An Antidote To Constitutional Authoritarian Populism?

Presidential reelection is once more a focal point in Latin American constitutional law. The amendment to the 2010 Dominican Constitution, approved in October 2024, modifies the presidential term to bar future changes that would permit unlimited presidential reelection. This reform opposes the populist trend that argues for the people’s unconditional right to reelect the incumbent president, as witnessed in Venezuela and Chile. However, as cases like El Salvador demonstrate, constitutional design may be insufficient to deter abusive interpretations by constitutional courts.

Presidential reelection in Latin American constitutional law

Latin American constitutional law has a long and conflictive experience with presidential terms, influenced by the historical relevance of charismatic and authoritarian leaders  (so-called caudillos). The region has tended to abolish the constraints on presidential elections through constitutional reforms or, eventually, interpretations of the constitutional courts. Those changes, as happened in Bolivia, have been justified by a sort of “right to be reelected”. In other cases, such as Venezuela, the constitutional amendment has been justified in the populist rhetoric: the people have the absolute right to decide whether the president could be reelected on successive terms.

In 2021, the Inter-American Court on Human Rights (IACHR) issued an Advisory Opinion stating that unrestricted presidential reelection conflicts with the Inter-American Human Rights System (IAHRS) and the Inter-American Democratic Charter. The Court distinguished between the reelection of elected officials, such as deputies, and presidential reelection. While reelection itself does not inherently threaten constitutional democracy, unlimited presidential reelection in successive terms poses a risk, potentially leading to abuses of power.

To prevent those risks, the Dominican Republic amended its Constitution to include limits on presidential reelection in the list of intangible provisions that cannot be amended.

The “poison pills” in the Dominican Republic constitutional reform

The end of Trujillo’s long dictatorship in 1961 paved the way for a democratic transition in the Dominican Republic, with ups and downs. Presidential reelection was a contested institution. In 2010, the Dominican Republic approved a new Constitution that consolidated many of the advances of Latin American constitutional law, particularly regarding human rights and constitutional democracy. The Constitution prohibited presidential reelection, but in 2015, an amendment allowed reelection only for one term (Art. 124).

The 2024 amendment, among other changes, modified Art. 268 according to which “no modification to the Constitution may deal with the form of government which must always be civil, republican, democratic, and representative.” The Article now includes the modification of the “rules of presidential election established in Article 124 of this Constitution”. As a consequence, limits on presidential reelection are viewed as an intangible provision that cannot be amended.

The amendment thus brought forth what certain scholars refer to as “poison pills”:  provisions that bar reforms aiming to lessen or eliminate restrictions on presidential terms.

An authoritarian tale of two countries: Venezuela and Chile

In Latin American constitutional law, there is an apparent tension between the Constitution as the supreme “law of the land” and the supremacy of the vox populi. This tension manifests in the theory of the constituent power as an expression of absolute popular sovereignty that cannot be reviewed. In Venezuela, this theory justified an absolute constituent assembly that, in 1999, severely hindered the foundations of constitutional democracy. Similarly, the recent reform of the Mexican Constitution to overhaul the judiciary has also been considered an expression of the people’s will that, as a result, cannot be reviewed.

In those cases, the supremacy of the Constitution has been substituted by the supremacy of the people. After the approval of the 1999 Venezuelan Constitution, Spanish scholars used the term “neo-constitutionalism”, precisely, to describe a new constitutional model in which the traditional representative government gives way to a participatory government based on the popular will, which is considered the genuine source of political power.

The predominance of the vox populi facilitates constitutional abuses. I have coined the expression “Constitutional Authoritarian Populism” to study an specific case of Landau’s abusive constitutionalism that decimates the foundations of constitutional democracy, boosted by populist rhetoric. In Latin America, presidential reelection is an example of this abuse, with cases such as Bolivia and Venezuela, in which the constraints against presidential reelection were considered a violation of the supremacy of the vox populi.

One mechanism to prevent abusive constitutional amendments is introducing intangible provisions, known in Latin America as “cláusulas pétreas” (petrified clauses). Those provisions cannot be amended because they are considered the backbone of the constitutional system. Any change in those provisions would not be a mere amendment but could amount to a “constitutional dismemberment”, a term Richard Albert uses to describe deliberate efforts to renounce a constitution’s essential characteristics and to destroy its foundations. The second constituency process in Chile is an example of using intangible provisions to constrain an absolute and populist idea of the constituent process. As I explained elsewhere, in 2023, Congress modified the Constitution to regulate the constituent process, including twelve provisions that could not be reformed. Those intangible provisions reflected a theory in which popular sovereignty is bound to fundamental principles.

The 2024 amendment in the Dominican Republic also reflects this theory. Because the modification of the presidential reelection is an intangible provision under Art. 268, the Congress – as representative of the people –  would not be able to reform that rule to allow an unlimited presidential reelection. By including presidential reelection in Art. 268, the amendment follows the IAHRC Advisory Opinion. In a presidential system, reelection is a core component of constitutional democracy as embedded in the Inter-American Democratic Charter. Therefore, to preserve the democratic form of government in the Dominican Republic, it is necessary to curb the constituent power to modify the presidential term.

The limits of intangible provisions: El Salvador

El Salvador helps to understand why intangible provisions are not so intangible. Beyond the constitutional design, an abusive judicial review by constitutional courts could end in illegitimate mutations of intangible provisions.

As I explained elsewhere, Arts. 152(1) and 258 of the El Salvador Constitution include an intangible provision limiting presidential reelection, similar to the new provision in the Dominican Republic. El Salvador goes even further because its Constitution includes another article in which the proposal of amendment initiatives over the presidential term could be considered a criminal offense – Art. 75(4). That architecture has the same purpose as the reform proposal in the Dominican Republic: to shield any attempt to overrule the limits on presidential reelection.

However, an abusive judicial review could dismantle those safeguards, paving the way to a prohibited reelection in an intangible provision. Shortly after the election of the new legislature — under the political control of President Bukele — the justices of the Constitutional Court (the Constitutional Chamber) were removed in an expedited and arbitrary process justified in defense of the people. A few weeks later, the new Constitutional Court reinterpreted the Constitution to conclude that presidential reelection was not prohibited, based on an interpretation that favors the people’s right to choose whether the incumbent president should run for office. Not only did the Constitutional Court adopt an interpretation that introduced an illegitimate mutation. In addition, the mutation modified an intangible provision designed to protect the backbone of constitutional democracy.

The lesson is clear: between poison pills to prevent unlimited presidential reelection and a biased and activist Constitutional Court, the latter prevails. In El Salvador, a constitutional architecture like the one proposed in the Dominican Republic did not work because of an abusive judicial review.

The Dominican Constitutional Court, established by the 2010 Constitution, exercises judicial review with a more limited scope than some ambitious models like Venezuela’s. However, comparative law shows that the Constitutional Court ultimately serves as the definitive protector of democratic guardrais, acting independently as the final safeguard of the presidential term limits.

The perils of the vox populi

Latin America has been considered the “land of populism”. Two conflicting constitutional theories summarize the tendency toward populism in the region. One theory considers popular sovereignty as the ultimate legitimacy: vox populi, vox Dei. This theory paves the way for autocratic leadership (an heir of the caudillos) that, on behalf of the people, justifies its permanence in power by abolishing the presidential term and reducing the quality of checks and balances. Another theory posits that even popular sovereignty is not an unconstrained power, so the people do not have the absolute right to reelect the president. As the IAHRC concludes, due to the constitutional and political powers of the presidential system, an unconstrained reelection model will impair the constitutional foundation of democracy.

Cases such as El Salvador reflect the first theory, in which Constitutional Courts act as “guardians of the people” to introduce illegitimate mutations over the presidential reelection model, regardless of the design of intangible provision. The 2024 amendment of the Dominican Republic moves in the opposite direction, considering that not even the people will justify an unconstrained presidential election, limiting the populist temptation with an intangible provision.

Yet, effective constitutional institutions alone cannot guard against the allure of populist rhetoric. Fostering the independence of the Constitutional Court is just as vital as upholding the constitution design.