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NEW CONSTITUTIONAL TENDENCIES IN LATIN
MANOEL DE OLIVEIRA LIMA,
OF BRAZIL. There exists, and every student of political subjects may easily remark it, a kind of contrast between the newest constitutional tendencies in Latin-America and the public methods followed in the countries belonging to this same ethnical group, more properly to be called Hispanic or rather Iberian America. In these countries, circumstances—the same as in the United States—have been conspiring in favor of the strengthening of the influence of the executive power, whilst their fundamental laws are trying to devise further guarantees on behalf of the independence of the legislative assemblies as chiefly embodying popular will through their respective majorities.
The American Constitution even originally endowed the federal Senate with a sort, we may say, of active participation in the executive functions, which could never more be eliminated and quite recently reaffirmed itself in a conspicuous way. Such a political tradition represents a barrier against possible presidential encroachments, at least in what concerns the management of foreign relations, which is missing in other political organizations where foreign policy is exclusively moulded by the President, not to speak of domestic policy.
Treaties, it is true, are once signed subject to the approval of Congress, but Congress was in fact strange to their elaboration or better the spirit under which they were elaborated and, as regards internal affairs, we meet in the most advanced of the Hispanic-American countries with frequent interventions of the federal authority in the provinces under pretext of safeguarding the institutions—as it happens regularly in the Argentine Republic—and with an ill-disguised meddling of the President in the composition of every new Congress, adjusting to his own tastes or conveniences the electoral results, which on their side are not always the expression of the truth, rather of official pressure.
Hamilton conceived in his time a strong executive in order to prevent national disaggregation, but he certainly did not foresee, when framing his constitutional statute, the military dictators of our continent, nor the civil ones. They have finished by frightening our political communities to such a point that the new constitutions of Mexico and Peru excluded from the presidential function all officers in active service or previous revolutionary leaders.
The French, however, use to say that “il y a avec le ciel des accommodements.” If this is true, there must certainly also be des accommodements with human laws, which may be interpreted according to the circumstances or the preferences of the moment. Revolutionary leaders will never, in most republics, forsake their rights to presidential priority and, in some of them, retired officers have been returned by decision of Congress to their former commands in time of peace, without any motive of war. Yet those symptoms are good; they show at least the diagnosis is being rightly established.
The United States Constitution was more or less imitated by the Hispanic-American countries, even by Brazil when the empire gave way to a republic in 1889. The only government left in the New World with a semblance of parliamentary character—and I say a semblance because Brazil was the only country to have really transplanted the British institutions to the political soil of South America—was Chili. Precisely by the time in which Brazil drafted her new Constitution, of a presidential type, the fierce struggle began in Chili between executive and legislative, led by Balmaceda, who did not approve of either president or congress legally assuming the dictatorship, but insisted on building for his country a system, as he said, of mutual independence on the ground of popular liberty.
The standard of constitutional revision which, as Balmaceda wrote in his political will, had fallen in the battlefield all stained with blood, was raised 30 years later by the actual Chilian President Mr. Alessandri, who wishes to render effective the personal responsibility of the President. This chief magistratè can only
'be now a days indicted by the Chamber of Deputies and judged by the Senate after the term of his function has expired. During his tenure of office his secretaries, like the ministers of a constitutional king—the King of England or the King of Spain for instance-are the ones who assume before Congress the responsibility for their acts, individual or collective.
Such a system shows a lack of logic: in the words of an Argentine professor of constitutional law, Gonzalez Calderon, it corresponds to crowning an extensive personal authority, we may say a dictatorial one, with a Phrygian cap. If the President possesses a strong personality, he is apt to go beyond his legal limitations and to grasp an illegal monopoly of power, becoming a despot in the light of the Constitution because he does not dispose of the right of dissolving Parliament and consulting the nation.
This was what happened with Balmaceda. A legislative assembly, favored with such an immunity, turns easily into a convention and governs by itself against the executive and even against public opinion. Under such conditions we cannot call the Chilian system a true parliamentary government and the best proof of its inconsequence lies in its well-known ministerial instability, producing most frequent changes of cabinet—a pathological condition in the words of President Alessandri, conducive to anarchy:
The actual President of Chili points for the present his weapon towards the Senate, whose political influence he considers excessive and wants to see curtailed in order to make of this house a revising and conservative chamber with its own sphere of action and allowing the executive a similar freedom of movements.
The Senate would so play the rôle of a pouvoir moderateur, like the one wisely conceived by Benjamin Constant to fill the place of the former absolute crown. If Chili suffers from inconstance in the administration through too frequent changes in its high personnel, other Hispanic-American countries, where normality is not as yet the rule, suffer from too prolonged terms of power by a single occupier, and this is the reason why they are trying to provide the presidential system with checks that
may hinder it from going beyond its proper nature and recognized character.
Nearly all the constitutions now in existence in HispanicAmerica have a clause forbidding the re-election of the president for the immediate term, which reveals a suspicion that they may be tempted to use their official prestige for that purpose. In Mexico a citizen can only by virtue of her new Constitution be President once. This clause has however, so to say, a personal feature and does not properly affect the public or political aspect of the case.
The tendency is in fact general to increase the sphere of the central authority and render it not only broader, but more vigorous at the expense of the provincial and specially of the municipal governments. Even in Brazil central authority became more effective, really if not nominally, under the federative republic than it was under the empire which was said to be centralized, its provinces enjoying by law a limited autonomy that was corrected by a traditional feeling of independence, considered less necessary in a democracy.
Another South American country gave, however, through its Constitution of 1920, a decided step in the way to parliamentary government, making cabinets depend on a vote of confidence of the assembly of representatives. Not satisfied with that, the new Constitution of Peru tried, as it were, to restrain the action of the President through a council appointed by the cabinet with the approval of the Senate.
Brazil possessed during the empire a Council of State which helped the sovereign with its counsel and which, composed as it was of first-class men, chosen from the administration or the practice of law, effectively enlightened the public questions with their admirable reports. This Council of State contributed in this way, although perhaps less than the French one conceived by Napoleon, to the framing of the legislation, preparing the bills submitted by the executive to the legislative body.
We are led to ask if all these constitutional changes, which take place in civilized societies and which are the outcome of their progress, are not of a pure academic nature, although answering definite tendencies determined by political events. Every constitutional clause is susceptible, not only of being mis
construed or disused—I am told that in the United States, model for constitutional countries, the electorial franchise is not the privilege of all citizens, and that equality is in a certain sense a delusion—but of being suppressed under too frequent proclamations of a state of siege.
But does this happen exclusively in Hispanic-America ? The last war has taught—it has at least taught mea few things. To begin with, previous to it I thought mankind much better, although not so good as the philosophers of the school of Rousseau considered it. Then I firmly believed in freedom and all of a sudden, when it seemed to me that liberties were most necessary, I saw every one of them suspended : liberty of locomotion; liberty of trading; liberty of industry; liberty of opinion; liberty of communicating one's impressions to his friends, liberty even of thinking and not only of thinking aloud.
The Inquisition, of which some make a charge to the southern countries of Europe, especially to Spain and Portugal, was not more severe nor more inhuman, and it confined its repression to religious heresies. Political heterodoxy was treated just as badly in our times and, in the international sphere, even neutrality was dealt with as a crime of treason against one or the other side of the belligerents.
The greatest surprise I experienced was to verify that such things happened, not in Germany, which school books and daily papers branded as an autocracy; nor in France only, where justice has sometimes been notoriously superseded by patriotism; but in the English speaking democracies, so proud of their traditional liberties, yet as ready as any other to renounce to them in times of trouble, and to allow the notion of state to acquire a Prussian or, let us say in a more flattering way, a Roman appearance, and trample on individual guarantees.
The newest constitutions in Latin-America show, as if to redeem themselves from their eventual political fallacy, a feature hitherto absent from such pacts, even when they assume the name of “ social contract” and are not, as in contemporary Russia, the reflection of a destructive communism. That feature is precisely a socialist one, of a frank antiplutocratic character, comprising all forms of legislation on behalf of the working classes—as is the case with the Mexican Constitution, the result of a social