Newsletter 6 (August 2017)

Editorial summary

The Constitutional Court and the constitutional problem

The Constitutional Court again became a matter of public controversy regarding the legitimacy of its existence, its powers, its appointment process, and its rulings in general. On this occasion the discussion took place due to the requirements submitted to the Court by a group of senators and one of deputies requesting that the bill which decriminalizes abortion under three circumstances (rape, fetal non-viability, and risk to the mother’s life) be ruled unconstitutional –one of the flagship projects of the Bachelet government–.

The Court ruled against the requirements regarding the three circumstances, so that part of the bill will be promulgated and become law. However, the Court did rule in favor of the part of the requirements which objected to the regulation of the exercise of the right to conscientious objection contained in the bill. The precise consequences of this aspect of the ruling will only be known after the sentence is mad public on the 28th of August.

At first glance, the controversies arising in relation to the intervention of the Court in the passing of laws –in particular through constitutional review request by the parties defeated in the vote in Congress– appear not to be directly connected to the constitutional problem, but there are some relevant issues that should be highlighted.

The most obvious connection is that Constitutional Court is seen as one of the elements that make the current Constitution “rigged”, insofar as it prevents democratic progress, having been designed precisely to prevent the adoption of legal reforms that would move away from the political, economic and social “model” imposed by the Pinochet dictatorship and enshrined in the Constitution and different super-majority laws. That’s one element of its of legitimacy before the citizenry, and one of the motivations behind the demand for a new Constitution. It has even been argued that constitutional amendments that eliminated the Court, the supermajority quorums for certain laws would open the possibility of considering such amended constitution as a new Constitution.

However, as we’ve recently highlighted, whenever the Constitutional Court reviews the constitutionality of bills of special social relevance, it shows that current Constitution is alien to citizens. In such cases, public discussion focuses on the Court’s legitimacy much more than on constitutional arguments about whether the contested rules are unconstitutional according to the best interpretation of the constitutional text. This suggests that the Constitution is not able to fulfill its role of mediating political debate, of providing a common language and a regulatory framework in terms of which to discuss what legal rights should be recognized. Except those who are professionally involved in the interpretation and application of Constitution –constitutional scholars and lawyers who litigate before courts with constitutional jurisdiction (categories between which there is significant overlap)–, interpretive discussion does not take place within the population. This is relevant for the constitutional problem because, although public ignorance of the constitutional text is usually presented as a reason for dismissing demands for constitutional change, this situation should rather count as an argument in favor of the need for a participatory constituent process that would make it possible for citizens to make the Constitution their own.

The Constitutional Court, social dialogue and constitutional change

One interesting aspect of the constitutional review process of the abortion bill was the convening of public hearings in which civil society organizations were able to make 10-minute presentations before the Court. As it has been emphasized in comparative literature (regarding countries such as Colombia, Brazil, or Argentina), such experiences can be considered as part of a novel development in constitutional practices, in particular, as a form of “dialogical constitutionalism”, where constitutional interpretation involves interactions between various actors, including courts, political powers, and civil society.

By being open to receive opinions from civil society actors, the Court creates a potentially deliberative space in which the constitutional content that is established by interpretation and application of the text is can take place openly. The possibility of this constitutional development is relevant from the point of view of the study of the Chilean constitutional problem and its constituent process. Eventually, a dialogical constitutional development could lead to constitutional change through interpretation –a phenomenon often referred to as “constitutional mutation”, and which is presented by conservative actors as a kind of constitutional change more respectful of constitutional tradition than the drafting of a new Constitution–. However, given the legitimacy crisis of institutions, which certainly reaches the Court, the odds of that happening will depend on whether this “dialogical” exercise appears as properly oriented to listening and giving due consideration to the arguments in favor of different interpretations on the issue, either by rejecting or accepting them, as the case may be.

Those conditions put a burden on the Court which, in light of the way the hearings have been implemented in this case, don’t seem to have been met. Some weaknesses are attributable to a regulatory deficit. While in experiences in other countries in which hearings are regulated, in our country they are convened in application of a rule in the Court’s organic law which gives it ample faculties to “decree the measures it deems necessary for the most appropriate substantiation and resolution of the case before it” (Article 37). The particular way in which it is regulated, then, make the hearings procedure whose existence and operation is at the sole discretion of the Court.

In convening the hearings, the Court has not offered reasons for doing so other than making reference to the cited rule. However, it seems clear that decision to convene audiences is guided by a political judgment, namely the relevance of the matter for public opinion. While in some cases the need to receive opinions through hearings and reports is explained by the need for a scientific or technical background –as was the case in the process regarding the morning-after pill–, the Court puts no restrictions on those who request to make presentations at the hearings other that representing some interests involved in the matter. Thus, in the case of the abortion bill more than one hundred organizations of different nature requested to be heard: from universities and think thanks, to medical professional associations, churches, and activists in general. Only regarding some of them could it be argued that their contribution to deliberation was of a factual nature.

Moreover, the fact that the purpose of the hearings in general is political seems to have been recognized in 2013 by who at that time was President of the Court, Minister Marisol Peña. In that year’s annual report she argued that the hearings are “a different way –and, indeed, a new way– to bring the work of this constitutional tribunal to the national community as a whole”.

Other aspects of the way the audiences take place are unfavorable to the purpose of contributing to a constitutional dialogue. For example, that the Court explicitly stated there would be no questions or comments from its members to those making presentations, as is the case in ordinary Court hearings. It would also have been favorable to a constitutional dialogue the putting requirements in place for the expositions that would contribute to a better dialogue, for example, convening thematic sessions on the different constitutional issues under discussion.

However, the Court’s greatest challenge is to demonstrate that the hearings have been a contribution to the constitutional debate in general and to the resolution of the case in particular. This involves avoiding two extremes. On the one hand, it must avoid giving the appearance that the arguments offered in its decision are simply an ex post facto rationalization reflecting the ideological or political affinities of its members. Informing the ruling to the public right after voting on it –and leaving the sentence itself and its opinions to be drafted afterwards, and made public a week later– contributes to this negative image, and it is made worse by how close in time the last of the more than one hundred oral presentations took place and the time of the vote itself, which makes it implausible to believe that they would have a chance to be pondered and duly considered by the members of the Court before casting their votes.

On the other hand, in order to contribute to the possibility of a constitutional dialogue, the Court should seek to avoid the appearance that in its decision it is simply yielding to public pressure. This warning, however, should not be construed as equivalent to the idea that the task of the Court’s job is precisely to not hear the voice of the majority of the population. Such a statement is not necessarily correct. It is correct if understood in the sense that the Court should not to take the majority opinion as being the ultimate interpretative criteria. But the idea of hearing the majority can also be understood as listening and giving due consideration to the arguments of the majority and the opinions that are submitted, which does not imply an obligation to follow the majority opinion, but only a duty to create the conditions for all relevant arguments to enter into the constitutional deliberation and for all affected interests be represented. This understanding of “hearing the majority” is not an obstacle to the counter-majoritarian role of constitutional justice.

Seen in this way, considering listening the opinions of various social and political actors as part of the Court’s duties is compatible with the fact that such opinions should be evaluated on their merit, some resulting ultimately to be irrelevant, obviously erroneous or implausible, while others may be relevant, justified and –eventually– persuasive.

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