San José, Costa Rica, since 1956

Sandinistas Invent de Facto Constitution

In another brazen move by the Sandinista government to justify the continuance in power of 25 public officials whose terms have already expired, the administration of President Daniel Ortega last week printed a “new version” of the Constitution, including an article from the 1987 Constitution that expired two decades ago.

Sandinista lawmakers Rene Núñez and Alba Palacios, the president and deputy secretary of the National Assembly, respectively, took advantage of the presidentially decreed public holiday last week to order a reprinting of the Constitution, allegedly behind the backs of the political opposition, which was on vacation. The new version of the Constitution, which has not been approved by vote, includes the polemical second paragraph of Law 201, a transitory article from 1987 that says public officials whose terms have expired can remain in office until new officials are appointed.

Legal analysts and opposition politicians claim the transitory article was written for a specific moment in history 20 years ago, and expired in 1989. The article was therefore excluded from the current version of the Constitution, which was printed after the reforms of 1995.

But that didn’t stop the Sandinistas from trying to “revive” the old article earlier this year. In attempt to justify Ortega’s controversial Jan. 10 decree (known as “el decretazo”), which extended the terms of 25 top judges, electoral magistrates and other public officials whose periods in office have expired over the past seven months, the Sandinistas dusted off the old 1987 law and said that it had been omitted from the constitution “by mistake” (NT, Jan. 16).

Opposition lawyers balked at the Sandinistas’ attempt to resurrect the dead law. Carlos Tünnerman, a lawyer with the civic group Movement for Nicaragua, said the Sandinistas’ argument is “absolutely absurd,” and demonstrates “The desperation of Ortega and those around him to perpetuate (themselves) in power” (NT, April 16).

Now the Sandinistas are trying to further legitimize their argument by simply putting the old paragraph back in print in a new edition of the Constitution. And that, apparently, was a good enough legal argument for de facto Supreme Court judge Rafael Solís, who announced this week that he and the other Sandinista judges are now prepared to rule in favor of upholding Ortega’s decree.

So, in effect, Solís said he is going to use the new version of the Constitution to uphold his bosses’ executive order to protect his job.

Critics claim the Sandinistas are just trying to support their de facto government officials with a de facto Constitution.

“The publication of an inauthentic version of the Constitution is totally illegal; there is no judicial basis for a president to order the publication of different Constitution for that which was approved by the Legislative Branch,” said political analyst Felix Maradiaga.

Opposition lawmakers, who often claim to be shocked and appalled by what their Sandinista colleagues are doing in the National Assembly, have once again promised to undo what they say was an illegal move made behind their backs.

The four opposition lawmakers of the National Assembly directorate wrote a letter to congressional president Núñez Sept. 20 demanding “an urgent meeting” of the legislative heads to annul the new version of the Constitution, which they claim is totally contrary to the spirit in which the magna carta was ratified.

One congressional legal adviser for the opposition Liberal Constitutional Party (PLC) went so far as to call on citizens burn the newly printed constitution in the streets as a form of public protest, according to La Prensa.

Others, however, have speculated that the PLC is once again playing the role of silent partner in the continued power-sharing pact (“el pacto”) between Ortega and former President Arnoldo Alemán.

Alemán, who has already declared his candidacy for 2011, has recently seen his position as opposition leader challenged by the upstart pre-candidacy of Fabio Gadea. Some think Alemán may now be secretly supporting the Sandinistas’ constitutional publishing endeavors in an attempt to reestablish his quota of power and potentially complicate the candidacy of Gadea.

The latest constitutional crisis is not the first time in recent memory that Nicaragua has had two contradictory Constitutions. In 2005, the Ortega-Alemán pacto passed a series of controversial constitutional reforms that stripped several executive powers from President Enrique Bolaños. The president refused to recognize the reforms, leading to a year-long crisis whereby Nicaragua essentially had two Constitutions.

At the time, the U.S. government accused Ortega of staging a “creeping coup” against Nicaragua’s constitutional democracy.

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