Constitutional Reform in Latin America

Introduction

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From the mid-1990s to the present – a period of three decades – there has been almost constant constitutional change in Latin America. Some of that has involved what can be called big ticket changes: the drafting and approval of entire new constitutions through the election of constituent assemblies, the holding of referenda, and the mobilisation of special congressional majorities. Time and effort have also gone into much more piecemeal changes – the bit-by-bit amendment of constitutional clauses through congressional votes. Most major recent government reforms in areas such as pensions, energy policy, crime and criminal justice, as well as others, have all required constitutional amendments.

An initial question to pose is whether the constitutional changes of that three-decade period shared common characteristics. According to Rodrigo Uprimny, a constitutional expert at the Universidad Nacional de Colombia, they did, at least up to a point. In terms of dogma and ideology, Uprimny identifies at least nine shared themes. One is that the new constitutions are reassessing the meaning of national unity, rejecting a homogenised view of culture for a greater appreciation of its multiethnic and multicultural dimensions. Two, religion and the Catholic Church are less central than they used to be, with new constitutions occupying more secular ground and recognising other religions. Three, traditionally discriminated groups including indigenous and black communities now get greater protection, particularly so in the Ecuadorean (2008) and Bolivian (2009) constitutions, which also recognise indigenous languages.

Four, there is a focus on expanding citizen rights beyond traditional civil rights (privacy, due process, freedom of expression, the right to vote), to include rights to education, housing and health, the right to the environment, and the rights of nature also known in Andean indigenous culture as Pachamama. Five, the new constitutions are more open to the incorporation into the domestic legal system of international human rights treaties. Six, recognition of greater openness to multiculturalism in law has to some extent eroded the central role traditionally played by law and government regulation.

Seven, the new constitutions promote equality on grounds of race and gender; some in addition order affirmative action policies to ensure that such equality is effectively achieved. Eight, some countries now speak of a “state of justice and rights” and seek to move beyond the traditional European definition of the functions of the state. Finally, nine, to avoid being purely rhetorical in nature, many countries have included “protection and warranty” mechanisms to try and ensure rights are honoured in practice. These include the creation of ombudsmen and affirming the power of courts to issue writs in defence of fundamental rights, known as acciones de tutela.

Apart from the more ideological angle, Uprimny also looks at changes in the content and functioning of new constitutional mechanisms. Here, he first highlights attempts to strengthen democracy (which he attributes to a reaction against the military dictatorships of the 1970s and 1980s). This is backed by the growth in direct democracy mechanisms such as popular consultations and referenda, but also the creation of citizen bodies, empowered for example to scrutinise the management of public services. Secondly, he notes the grant of greater autonomy to electoral authorities, and thirdly, a much greater emphasis than before on decentralised government. Regional inequality has been an important recurring issue, particularly in countries where high-value mining or oil and gas development is seen as unfairly benefiting the citizens of one area at the expense of others.

Fourthly there have been efforts to increase constitutional oversight, for example by the creation in Venezuela of an entirely new branch of power, called “citizens power”. Colombia’s constitution created new bodies of control, including a public ministry (prosecutor general and defender of the people) and a controller general. Fifthly, there have been efforts to strengthen a perceived weakness – the functioning of the judiciary. This reflects the perceived need to increase the efficiency of crime prosecution and conflict resolution, but also to bolster judicial independence. It included efforts to reduce political manipulation of the appointment of judges, by creating autonomous bodies charged with “hiring and firing” top magistrates. In sixth place, Uprimny notes a desire – up to a point – to reduce “presidentialism”, the reliance on a strong executive power.

There were indeed some new limitations imposed on the powers of Latin American leaders, although these fell short of constituting a parliamentary or prime ministerial model along European or Canadian lines. A somewhat chequered story also unfolded around term limits. In the 1990s and 2000s, strong leaders including Carlos Menem (1989-1999) in Argentina, Fernando Henrique Cardoso (1995-2003) in Brazil, Alberto Fujimori (1990-2000) in Peru, Álvaro Uribe (2002-2010) in Colombia, and Hugo Chávez (1999-2013) in Venezuela all enjoyed consecutive re-election, where necessary changing the constitutional rules to make that possible. However, in more recent times constitutional amendments have sought to ban consecutive re-election.

Finally, in seventh place Uprimny highlights a tendency to grant powers to autonomous state agencies carrying our regulatory and audit roles across various areas of economic activity. More recently this has been rejected in some cases such as in Mexico in 2024-2025. Some experts have in any case argued that the existence of autonomous bodies, depending how they are set up, may conflict with the traditional distribution of three powers – executive, legislative, and judiciary. In terms of overall conclusions, Uprimny argues that the new wave of constitutions has played its part in the dramatic shrinking of authoritarian military rule across the continent, a “profound change” compared to the high frequency of military coups in the 19^th and 20^th centuries. As a consequence, he asserts that “Latin America is now enjoying its first true wave of constitutionalism.”

At this point in the discussion, it may be useful to make several qualifications. Latin America is not politically or socially uniform, and even in an age of democracies, it follows that the constitutions written by different countries will have points of divergence. To take one example, the constitutional importance of indigenous communities will vary somewhat, according to their numerical presence and history in any given society. There are clearly important common themes in regional constitutional writing, but these should not be over-emphasised. It is also worth remembering that the pendular political swings between left-wing and right-wing governments may also play an important role. Although constitutions often play a stronger role when they are perceived as being impartial and apolitical, the reality is that all new constitutions or constitutional amendments have been drafted, negotiated and approved at one time or another, as part of some kind of politically motivated project. Different projects will produce different texts, not only between different Latin American countries, but between different periods of time within the same country.

It is also worth noting that a recent period of largely centre-left rule across the region (the so-called “pink tide”) is beginning to wane. A “new right” has emerged around Western Hemisphere leaders like Donald Trump in the US (who was in office in 2017-2021 and returned to the White House for a second, non-consecutive term starting in January 2025). Similar thinking far-right leaders are present in Europe, among them Viktor Orbán of Hungary (in office since 2010), and in Latin America, where the rollcall is led by Jair Bolsonaro of Brazil (2019-2023), Javier Milei of Argentina (since 2023), and Nayib Bukele of El Salvador (since 2019). On the one hand these new leaders are fighting against a system of constitutional checks and balances designed to limit their power. On the other, over a medium-term future their much more conservative ideas, for example on issues like abortion, marriage, and gender, are likely to influence future constitution-writing. Just as there is a political pendulum, so there may be a constitutional one, which comes into operation after a time lag of some years.

Case study: Chile’s expensive deadlock

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Chile has been widely seen as home to one of Latin America’ s most rigorous and well-organised attempts at constitutional reform. It dominated political discourse in the country and ran across four years (2019-2023). Yet despite all the time and effort invested, the effort ended in failure. The country remained stuck with the little-loved 1980 constitution.

The background

In October 2019 a student demonstration against increased fares on the metro, Santiago’s urban railway system, rapidly escalated into an outbreak of both peaceful and violent protests which rippled across the entire country, lasted five months and was baptised as the estallido social or “social explosion”. On 25 October 2019, a record two million people took the streets of Santiago and other cities to register their protest. Issues fuelling deep popular anger included sharp inequalities of income, poor education and health provision, and inadequate privatised pension schemes. Faced by a fundamental challenge to the entire political system, in November of that year Chile’s main political parties said they had come together to convene a far-reaching constitutional reform process. This would replace the existing constitution, written in 1980 by an unpopular military dictatorship. A further sign of radicalisation of public opinion came in the general elections of late 2021 when voters chose a young left-wing politician, Gabriel Boric, to replace the right-wing incumbent, Sebastián Piñera.

What happened?

Support for constitutional change likely reached a peak around October 2020 when in the “entry” referendum, nearly 80% of voters supported the election of a constituent convention as the best mechanism for drafting the new document. In relation to matters of content, a coalition of elected left wingers, environmentalists and independents who between them controlled a majority in the convention, drafted what was seen as a very radical document. It proposed far-reaching changes to water, mining and environmental rights, including sweeping restitution of indigenous lands.

As time progressed however, support for some of these changes began to erode; when it was submitted to an “exit” referendum in September 2022, this constitutional draft was convincingly rejected by 61.9% to 38.1% of voters. The country’s political parties then agreed to try again, using appointed constitutional experts who submitted their draft to a new, specially elected constitutional council. These two bodies were significantly much more conservative in complexion and outlook than those that went before them. But the resulting new constitutional draft, which upheld traditional property rights and was more favourably disposed to private enterprise, was rejected in the exit referendum of December 2023 by 55.8% to 44.2%. President Boric said the result showed that Chile’s politicians had been unequal to the task of delivering a new constitution at a time when voters wanted “more dialogue and consensus”, a comment seen as directed at the far right Partido Republicano (PR) which was seen as obstructing the attempt at reform.

Looking forward

With draft constitutions rejected by both right and left, President Boric has in effect been left with no place to go. Boric is serving a four-year term which runs out in March 2026, meaning there is no room for a “third time lucky” attempt, particularly given the criticism he is receiving on other issues such as crime and migration. The existing constitution does not allow consecutive presidential re-election, so it will be left to Boric’s successor to decide next steps. These are likely to include the option of continuing to rely on the modified and updated version of the 1980 constitution.

Partial reforms (which require the support of four-sevenths or more of congress) are more likely than a complete re-write. Chile’s politicians will also be aware that prolonged uncertainty over the constitution undermines business confidence and delays investment decisions. US ratings agency Fitch praised Chile for responding to the “social explosion” by using institutional mechanisms but added that “the preparation and then rejection of a proposal for radical constitutional change, followed by the failure of a much more conservative proposal, highlights both political fragmentation and polarised public opinion, weakening governance.”

Several conclusions have been drawn from the failure of Chile’s constitutional reform. Patricio Navia, professor of political science at the Diego Portales University, said the experience shows that “fixing a constitution is a better way to move forward than starting anew.” Navia also says constitutional reform is not “a magic pill solution” for the discontent with democracy and inequality that triggered the social explosion. The government and the left, in his view, must seek to introduce gradual and sensible reform within the framework of the 1980 constitution.

Sebastián Soto, a professor of law at the Pontificia Universidad Católica de Chile argues that Chile’s failure to build a new constitution reflects various factors including “constitutional fatigue” amidst an electorate wanting to see practical solutions to their problems rather than highbrow conceptual debates.

He also notes political parties failed throughout the process to build a meaningful consensus, and that the far-right PR deliberately sought to torpedo the process. There is also an intriguing point – that in Chile’s history of “yes/no” referenda, independent of the issue at stake, “no” has always won, which may reflect generalised anger aimed at the political elite. Soto also makes the point that political context may be more important than the actual text of a new constitution. Others have noted that Chile has always experienced left-to-right pendular swings in public opinion; in this case these seem to have worked against the constitutional change process. As public opinion swung round, a “window” for reform opened, but then closed.

María Carrasco at the London School of Economics (LSE) highlights a big increase in the number of people who actually voted in the second referendum. Voting was obligatory in the second referendum but not in the first. As a result, the participation rate nearly doubled from 50.9% to 85.8%. In total she calculates that an extra 4.8m people voted, who had not done so before. She argues that this group had a defining impact, and that its cultural values remain influenced by the existing inequalities in Chilean society rather than the more idealistic approach favoured by those who submitted the first and more “progressive” draft.

How to measure constitutional success

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Measuring the success of a Latin American constitution is not straightforward, as there are many different criteria that could be applied, and a large proportion of them are subjective. It might be argued that a successful constitution is one which provides a clear and trusted framework for the resolution of conflicts relating to political power and key social and economic issues. Longevity might also be a factor since a situation where a constitution must be constantly re-written suggests all is not well. Yet on the other hand, an extremely long-lasting constitution may have lost relevance to the modern state. Protecting citizens’ rights in reality, rather than just on paper or in rhetoric, might be a consideration. A constitutional promise to defend labour rights or pay a minimum wage may be seen as devalued if over 40% of the work force is informal and is, in fact, not protected at all.

A solution to these difficulties may involve dropping the narrow focus on the constitution on its own, and instead adopting a somewhat wider frame of reference – for example by looking at the overall strength of democracy, a form of organisation supported or countered by a whole range of other factors, including the constitution, but also involving the role of independent media, the rule of law, the autonomy of judges, the strength of civil society organisations, and so on. Fortunately, various thinktanks and non-governmental organisations focus on these issues and publish regular rankings of democracies.

One such is Bertelsmann Stiftung, a private foundation based in Germany which every two years publishes the Bertelsmann Transformation Index (BTI). In the 2022 report, countries are ranked according to five criteria: 1) stateness, 2) political participation, 3) rule of law, 4) stability of democratic institutions and 5) political and social integration. These criteria are also used to classify countries into various classes: democracy in consolidation; defective democracy; highly defective democracy; moderate autocracy; and finally, hardline autocracy.

BTI’s 2022 Political Transformation Global Ranking of Latin American and Caribbean Countries

Source: Created by Congressional Research Service using Bertelsmann Stiftung’s 2022 Transformation Index

In its 2022 report Bertelsmann said there had been a “steady decline in the quality of democracy” in Brazil over the previous 10 years and that in Mexico “organised drug crime and the increasingly brutal fight against gang activities have undermined the quality of democracy.” The report spoke of “long term autocratisation trends”. However, it highlighted Chile, Costa Rica, Uruguay and Jamaica as countries that have maintained high levels of democracy over the last 20 years in the face of “myriad challenges”.

The London-based Economist Intelligence Unit (EIU) has been compiling a “Democracy Index” since 2006. It uses 60 indicators grouped into five categories. These are: 1) electoral process and pluralism; 2) civil liberties; 3) the functioning of government; 4) political participation; and 5) political culture. As with the BTI, these scores are then used to place the countries into four categories. They are full democracies, flawed democracies, hybrid regimes, and authoritarian regimes.

On a scale of 1-10, the EIU said that the overall Latin American and Caribbean score had dropped from 5.83 in 2021 to 5.79 in 2022. According to its report there had been a broad-based increase in scores due to the lifting of coronavirus (Covid-19) medical restrictions which had been holding back civil liberties, but this improvement was offset by a deterioration in the country-specific scores in Haiti, El Salvador and Mexico. More generally, the EIU commented that “weak state capacity is a major cause of the region’s low scores,” as it is home to “some of the world’s most unequal and corrupt countries” along with “the growth of transnational criminal organisations”.

EIU's Democracy Index 2022 Global Ranking for Latin American and Caribbean Countries

Source: Created by Congressional Research Service using EIU's Democracy Index 2022

Freedom House, a conservative-leaning thinktank, has been publishing a global report on political rights and civil liberties sinch 1972. To compile its ranking it uses 25 indicators to achieve a top score of up to 100. The results are used to categorise countries into three main groups: free, partly free, and not free. In its 2023 report it commented that “the countries of the region continue to grapple with serious threats to political stability and fundamental rights… Perennial weaknesses in the rule of law remained a challenge for many countries in the region.” Looking back over the preceding decade Freedom House says the countries with the largest “democratic declines” included El Salvador, Nicaragua, Venezuela and Haiti. On a shorter-term it noted Colombia had improved, being promoted to “free” from “partly free” before.

Freedom House's Freedom in the World 2023 Aggregate Scores for Latin American and Caribbean Countries

Source: Created by Congressional Research Service using Freedom House's Freedom in the World 2023

The three attempts to producing a Latin American democratic index listed here do seem to have a significant degree of consensus between them. Uruguay, Chile, Costa Rica, Trinidad and Tobago, and Jamaica all come out near the top end. There is also consistency in identifying “losers” in the race to establish a strong democracy, which include Venezuela, Cuba, Haiti and Nicaragua. It is also worth noting that the indicators used are relevant, independent of whether they are formally embedded in the constitutional text or instead covered by ordinary laws, customs or conventions.

Case study: Mexico seeks elected judiciary

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The background

Mexico’s constitution dates back to 1917, born amid the upheavals of the revolution, with the first version drafted by a constituent convention gathered at Santiago de Querétaro. It was one of the first constitutions in the world to set out social rights, including the right to a secular education. It restricted the activity of the Catholic Church and sought to enable land reform. Over more than a century the basic 1917 text has been frequently amended and modified by congress. In the 1990s President Carlos Salinas de Gortari (1988-1994) amended article 27 to strengthen private property rights and allow the privatisation of ejidos (communally owned farming lands). President Enrique Peña Nieto (2012-2018) also pushed through an energy reform which ended the state oil and gas monopoly, part of an attempt to attract new investment.

Unlike the centre-right policy positions taken by Salinas de Gortari and Peña Nieto, Andrés Manuel López Obrador (2018-2024) and his successor, Claudia Sheinbaum (who began a six-year presidential term in 2024) were both of the left, members of a nationalist party known as Morena (Movimiento de Renovación Nacional). AMLO, as López Obrador is known, defined the Morena government as being part of a desired “fourth transformation” of the country (the earlier three being independence from Spain, 19^th century political reform, and the revolution at the start of the 20^th century). AMLO portrayed himself as an outsider, opposed to what he described as an entrenched and corrupt political establishment.

What happened?

In February 2024 AMLO announced a package of 20 reforms to be undertaken at the tail-end of his presidency and in the early days of that of his successor Sheinbaum, who had ensured a strong degree of continuity by winning the June 2024 presidential elections. Key among them was a major constitutional change to permit the direct election of judges, making Mexico the first country in the world to propose that all its judges and magistrates be elected. The change was justified, the president said, because it would be more democratic and would help remove members of the old conservative establishment embedded within the judiciary. AMLO’s proposals came at the tail end of his six-year presidency when the courts, including the supreme court, had issued injunctions halting some government initiatives in the energy sector as being unconstitutional.

The bulk of the reforms were rushed through congress between 1 September and 1 October of that year. The significance of these dates is that effective from 1 September the new congress had been sworn in, reflecting the narrowly won two-thirds majority obtained by Morena and its allies in the June elections. That gave the outgoing government a “window” in which to approve most of the reforms before AMLO officially handed power to Sheinbaum on 1 October. The opposition claimed the government had rushed the reforms through with insufficient debate as well as using strong-arm tactics, threatening an opposition senator with criminal charges to encourage him to change sides and deliver the necessary two-thirds majority for the reform.

Under the terms of the reform around 1,600 federal judges, including those on the supreme court, are to be replaced with directly elected successors from lists of candidates pre-selected by congress. Supreme court membership will be reduced from 11 to nine years. Ordinary judges will serve renewable nine-year terms. A new elected Judicial Disciplinary Tribunal, whose decisions are unappealable, will have the power to replace judges. Judges’ salaries will be linked to, but will not be allowed to exceed, the salary of the president. In addition to these changes, a total of seven autonomous regulating bodies, including the National Electoral Institute (Instituto Nacional Electoral – INE) are to be closed, with their functions absorbed by government.

Criticism of the judicial reform has been widespread. The then-US ambassador, Ken Salazar, was outspoken, saying “I believe popular direct elections of judges is a major risk in the functioning of Mexico’s democracy”, and adding “direct elections would also make it easier for cartels and other bad actors to take advantage of politically motivated and inexperienced judges.” AMLO retorted that such comments were “disrespectful” to Mexico.

Civil society organisations say the reforms are a setback for democratic checks and balances. They open up the possibility of outright authoritarian rule, since Morena currently controls the presidency, congress (where with its allied parties it has a two-thirds majority) and potentially, the judiciary after the elections of judges scheduled in two phases, in 2025 and 2027. Various business groupings, including the Consejo Coordinador Empresarial (CCE) and the Confederación Patronal de la República Mexicana (Coparmex), have called on the government to reconsider the reforms, particularly those relating to the elimination of the autonomous regulatory agencies. Ratings agency Fitch said, “we believe these reforms [will], overall, negatively affect Mexico’s institutional profile”, although it added that it was still too early to measure their severity.

AMLO was quick to shrug off these warnings, describing them as a form of “politicking”. The outgoing president said a downgrade of Mexico’s credit rating, if it came, would have very little effect since Mexico’s debt levels are low and foreign currency reserves are high. Currently, Mexican public debt stands at 47.6% of GDP.

Looking forward

Reform of the judiciary and other constitutional amendments carries serious risks for Mexico’s system of democratic checks and balances. In what could be described as more normal times, Mexico would come under sustained pressure from its two North American partners, Canada and the US, to make concessions to protect the independence and non-partisan role of judges. All three countries are members of the USMCA trade treaty, which includes commitments to an independent judiciary. USMCA, key to massive trade flows and “nearshoring”, is up for review and renewal in 2026.

However, these are not normal times. The new Donald Trump presidency in the US, Mexico’s northern neighbour, has placed top priority on increasing border security, reversing the flow of undocumented migrants, and tackling drug cartels and border crime. Bilateral relations have become increasingly uncertain, with Trump threatening to impose extra tariffs on Mexican goods (something that would also violate the USMCA treaty). Unlike his Democratic Party predecessors, Trump appears to have little interest in strengthening Mexican democracy. This, together with the current weakness of the political opposition, means that the reform of the judiciary is unlikely to be seriously challenged. However, if some of the risks materialise, for example if some of the new judges are poorly qualified, corrupt or clearly linked to the drug trafficking cartels, then President Sheinbaum may have to step in. After the 2027 mid-term congressional elections, for example, Morena may lose its two-thirds congressional majority, opening the possibility of reviewing and correcting the way judges are appointed.

Rule of Law in Latin America and the Caribbean

Source: WJP Rule of Law Index 2024 Regional Ranking

Case study: reform gives Bukele a free hand

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The background

El Salvador’s current constitution was drafted by a constituent assembly and first enacted in 1983; it was subsequently amended on numerous occasions. Its main features include setting a five-year presidential term; prohibiting consecutive re-election; recognising the right of the people to insurrection if constitutional order is violated; affirming the professionalism of the armed forces; and protecting private enterprise, property, and labour rights, including the right to strike.

Since it came into force, political disputes over constitutional changes were closely affected by the ebb and flow of the country’s civil war, which continued for 12 years from late 1979 to early 1992. Two parties, Alianza Republicana Nacionalista (ARENA, on the right) and Frente Farabundo Martí para la Liberación Nacional (FMLN, on the left) emerged from the civil war to dominate the political scene for nearly three decades. They were initially popular but sharply polarised, feeding discontent over what many considered to be a deeply corrupt and dysfunctional political establishment.

The political duopoly in El Salvador was challenged and ultimately destroyed by the emergence of Nayib Bukele as a self-proclaimed “outsider” and populist political figure. Bukele, who worked for his father’s advertising company, served successful terms as mayor of Nuevo Cuscatlán and San Salvador. Initially a member of the FMLN, Bukele left the party to set up his own new and more conservative grouping, called Nuevas Ideas (NI). Bukele won the 2019 presidential election with just over 52% of the vote, against the ARENA candidate (31%) and the FMLN contender (14%). Initially, however, his own party remained in a minority within the legislature (Asamblea Legislativa – AL). That situation changed dramatically in the February 2021 AL elections when NI won a landslide victory capturing 56 out of the 84 seats in the chamber. In the 2024 legislative elections NI’s majority got even larger with the party now controlling 54 out of 60 seats (the AL had been downsized in the interregnum). This “supermajority” gave the government ample power to modify the constitution. In that same year, Bukele was re-elected to another five-year presidential term (despite the constitutional ban on consecutive elections).

What happened?

Since taking office, and in particular since gaining a majority in the legislature in 2021, Bukele has frequently reformed the constitution or re-interpreted it to his short-term political advantage. The president’s authoritarianism was already on display as early as February 2020 when, accompanied by 40 soldiers, he interrupted a session of the legislature to demand (successfully) that it approve US$109m of funding for his anti-crime initiative (known as the Plan Territorial). Also, after the 2021 elections, in May of that year, Bukele’s new AL majority was used to replace the attorney general and all five judges on the constitutional chamber of the supreme court, a decision contrary to the separation of powers. At the time, the US-based NGO Human Rights Watch (HRW) described the appointments as an “assault on democracy” which broke the rule of law and sought to concentrate “all power” in Bukele’s hands.

After a surge in street gang violence and in the national murder rate in March 2022, the president declared a wide-ranging state of emergency under which civil rights were suspended and over 80,000 suspects have been arrested and held without trial. The homicide rate fell sharply, with opinion polls showing Bukele was highly popular and was achieving one of Latin America’s highest presidential approval ratings. Human rights organisations however highlighted reports of maltreatment of detainees and the fact that the country now has one of the world’s highest incarceration rates (roughly 2% of the adult population).

An example of the “reinterpretation” of the constitution was the way Bukele and his government sought to get around the ban on consecutive election. Magistrates on the constitutional chamber of the supreme court (which as we have seen, had been appointed by Bukele) ruled that the ban would not apply if the president stepped down in the final six months of his first term, creating an artificial “break” between his two terms in office. Accordingly, the president took leave of absence on 1 December 2023, appointing his private secretary to replace him on a temporary basis. Despite formally being on leave during this period, Bukele continued making decisions and to run his election campaign. He consequently became the first Salvadoran politician to stand for consecutive re-election since the military dictatorship of Maximiliano Hernández Martínez in 1935.

Looking forward

One effect of the increased power of the presidency, coupled with its legislative super-majority, is that it has allowed Bukele to rush though major initiatives very rapidly, and often with minimum discussion or debate. One example was the decision to make bitcoin, a crypto currency, legal tender in El Salvador, a decision with far-reaching implications which was approved by the AL in around 72 hours in 2021. Accordingly, El Salvador became the world’s first country to use bitcoin as legal tender. However, take-up was slow and various financial institutions expressed concern over the volatility of bitcoin and its possible use for purposes of money laundering and corruption. In late 2024 the International Monetary Fund (IMF), which had been withholding a financial assistance package, said it was prepared to lend the country US$1.4bn as part of a financial stabilisation programme, in exchange for promises that the government would make trading in bitcoin voluntary rather than obligatory, together with other measures to reduce financial risks associated to the crypto currency.

More, and faster, constitutional changes are likely on the way. In a surprise move in late April 2024, the NI special majority in the legislature voted through a reform of Article 248 of the constitution, which lays down the procedure that must be followed to enact changes to the country’s charter. The old version of the text, described as “immutable” (“pétrea”), says that to be valid, a constitutional reform must be approved by one legislature and later ratified by another one. The new text ignores this requirement and establishes instead that the constitution can be modified by a three-fifths special majority (45 or more out of 60 votes), removing the requirement for ratification in a subsequent legislature.

Acción Ciudadana, a pro-democracy lobby group, said this change removed essential checks and balances in the constitution designed to protect the rights of minorities. Critics noted that it could be used to further extend Bukele’s presidential term. Indeed, Walter Araujo, a former member of the electoral tribunal and one of the president’s supporters, said the change “should allow the commencement of a new presidential cycle under which he could be re-elected one, two, three times, or however many times the people want”.

In February 2025 the legislative assembly decided by 57 out of 60 available votes to amend article 210 of the constitution, which allows for state funding of political parties. The government argued that it was better to spend these scarce funds on higher priority areas such as health and education, adding that “subsidising political parties is an inefficient use of public money and causes rejection of the political system and its institutions, weakening democracy”. The change may reflect the confidence the ruling party has that, unlike its rivals, it will be able to fundraise significant amounts from private donors. Claudia Ortiz of opposition party VAMOS said the real aim was the Bukele regime’s desire to “concentrate power and change the constitution on a whim”.

Constitutional Stability in Latin America

Source: Negretto, Gabriel L.. “The durability of constitutions in changing environments: Explaining constitutional replacements in Latin America.” (2008).

Regional constitutional developments in 2024

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Agenda Estado de Derecho, a Latin American online portal specialising in constitutional and legal matters, identified what it described as the ten major constitutional developments in Latin America in 2024. Two of them – the wide ranging and authoritarian re-drafting of the Nicaraguan constitution, and the Mexican experiment with the direct election of judges, are covered separately in this report. The remaining eight, however, give a useful snapshot of the diverse issues facing the region’s policy makers.

In Ecuador euthanasia was de-penalised by a February 2024 ruling by the constitutional court. The case was submitted by a terminally ill woman, Paola Roldán, who later died in March 2024, and led to the court allowing the ending of life when the subject or their representative shows “unequivocal, free and informed consent”. To qualify for “active euthanasia” a subject must be experiencing intense suffering as a result of serious and irreversible corporal trauma, or a serious and irreversible disease.

Agenda Estado de Derecho also chose to highlight the November 2024 general elections in Uruguay. It described elections in any country as a key opportunity to measure citizen participation, electoral effectiveness and government policy on democracy and the rule of law. Moderate centre-left candidate Yamandú Orsi emerged as the victor. Agenda Estado de Derecho said the outcome and management of the elections showed the strength of Uruguay’s institutions and the country’s “tolerance” for the alternation of power. It noted both the defeated centre-right candidate and the incumbent president, Luis Alberto Lacalle Pou, were quick to congratulate Orsi and acknowledge his victory. Voter turnout in the first and second rounds of the polls was close to 90%.

An issue with far reaching implications arose in Colombia in early 2024. Juan Manuel Padilla, a judge in the city of Cartagena, used artificial intelligence (AI) to help him reach a ruling in a case. Papers released by the judge showed he had asked ChatGPT the question “Is an autistic minor exonerated from paying fees for their therapies?”, and received a response: “according to the regulations in Colombia, minors diagnosed with autism are exempt”. Although the judge consulted many other sources in making his ruling, the use of AI in this case was seen as setting an important precedent. Constitutional court sentence T-323 of August in the same year stated that AI can be used if it is “necessary, pertinent, reasoned and pondered in a context which prioritises fundamental rights and ethics.” The ruling also states that tasks which require logical and human reasoning in the assessment of evidence and the interpretation of motivation are irreplaceable.

In a controversial constitutional reform in Peru, congress decided to return to a bicameral system, with a legislature consisting of two houses, a chamber of deputies and a senate. The move has been led by the conservative majority in the existing legislature and includes introducing unlimited re-election for members of congress. All in all, it implies 50 amendments and the re-writing of 25% of the text of the 1993 constitution. Such a change would normally require the final text to be submitted to a national referendum, but the congressional majority avoided that scenario by allowing key votes to be “reconsidered” to achieve the number needed to avoid a public referendum.

Peru’s congress, which along with the executive and judiciary, enjoys very low levels of public esteem and approval and is accused of corruption, has insisted on pushing the reform through, even though the last attempt to introduce a bicameral legislature was massively defeated, with over 80% of the vote, in a referendum in 2018. Peruvian voters have also rejected the unlimited re-election for members of congress, but this too is being ignored. Agenda Estado de Derecho points out that the debate over the relative benefits of unicameral and bicameral legislatures remains open. What is evident however is that in the Peruvian case, moving to a bicameral system will not be a “magic bullet” and will not address the fundamental problem which is the precarious and fragmented nature of the country’s political parties.

Although as we have seen, Chile’s recent constitutional drafting experience has been largely unsuccessful, in January 2024 there was something of a breakthrough in the constitutional tribunal (Tribunal Constitucional de Chile – TCC) when it was announced that for the first time since it was formed, there was now a female majority: six women and four men. Agenda Estado de Derecho notes that this female majority was achieved without the use of affirmative action-style quotas. As recently as 2022 only three female judges had sat on the TCC. Looking forward, Agenda described the TCC’s new composition as a desirable balance between meritocracy, equality, and political will.

Among the ‘top ten’ constitutional developments of 2024, Agenda Estado de Derecho also listed decision 0083/2024 ECA issued in November by the plurinational constitutional tribunal (Tribunal Constitucional Plurinacional – TCP) of Bolivia, reaffirming an earlier resolution in 2023 which states that re-election is not a human right, and can therefore be subject to limitation. In view of that, the resolution says that the president and members of congress cannot serve more than two terms in office, whether continuously or discontinuously. The clear implication is that former president Evo Morales (who held multiple successive terms of office from 2006 to 2019) cannot run in the 2025 elections. Morales had tried to argue that because he did not run in the 2020 elections, he was somehow unconstrained by term limits, but the TCP ruling makes it clear that they do apply.

Agenda Estado de Derecho also highlights a series of constitutional amendments approved in the Dominican Republic in October 2024. Pushing ahead with constitutional reform had been one of the election promises made by centre-left leader Luis Abinader, who won re-election last year and was sworn in in August 2024. The reforms establish that the president can only serve two consecutive terms in office; they reduce the number of deputies (from 190 to 170), strengthen the autonomy of the public prosecutor, and unify elections. A significant feature is a “poison pill” provision making it more difficult to remove term limits. As now drafted, Article 268 states that Article 4, which defines the system of government as civil, republican, democratic and representative, and which includes presidential term limits, is immutable and cannot be modified. Agenda Estado de Derecho says there are aspects of the reform which may prove difficult to manage but describes it as a “pro-democracy” rather than an “anti-democracy” initiative.

Case study: Nicaragua becomes the Ortega family dictatorship

Patrick de Courcy 11 April 2025 Hits: 2298

The background

Nicaragua’s 1987 constitution was partly reformed in 1995 and again in subsequent years. The 1987 document, the ninth constitution in the country’s history, was written some years after the 1979 revolution and sought, up to a point, to capture its socialist ideals. Despite this, it also established a democratic political system (with both the president and legislators elected for five-year terms), acknowledged the separation of powers, and expressed support for a mixed economy. The changes introduced in 1995 were more mainstream in character, giving greater power and independence to the national assembly, strengthening property rights, and allowing the legislative power to override a presidential veto with a simple majority vote.

Underpinning the country’s various constitutions is the fact that Nicaragua has had a troubled history in both the 20^th and 21^st centuries. The US occupied the country directly for over 20 years between 1912 and 1933, and then ruled indirectly through the Somoza family dynasty, which maintained tight political control aided by a mixture of corruption and repression, for just over the subsequent four decades (1933 to 1979). After years of growing public discontent, the left-wing Frente Sandinista de Liberación Nacional (FSLN) guerrilla movement seized power in 1979. It took its name from Augusto Sandino, a leader who had fought a guerrilla war against the US occupation forces.

Led by Daniel Ortega, in the early 1980s the FSLN enacted land reform, launched a literacy campaign, nationalised industries, and expanded health services. The US, concerned by what it saw as a communist threat, stepped up its opposition to the FSLN during the presidency of Ronald Reagan (1981-1989). Washington armed and supported counter revolutionary forces (known as contras) and helped trigger a civil war that caused tens of thousands of deaths. The war and a US trade embargo plunged the economy into recession. Ortega was elected president in 1984, but in new polls held in 1990, he and the FSLN were defeated. There followed a succession of three governments led by market-friendly, centre-right politicians. During this period the FSLN had also moderated its political positions, now describing itself as a supporter of “Christian socialism, solidarity, and a mixed economy.”

In 2006 Ortega made a political comeback, winning re-election and benefitting from subsidised oil sales by Venezuela, then experiencing its own “Bolivarian revolution” led by Hugo Chávez (1999-2013). However as Venezuelan aid eventually came to an end, the Nicaraguan government became increasingly authoritarian, reforming the constitution to do away with checks and balances and increasing its political controls, paving the way for repeated re-election. Some concluded that the Somoza dynasty was in effect being replaced by an Ortega dynasty. Set off by an attempted reform of the pension system, mass anti-government protests broke out in late 2018 with widespread arrests of political leaders, journalists and human rights activists. The death toll from the repression of those protests is widely estimated to be over 300.

What happened?

A new round of constitutional reforms was presented to the government-dominated unicameral legislature, the Asamblea Nacional (AN), in late 2024, and formally enacted in February 2025. The reform was wide-ranging with 148 of the constitution’s 198 articles being amended.

One of the core changes is to article 132 which now gives the presidency the right to coordinate the legislative, judicial, and electoral branches of government, as well as regional and municipal bodies. Most constitutional specialists believe the “coordination” role in fact asserts the prevalence of the executive and the subordination of all other branches of government. The presidency in effect is expected to directly “coordinate” not only the Nicaraguan army but also the ministry of the interior and the national police.

The change to article 133 is also potentially far-reaching. It creates what has been called a diarchía where sovereign power is vested in two persons with equal authority. The text says there shall now be two co-presidents, both holding equal presidential power, elected by an absolute majority through universal, free, and direct suffrage. President Ortega and his wife and, until now, Vice President Rosario Murillo become co-presidents with equal powers. Co-presidents can appoint an unlimited number of vice-presidents.

Most analysts see this as a measure intending to maximise family control over the succession process. Ortega and Murillo have eight children living in Nicaragua, some already holding senior positions in government. The changes mean that in the event of the death of 79-year-old Ortega, 73-year-old Murillo will automatically succeed him without the need for new elections. In other changes the presidential term is lengthened from five to six years. Article 136 further increases the power of the presidency stating that only the executive can propose candidates for the supreme court and exercise the right to veto legislative proposals.

Looking forward

Political and human rights organisations have described the new constitution as a step towards full dictatorship. Reed Brody, co-author of a critical United Nations (UN) report on Nicaragua, said the constitutional changes were like a “monarchical decree” seeking to fuse the FSLN, the ruling party, with the institutions of the state. He added that the Ortega government had systematically dismantled the remaining checks on its power, reducing the other powers to mere organs of state. He also noted that the new constitution allows the army to be deployed as a domestic public security force.

Human rights lobby group Washington Office on Latin America (WOLA) said the constitutional reform and other measures annulled the separation of powers, closed spaces for the participation of civil society, and removed protections against human rights violations. In particular, WOLA noted that under article 97 the new constitution has institutionalised the role of “voluntary police”, street gangs which have attacked anti-government protestors on various occasions.

While the Ortega regime remains firmly in power and has shown itself to be resilient in the face of Latin American criticism and US and European sanctions, the likelihood is that on the medium-term anti-government protests and activities are likely to resume. If it seeks to build credibility, any eventual post-Ortega government will likely have to contemplate a new round of constitutional reform restoring the separation of powers.

Case study: updating Venezuela’s Bolivarian constitution

Patrick de Courcy 11 April 2025 Hits: 2263

The background

From the 1960s through to the 1990s Venezuela was seen as a modern democratic country, abiding by the rule of law and relying on a relatively stable two-party political system, alternating between governments of the centre-left and the centre-right. However, that was not the whole picture. Over-reliant on oil production and exports, the country suffered from oil price volatility, corruption, and sharp economic booms and busts. In the 1990s a little-known army officer, Hugo Chávez, emerged as an “outsider” critic of the political system, leading an unsuccessful coup d’état. However, this was the birth of a political movement which backed him as its candidate in the 1998 elections. Chávez won with 56.2% of the vote, and was sworn in the following year, 1999.

Re-elected on various occasions Chávez ruled until his death from cancer in 2013. Most analysts acknowledge that he was genuinely popular through much of his early time in office, although there was an unsuccessful coup against him in 2002 and his government was seen as manipulating the electoral process. Nicolás Maduro succeeded Chávez, inaugurating a period of catastrophic economic mismanagement and increasingly dictatorial political controls. In roughly the 10 years to 2024 the economy shrank by 75%, while an estimated eight million Venezuelans – about one quarter of the population – emigrated. Opposition political parties accuse Maduro of systematically rigging elections to favour the ruling party. Presidential elections were held in July 2024; Maduro was sworn in for another six-year term in January 2025, despite domestic and international criticism.

What happened?

The constitution of the Bolivarian Republic was approved in a referendum in 1999, as the 26^th Constitution since the foundation of the Republic. The 350-article document – one of the world’s longest constitutions – was written by an elected constituent assembly, and was greatly influenced by the chavista movement, which at that point was riding a wave of public support. It declared Venezuela to be a federal, presidential, and constitutional republic. More than any of its predecessors, the existing constitution recognises and expands citizen rights. The text guarantees free education up to tertiary level, free health care, access to a clean environment, and affirms minority rights (and in particular those of Venezuela’s indigenous communities). The document also creates a unicameral legislature, replacing the old bicameral upper and lower house. The legislature loses some powers which go instead to the presidency.

The 1999 text is unusual since it makes no refence to impeachment trial as a method of removing a president who is determined to have been involved in various types of wrongdoing. Instead, a president can be removed from office by a citizens’ recall referendum, or by a decision of the supreme court. Another unusual feature is that the constitution recognises not three but five independent powers of state: the executive, legislative, judiciary, electoral and citizens’ powers (the latter known as “poder ciudadano”). The text lengthened the presidential term from five to six years and set a limit of two successive terms. However, under the terms of an amendment supported by a referendum in 2009, term limits were abolished.

Looking forward

Addressing the national assembly in February 2025, President Maduro announced plans for a constitutional referendum. It is expected that the vote will be held this year; Maduro has appointed a drafting committee which must finalise a new text within 90 days. The president said the new draft would deliver an “expansion and improvement of participatory democracy” and include a new level of government described as “social, communal and popular power”. It would also define a profile “for the society we want from a cultural and institutional point of view” and support a sustainable and more diversified economy. Around 80 articles of the 1999 constitution are to be re-written. There will likely be changes in the powers of governors and mayors. The president said Venezuela was the victim of “all forms of conspiracy” and the new constitution would provide “more draconian” punishments for wrongdoers.

The constitutional drafting committee includes key member of the chavista power structure. Chaired by attorney general Tarek William Saab (who was involved in drafting the 1999 constitution), its members include the president’s wife Cilia Flores; the vice president, Delcy Rodríguez; the president of the national assembly, Jorge Rodríguez; the head of the national electoral council (CNE), Elvis Amoroso; and the defence minister, General Vladimir Padrino.

Analysts are asking what the government is trying to achieve with this exercise. The 1999 constitution was the brainchild of Chávez and reflected the values of his “Bolivarian revolution”. It has been used by his political heirs to perpetuate the rule of the authoritarian left-wing Partido Socialista Unido de Venezuela (PSUV). In 2017, under Maduro, a constituent assembly was elected, but it never completed a redraft of the 1999 text, having been diverted to challenge the authority of the then opposition-dominated national assembly.

One hypothesis is that the government may be trying to claw back some degree of legitimacy. Last year the Venezuelan government’s image was in almost complete freefall because of its handling of the 28 July presidential elections. Across the region, these were seen as blatantly rigged to keep Maduro in power, despite the landslide of verified votes for opposition candidate Edmundo González Urrutia. By organising a succession of elections in 2025, including the legislative poll (due 27 April) and the constitutional referendum (likely to be held in the second half of 2025), the regime may be trying to “turn the page”, recovering some legitimacy while deflecting opposition demands for Maduro’s departure. Another hypothesis (not necessarily contradictory to the first) is that the new constitution represents the “Nicaraguanisation” of Venezuela, a reference to the way the Daniel Ortega dictatorship in that Central American country has systematically tightened its grip on all forms of opposition.

New elections this year may also give the regime an opportunity to use a favoured tactic: stirring up disagreements between the opposition parties. As during previous unfree elections, the question is whether these parties should participate or not. The main opposition alliance, Plataforma Unitaria Democrática (PUD), remains adamantly against participation. The PUD’s undisputed leader, María Corina Machado, has set out the logic for abstention: “The elections were on 28 July. That day the people chose. The result must be respected. Until that happens, it is not right to participate in any kind of subsequent elections. Voting time and time again while the results are repeatedly ignored undermines the popular vote.”

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