which it was taken into account for drafting the new constitution, and 4) the outcomes of the constitution in terms of the activation of mechanisms of participation regulated, or the extent to which they have contributed to empowering the people. As main findings, it is stressed that what was identified as the ‘problem of the status quo’ (i.e. the use by elites of constitutional law to block democratic expression) was overcome but gave rise to the ‘factional problem’ (i.e. the imposition by a group).
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