Newsletter 7 (August-September 2017)

Editorial summary

The Constitutional Court undermines its own legitimacy

The Constitutional Court has been part of the constitutional problem. On the one hand, it is inevitable that the delegitimization of Constitution before the citizenry would reach the authority whose role is, by definition, to guarantee its supremacy. It is particularly controversial its duty to enforce the limiting role of the Constitution against the legislature by reviewing the constitutionality of the laws it passes. The exercise of this faculty necessarily involves frustrating the will expressed by the representative institutions. Additionally, in the case of Chile such intervention may occur even before a legal rule goes into force.

Its role as guardian of the Constitution, then, will always leave some dissatisfied, prompting criticism of the different rulings of the Court, its constitutional faculties (such as ex ante review), or its very existence, among other issues. Usually the Court’s rulings in cases of ex ante review have frustrated policies by center-left governments, as would be expected given the origin of current constitution and the characteristics of the political system developed under its during last three decades.

However, this time, after the adoption of the law decriminalizing abortion under three circumstances, most of the frustration was experienced by the right-wing coalition Chile Vamos and the conservative wing of the Christian Democratic party. The reactions have been diverse. The most cautious ones have been of resignation and acceptance of the ruling, accompanied by moral lamentation. Trying to balance respect for the ruling with a downplaying of its scope, others have made efforts to interpret the judgment by drawing attention to the fact that it was not unanimous –rather than only considering the legally binding aspects of the sentence–. Finally, some right-wing congresspeople have announced that they will seek to bring suit before the Inter-American Court of Human Rights on the grounds that, in their opinion, the decriminalization of abortion violates the American Convention on Human Rights. The latter strategy –although destined to fail given the Inter-American Court’s past rulings– suggests a risk that the Constitutional Court might lose legitimacy even in the eyes of the Right.

However, despite ruling, the Court’s decision left significant dissatisfaction in the Left due to the inclusion of a right to conscientious objection in the law which extends not only to natural persons –something that was included in the bill– but also to hospitals and clinics. It is clear that the Court overstepped its traditional competence as a “negative legislator” and by means of a skillful suppression of some words of the bill reversed in one hundred and eighty degrees the meaning of one of the provisions, thus incorporating into the law a right that the legislative had deliberately excluded. In doing so, it behaved rather as a positive legislator. If the explicit denial of institutional conscientious objection contained in the bill was unconstitutional, the Court should have eliminate such ban. However, it went further and included that right into the law. This was not legally necessary for the protection of the fundamental rights which it meant to protect. If, as the Court stated, the current Constitution guarantees such right, eliminating the ban leaves the constitutional right safe, which can be invoked by means of existing judicial remedies (such as writ of protection of fundamental rights), or even the ex post and concrete judicial review by the Constitutional Court itself. By including this right into the law, therefore, the Court not only frustrates the will of the legislator, but supplants it.

This did not go unnoticed among politicians, the legal community, nor civil society. Members of the Senate’s Constitutional Commission called it an intrusion, a group of Deputies submitted a request for reconsideration before the the Court, and within civil society several groups denounced the inclusion of the institutional right to conscientious objection as a risk for the effective provision of the health services involved in performing abortions in the cases now authorized by law.

The ruling in this case could have had the effect of appeasing the usual criticisms faced by to Court as guardian of a constitution that is delegitimized before the citizens, given the more liberal interpretation regarding the protection of the unborn and the explicit recognition of women’s rights in the ruling. However, by exceeding its powers, the Court’s action revives and deepens some of the most common criticisms regarding the undemocratic potential of its role.