Rules of the Game: Nicaragua's Contentious Constitutional Debate

September 25, 2007



When the Sandinista Revolution triumphed in 1979, Nicaragua had already gone through10 constitutions, generated and discarded by a succession of dictators and generals according to their political needs.' After overthrowing the Somoza dynasty, the Sandinista National Liberation Front (FSLN) used a variety of revolutionary, socialist and liberal-democratic principles to gradually cobble together a replacement for Somoza's autocratic, per- sonalistic form of government. As revolutionary improvisation gave way to the sober process of consti- tution-making, those principles found form in Nicaragua's current Constitution.

Democratic constitutions don't guarantee a democratic form of government-much less a democratic society-but they provide a framework of rules, moral principles and legitimating beliefs to be drawn on by lawmakers and citizens in times of conflict. They impart a set of first principles to the process of government, which, when effective, provides a democratic and consensual framework for ongoing struggle and debate. These principles, of course, are themselves the objects of debate, and inevitably reflect a preference for--or the dominance of--certain interests and procedures over others. Once legitimated in a constitution, these interests and procedures have great weight in determining the outcome of political, social and economic events. The process of constitution-making is therefore a key part of any transition to democracy.

Nicaragua's current Constitution began to be crafted in 1985 with the appointment of a Special Constitutional Committee composed of representatives from all seven of the political parties holding seats in Nicaragua's elected legislature, the National Assemby. The committee was divided into three subcommittees which spent a year studying options and preparing an initial draft. The Subcommittee on National Consultations sought the opinions of political parties, religious groups, business groups, labor unions, women's organizations and ethnic groups about what should be included in the Constitution. The Subcommittee on International Affairs traveled to a number of Latin American and European countries including seven Communist countries-to compare different constitutional laws and political systems. (As members of the subcommittee, they were denied visas to the United States, though as "independent scholars," several attended a seminar on constitutional law held at Princeton University.) The Subcommittee on Constitutional Affairs then drew on these findings to compose the first draft of the Constitution. The draft was issued on February 21, 1986. Some 150,000 copies were circulated throughout the country, and submitted for public discussion in 73 open forums organized by region and social sector. The draft was then revised, and submitted to the legislature for debate in full session, an event widely covered by the local press. The final draft was approved on November 19, and took effect on January 9, 1987. No electoral ratification was required.


Given the acute social polarization in Nicaragua, a remarkably high level of consensus on the final draft was reached within the National Assembly. Of the 202 articles in the Constitution, 58 received unanimous approval, 117 passed with at least 80% of the votes, and 19 others with 70%. One hundred and sixty-five articles were approved by at least half of the 34 opposition-party representatives.[2]The document as a whole was endorsed by 89 of the 96 delegates in the National Assembly.

Constitutional scholars point out that several strategies can be used to construct workable-and democratic constitutions in highly conflictive situations. [3] To begin with, the text may contain and even combine divergent ideological principles at high levels of abstraction, although they may be incompatible in terms of their logical consequences. Second,' programmatic provisions, which express objectives for future government action but do not specify the legal precepts necessary for immediate application, allow thorny issues to be postponed for discussion at some future time in a different, less confrontational arena. Finally, the most conflictive issues may be suppressed altogether lest they torpedo progress in areas that are ripe for com-promise.
These strategies, of course, are not without their dangers. Excessive use of conflicting principles and programmatic clauses gives legislators wide discretion in interpreting the constitution at a later date through ordinary law. In the absence of such interpretive legislation, governments may proceed as they choose, sometimes overtly in contradiction to the constitution.[4] In such cases, the constitution simply lacks force, and it is doubtful whether constitution- making can be said to have advanced the transition to democracy at all.

The 1987 Constitution is peppered with conflicting principles and programmatic clauses. The FSLN openly advocated an unconstraining constitution made up of general principles in keeping with both socialist rhetorical and U.S. constitutional traditions. By combining principles of representative and participatory democracy, of socialism and capitalism, and of inter- national law and nationalism, the Constitution appealed to a broad audience. [5] The question of how these conflicting principles would be reconciled in practical terms was left to be worked out later through ordinary law. In addition, scattered throughout the Constitution are programmatic clauses, beginning with phrases like "in the cases established by law," and "as determined by law," which postponed debate about the details of the political system and which provided openings for the National Assembly to inter- pret the Constitution. The Sandinistas were slow to generate such interpretive laws, but in the 1990s these mixed principles and programmatic clauses have provided a toe- hold for the governing National Opposition Union (UNO) as it has sought to implement a new political agenda. Another factor facilitating the production of the 1987document was the limited range of opposition groups at the table. Having boycotted the 1984 elections, the political parties in the right- wing Coordinadora Democrfitica opposition alliance had no seats in the legislature. Since the National Assembly also served as the Constituent Assembly, the Coordinadora didn't take part in the constitutional debates. The compromises represented in the final document only extended to the so-called "parliamen- tary opposition," the centrist and left-wing opposition parties which had participated in the 1984 elections and held seats in the legislature. The Coordinadora represented the business sector and remnants of the historically strong Conservative Party. It also had important allies in the Catholic Church and the influential newspaper La Prensa. Significant sectors of Nicaraguan society were thus excluded from the constitution-making process.
Not surprisingly, the Coordinadora denounced the

Constitution, and in December of 1987 demanded 17 substantial constitutional reforms.[6]Throughout 1988 and 1989, the FSLN consistently refused to discuss these reforms with opposition leaders. In August of 1989, rules for the elections were agreed upon at a National Dialogue among all 21 of Nicaragua's par- ties. The opposition dropped its demand that constitutional reforms be implemented prior to the elections. Instead, the UNO coalition, representing 12 parties drawn from both the Coordinadora and the parliamentary opposition, incorporated these demands into its campaign platform as a rallying point for its ideologically diverse constituents. Virtually all these reforms remain on the UNO political agenda.

Nicaragua's 1990 elections, in which voters delivered an upset victory to the conservative. UNO led by Violeta Chamorro, fundamentally changed the strategic environment in which the Constitution operated. The elections themselves, for example, partially allayed concerns over whether or not the Constitution provided adequate guarantees of due process, civil liberties, and human rights. At the same time, a new struggle over the division of powers emerged among the branches of the state. During Chamorro's first three years in office, the Constitution has become a battleground for political actors seeking to shape state institutions in ways which will further their interests. The branches of state have fallen under the influence of different actors with divergent political agendas, and each actor has tried to strengthen the institution in which it has the most influence.

Within months of taking office,
 the UNO government challenged the preponderance of Sandinista appointees on the Supreme Court. The Constitution specifies that there should be seven or more Justices, appointed by the National Assembly from a list proposed by the President. No ceiling is mentioned, leaving the judicial branch vulnerable to court-packing schemes. All seven of the original Supreme Court Justices were Sandinista appointees, appointed to six-year terms.

In July of 1990, the National Assembly made changes in the Organic Law of Courts that increased the number of Supreme Court Justices from seven to nine. What was initially expected to be a contentious debate in the National Assembly went smoothly, with proposals for a 15-member Court defeated by col- leagues within the UNO in exchange for Sandinista support for the increase to nine Justices. At the same time, two Sandinista Justices suddenly resigned their positions on the Court, leaving a total of four seats open on the nine-member Court. These openings were filled by people without current links to any party, although some were historically members of parties within the UNO and maintained personal contacts there. This nine-member arrangement bears all the marks of a political pact. It appears to have been the product of negotiations between the executive, the legislature and the Court. Chamorro's chief legal advisor recalls:

It was necessary to appoint different people, to balance the Supreme Court. There were negotiations there by certain people so that two of the Justices resigned and made space for new ones to enter and balance the Court, to be left with an independent Court. Obviously this was a political accord between the three powers.[7]

The influential former president of the National Assembly, Alfredo Cesar, continually insisted that no Sandinistas would be chosen to serve on the Court when the legilature-under his control-made new appointments. Both Cesar and Roger Guevara Mena, Vice-President Virgilio Godoy's legal advisor who reflects the reactionary current in the UNO, argue that SandinistaJustices on the Court are subject to party discipline and thus cannot make independent decisions free of partisan influence.8 By this logic, the entire left-wing of Nicaragua's political spectrum-all parties practicing party discipline—could become permanently excluded from the court.

Four of the five Sandinista appointees come up for reappointment this December, and the fifth in April. The composition of next year's Court will depend on the on-going power struggle in

the legislature [see "Who Controls the National Assembly?" p. 23]. Cesar and the right wing represented by Godoy are boycotting the National Assembly, which is now controlled by the FSLN and its weak alliance with the UNO Center Group. This is a situation very different from the years of the Cesar-dominated Assembly. If the boycott drags on through December, then the FSLN and the Center Group alliance will be in a position-without negotiating with the Right-to name the four Court members who will replace its cur- rent appointees. The UNO will clearly not accept this as legitimate, and neither will the Court. On the other hand, the FSLN does not consider legitimate Cesar's proposed scenario--no Sandinistas on the Court.

Article 162 of the Constitution states: "Judges L shall serve for a term of six years and may be I dismissed from their position only for reasons determined by law. Judges enjoy immunity." The National Assembly is empowered in Article 138 to "consider and acknowledge the resignation or dis- missal of Judges of the Supreme Court of Justice, of Members of the Supreme Electoral Council or the Controller General of the Republic."[9] When the Sandinistas were in power, they did not draft a law to regulate dismissal proceedings against Supreme Court

 The UNO legal advisory in the National Assembly has advanced two unofficial proposals for such a law. One version would specify in detail the causes for dis- missal. According to press reports, it lists behavior such a drunkenness and gambling as reasons for starting dismissal proceedings. While this specificity may protect Justices from arbitrary dismissal, many politicians have rejected its list of unseemly behavior as crude and insulting to the Supreme Court members. A second proposal is more general, leaving room for interpretation and politicization of the law. It states that Supreme Court Justices may be dismissed for "bad performance" and "public conduct contrary to morality and respectability."

The members of the Court are unified in their opposition to the National Assembly's claim that it has the power to dismiss them. A conservative Justice terms this a "dangerous pretension," arguing that the Assembly "has the power to consider but not decide. What the Assembly can do now is lift the immunity of the Justices, but once it is lifted, the matter goes to the common courts because the courts determine guilt."1 0 Others go further, suggesting that the proposals circulating in the UNO are unconstitutional. Justice Rafael Chamorro Mora, a Sandinista appointee, explains:

The Assembly wants to impose the causes for dismissal of Justices of the Supreme Court and at the same time take initiative toward dismissal of Justices of the Court and also judge if the initiative is valid or not. We think that this is unconstitutional because nobody can accuse someone and judge him at the same time.[7]

The National Assembly and executive branch are already in a position to punish Court members for unpopular decisions by not reappointing them when their terms are up, but a dismissal law might allow for more immediate repercussions. Supreme Court votes are a matter of public record, leading Justice Chamor- ro Mora to worry that Court members might be target- ed for removal, based on how they vote on controver- sial issues. With the threat of dismissal hanging over their heads, Supreme Court Justices could find it diffi- cult to maintain the Court's institutional independence.
The unified stance of conservatives and Sandinista

appointees on the Court against the UNO proposals makes them seem somewhat a dead letter. If the dis- missal draft is introduced into the Assembly and passed into law, it will surely be challenged in court and overturned as unconstitutional. But even this is controversial. Conservative thinking on the legitimacy of the Court's right to judicial review is mixed [see "A Test of Judicial Authority," p. 25]. At least some conservatives feel that since the Court has no direct constituency, it is undemocratic to allow it to overturn executive decrees or laws passed by the National Assembly. "A court," opines Guevara Mena, Godoy's legal advisor, "cannot impose obstacles to legitimate representation because the magistrates of the Supreme Court do not have popular representation. Rather, it is a second-level election, and all second-level elections occupy a secondary position in terms of legitimacy."'[12]

Increasing the independence and effectiveness of the judiciary, however, is a frequently articulated goal in transitions to democracy. Historically, the Nicaraguan judiciary has been firmly under the control of the executive branch. Even now, warns Supreme Court President Orlando Trejos, "sectors with a recognized and undoubtedly democratic ideology are pro- claiming the establishment of a dictatorship, suggest- ing and almost urging that the Executive Power take the 'reins' of the Judicial Power."[13]

The most direct way to resolve conflict over the division of powers in Nicaragua would be through constitutional reform. Immediately following the 1990 elections, the UNO drafted a reform bill which contains virtually all the old Coordinadora demands for constitutional reform. The bill would prohibit presidential re-election or election of the president's family members; set new criteria for appointment to the Supreme Electoral Council; change the way Supreme Court magistrates are appointed to allow consultation with the bar association, university law schools and the Court itself; regulate the jurisdiction of military courts; limit presidential power over the budget and the organization of state ministries; remove the word "Sandinista" from the name of the army, and prohibit military personnel from voting; abolish the Preamble because it establishes a special relationship between the FSLN and the state; allow conscientious-objector status; further distinguish the state from the FSLN by establishing national symbols and by prohibiting use of state facilities and resources by political parties; redefine diplomatic immunity; and finally, establish a tribunal to "consider and decide conflicts between the powers of state, between municipalities and the central government, and between the Autonomous Region of the Atlantic Coast and the Central Government."[14]

To date, no constitutional reform bill has been introduced in the legislature. This February, Daniel Ortega proposed abolishing Article 96, which established compulsory military service.[15] The proposal has been accepted-with some dissent-by the FSLN, and hearings have been held in the Assembly, but given the current legislative impasse, its fate remains uncertain.

The key obstacle to constitutional reform is the distribution of seats in the National Assembly. Even counting on the elusive unity between right and center, and on the two independent votes in the Assembly, the UNO can-at the very most-muster 53 of the 55 votes required to reform individual articles of the Constitution. Since the Sandinistas practice strong party discipline in the legislature, the UNO is obliged to persuade the FSLN as a party that reforms are worthwhile, or fail in the venture. While this makes reform difficult, it also means that, were a reform to be passed, it would represent a pact among a broad spectrum of Nicaraguan political parties. Such a pact could help to consolidate Nicaragua's developing democracy.

All Nicaragua's major actors have a stake in the Constitution for the first time since its incepion. The Constitution underlies the UNO government's legitimacy, and gives President Chamorro authority over the army despite its Sandinista sympathies. The Sandinistas need the Constitution as never before to defend their civil rights and to protect their political project. As the four branches of government compete to protect and increase their areas of authority they do so increasingly in constitutional terms. Conflict over the division of state powers is not a new element in transitions to democracy. But it is interesting to see how that conflict is expressed and resolved in different cases. In the absence of constitutional reform, the struggle over the division of powers has manifested itself in the passage and reform of ordinary laws like the Organic Law of Courts. Ironically, in the 1986 constitutional process, it was Sandinista politicians in search of a minimal political consensus with which to institutionalize and legitimate the revolutionary regime who wrote a constitution riddled with programmatic clauses and conflicting principles. In doing so, they exposed it to interpretation by the UNO-dominated National Assembly, which threatened to chip away at the remnants of the revolutionary regime using precisely those compromise pro- visions which were expected to preserve it. The question "How will the UNO govern in light of continuing Sandinista strength?" has been partially answered: "By finding cracks in the Sandinistas' institutionalization."

In the course of the struggle over the constitutional division of powers, political democracy has on occasion been served. The Supreme Court has ruled two Presidential decrees unconstitutional, and had its rulings respected. The Court's membership has been changed through a pact, suggesting broader backing and legitimacy for the Court. Supreme Court Justices uniformly assert that their decisions are based on juridical rather than political criteria. Media coverage of the new policies seems to have raised citizens' awareness of the guarantees provided in the Constitution. Many citizens active in politics-to preserve or to change the status quo-are now using the Constitution as a point of reference.

Off-setting these positive developments, the Court's independence is threatened by proposals to dismiss Justices for uncertain causes, and by the efforts of some UNO members to pack the Court by raising the total number of justices beyond the current nine. The use of the Constitution to promote immediate partisan interests is perhaps eroding its legitimacy as a foundation for the evolving political democracy. Above all, Nicaragua's polarized political climate makes it difficult to reach a compromise on constitutional reform. In the absence of fundamental agreements on economic and social issues, it is by no means clear that Nicaragua's political institutions can contain the deep conflicts that once fueled revolutionary and counter revolutionary wars




Read the rest of NACLA's Sept/Oct 1993 issue: "Peril And Promise: The New Democracy in Latin America."

Tags: Nicaragua, democratization, Constitution, politics, Sandinistas

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