People should have the power to create a new constitution whenever they wish, but very few countries actually allow that to happen, according to Law lecturer Dr Joel Colón-Ríos.
Victorious Autumn 2014
“Underlying this is a fear in many societies that if people are given the power to bring about important constitutional changes outside the ordinary institutions of government, they will make bad choices.”
He says there is often a clash between constitutionalism, “which in the last instance is about telling people the things they shouldn’t do”, and democracy, “which is about telling people they can govern themselves in any way they want”.
“My research interest is looking at ways in which different constitutional systems deal with this tension.”
The traditional approach, followed by countries such as the United States, Canada and Germany, is to have a written, and supreme, constitution that cannot be changed by mechanisms such as popular initiatives and referendums.
A handful of other countries, including New Zealand, have no supreme constitution but allow Parliament to make constitutional changes without the direct intervention of the people.
Puerto Rican-born Joel is interested in a third way, currently followed by just three Latin American countries, which he says comes closer to achieving the ideals of both constitutionalism and democracy.
Bolivia, Ecuador and Venezuela have created a process that allows for the constitution to be reformed or rewritten ifthere is enough popular demand.
In these countries, if a percentage of eligible voters (which ranges from 12–20 percent in the three countries) sign a petition, government is required to call a referendum on whether a special assembly should be convened to rewrite the constitution. The new constitution must then be ratified in another referendum.
“This procedure has never been used,” says Joel, “but it’s interesting to see the emergence of constitutions that allow for their own replacement, albeit through highly democratic procedures. Usually, constitutions aspire for the opposite—to be permanent.”
Joel says that because these Latin American constitutions were adopted after much controversy, “they tend to be regarded with suspicion and as temporary anomalies”, but he thinks their approach has a lot going for it.
“It provides a check on government—elected officials have to be careful because they know the people can replace the entire constitutional order at any moment.”
Joel is the author of Weak Constitutionalism: Democratic Legitimacy and the Question of Constituent Power, published in 2012, and is now working on his next book. Its focus is the way in which judges, government officials and citizens have used, and do use, the concept of constituent power in different legal contexts.
“A common perception is that constituent power, or people power, is the type of power that is exercised in a revolution or coup d’état but actually the concept has been present in legal discourse for several hundred years and has been used to both justify acts and limit political power.”