CHAPTER 1
Constitutional Symmetries in Mercosur
Before starting this chapter, we think it important to remember that the Mercosur region, in terms of democracy and exception regimes, has been like the pendulum of a driven clock by the following ideology: power conquered by force is only maintained by force and only comes out by force. (in The Essence of Power, 2001).
Norman Angell (2002: 190-191) records that a few years ago an Italian lawyer named Tomasso Caivano wrote a letter with memories and impressions of twenty years in Venezuela and the contiguous republics, and that his conclusions are worth mentioning, because they keep truths about almost every country in the region.
Tomasso Caivano, on bidding farewell to the Venezuelans, exhorted them by saying:
"The curse that weighs upon you is the soldier and the character of the soldier. It is impossible, for two of you in particular, and even more so for two of your parties to hold a debate without wanting to fight for the cause in dispute, Venezuelans consider it an abdication of their dignity whatever it means to take into account the point of the other party to try to adjust to it, as long as it is possible to fight it using force. Personal courage seems to compensate for all defects. The military in bad faith is more considered in your society than the civilian of good qualities; military prowess and adventures are considered more honorable than honest work. The worst corruption is forgiven, as well as the most grievous, as long as your leaders know how to clothe them with the tinsel of bluster and declamations about bravery, fate, and patriotism. Until there is a radical change in your spirit, you will continue to be victims of oppression. As long as the mass of your people-peasants and workers-do not refuse to allow yourself to be dragged into slaughter in quarrels that do not interest you, and which you only let yourself go because you prefer war to work, your beautiful territory, more fruitful than God has given to men, will not have a prosperous and happy people, enjoying the fruits of their labor in peace and joy."
Despite the adoration of some Latin American peoples for guns and dictatorships, the best way to resolve conflicts is still through debate, and the debate is field of democracy.
Fortunately, new winds of democracy have blown on Latin America, despite the tsunami of corruption that civilian governments have been imposing on region's people.
It is a moment of reflection on past mistakes, so that the Brazilian and Latin American people can evolve from the formal democracies in which we live, to substantial democracies in which human dignity is a reality and not a heap of crystallized promises in Constitutions of merely programmatic rules, such as we have in our present states of rule.
The globalization of information, the increase in life expectancy, and the slow but gradual growth of the economy have fueled the awareness and growth of the self-esteem of the peoples of this region so rich in natural and human resources.
However, the educational process of our peoples, which has been purposely hampered by utilitarian governments of the left and the right who blame each other to justify their disastrous passage through power, has been an obstacle to the construction of the social dignity that we aim.
In Brazil, at the end of the 1980s we began to harvest the fruits of democracy dreamed of in, after so many exceptional dictator regimes. Unhappily, the corruption on civil governments is a menace to de continuity of the democracy of the region.
One of the political-juridical dialogues proposed and initiated in this new phase was the regionalization of the economy and law, as tools for the construction of the social welfare of our peoples.
The idea of a Southern Common Market arises, following the example of the- European Union (EU) and NAFTA - North American Free Trade Agreement.
David Baigun and Nicolás Garcia Rivas made the following synthesis on the subject:
"In the words of the Brazilian constitutionalist Paulo Napoleão Nogueira da Silva, MERCOSUR is a reality that proposes to be much more than a simple free trade area, it is proposed to be a customs union, a true economic confederation that includes the possibility of adopting a single currency. In a critical perspective, Gabriela Wurcel indicates that, beyond the official name (Common Market of the South), it is far from being a true common market or a perfect customs union.
As Oscar Hermida Uriarte recalls, MERCOSUR has its origin in the Treaty of Asunción, celebrated on March 26, 1991 between Argentina, Brazil, Paraguay and Uruguay, regulating a period of transition or construction of a free trade zone between the four countries and a common external tariff in the bloc's relations with the rest of the world. By the Protocol of Ouro Preto of December 17, 1994, its definitive institutional structure was established, MERCOSUR being constituted in a "free trade zone" within it with an interregional tariff of 0%, with exceptions, and a "customs union" "Towards third countries with a differential common external tariff that ranges from 0 to 20%, with exceptions. According to the aforementioned Wurcel, the crisis that crossed the regional bloc at the end of the last millennium, even led to talk about the desirability of putting all the effort into consolidating, at least, the free trade zone, leaving aside the improvement of the customs union.
Adriana Dreyzin de Klor points out that by opting the bloc's rulers for a common market, the intergovernmental structure on which it is built has operational repercussions in all fields, not only the legal-structural one, the most critical being the lack of legislative bodies with competence legitimate to elaborate the right that governs its destiny, together with the lack of a Permanent Court of Justice. The verification of numerous disagreements among the members has been installed as an idea with consensus to make an institutional turnaround that gives the scheme a democratic legitimacy that it lacks. The current conflict between Argentina and Uruguay over the issue of paper mills in front of the province of Entre Ríos, is a clear example of the problems mentioned.
Since 1992, with an initial plan of four meetings, which began when the 1st International Seminar on "Regionalization of Criminal Law in MERCOSUR" was held in Asunción, Paraguay, between July 1 and 4, with the Participation of delegations from the four signatory countries, made up of recognized teachers of the subject, has been carried out different activities on the point. In that meeting, the topics addressed were: 1) judicial organization; 2) the movements of penal procedural reform and the protection of human rights; 3) cooperation procedures in criminal matters. The 2nd Seminar was held in Maldonado, Uruguay, from November 10 to 13, 1993, while the 3rd was held in Porto Alegre, Brazil, from October 27 to 29, 1994, and issues related to the international cooperation and issues related to economic criminal law. The 4th Seminar was held in Santa Fe, Argentina, from June 26 to 29, 1996, where topics related to economic crime were deepened, such as the criminal protection of competition, the penal regime of trademarks, patents and industrial designs and the comparative analysis of judicial systems and procedural guarantees in the area.
In August 2004, the Permanent Court of MERCOSUR was inaugurated in Asunción, the body in charge of resolving disputes concerning commercial disputes between the member countries, composed of five jurists; it is a permanent arbitration body born at the proposal of Argentina (February 2002) that will be reflected in the Protocol of Olivos. It can act as a court of single instance between the States parties or in two instances (one "ad-hoc" and another as a Permanent Court of Review, in cases referring to problems of a commercial nature).
As for the structure of MERCOSUR, it is as follows:
1. Decision-making bodies:
a) Common Market Council: supreme body, has the political leadership and decision making. It is made up of the four presidents of the member countries, plus the four foreign ministers, the four finance ministers and the four presidents of the central banks.
b. Common Market Group: executive body. It is composed of four regular members and four alternate members for each country.
c. MERCOSUR Trade Commission: ensures the application of trade policy instruments. It is composed of four members and four alternate members for each country.
2 Parliamentary representation bodies:
* Joint Parliamentary Commission: represents the Parliaments of the States-party in MERCOSUR, seeks the harmonization of legislations as required by the integration process.
3. Advisory bodies:
Economic-Social Consultative Forum: makes recommendations to the Common Market Group
4. Support bodies:
* MERCOSUR Secretariat (permanent headquarters in Montevideo): operational support body, which deals with the provision of services to the other MERCOSUR bodies.
In order to close this synthetic news, it must be borne in mind that there is a democratic commitment between MERCOSUR and the Republics of Bolivia and Chile, embodied in the Ushuaia Protocol of 24/7/98, which had as its direct antecedent the "Presidential Declaration" and the adhesion protocol "signed in San Luis, on 6/25/96. There is also an "Agreement on extradition between the States Parties of MERCOSUR and the Republic of Bolivia and the Republic of Chile." Venezuela has recently announced its vocation to be the fifth full member, initiating the formalities (which concluded, closed this work, by the Protocol of accession of Caracas, signed on 4/7/06). There is also a "Protocol of mutual legal assistance in criminal matters of MERCOSUR", an "Agreement on extradition between the States parties of MERCOSUR" and progress has been made in the establishment of a unified retirement regime. (BAIGUN, David, RIVAS, Nicolás García (ed.), Economic Crime and Corruption, 1. ed. Buenos Aires: Ediar, 2006. pp. 280-284)."
We can point out from the collated synthesis the follow proposals for Mercosur:
- To be a free trade zone between the four countries, a common market;
- Be a "customs union";
- To be, as a common market, the intergovernmental legal-structural structure;
- To be an institutional turnaround that gives the scheme a democratic legitimacy to solve the conflicts of the region (e.g., what happened between Argentina and Uruguay because of the issue of paper mills in the province of Entre Ríos);
The implementation of this devir would pass through the regionalization of Criminal Law in MERCOSUR, following the following measures:
1) Judicial organization;
2) The movements of criminal procedure reform and the protection of human rights;
3) Cooperation procedures in criminal matters.
From the synthesis on the creation of the economic bloc, the authors highlight the following proposals for Mercosur to be a practical reality:
1– That a free trade zone be established among the member countries;
2– That it be a customs union;
3– That the intergovernmental legal and structural structure be the common market; and
4– That it be an institutional change that promotes democratic legitimacy for the solution of the region's conflicts, such as that between Argentina and Uruguay, due to the factory in the province of Entre Ríos.
In the end, David Baigun and Nicolás Garcia Rivas conclude that the implementation of this development goes through the regionalization of criminal law in Mercosur, with the parallel adoption of the following measures:
1) Judicial organization;
2) Criminal procedural reforms and protection of human rights;
3) Adoption of cooperation procedures in criminal matters
After conducting a comparative study of the Law of Mercosur member countries, we remain convinced of the possibility not only of integration in specific areas such as the EU and NAFTA do, as the possibility of taking a step forward through the unification of criminal, procedural penal and administrative-disciplinary rules that deal with crimes and acts of improbity against the Mercosur Public Administrations.
More of that, we propose a criation of a permanent Court of Justice with jurisdiction for the prosecution and judgment of the respective infractions that goes beyond borders of each member countries.
1.1 - Political-legal symmetries in Mercosur
We have already pointed out that symmetry is the relation of size or disposition that the things or parts must have with the whole. Political-legal symmetry was the focus of many debates among members of the Supreme Courts of Mercosur.
In some cases, their existence in other do not. That is why we set out to carry out a comparative study in the legislation of Mercosur member countries, with the aim of identifying the points of symmetrical convergence of our republican form, the representative system and the democratic regime of government, according to the Mercosur constitution.
The conclusions that we present do not leave doubt of the existence of political-legal symmetry. Here they are:
1.1.1 - Table 1 – The Republican form
ARGENTINA Article 1º - The Argentine Nation adopts for its
government the federal republican representative form,
according to the present Constitution.
BRASIL Art. 1 The Federative Republic of Brazil, formed by the
interdependent union of the States and Municipalities
and the Federal District, is constituted as a Democratic
State of Law and has as its foundation:
PARAGUAI Article 1 - IN THE FORM OF STATE AND
GOVERNMENT: The Republic of Paraguay is forever
free and independent. It is constituted as a Social
State of law, unitary, indivisible, and decentralized in
the manner established by this Constitution and the
laws. The Republic of Paraguay adopts representative,
participatory and pluralist democracy for its government,
founded on the recognition of human dignity.
URUGUAI Article 1. - The Oriental Republic of Uruguay is the
political association of all the inhabitants included
within its territory.
VENEZUELA Article 1. Venezuela declares itself Bolivarian Republic,
irrevocably free and independent and bases its moral
patrimony and its values of liberty, equality, justice and
international peace, in the doctrine of Simon Bolivar,
the Liberator.
1.1.2 - Table 2 - The representative system and the democratic regime of government
ARGENTINA The system of government in Argentina adopts the
representative, republican and federal form (National
Constitution, Art. 1). The people directly elect their
representatives
BRASIL Art. 1 The Federative Republic of Brazil, formed by the
inseparable union of the States and Municipalities and
the Federal District, is a Democratic State of Law ( ...)
Art. 14. Popular sovereignty shall be exercised by
universal suffrage and by direct and secret voting, with
equal value for all, and, according to the law
PARAGUAI Article 1 - IN THE FORM OF STATE AND GOVERNMENT:
The Republic of Paraguay adopts representative,
participatory and pluralist democracy for its government,
founded on the recognition of human dignity.
URUGUAI Article 77. - Every citizen is a member of the
sovereignty of the Nation; as such, he is elector and
eligible in the cases and forms that will be designated.
The suffrage will be exercised in the manner
determined by the Law, but on the following bases:
VENEZUELA Article 6. The government of the Bolivarian Republic
of Venezuela and the political entities that make up is
and will always be democratic, participatory, elective,
decentralized, alternative, responsible, pluralist and
revocable mandates.
1.1.3 - Table 3 - All are State of rule in Mercosur
ARGENTINA Article 27.- The federal Government is obliged to
strengthen its relations of peace and trade with foreign
powers through treaties that are in conformity with the
principles of public law established in this Constitution.
BRASIL Article 1 The Federative Republic of Brazil, formed by
the interrelated union of the States and Municipalities
and the Federal District, is a Democratic State of Law
and has as its foundation:
Article 1 - IN THE FORM OF STATE AND GOVERNMENT
PARAGUAI The Republic of Paraguay is forever free and
independent. It is constituted as a Social State of law,
unitary, indivisible, and decentralized in the manner
established by this Constitution and laws.
URUGUAI Article 4. - Sovereignty in all its fullness exists radically
in the Nation, which has the exclusive right to establish
its laws, in the way that will be expressed later.
VENEZUELA Article 2. Venezuela is constituted as a democratic
and social State of Law and Justice, which advocates
as higher values of its legal system and its action, life,
liberty, justice, equality, solidarity, democracy, social
responsibility and in general, the pre-eminence of
human rights, ethics and political pluralism.
There is no doubt that all MERCOSUR member countries are constituted with a republican form, a representative system and a democratic regime of government. We are not republics of medicine, geography or philosophy, but of law.
This means that the constituent power, that from which comes the whole power of the Nation, has in theory created representatively democratic Republics and whose destinies are in the hands of political and juridical spheres that really feel they have the duty to represent the aspirations of the Mercosur members.
