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Video Assistant Referee Systems and Constitutional Referendums in Competitive Authoritarian Regimes of Latin America 

  

Muhammet Dervis Mete, PhD Candidate, School of Law, University of Edinburgh.

13 October 2024.

Cite: Muhammet Dervis Mete, Video Assistant Referee Systems and Constitutional Referendums in Competitive Authoritarian Regimes of Latin America, The Global South Network Blog, 13 October 2024, https://globalsouthnetwork.com/2794-2/

In recent years, Video Assistant Referee (VAR) systems have been increasingly utilised in various sports organisations to correct unfair referee decisions, ensuring fairer competition. In this blog, I argue that constitutional referendums serve a similar function, particularly in hybrid/competitive authoritarian regimes where the playing field is uneven, the High Electoral Council (the referee) is biased, and the government has an advantageous position in access to resources, law, and media. Before Levitsky and Way published their groundbreaking work on competitive authoritarianism, they likely did not anticipate that this concept would be so widely adopted in the literature nor that many countries would be classified under this category due to its comprehensive hybrid nature.1

Considering the government’s asymmetrical power in accessing resources, media, and law, Castaneda likens it to a football game “where the goalposts were of different heights and breadths and where one team included 11 players plus umpire and the other a mere six or seven players.”2 There is indeed competition, but the political environment has been prepared completely in favour of the government so that the opposition has very little chance of winning the elections. The whole political and legal system, including the referee (High Electoral Council), is designed for the government to win the election. However, unlike outright authoritarian regimes, the opposition is occasionally able to win the election by getting the audience’s support, albeit exceptionally, even though they have missing players on the field and sometimes even though their players are unfairly dismissed with a red card by the same biased referee.     Due to the problematic aspects of these regimes, not only are these regimes themselves subject to critique, but the direct democracy tools, particularly constitutional referendums, conducted by these regimes are also subject to scrutiny. Some even argue that these referendums serve no purpose but to bolster further the power of the presidents with authoritarian tendencies and agendas. In his seminal work, published in 2017, Topalof questions whether direct democracy tools serve as populist weapons or as tools of elite strategy.3 Nonetheless, these two are not very different from each other. If, as Topalof asserts, these institutions are populist weapons, the natural consequence is that the elites’ utilisation of these tools for this purpose makes them a part of the elite strategy. Therefore, the pertinent question that needs to be asked here is: Do referendums function as a populist weapon/an elite strategy, or are they the only effective tool ordinary people possess to challenge despotic governments? Despite the unique challenges posed by referendums, I will explain why, contrary to popular belief, referendums emerge as the sole effective institution through which ordinary people can rely to stop populist autocrats, particularly within competitive authoritarian regimes of Latin America.        

Firstly, these tools do not inherit certain problems of representative democracy and possess the capacity to address crises that representative democracy struggles to resolve. Secondly, for autocrats, resorting to these tools should be more of a necessity than a choice, as they seek to legitimise their decisions. Thirdly, in the event of backfiring, where the people reject the proposals of populist leaders, referendums can play a pivotal role in the return to democracy, as was the case in Ecuador under the Moreno administration, who seized power soon after populist Correa’s demise. Lastly, linked to this last point, due to their potential to limit authoritarian regimes, referendums might be the sole effective tool in the hands of ordinary people, thus underlining their indispensability. To provide a systematic overview, I will discuss these arguments under three subheadings, namely: (i) Referendum As a Safety Valve: Let the People Decide, (ii) The Panacea Illusion: Exploring Referendum’s Role in Addressing Representative Democracy’s Unresolved Challenges, and (iii) Referendums’ Contribution to the Transition to Democracy.

Referendum As a Safety Valve: Let the People Decide

Authoritarian regimes have not been established overnight. Despots who follow autocrats’ 12-step playbook, coined by Larry Diamond, have managed to pacify and capture all state institutions that have the potential to hinder them, including parliament, courts, media, universities, and the business sector.4 For this reason, they often have the power to make any constitutional amendment they wish through these institutions, particularly the parliament and the High Judiciary, which they have already captured. Although autocrats mostly succeed in obtaining what they want through these institutions, they often prefer either to submit their ‘reform packages’ to the public to legitimise their practices that push the boundaries of law and the constitution, or they are compelled to submit the package to the public for approval due to constitutional mandate. The latter scenario was the case in Bolivia.  

Armed with the endorsement of the constitutional court through a highly peculiar interpretation technique, Morales overcame the obstacles to the president’s election for the third and fourth time in Bolivia.5 The Morales administration, which achieved a parliamentary representation of 88 out of 130 members in the first parliament and 25 out of 36 members in the second one, successfully passed a law allowing the president to be reelected indefinitely, leveraging their majority in the parliament.6 However, despite parliamentary achievements, the government was forced to present this reform package to the public due to the mandatory referendum envisaged by the 2009 constitution. Those who opposed Morales’s or any other individual’s indefinite election without limitations were able to halt the Morales regime by effectively utilising the sole mechanism they had, thereby serving as a safety valve preventing the consolidation of this regime. In this scenario, if the compulsory referendum option were not in question, perhaps Morales would still be ruling the country as president today.      Additionally, the rejected referendums in Venezuela and Bolivia in 2007 and 2016 refute the argument that autocrats resort to public ballots only if they are confident of voter support. At first sight, this argument seems to be correct. Indeed, it is true that the Chavez and Morales regimes, which had 60 per cent and 70 per cent public support in the polls conducted at those times, resorted to public cards by relying on this widespread public support.7 However, the Venezuelan and Bolivian referendums that resulted in public rejection have demonstrated that the regime’s substantial public support does not guarantee the public’s automatic approval of all proposals.

The Panacea Illusion: Exploring Referendum’s Role in Addressing Representative Democracy’s Unresolved Challenges    

            

In the literature, there is almost a consensus that representative democracy is in crisis.8 The core institutions of representative democracy, including elections, political parties, and parliaments, are failing in the eyes of many citizens. People do not see elections as sufficiently powerful means of control over their representatives, leading to political apathy and decreased electoral turnouts. The balance between parliament and the executive was disturbed in favour of the latter. Additionally, gerrymandering and other manipulation tools are resorted to guarantee particular election outcomes by the political elites. That is why parliament does not accurately and fully reflect the people’s will as expressed through the ballot box. For example, in Ecuador, despite receiving around 50 per cent of the votes in the 2013 elections, Correa was able to secure 80 per cent of the total members (100 out of 131 seats) through his modifications to the D’hondt election system and the establishment of new electoral districts, placed major parties in a favourable position.9 Similarly, by strategically designing the electoral system, Chavez achieved a representation rate of 92 per cent in the parliament while receiving just 60 per cent of the votes.10   

When we look at the direct democracy tools on the other end of the spectrum, these problems do not exist. Although referendums face criticism because of their binary-choice nature, the will of the voters who participate is not disregarded. While this characteristic of referendums might be a drawback in democracies, in competitive authoritarian/hybrid regimes that I am focusing on in this paper, this feature is -and should be viewed as – merit. In these countries, the absence of a binary choice in general elections, coupled with electoral engineering strategies, enables governments to manipulate electoral systems in their favour. This results in the fragmentation of opposition parties and their limited representation in parliament, which fails to reflect the overall voting landscape in the country accurately. However, in the context of referendums, the fragmented and disorganised opposition has the opportunity to unite around a single objective. The opposition has only one option: to hinder the incumbent government from consolidating its power further and extending its tenure. Put simply, the characteristic of binary choice of referendums is not a disadvantage but an advantage for the fragmented opposition in hybrid regimes, enabling them to challenge despotic rule by unifying around one single objective: to stop the despotic regime.   In the lead-up to the 2013 general elections, Morales meticulously designed a majoritarian system, allowing him to secure a landslide victory despite receiving less than 50% of the total votes. In contrast, despite garnering a greater number of votes in total compared to MAS, the opposition found limited representation in parliament. Nevertheless, this tactic of the incumbent loses its significance and effectiveness when applied to referendums. In a referendum, if the opposition, whether divided or united, collectively receives more votes than the autocrat, the autocrat fails to meet the 50%+1 threshold and loses. Thus, thanks to the lack of alternative choices in the referendum, the divided and fragmented opposition, unable to unify against a populist autocrat in regular elections, is forced to come together against a despotic regime and effectively prevent this regime from staying in power indefinitely.

Referendums’ Contribution to the Transition to Democracy      

Referendums can either strengthen or undermine a regime, depending on the circumstances. Collin highlights that despite being criticised for benefiting autocratic regimes, referendums can act as a resistance against autocrats and hinder the consolidation of their power. 11Additionally, referendums can play a significant role in facilitating the transition to democracy. In this respect, referendums are effective instruments to mitigate the harm inflicted by authoritarian regimes. In Ecuador, the people have clearly demonstrated their will to abolish the indefinite reelection of the president with a constitutional reform package, an issue the previous regime did not dare to ask the people. The referendum held in February 2018 included seven crucial proposals, including abolishing the provision allowing the president to be elected indefinitely.12 The comprehensive reform package, proposed by President Lenin Moreno to dismantle the Correa dictatorship and address the damage inflicted by it, was overwhelmingly approved in the referendum. The referendum was approved by almost 63 per cent, restoring the original constitution’s provision that limits the president to a maximum of two terms as a candidate.

According to Sanchez-Sibony, the actions taken by the new administration have shaken the competitive authoritarian regime established by Correa within a decade. This has resulted in the judiciary, civil society, and accountability mechanisms becoming more focused on their primary responsibilities rather than being highly politicised. ‘His government represents a departure from Correismo in many respects, a testament to the limits and personalisation inherent to Correa’s political project.’13 Freedom House reports have reflected the steps taken towards democratisation by the new administration in Ecuador. Freedom House, which evaluates the level of democracy based on criteria such as whether elections are fair and competitive, the government respects human rights, and the judiciary is independent, placed Ecuador in the partly free category with 57 points in 2017. However, in the 2019 local elections, where no abuses or irregularities were reported, and the elections were conducted more smoothly compared to previous ones, the country’s score was raised to 63 points initially and then further elevated to 71 points in 2022.14

Consequently, Ecuador has moved from the partly free/hybrid regime category to the free one thanks to the Moreno administration’s attempt to return to democracy by using the referendum as a tool to restore democracy in this country.

Last Thoughts

It is no secret that liberals often view referendums as a threat to individual rights and freedoms. Referendums are, of course, not without flaws. In well-functioning democracies, they have the potential to cause significant disagreements and even crises between representatives and the public. Brexit is a recent example of this. In a situation where all political parties in the UK Parliament supported remaining in the European Union, the public voted in the referendum to leave, leading to a conflict between parliamentary and public sovereignty. However, when evaluating the benefits and drawbacks of referendums, it is crucial to consider the conditions under which they are held. In relatively well-functioning democracies like the UK, these instruments might indeed cause crises. Yet, in competitive authoritarian regimes, where the public has no effective tools and all state institutions are captured and controlled by the ruling party, referendums can serve as the last bastion (like the VAR system), protecting the people against despotic governance. I genuinely believe the Latin American continent serves as a perfect laboratory to examine this argument.       

Muhammet Dervis Mete is currently in the final stages of his PhD at the School of Law, University of Edinburgh, titled Constitutional Referendums in Competitive Authoritarian Regimes of Latin America.

  1. See, Steven Levitsky and Lucan A. Way, Competitive Authoritarianism: Hybrid Regimes After the Cold War (Cambridge University Press 2010) ↩︎
  2. Jorge G Castaneda, The Mexican Shock: Its Meaning for the United States (New York: The New Press 1995), 131 ↩︎
  3. Liubomir Topaloff, ‘The Rise of Referendums: Elite Strategy or Populist Weapon?’ (2017) 28(3) Journal of Democracy ↩︎
  4. Larry Diamond (ed), ‘When does Populism Become a Threat to Democracy?’ (3-4 November 2017) 4 ↩︎
  5. TCP Declaración Constitucional Plurinacional N° 0194/2015. at 7 ↩︎
  6. Sergio Verdugo, ‘The Fall of the Constitution’s Political Insurance: How the Morales Regime Eliminated the Insurance of the 2009 Bolivian Constitution’ (2019), 17(4) ICON 1118 ↩︎
  7. Amanda Driscoll, ‘Bolivia’s “Democracy in Transition”: More Questions than Answers in 2016 (2017) 37(2) Revista de ciencia política 263 ↩︎
  8. See Steven Levitsky and Daniel Ziblatt, How Democracies Die: What History Reveals About Our Future, (Penguin, 2019); Boris Vormann, Christian Lammert, and Susan H. Gillespie, Democracy in Crisis: The Neoliberal Roots of Popular Unrest (University of Pennsylvania Press, 2019) ↩︎
  9. Carlos de la Torre & Andrés Ortiz Lemos, ‘Populist Polarization and the Slow Death of Democracy in Ecuador’ (2016) 23(2) Democratization 227 ↩︎
  10. David Landau, ‘Abusive Constitutionalism’ U.C. (2013) 47(1), Davis Law Review, 215. ↩︎
  11. Katherine Collin, ‘Populist and Authoritarian Referendums: The Role of Direct Democracy in Democratic Deconsolidation’, (2019), Brookings Institution United States of America. Retrieved from https://policycommons.net/artifacts/4140440/populist-and-authoritarian-referendums/4949380/  (Accessed by 14 June 2024). ↩︎
  12. Felipe Burbano de Lara and Carlos de la Torre, ‘The Pushback Against Populism: Why Ecuador’s Referendums Backfired’ (2020) 31 (2), Journal of Democracy 75 ↩︎
  13. Omar Sanchez-Sibony, ‘Classifying Ecuador’s Regime under Correa: A Procedural Approach’, (2017) 9(3), Journal of Politics in Latin America, 135 ↩︎
  14. Freedom House, Freedom in the World 2017: Ecuador, 2017, https://freedomhouse.org/country/ecuador/freedom-world/2017, (Accessed by 24.03.2024) ↩︎