Nicaragua
The National Assembly: First Steps Toward a New Political Model
Envío team
One of the first tasks of the 96 National Assembly representatives elected on November 4, 1984, was to draft the National Assembly’s general statutes. The Assembly was to define the procedures governing the enactment new congressional body represents a mere facade of political pluralism, behind which the Sandinistas will "steamroll" the opposition. The drafting of the general statutes presented the FSLN with an opportunity to demonstrate its ability to exercise power while simultaneously encouraging authentic debate with representatives of all the opposition. The opposition parties with members in the National Assembly are the Democratic Conservative Party (PCD), the Communist Party of Nicaragua (PCN), the Independent Liberal Party (PLI), the Popular Social Christian Party (PPSC), the Nicaraguan Socialist Party (PSN), and the Marxist Leninist Popular Action Movement (MAP ML). To get a better idea of how the FSLN and the six other parties interact in practice, we will review the process of drafting the General Statutes, and the major points that were debated.
The small committee:
Preview of the major debatesThe Fundamental Statutes of the Republic, enacted July 10, 1979, have served until now as the legal framework for governing Nicaragua. These statutes will continue in effect until the ratification of the new Constitution. This was stipulated in the Fundamental Statutes, and was also approved at the Political Parties Summit of October 1984.
On January 22, 1985, the National Assembly assigned the Justice Commission the task of drafting its general statutes, to he completed by February 6, 1985. The Justice Commission is made up of Rafael Solis Cerna (FSLN), First Secretary of the Assembly and President of the Commission; Eduardo Molina (PCD), Vice President of the Commission; Alfredo Rodriguez Salguers (PPSC), First Secretary; Jose Daniel Brenes (PCD), Second Secretary; Juan Manuel Gutierrez (PLI); Rafael Mairena (FSLN); Benigna Mendiola (FSLN); Flor de Maria Monterrey (FSLN); Humberto Solis Barker (FSLN); Wenceslao Aburto (FSLN alternate); and Gustavo Adolfo Vega Vargas (FSLN alternate).
With a 15-day extension granted by the Assembly, this commission held twelve meetings between January 25 and February 22. During the first session they exchanged ideas concerning the general guidelines that would be adopted for drafting the statutes. The Committee then presented the guidelines to the legal consultants of the National Assembly, and charged them with the task of producing a rough draft. With the support of the PLI, the PPSC presented an alternative draft. Both were considered equally by the Commission. The final draft produced by the Justice Commission follows the structure of the PCD proposal.
Title I: General Outline
Chapter 1: The National Assembly
Chapter 2: Representatives
Chapter 3: Sessions of the National Assembly
Title II: Structure of the National Assembly
Chapter 1: The Directorate and the Commissions
Chapter 2: Parliamentary Factions
Title III: Powers of the Assembly and Relations with Other Branches
Chapter 1: Powers of the National Assembly
Chapter 2: Relations with Other Branches
Title IV: Formation of Laws
Chapter 1: Initiatives
Chapter 2: Judgments
Chapter 3: Debate, Voting and Approval; Sanction; Promulgation and Publication of Laws
Chapter 4: Veto
Title V: Writing the Constitution
Title VI: Conclusion
This outline is undeniably more logical and coherent than the general statutes of the National Assembly’s predecessor, the Council of state, which were published on May 2, 1980 in La Gaceta, the Council of State’s official daily record. This document could have served as an antecedent for the elaboration of the National Assembly's Statutes, but only certain elements were incorporated into the improved version drawn up by the Special Commission This document did, however, influence the description of the duties of the Assembly president and the permanent commissions.
In order to avoid starting from scratch, which would have meant endless delays, the Justice Commission adopted the bylaws of the Council of State's Electoral Commission on a provisional basis. In accordance with these rules, each article was submitted for discussion twice in an attempt to arrive at a consensus.
The temptation to prematurely address issues that pertain to the actual Constitution was a problem for the Special Commission, and would arise again in the Assembly’s plenary sessions. The Commission members managed to overcome this obstacle by assuming that the statutes were a temporary document, and to a large extent, only an aid in drafting the Constitution.
The document formulated by the Justice Commission was composed of 54 articles, of which 44 (81%) were approved by the entire Commission and 10 by a majority. During the debates surrounding these 10 articles the common interests of some parties became evident. These affinities, while not alliances in the strict sense of the word, did foreshadow future alignments within the Assembly. All 10 of the articles were accepted by the FSLN and the PCD, although the latter reserved the right to present before the Assembly a second paragraph for Article 1. The PPSC only accepted 1 of the 10 disputed articles, which describes the President's legislative powers during a State of Emergency. The PLI accepted 2 of the articles, both of which describe the Special Commission created to prepare a draft of the Constitution. The FSLN's lack of support from the PLI and the PPSC was evident even in this small commission.
Internal debate was pot the only method of expressing opposing views. On January 20, after all 54 articles had been approved, Juan Manuel Gutiérrez of the PLI presented a letter to the Commission President in which he unexpectedly announced that the PLI reserved the right to present a new draft to the Assembly. This suggestion met with the disapproval of the rest of the Commission's members. Later, Dr. Gutierrez defended his position based on the right of any three members of a parliamentary faction to take such action. It is difficult, however, to discern the logic behind the PLI's move, since it had already accepted 46 of the 54 articles of the final draft. In addition, the PLI had the PPSC's initial rough draft, which was considered in detail and on a par with the draft presented by the legal consultants. This move recalls a similar one involving the PLI, in which its presidential candidate, Virgilio Godoy, withdrew from the electoral campaign a week before the November 1984 elections.
Debating Nicaragua’s futureOn February 26 the Justice Commission's draft was presented to the National Assembly. That same day it was approved as a basis for further discussion. A Special Commission was charged with evaluating it and suggesting modifications, which would then be presented to the plenary session on March 5. Between March 5 and March 26 the Assembly discussed each one of the articles. The entire document was approved on March 20 and signed by President Daniel Ortega on March 22. The general outline of the statutes finally approved by the Assembly is identical to the one proposed by the PCD and accepted by the Justice Commission. But, in its final form, five articles were added. Four were added in Title II, describing the functions of the Assembly president and vice president, and the Assembly Directorate and its secretaries. An article was added to Title I indicating that the term of the Assembly Directorate will be three legislative periods.
Of the other 54 articles, 28 were accepted without modification. Thirteen articles received additions, and two were accepted after paragraphs included in the Commission's draft were deleted. Eleven articles were completely revised. In all, more than 50% of the articles proposed by the Justice Commission were modified, in almost every case at the initiative of an opposition party. According to Assembly representative Danilo Aguirre, only 3% of the articles were approved by the FSLN's vote alone, while 61% were passed with the support of two or more parties. The remaining 36% were accepted unanimously, or by consensus. He also observed that 92% of the PLI's proposals were rejected in the plenary session.
The points that inspired the most heated debate and that subsequently received the most modifications were:
1. The character of the National Assembly
2. Authority of the National Assembly and its relation to the executive branch.
3. Parliamentary factions
4. Minimum number of votes required for approval of the Constitution
5. Authority of the National Assembly bodies, in particular the Directorate and its members.
6. The rules governing open and closed sessions of the National Assembly.
The fifth point, in a less polemic style, passed easily. Debate surrounded the others, especially the first two, which in one way or another concerned the form of government that the future Constitution would prescribe for Nicaragua. The sixth touched on the sensitive issues of freedom of expression and the right to information. For this reason it produced heated discussions, which at times gave way to insults.
Points one and two concern the nature of the National Assembly and are intimately related. As the debate on these points developed, three distinct positions appeared. The FSLN conceived of the National Assembly as one branch of government and argued that it is not within the scope of the National Assembly statutes to establish which branch is the most powerful. The Liberals and the Popular Social Christians, on the contrary, maintain that the primacy of the National Assembly must be spelled out within the statutes. A third position was espoused by the PCD, which proposed that the National Assembly have the function of supervising and controlling the executive branch without superseding its authority. The Socialists supported this position, while the Communists aligned with the PLI. The MAP ML refused to recognize the separation of powers concept, arguing that "people's power" is the only legitimate source of governmental authority.
The common basis underlying the second and third positions is a desire to protect the National Assembly’s sovereignty from any "autocratic tendencies" that might appear in the executive office. After the National Assembly's debate, this interpretation appeared in detail in La Prensa. The FSLN's position is supported by the 1980 Fundamental Statutes of the Republic, which are still in effect. Article nine of this document defines the three branches of government as The Junta (executive), the Council of State (legislative), and the Supreme Court (judicial). As a result of the elections, the presidency has replaced the Junta as the executive branch while the National Assembly has replaced the Council of State.
The first point was passed as proposed by the Justice Commission and stipulates that the National Assembly’s primary goal is to draft and approve a Constitution within the first two years of its existence.
There was also a heated debate over whether the Assembly should be officially called a "Constituent Assembly." Those in favor argued that the Assembly was "constituent" not because it was charged with framing the Constitution but because it "constitutes" the source of Nicaraguan political power. The FSLN rejected this interpretation because it ignores Nicaragua's recent history. The Nicaraguan people, they argued, won their freedom in 1979 and therefore constitute the source of Nicaragua's political power. The nation would not "be born" with the ratification of the Constitution. To avoid ambiguity, this adjective was omitted from the National Assembly's official title.
Executive power is indisputably in the hands of the FSLN, by virtue of its convincing electoral victory. Although important government posts are held by nonparty members, most ministerial level positions are filled by FSLN members. For the opposition parties, political power exists largely within the National Assembly. Consequently, discussions continue to address the relationship between the legislative and executive branches. 'This concern was obvious in the drafting of Title II: Powers of the National Assembly, which discusses the Assembly's relation to the other two branches of government.
Among the Assembly’s powers, the opposition parties sought to include approval of the national budget and ratification of international economic and political agreements, including those pertaining to the foreign debt. The FSLN and some opposition members rejected these proposals, invoking once again the Fundamental Statutes. The power to dictate laws regarding international agreements and to act freely on fiscal and administrative matters remains in presidential hands. The National Assembly has the right to full disclosure of the national budget (Art. 24.6) and the power to enact laws regulating foreign investment (Art. 24.7). Although the President has ample freedom to travel, the National Assembly has to approve any absence of more than two months. The Assembly has greater authority over ministers and deputy ministers, presidents of autonomous groups and the directors of government entities. The Assembly can solicit reports from these groups and individuals and interpret them. It has the obligation to investigate and resolve any complaints lodged against these groups. It is the Assembly's duty to investigate charges against officials enjoying legal immunity and oversee any punitive action that might result from the investigations. The PCD did not succeed in giving to the Assembly the right to name government ministers and deputy ministers.
The National Assembly’s relation to the judicial branch is similar to its relation with the executive branch in that neither power is subordinate to the other. Although the relationship is not well defined in the statutes, some rules regulating the interaction between the judiciary and the Assembly were included. The National Assembly is empowered to interpret the law, but only on request of the Supreme Court so (Art. 24.2). It may also appoint committees to investigate any matter in the public interest. The conclusions reached by these committees will be subject to review by the Supreme Court.
The statutes state that the National Assembly will concede its legislative powers to the President during periods of recess (Art. 24.13). They also describe three specific cases in which the President can decree a State of Emergency: international war, natural disaster or "when other circumstances necessitate the defense of the peace or security of the nation" (Art. 26). This same article sets limits on the President's power during a State of Emergency. The President has the power to suspend some of the rights and guarantees established in the corresponding statute of August 1979. The President, government ministers and public officials will all be held legally accountable for their actions during a State of Emergency.
All of Chapter 4, Title IV, defines procedures by which the President can veto a law already passed by the National Assembly. The same chapter also elaborates the procedures for passing legislation over a Presidential veto. All of these regulations are consistent with the nature of the National Assembly as it had been initially planned. When all the dust had settled, it became clear that the majority of the debate concerned the form of government—presidential or parliamentary—that would be created by the Constitution.
For both historical and practical reasons, the FSLN strongly favors a presidential system of government, which is the norm in the Americas. Most importantly, however, Nicaragua's present situation, characterized by intense military and economic aggression, requires a strong presidency. The FSLN believes expanded powers of the executive office, including the right to enact laws without the Assembly's approval during periods of recess and States of Emergency, are justified under present circumstances. The opposition parties, on the other hand, clearly prefer a parliamentary system.
The FSLN has taken the position that the National Assembly has all the power it requires to frame a Constitution and enact any relevant laws. The opposition clearly does not agree, as indicated by its proposal of 43 different powers for the National Assembly. Among these was the power to approve all ministerial decrees, which would have effectively reduced the ministries to administrative bodies.
Parliamentary factionsThe concept of a parliamentary faction was developed in Europe where it functions in most legislative bodies. It is a method of reserving certain legislative rights for groups of representatives rather than individuals. The number of individuals making up such groups and thereby constituting a parliamentary faction is decided in the statutes of the particular assembly. The purpose of parliamentary factions is to insure that only parties or groups with significant support are granted important legislative rights, such as the right to initiate proposals or to head committees. This has the effect of streamlining the often onerous legislative process by reducing the number and diversity of issues coming before the legislature. There are 96 members representing seven parties in the National Assembly. The FSLN has 61, the PCD 14, the PLI 9, the PPSC 6, and the PSN, PCN and MAP ML each have 2.
In Article 1, the Justice Commission proposed that the topic of parliamentary factions be included in the statutes and that a faction be constituted by any party receiving 10% or more of the votes in the November elections. This would have granted parliamentary faction status to the FSLN, the PCD, and the PLI, but not to the other four parties. The Commission also proposed that the following rights be reserved for parties whose members constituted a parliamentary faction:
a) right to membership in the Directorate
b) right to initiate bills
c) right to head committees
d) right to membership in special committees
e) and all other rights established in the present Statute
Discussion began when the FSLN proposed that the requirement for parliamentary factions be reduced to five representatives. This would have increased the number of parliamentary factions to four by including the PPSC, which has six representatives in the Assembly. The PSN was the first to object to the FSLN's proposal, claiming that the exclusion of the smaller parties would violate the Statutes of the Republic, the Statutes of Rights and Guarantees of Nicaraguans and the agreements of the Political Parties Summit. The PSN saw this as an effort to smother the minority parties. The PCD and the PLI, which were not affected, joined the PSN in rejecting the proposal, and the FSLN yielded to this united opposition. The rule of parliamentary factions received several revisions before being passed. The number of individuals required to constitute a parliamentary faction was set at 4. The administrative and financial rights of each parliamentary faction are described in article 23:
"Parliamentary factions will receive the offices and materials necessary for fulfillment of their duties. Payment for these services will come from the budget of the National Assembly and will be proportional to the number of representatives in each party.
All the legislative rights outlined in the Commission's draft will be granted to each and every representative, so that even though a party is not designated as a parliamentary faction its members will have the right to:
a) be a member of the Directorate
b) present bills
c) preside over permanent or special commissions
d) enjoy all the other rights established by the statute, such as applicable salary, freedom of opinion and vote, immunity before the law, and the right to have an alternate (either the elected alternate or another party member).
For obvious reasons, parliamentary factions cannot be formed by the union of members from different parties. And, to prevent extra parliamentary alliances, any legislative action that does not conform to the present law will be considered invalid.
Although article 31 doesn’t favor the smaller parties and their representatives, it also doesn’t restrict their right to initiate legislation. The article does establish that legislative initiatives must be signed by at least five representatives. Since a bill can be introduced by five representatives from any of the parties, negotiated alliances are not only possible but likely.
The relation between the public and the AssemblyChapter 2 of Title I details the rules governing sessions of the National Assembly. Sessions will normally be held in Managua, although the president of the Assembly can designate another meeting place if necessary. Regular sessions will meet from February 21 to December 22 of each year. The Judicial Commission's draft included a summer recess from July 15 until August 22, but this was rejected. As a result, the Assembly will meet for ten months of the year. This schedule is much more rigorous than that of most Latin American legislatures.
The next subject of discussion was the quorum requirements for both ordinary and constitutional sessions. The Judicial Commission had proposed that the quorum for an ordinary session should be 50% plus one, or 49 representatives. This was approved by the Assembly. Because of the importance placed on the drafting of the Constitution, separate quorum requirements were set for that process. The FSLN proposed that the presence of at least 60% of the representatives be required for a constitutional session, while the opposition proposed that the requirement be 75%. The FSLN's proposal was approved and the attendance of 58 members will be required for Constitutional sessions. Article 51 of the Commission's draft had originally stated that the Constitution must be approved by 60% of the representatives in attendance. The clause "in attendance" was omitted in the final version. The result of these two measures is that the FSLN retains a controlling majority, but the opposition will be able to block FSLN proposals. The opposition only needs to convince three FSLN members of its argument to block passage of an FSLN proposal.
The FSLN's controlling majority is the result of a clear electoral victory, which demonstrated the strength of FSLN popular support. The urgent task of drafting a Constitution requires a majority consensus. Many times in the past, and even recently, Nicaragua's political progress has been threatened because the minority parties refused to play by the rules when the time for decisive action arrived. The possibility exists that the efforts to frame a Constitution in two years will be blocked by the withdrawal of the opposition. But given the participation of parties both on the right and the left and the support of the electorate for constitutional dialogue, the likelihood of large scale abstention seem small.
The Assembly's most heated debate surrounded the issue of closed sessions. There was almost no objection to the definition of the sessions as public: "citizens may attend sessions with the permission of the Secretary." But the paragraph indicating that the Assembly president has the power to designate certain sessions as "private or secret" provoked angry responses. FSLN representatives pointed out that sessions dealing with state security or the military are, by their very nature, secret.
Dr. Clemente Guido (PCD) defended the right of the Nicaraguan people to a full disclosure of the Assembly's actions. The discussion then turned into a condemnation of the official press for its "misleading" coverage of politics. The PCD, PCN, and PLI proposed that the state radio station, Voice of Nicaragua, should broadcast each session of the Assembly in its entirety, to avoid any misrepresentation. This would, they hoped, improve the Nicaraguan people's understanding of the political process.
This proposal was rejected. The arguments against it were the expense and the loss of the station's audience if some 16 hours a week of programming were devoted to the Assembly sessions. The possibility of closed sessions was maintained. Although the word "secret" was omitted from the final version of the statutes, a paragraph was added reminding representatives of the obligation to uphold the confidentiality of closed sessions. The FSLN fought hard for the closed session, while the opposition felt it was unnecessary. The opposition's argument is bolstered by the fact that the Assembly doesn’t even have authority over the national budget.
From now to the signing of the ConstitutionAfter lengthy discussions and heated debates, general statutes were approved that allow all seven parties to fulfill the legislative duties entrusted to them by the voting public. The statutes will facilitate the discussion and eventual approval of the Constitution. This Constitution will define the principles by which Nicaragua will be governed. This is the most obvious outcome of the National Assembly’s recent activity.
The statutes document is pragmatic, formulated to allow the real work of framing a Constitution to begin. As such, it has some shortcomings. For example, it does not indicate who will replace the President or Vice President if they are unable to fulfill their duties. But, as one FSLN representative pointed out, "It seems unlikely that we will have to confront that situation within the next year." Another problem with the statutes is that they do not clearly define the relationship between the Supreme Court and the Supreme Electoral Commission. Other purely functional points remain to be worked out as well. These will be drafted and approved within 45 days, at which point the statutes will take effect.
Bringing an end to a long debate or calling a vote are normal parliamentary procedures that had to be applied frequently during these first sessions. To question the validity of these procedures because the Assembly President is a member of the FSLN, as some opposition representatives did, ignores political reality in legislative bodies throughout the world.
The minority parties, whether or not they constitute a parliamentary faction, will be present at all votes, and will be able to participate fully in the debates. The FSLN will have to rely upon the force of its arguments, rather than depending solely on its numerical superiority.
There are 20 FSLN representatives who have worked with the party and support its programs, but are not party members. These people come from various sectors of society. Among them there are ministers, intellectuals, businessmen and producers. This diverse set of backgrounds has already resulted in internal debate within the FSLN's Assembly bench. On more than one occasion some FSLN representatives have voted against the party's position. Indications are that the FSLN representatives will not always follow the "party line" in the National Assembly.
It is clear that Nicaragua's current crisis situation has affected some of the Assembly's actions. The Reagan administration's coordinated plan of economic, diplomatic and military pressure against Nicaragua's present government also affects the National Assembly. This multifaceted war is the primary force shaping Nicaragua's day to day existence. In light of US aggression, the support of the FSLN, PCD, PPSC, and PSN for a strong executive branch is both appropriate and necessary. Nicaragua needs an executive branch with the power to enact laws and take appropriate action to respond to an invasion, should it occur.
The great risk is that the intensity of the present situation will produce a "crisis legislation" that will be unsuited for the times of peace everyone hopes for. The responsibility for avoiding this lies with the FSLN. Its success will depend upon the extent to which it encourages free debate with all of the opposition. Although the opposition representatives are a minority, they do have a certain constituency with its own vision for the future of Nicaragua. Here it is not just the number of votes that should be considered but the true merits of each proposal. Only in this way will the FSLN succeed in living up to its ideals and completing its ambitious projects, so many of which have been frustrated or delayed by the war.
Is there awareness in Nicaragua of the importance of constructing a legal framework that will recognize the people's deepest aspirations and formulate laws to realize them? Presumably the leaders of each party and the 96 representatives of the National Assembly all possess this awareness. It would be difficult, however, to assume that all middle level party members and the people themselves see this necessity. Many factors contribute to this lack of appreciation for legal structure. There are the ongoing effects of the Somoza period, during which, all sense of legality was systematically abused for more than 45 years. Before 1979 the law was corrupt and only served as an oppressive weight, crushing its own people. For many who suffered under Somoza's dictatorship, the enactment of a law only recalls injustices and promotes distrust towards those who promulgate and enforce the law. As a result it is very difficult to determine what expectations people have for their legislature. Also, many government leaders have had very little experience in the technical matters of government. All the same, they have had to respond rapidly to the urgent needs of the Nicaraguan population: food, transportation, health, etc.
The Nicaraguan revolution has produced a great many laws in its short history, but there is a clear need to deepen awareness not only of legality but of legitimacy. This can be achieved by improving contact between the government and the people. The National Assembly is one means for this communication. There is also the possibility of including within the Assembly forum the voices of citizens chosen by the Special Commission in charge of drafting the Constitution. The government must call upon the country’s many organizations and social sectors to help raise public consciousness. A grassroots dialogue has already been announced as an effort to build confidence in legislative projects and institutions. Public opinion within Nicaragua is more important than the government's international image, because it is the people's support that gives substance to the principles of the revolution.
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