Towards Institutional Guarantees for Democratic Rotation

Some recent events in El Salvador moved a broader discourse on democratic backsliding into the spotlight: A democratically elected President practically removed the institution of checks and balances and gained personalized executive power. The Constitutional Court of El Salvador, in a ruling of 3 September 2021, condoned the consecutive presidential re-election, despite the fact that the Salvadorian Constitution expressly prohibits it. This not only enables the incumbent Nayib Bukele to run again for presidential office in 2024, it also illustrates the more generalized undermining of the rule of law and democratic principles in the Central American State. This trend, observable likewise in other countries in the region, emphasizes the importance of a recent Advisory Opinion of the Inter-American Court of Human Rights (IACtHR, Inter-American Court).

A trend towards indefinite presidential re-election

In its Advisory Opinion OC-28/21 “Presidential Reelection without Term Limits in the Context of the Inter-American Human Rights System” of 7 June 2021 (AO), the Inter-American Court dealt with the compatibility of indefinite presidential re-election with applicable human rights standards. Indefinite presidential re-election is indeed a burning issue in Latin America, where many countries have an institutionally powerful president at their top and show features of “hyper-Presidentialism”. The strong position of the President makes democratic rotation particularly important as (indefinite) presidential re-election is intrinsically linked to broader institutional dimensions of political rights, the rule of law, and separation of power considerations. While this is reflected in the constitutional set-up of many Latin American countries which put strict limits on the presidential terms of office, diverging trends can be seen in Venezuela,  Bolivia, as well as in the Central American states Honduras, Nicaragua and El Salvador. After Supreme and Constitutional Courts in Honduras, Bolivia, El Salvador and Nicaragua have ruled that the prohibition of re-election is an undue restriction of the right to political participation and other civil liberties, each of these states has eliminated constitutional term limits for the presidential office to allow for re-election. It is of particular interest that the Bolivian Constitutional Court drew on the “conventionality control” as developed by the Inter-American Court as well as on Art. 23 ACHR and the hierarchical superiority of the ACHR to set aside constitutional limitations on re-election. Likewise, in Honduras the Court insisted on the application of Art. 23 ACHR in comparable terms. These domestic judgments explain why the IACtHR found it necessary to situate the figure of indefinite presidential re-election in the context of Art. 23 ACHR and the Inter-American system of human rights in its Advisory Opinion.

The Inter-American Court’s Advisory Opinion OC-28/21

In the Advisory Opinion, the IACtHR has dealt with two questions, which reflect the two dimensions of political rights and point in opposite directions. The first question relates to the subjective right to stand for elections and asks whether the prohibition of indefinite presidential re-election is a violation of the American Convention of Human Rights (ACHR) (the right to political participation, Art. 23). The second question concerns the state’s constitutional system and asks in return whether allowing indefinite presidential re-elections is a violation of inter-American human rights standards.

Having specified that it deals with indefinite re-election and not with re-election as such; and that it discusses re-election in Presidential – and not in Parliamentary – systems, the Court establishes first that the prohibition of indefinite re-election is compatible with the ACHR, the American Declaration and the Inter-American Democratic Charter (para. 126). According to the IACtHR, “presidential indefinite re-election” neither constitutes an autonomous right protected by the American Convention or by the corpus iuris of international human rights law (para. 102) nor is the prohibition of the right to indefinite presidential re-election an undue restriction of political rights contrary to the ACHR (see paras. 103ff). In the view of the Court it pursues a legitimate aim – upholding representative democracy (para. 119) –, is suitable to achieve this aim especially in view of the concentration of powers of a President in presidential systems (para. 120), and is necessary and proportional (para. 121ff).

Concerning the second question, the IACtHR formally recognizes the discretion of states for their own political system (para. 127), but establishes that indefinite presidential re-elections are contrary to the democratic principles underlying the inter-American system and, thus, in contravention of the ACHR and the American Declaration (AO operat. para. 4).

The IACtHR’s Definition of Limits to Presidential Re-election

The findings of the IACtHR concerning both questions are highly relevant. On the one hand, following previous observations on the situation in Nicaragua, this was a welcome opportunity for the Court to authoritatively interpret Art. 23 ACHR and to clarify that the prohibition of re-election was not a violation of the right to stand for elections (nor of human rights more generally). This implies that domestic constitutional courts, as done by the Bolivian Constitutional Court, cannot rely on the ACHR as a legal basis to lift limitations on re-election. It is also setting standards for more recent situations like the current constitutional crisis in El Salvador.

The IACtHR’s ruling on the institutional aspects of indefinite presidential re-election has even wider implications. Considering indefinite re-election contrary to inter-American human rights standards, the Court puts substantive limits to presidential re-election. In doing so, the Court explicitly links the subjective rights of the ACHR to the broader institutional guarantees of representative democracy, the rule of law, and separation of powers (AO, paras. 43ff and 65).This has potentially profound domestic implications since the Court sets standards for the political and constitutional design of states, restraining states’ leeway to define their institutional set-up and providing a framework for institutional re-configuration in States Parties to the ACHR.

This far-reaching interpretation of the Inter-American Court has been criticized in the two dissenting opinions to the Advisory Opinion: Judge Pazmiño Freire, for instance, affirms in his dissent that “[it] goes beyond the legal competence of the Court itself, or a majority of the Court, to decide on the best system of political or constitutional architecture to ‘strengthen political rights and democracy’ in our countries” (Diss. Opinion Pazmiño Freire, para. 34); and Judge Zaffaroni states that “the Court does not have jurisdiction to judge the particularities of the forms of government adopted by our States, beyond the strict limits essential to any representative democracy … none of which refers to indefinite re-election. …” (Diss. Opinion Zaffaroni).

Likewise the Venice Commission, in its 2018 report on presidential re-election (p. 25) does not go as far as the IACtHR. The Commission has refrained from recommending substantive limits on presidential terms and restricted itself to procedural considerations.

Political Rights between Subjective Rights and Institutional Guarantees: A Comparative Perspective

The diverging approaches to indefinite re-election illustrate a general challenge of international human rights supervision in the context of political rights: political rights have a double character; they are both human rights and important elements of national constitutional legal orders. This distinguishes them from civil rights as incorporated in the ACHR or in the European Convention on Human Rights (ECHR). Especially in Europe, the more institutional side of political rights has traditionally induced a position of self-restraint on the part of international human rights monitoring. Already during the drafting of the ECHR, there were controversies as to whether political rights were at all accessible to international monitoring and adjudication. In the end, political rights were incorporated in Article 3 of the first Protocol to the ECHR; this, however in a comparatively weak framing which distinguishes political or electoral rights from other rights contained in the Convention. Likewise, the ECtHR’s jurisprudence on Article 3 grants broad discretion to states in the area of political rights, in particular when it comes to the design of states’ electoral systems. For example, in Yumak and Sadak vs Turkey (2007, Grand Chamber) the ECtHR accepted the (very high) 10 percent threshold for national votes which was required to obtain seats in the Turkish parliamentary elections and found it not to breach Article 3 despite the fact that it had prevented the applicants – supporters of the “Kurdish cause” – from gaining seats in parliament even though they had obtained almost 46 percent of votes in “their” South-eastern province. The ECtHR thus exercises considerable self-restraint especially regarding the institutional side of political rights and leaves states a broad discretion when political rights touch upon the constitutional set-up of a state.

A bold, but necessary position

The IACtHR conversely, by establishing that indefinite presidential re-elections are a violation of Inter-American human rights standards, goes considerably further and sets clear substantive limits to states regarding the design of their political and electoral systems. In doing so, the Inter-American Court reads the institutional guarantees of representative democracy, rule of law, and separation of powers together with subjective human rights guarantees, spelling out the democratic framework that forms part of the constitutional core of the Inter-American ius commune with the 1948 American Declaration (in particular Art. 28), the acquis of the Convention, the Inter-American Democratic Charter (in particular Art. 3 and 4), and its own broad jurisprudence. This is a far reaching and bold move. In our view, however, the position of the IACtHR is well justified. It seems necessary to ensure democratic rotation in particular in Latin American countries with traditionally strong Presidents and weak checks and balances in the institutional set-up of states; this even more in view of the above mentioned trends in several states to eliminate the limits on Presidents’ terms of office, making room for a potential perpetuation of persons in office and democratic regressions that affect the overall Inter-American System of Human Rights Protection.

Thus, focussing on the “institutional side” of representative democracies is necessary in Latin America. It may even prove vital to protect subjective human rights guarantees in the long term. Especially the case of Venezuela – which withdrew from the ACHR in September 2012 (effective in 2013) and denounced the OAS Charter in April 2017 – shows the potentially serious human rights implications when the institutional guarantees of a representative democracy are eradicated in a state. Venezuela “simply” withdrew from the Inter-American system of human rights protection. The same threat can be observed in Nicaragua and El Salvador. Adopting strong substantive positions as has been done by the IACtHR is thus most likely necessary to ensure an effective protection of human rights in the future.