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10.20.2009

Term limits declared unconstitutional in Nicaragua

Current Nicaraguan president Daniel Ortega, elected in 2007 for a 5 year period, filed an amparo suit before the Constitutional Chamber of the Nicaraguan Supreme Court arguing that a 1995 constitutional amendment that imposed limits to indefinite reelection violates his constitutional rights. The Constitutional Chamber decided yesterday that it is unconstitutional to prohibit the reelection of the president of the Republic.

Daniel Ortega is the former leader of the Frente Sandinista de Liberación Nacional (FSLN), the liberation army that fought against the long dictatorship established in Nicaragua by the Somoza family. After the transition to democracy in 1985, Daniel Ortega was elected president for a 5 year period until 1990, when his party lost the election against the opposition lead by Violeta Barrios de Chamorro. It took Daniel Ortega seventeen years to go back to the presidency and now it seems that his plans are not to leave it that easily. Ortega was trying to get the necessary votes in the National Assembly to reform Article 147 of the Constitution and allow for his reelection, but was simultaneously pursuing a judicial strategy, which now seems to have worked best.

In declarations for a local newspaper, the president of the Constitutional Chamber, Rafael Solís, argued that their decision was supported by similar recent decisions by the Costa Rican Constitutional Chamber (the well-known Sala Cuarta, that made possible the re-election of current President Oscar Arias) as well as the decision by the Colombian Court allowing for the re-election of current president Álvaro Uribe. The Nicaraguan Supreme Court en banc, composed by sixteen magistrates, still has to ratify the decision made by its Constitutional Chamber.

JRF

6 comments:

  1. I wonder what was the nature of the legal argument? It is often claimed, with some justification, that term limits are undemocratic. I wonder if that was the argument or if there was a more specific basis in the Nicaraguan constitution?

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  2. I have not seen the decision of the Constitutional Chamber, thus I don't know the details of the legal argument. What has been reported in the news is the argument made by Daniel Ortega: basically that term limits were against the principle of equality before the law, as well as his right to elect someone and to be elected, as established in the universal declaration of human rights. The news reports that mention the judges' arguments basically repeat the argument made by Ortega. (By the way, the amparo was filed by him and other 109 elected local officials (i.e. "alcaldes"), also from the FSLN).

    This is an intriguing case of which I think we will here a lot more in the following days, given the many tricky issues around it. For instance, the case was decided in one day (when other amparos can actually take years to be solved). In addition, the majority in the Constitutional Chamber that decided the case was composed of only those judges known to be close to Ortega and the Sandinistas; other judges in the chamber known for their opposition his policies were not summoned in time for the session during which the case was decided. Moreover, it was known that Ortega was looking for the necessary votes to amend the constitution to allow term limits, but he was finding many opponents. In that context, in a matter of days (the amparo was filed on October 15th, received by the Constitutional Chamber yesterday and on the same day decided by this Chamber) the Gordian knot of term limits in Nicaragua was cut by the Constitutional Judges.

    I will keep track of this event, and write updates in future posts. In the meantime, for those interested who read Spanish here is a link to a local newspaper article with many interesting details:
    http://www.laprensa.com.ni/archivo/2009/octubre/20/noticias/nacionales/355628.shtml

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  3. I would be fascinated to hear what the rationale was for striking down a consitutional amendment. I can think of two main possibilities:

    (1) The 1987 constitution expressly forbids certain kinds of amendments (perhaps including any derogation from 'equality before the law').

    (2) The Constitutional Chamber decided that certain amendments are implicitly unconstitutional. (Along the lines of the approach of the Indian Supreme Court with its "basic structure" doctrine).

    Striking down constitutional amendments is problematic for obvious reasons, as it conflicts with the democratic right of the people to decide on the provisions of the constitution under which they are governed.

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  4. A sneak-attack decision by a packed court. Using the amparo procedure as a means of filing a personal request with the court. Remarkable. Ortega is nothing if not both clever and resilient.

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  5. Thank for posting this, Julio. I heard about the decision yesterday. Although the ruling doesn't surprise me too much, I was also astounded by how quickly they decided the case. I understand the President of the Chamber called alternate members to fill the seats of the three Liberal-affiliated justices and thus obtain a solid 6-0 ruling for the petitioners. Since there are already several 'mega-politics' (Hirschl dixit) cases of judicially-blessed reelections around, and there are more to come (Paraguay might be the next case if Lugo finally manages to get 'his' Court, see http://www.eluniverso.com/2009/02/01/1/1361/F8515EE86118478EB7D2A9801BD3318B.html), I think they deserve further inquiry.

    On the other hand, in these salient cases in clientelar and weakly institutionalized systems, judges tend to follow their political loyalties reflecting the disagreements taking place in the political arena: This was the case in Venezuela in most politically-salient cases in the old Corte Suprema during the deterioration of democracy (pre-2000) and in the Tribunal Supremo after the Chavista coalition broke apart, before the Court was finally packed (2002-2004).

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  6. I don't think anyone would say term limits are essential for a democracy, but once you have the rule in place it sends out a very bad signal with regard to stability and the rule of law if one does away with it for expediency.

    IMO a law abolishing term limits should be framed so that it applies only to future presidents and not the incumbent. (Of course for most presidents who sponsor these laws that would be beside the point.)

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