Crony Constitutionalism

by Manuel F. Ayau Cordon

At a time when Latin America is supposedly surging to the left, Mr. Pérez Molina's strong campaign was instructive. So too is the fact that in the first-round vote Guatemalans widely rejected the four extreme left-wing candidates, giving them less than 6% of the vote. Candidate Rigoberta Menchu managed a mere 3.1%, suggesting that Guatemalans are not nearly as impressed with the Nobel Peace Prize winner as the international community is.

Another interesting outcome of the first round was the substantial support for retired military candidates for congress, and for Mr. Pérez Molina, in regions that were supposedly victimized by the army in the past.

If the good news here is that socialists aren't all that popular, the bad news is that this reality is not reflected in our institutions, where socialist ideas remain deeply imbedded. Even though voters go to the polls every four or five years with hopes raised that an honest, capable person will come to power and preside over a more just society, they are always disappointed. Changing the managers without changing the institutional framework is like changing the driver when a car keeps breaking down. Even if the more market-oriented Mr. Pérez Molina wins, Guatemala won't begin to make real progress until it amends crucial aspects of its 1985 constitution.

Many Marxist ideas survive because it is hard to change the legal culture established in the heyday of socialism, when lawyers and politicians were trained that it is the government's task to solve all problems. Our constitution pays lip service to the rights of the citizens but regulates every aspect of daily life, including working hours, leisure time, social security and policies in education, banking and culture. Even sports must receive 3% of the budget. Using these constitutional mandates, legislators expand their power and further interfere in private, peaceful transactions. In fact, lawmakers are duty bound to do so.

The justification for this interference rests on the premise that the "general interest" prevails over "private interests." The trouble is that this has been interpreted to mean that the "general interest" trumps individual rights, as if individual rights were not of general interest. Many enumerated rights in our constitution are followed by a comma and the phrase "according to the law," which is later made by politicians under the influence of pressure groups. The result is not the rule of law but the rule of special interests.

This priority of short-term interests over individual rights has eroded the respect for private enterprise and thwarted wealth creation. Instead, we have to live with the cronyism that is so typical of Latin America. The protection of life, liberty and property -- aka the free market -- always takes second place.

Among Guatemala's most serious challenges is rampant gang crime, which can also be explained by the government's emphasis on "general interests" over individual rights. Funding those interests -- typically social programs -- has meant a shift of resources away from the judicial branch. A constitutional mandate allots it 2% of the budget, which means it effectively has been starved. While police often catch criminals, the scarcity of adequately trained judges has resulted in a conviction rate of less than 1.8% of criminal acts.

Not surprisingly, word of the low risk of going to jail has gotten around the underworld. Crime is so prevalent that drugstores serve their customers from behind iron bars. An exception is the eastern part of the country, where everyone owns guns and they don't hesitate to use them to protect their lives and property. In other parts of the country, communities have organized to defend themselves against the "maras" (gangs). When they take the law in their own hands, they dispense punishment with celerity and, not infrequently, lynch the criminals. Yet rarely has the proper funding of the judicial branch been recognized by presidential candidates as the essential means of reining in the problem.

Historically, when police have lost control of law and order, Guatemalans clamor for the army as the authority of last resort, much like Americans rely on the National Guard to control riots or widespread violence. Here, too, the country has been hamstrung by the remnants of socialism. Ever since the military defeated the subversive movements of the Cold War, left-wing international organizations and foreign governments have insisted on crippling the institution. Today the military is reluctant to take action and be subject to antimilitary international criticism. Guatemalans, however, know that before and during the years of subversive activities the armies were a civilizing force; this is evidenced by the popularity of ex-military candidates in elections.

The economy is also a victim of the constitution. While Guatemala has enjoyed some prosperity, gross national product growth has barely outstripped population growth. Today, in absolute numbers, there are more rich and middle-class people, but also more poor people. A mason earns the same in purchasing power as in 1980.

No matter who wins the election on Nov. 4, the country is not likely to change until the constitution recognizes that individual rights are superior to what politicians identify as the public good. Until then, there will always be a reason to strip owners of their property in the name of collectivism. That's not how the rich countries of the world developed and it won't work for Guatemala either.

We should heed Milton Friedman's advice: Do not do what the rich countries are doing now that they are rich, but what they did to become rich.

Mr. Ayau is president of the Pro-reform Association, which proposes a national referendum to amend the Guatemalan constitution.