Reports on the Chilean Constituent Process and activities of the Observatory

“An assessment of the Chilean Constituent Process”, published by the Observatory of the Chilean Consituent Process is available for download. It includes the chapters:

  • “Political participation and constitution-making: The case of Chile”, by Claudia Heiss,
  • – “The Chilean Constituent Process under the Bachelet Presidency“, by Ernesto Riffo Elgueta, and
  • – “Indigenous peoples and constituent process“, by Jorge Contesse and Cristián Sanhueza.

The first yearly report of the Observatory (in Spanish) is available for download as well. It includes opinion pieces, editorials, and interviews with experts on the Chilean and comparative constituent processes, infographics, and summaries of colloquia organized by the Observatory,

Click on each image to download.

Alberto Coddou on the Chilean presidential runoff

The Chilean presidential runoff and the revival of the constitutional agenda

Alberto Coddou Mc Manus

Despite initial indications that Chile’s constituent process was doomed to stall with the probable election of a right-wing government, the presidential and congressional elections of 19 November have challenged the dominant narratives. On Sunday 17 December 2017, Chile will face a presidential runoff with a revived constitutional agenda that is likely to stay for some time in Chilean politics – writes Alberto Coddou Mc Manus.

This column appeared on International IDEA’s website ConstitutionNET.

Three weeks ago, almost everyone thought that Sebastián Piñera, a right-wing billionaire, was going to win either in the first round, or in the presidential runoff to be held next Sunday (17 December 2017). Opinion polls gave him an overwhelming support, and some even anticipated that there might be no need for a second round. Somehow, many thought that the election was already decided, and that Chileans were leaning in favour of moderating the pace of the reforms promoted by the current socialist government, which involved regulations on access to the educational system, a tax reform, a qualified abortion law, and the creation of a new constitutional arrangement to replace Pinochet’s constitution. For several observers, the ‘sociological’ analysis was more or less clear: four years ago Chileans were willing to make structural reforms to the ‘model’ – that is, to the open endorsement of a free market system ‘with a human face’ that began with the return to democracy in the 1990s, which explained the victory of a socialist president. Nowadays, these analysts claim, Chileans think the government went too far, and that although they want more opportunities to flourish, they want to retain their freedom to choose between the private system and the state for access to basic goods. Moreover, and following an agenda-setting strategy of different media corporations, liberal think-thanks, and economists, this climate was amplified by the negative approval rates of president Bachelet and her cabinet, and an allegedly huge backlash against the reforms promoted by the government.

In this scenario, the constituent process launched by the government during 2016 was doomed to fail. Although a consultation process gathered more than 200 000 people in several stages to discuss the contents of a new constitutional chart, the lack of political support among both the official governing coalition and the right-wing opposition made the constitutional path harder. Low rates of approvals, and the need to address the social and economic effects of the end of the ‘golden decade’ of commodities in the region pushed the government away from any big-scale project of reform without immediate impact on the population. Furthermore, the need to achieve super-majoritarian quorums (2/3rds or 3/5ths of each chamber of Congress) for any constitutional project to pass, frustrated any constitutional enthusiast. In the words of a former socialist senator, discussing a new constitution in these circumstances was like ‘smoking opium’.

After the 19 November 2017 vote, however, the panorama is now radically different. Unlike even the most negative predictions, Sebastián Piñera came in first place with a mere 36% of support. The biggest surprise, however, was the strong contest for the second place, which would determine the contender for the presidential runoff: while the candidate of the ruling coalition (Alejandro Guillier) achieved a poor 22%, Beatriz Sanchez, supported by a newly created leftist coalition (Broad Front), ended with 20% of the votes (a difference of approximately 150 000 votes). Furthermore, the parliamentary elections also went significantly against public expectations. The older binominal electoral system, which gave the two ruling coalitions an almost undisputed power to control access to parliamentary seats, was replaced by a new proportional system that gave more opportunities for smaller political platforms within an enlarged Congress. Although there was some uncertainty regarding the composition of the new Congress, nobody expected the achievements of the Broad Front, which elected 20 members in the Chamber of Deputies and one in the Senate.

In further surprises, several ‘old barons’ of different parties were not re-elected; a young movement of liberal right-wing leaders, who are attempting to replace the traditional right, increased their participation; a gender quota law enacted at the end of last year radically increased female presence, including an indigenous leader. From every point of view, this Congress is more attuned to Chilean society, and for different reasons, is a Congress that moved one step to the left. In this new scenario, the presidential runoff race has been slanted to address the issues raised by the Broad Front, such as an end to the pension system bequeathed by Pinochet, the scope of Bachelet’s commitments to a free and high quality education for all, and, more importantly, the prospects of a new constitution. Alejandro Guillier has now received different endorsements from the Broad Front, including many elected Congresspersons, and from Beatriz Sánchez herself. Within these exchanges, the constitutional agenda has acquired a new life, becoming a crucial bridge for left-of-center and far-left positions that may have different stances on several public policies.

The constitutional agenda now has different options for resurrection. There is a constitutional bill pending in Congress that would create a ‘Constitutional Convention’ that should decide on a constitutional draft to be presented by the government after next Sunday’s presidential runoff. Although the name ‘Constitutional Convention’ invites us to think of a mixed composition of elected representatives and citizens, the bill does not prejudge on this regard. Alejandro Guillier has said that this Convention must adopt the form of a Constituent Assembly (composed of citizens specially elected for the sole task of creating a new constitutional draft). However, the approval of this bill, and even the precise nature of the Convention, are subject to super-majority constitutional quorums, which curtails the chances for this project to succeed in this Congress given the likely opposition from the parties on the right. The Broad Front is now pressing Guillier’s support team to open discussion for an entry referendum, that is, an amendment that could allow the president to call for a referendum that can begin a constituent process without the constraint of current constitutional frameworks. Voices from the socialist and communist parties, and other militants on the left of the New Majority coalition are of the same opinion, but Alejandro Guillier still lacks a clear stance on the possibility of endorsing a ‘new constitution’ as a main banner of his campaign for next Sunday’s election.

Whatever results we may expect, and whatever the future of the constituent process initiated by the Bachelet government may be, the constitutional reform agenda is now here to stay for some time. With the new left in Congress, and with increasing demands for more egalitarian arrangements in the access to fundamental rights, constitutional issues will continue to arise every time the constitution acts as a blockade for what politics can do. Despite the reforms that have addressed some of the major constraints on democracy in the Chilean Constitution, there are still remnants that make structural reforms difficult, including the high threshold for the modification of ‘organic laws’, and the ‘preventive’ control of constitutionality by Chile’s Constitutional Court. During Bachelet’s term, every important reform was subject to review by the Constitutional Court, in some cases seriously curtailing the possibility of democratic deliberation in the Congress. If Guillier wins this Sunday, the constitutional arrangement will be in tension with a political manifesto committed to replace the constitution through a Constituent Assembly. To the contrary, if Sebastián Piñera gets the majority vote, he will have to lead a hyper-presidential system with a Congress that, although fragmented, has clearly moved to the left. In this context, disputes about the boundaries of powers between the Executive and the Congress are expected to grow, and with it the periodic revival of the constitutional agenda.

Alberto Coddou Mc Manus is Content and Consulting Coordinator at the Observatory of the Chilean Constituent Process.

Alberto Coddou on opinion polls and constitutional issues in Chile

Opinion polls and constitutional issues: the case of Chile

Alberto Coddou Mc Manus

In the case of Chile, opinion polls reveal a complex relationship between public opinion and constitutional issues. By listing separately, as possible answers, ‘constitutional reforms’, ‘education’, ‘health’ and ‘criminality’, the question posed by the poll implies that the existing constitution plays no role in explaining why the latter concerns figure among the top priorities of the population. The relationship between constitutional issues and opinion polls should be carefully examined, critically assessing how the questions are framed, how constitutional preferences and attitudes may result in concrete political behaviour, and considering how important it is to (re-)connect constitutional issues, constitutional problems and solutions, with the lives and everyday concerns of the people.

This column appeared on The Constitution Unit blog.

In general, opinion polls ask about our political preferences within established political systems. They ask us to express our political preferences or attitudes regarding the range of political options that the current constitutional system allows, either in the form of political candidates, ideas or reforms. In the US, opinion polls on constitutional matters have been fundamental for the analysis of the jurisprudence of the Supreme Court, either for predicting judgments or for explaining its reasons. Moreover, opinion polls are an important instrument for ascertaining the degree of support, political approval, or legitimacy that a certain political system garners among the population. However, opinion polls are also an important tool for asking people hypothetical questions, such as the ones that emerge from the exercise of constitutional powers. Indeed, opinion polls can be an interesting device for investigating the possibilities that may derive from exercises in constitutional imagination.

In this scenario, the relationship between opinion polls and constitutional issues is multifarious: on the one hand, they can be an interesting measure of the degree of legitimacy of an extant constitutional arrangement; on the other, they can inquire into the possible outcomes or possibilities that may be open under alternative constitutional frameworks. In the middle, we can find those techniques of social research that attempt to capture the degree to which issues of legitimacy may result in positive dispositions towards creating new political institutions, or crafting a new institutional arrangement for addressing political issues. In countries not at risk of experiencing violent political conflict, or that are not close to institutional collapse, the different relations between opinion polls and constitutional matters constitute an important source for broader political analysis.

In the case of Chile, opinion polls reveal a complex relationship between public opinion and constitutional issues. In the face of a presidential election that will take place on November 19, the relevance of constitutional issues for the political agenda is a matter of debate. Although the country is undergoing a ‘constituent process’ pushed by the government of Michelle Bachelet, which during 2016 implemented a consultation process (which included self-convened meetings and open citizens’ assemblies organized by the government) for the people to discuss what constitutional issues should be included in a new constitution, there has been scant ‘popular’ mobilisation around the issue after the end of that consultation process in August of 2016. We are not witnessing the degree of popular mobilisation and exchange of opinion that would be required for a ‘constitutional moment’, according to Bruce Ackerman. Chile has one of the lowest rates of political participation around the world, and it is part of a select list of countries where the fall of political turnout has been the sharpest since 1990 (a list which includes Congo, Libya, and Madagascar, countries which, unlike Chile, have experienced recent and serious political conflicts). According to a recent report by the United Nations Development Programme (UNDP), political disaffection and the loss of popular trust in political institutions should be a warning sign for Chilean democracy.

However, in the view of an important part of the political establishment, the lack of political interest by the citizenry is not a matter of concern. Indeed, they interpret the scenario just described as an expression of the maturity and consolidation of Chilean democracy. According to Carlos Peña and Harald Beyer – two of the most influential public intellectuals – Chileans, in particular the middle class created by the economic growth and political stability of the decades since the end of the Pinochet dictatorship, are satisfied with their lives and with their prospects for the near and mid-term future. Based on the analysis of different opinion polls and reports, they claim that political abstention should be understood as a sign of the consolidation of a society with advanced patterns of consumption, in which spaces of autonomy have decoupled individuals’ life-projects from the burdens of collective horizons of meaning embedded either in communities, societies, or the state. For these intellectuals, constitutional matters are not appealing for the Chilean society of 2017, composed of subjects that seem more interested in their individual well-being rather than questions of collective concern such as the discussion of a new constitution. According to the right-wing liberal think-thank Centro de Estudios Públicos [Centre for Public Studies], which runs the most methodologically well-regarded opinion poll, the concern for ‘constitutional reforms’ ranks very low among the priorities the population, much lower than the top three: crime, health, and education.

Source: Centro de Estudios Públicos, Estudio Nacional de Opinión Pública September -October 2017.

Based on these studies, the ‘liberal establishment’ supports the idea that political representatives should dismiss the constitutional agenda promoted by different social movements and then pushed forward by the current government. Furthermore, it constitutes now the basis of right-wing campaigning for this month’s election, and it is also attractive for several factions within the centre-left coalition that oppose the constitutional agenda of the President. In other words, they emphasise that politicians should focus more on what are often referred to as the ‘real issues of the people’: employment, security, and other basic services.

By listing separately, as possible answers, ‘constitutional reforms’, ‘education’, ‘health’ and ‘criminality’, the question posed by the poll implies that the existing constitution plays no role in explaining why the latter concerns figure among the top priorities of the population. On the contrary, it can be argued – as many have – that the problem of poor and unequal access to quality healthcare (which explains why ‘health’ is the second highest concern of the population) is related to the subsidiary role that the Pinochet Constitution assigns to government in the economy in general, including the provision of services such as healthcare and education. Shouldn’t we explore the possibility that the general concern over the issue of health entails the need to address issues related to the ‘new constitution’ or ‘constitutional reforms’ that could end with the subsidiary role of the Chilean state in the economy? Or, alternatively, what if we say that one of the problems that make health a top priority relates to the constitutionally protected freedom to choose a private health system, which contributes to the fact that the public health system remains of a poor quality. What these mainstream opinion polls do when asking citizens for the urgency of the new constitution is to frame the issue as a zero-sum game against other concerns, thus obscuring the connections between what directly concerns the citizen and the constitution.

According to several other opinion polls, such as those by the UNDP, an overwhelming majority of Chileans consider that the current constitution requires important or major reform, or that the country simply needs a new constitutional arrangement. When asked for the reasons for it, citizens claim that the fact of having been enacted under a dictatorship does not constitute a major flaw of the existing constitution; rather, a majority of the population thinks that the Pinochet Constitution is not appropriate for the challenges the country is currently facing, such as the urgent need to address the claims and interests of the indigenous population, or the widespread support for more egalitarian access to basic public services.

Source: United Nations Development Program (Chile), IV Encuestra Auditoría a la Democracia

Furthermore, a majority of Chileans think that Congress is not the body that should decide on a new constitutional arrangement (6%) but, rather, are in favour either of a ‘constitutional convention’ (composed of citizens and congresspeople) (41%) or a constituent assembly of representatives specifically elected for that purpose (43%).  

Conclusion

Opinion polls are an important source of information for constitutional debates, especially in countries where the emergence of the constituent power as a disruptive force, either in the form of violent conflicts or institutional collapse, is still at a distance. However, the relationship between constitutional issues and opinion polls should be carefully examined, critically assessing how the questions are framed, how constitutional preferences and attitudes may result in concrete political behaviour, and considering how important it is to (re-)connect constitutional issues, constitutional problems and solutions, with the lives and everyday concerns of the people.

Alberto Coddou Mc Manus is Content and Consulting Co-ordinator at the Observatory of the Chilean Constituent Process, and a PhD candidate in the UCL Faculty of Laws.

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.

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.

Newsletter 3 (June 2017)

Editorial summary

Constituent process and presidential primaries. The electoral campaign for the presidential primaries of July 2 is the start of a new electoral cycle, which provides an opportunity for presidential candidates to take stances on the constituent process and the possibility of drafting a new Constitution, in particular through the legally mandated slot of electoral propaganda, in which candidates are alloted equal broadcast time, providing high levels of exposure to the voting population.

Although public discussion on the constitutional problem has declined in intensity in comparison to previous years, this year’s electoral campaigns will surely revive it. It is expected that different political sectors which aspire to gain political representation will try to give relevance to the highlight the issue, and even President Bachelet, head of the outgoing government, has stated her intention that the draft new Constitution she will present to Congress this year can be used to make the constitutional issue one on which candidates may take explicit position.

Therefore, both what this year’s political campaigns may express as well as what they may not, will be relevant. This can already seen in their alloted TV propaganda slots for the primaries. Right-wing coalition “Let’s go, Chile” [Chile Vamos] candidates, naturally more comfortable with the constitutional status quo, have kept silent on the subject, except for a brief reference in Felipe Kast’s spot to “constitutional recognition of indigenous peoples”, one of the promises included in his political platform. This general silence in part of the Right is understandable given that competition in primary elections involves candidates who dispute votes from the same political sector, and in the case of the Right, the constitutional issue will not yield electoral results. However, that silence often hides the fact that some proposals of those candidates require constitutional amendments. While this is acknowledged in their platform documents, their propaganda focuses on issues such as economic growth, crime, and employment.

In the case of the Frente Amplio, both Beatriz Sánchez’s candidacy and Alberto Mayol’s platforms propose a new Constitution drafted by a Constituent Assembly. Mayol’s propaganda slot was the first to deal substantively with the issue, attacking the legitimacy of the current Constitution’s dictatorial origin, using a metaphor of an “uneven playing field”, rules of a game that “were agreed among a few” in a political context in which “we had not even gone into the playing field”. Thus, his focus is on a political message that justifies the need for a new Constitution. Sánchez’s propaganda, on the other hand, although it made reference to the lack of legitimacy of the current constitution, both in its origin (it was “crafted under a dictatorship”) its exercise (“despite having been patched, it is still not working”), it stands out for elaborating on the subject of the Constituent Assembly, invoking the cases of other countries, but it gives no details regarding its specific characteristics nor the political and institutional steps necessary to get to it, although she has stated that her first government action would be to convene the Assembly.

Constitutional endorsement. A column by the academic Esteban Szmulewicz, and an interview with the former President of the Citizens Council of Observers of the constituent process [Consejo Ciudadano de Observadores] Patricio Zapata published online, suggest a similar diagnosis regarding the need for a constitutional change. According to the first one, the constitutional problem is that the current constitution “has not been unable to generate constitutional patriotism, that is, to crystallize the shared political culture of the country in light of our national history and to work as a tool of social integration”. In a similar vein, Zapata identifies as the main problem of the current constitution the fact that, because of its content, it is “difficult for everyone to feel it as his or her home”.

Both opinions agree on a diagnosis that can be referred to as a “lack of endorsement” of the constitution by the people. Beyond the abstraction of the concept of “constitutional patriotism” or the vagueness of the idea, expressed by Zapata, that the constitution should “feel like everyone’s home”, the diagnosis points to the gap between the politics that takes place within the instituted defined by the constitution, on the one hand, and citizens’ loyalties, on the other. The issue is the loss of legitimacy of representative institutions, the so-called “legitimation crisis” or –more mildly put– “crisis of trust” which the country is going through.

Despite broad agreement across the political spectrum regarding this diagnosis, there are differences in the proposed solutions. Both Smulewicz and Zapata give consideration to the possibility that the institution in charge of drafting the new Constitution could have a mixed composition, which would include citizen as well as sitting congresspeople. Zapata, along with some Christian Democratic politicians, has defended the idea proposal of a “Constituent Convention” composed of congresspeople and citizens appointed by Congress, not elected by the people. Szmulewicz, meanwhile, suggests the alternative that “a percentage of Constitutional Convention” be composed of sitting congresspeople “appointed by the respective political parties to which they belong”.

Such proposals seem completely counterproductive insofar as they seek to solve the problem of the gap between institutional politics and citizens by means of moving away from the basic form of exercise of democratic sovereignty, namely, the election of representatives by citizens through elections, and instead, to give to the political actors whose legitimacy is at the heart of the crisis –political parties and Congress– the power to choose the constituent representatives.

Newsletter 2 (June 2017)

Editorial summary

The government does not prioritize the constituent process. In an interview for Caras magazine published on May 21st, the same day she delivered the annual report of her administration to the Congress, President Michelle Bachelet defended the progress made by her government against the assessment made by Smart Citizen Foundation (Fundación Ciudadano Inteligente), which on the eve of the annual report claimed that the level of fulfillment of her government platform is lower than 50 percent. The Foundation’s assessment stressed that the areas where it was most needed “to speed up” progress was the amendment to the Fisheries Act and the promise of a new Constitution.

That warning contrasts with the views expressed by the President in the interview, in which she said about the constituent process “I said it was going to be a participatory, institutional and democratic process, but it was key not to rush it”. The speech before Congress ratifies this attitude. There were no new announcements regarding the continuation of the constituent process designed by the government, which was expected given the level of progress of the constituent process in relation to the itinerary outlined in October 2015, and also considering the remaining time for the current presidential term, which ends in March 2018. However, in relation to other policies to which the government is committed, the constituent process seemed to lose priority. In fact, in her speech the President urged Congress to expedite different bills (decriminalization of abortion, and educational reform, among others), but she did not do the same with regard to the constituent process. Despite this, in the above-mentioned interview, the President stated she will “fulfill the promise to make a constitutional reform to enable the making of a new Constitution”.

In the same interview, the President reiterated her commitment to submit a draft new Constitution to Congress, based on the results of the 2016 participatory process. This part of the constituent itinerary of the government is, however, inconsistent with the fact that the ruling authorities have acknowledged the current constitutional norms do not allow Congress to pass a new Constitution, but only to make partial amendments.

Presidential Candidates and Constituent Process. Beyond the ambiguous intention to send a new draft Constitution to Congress, the Minister of the General Secretariat of the Presidency, Nicolás Eyzaguirre, is correct in claiming that it will be completely inescapable that the constitutional issue will continue to be discussed during the next Government. In fact, opinions have already appeared in this regard, which will surely proliferate as the presidential and parliamentary elections approach the end of the year. Positions range from those who propose a Constituent Assembly (as Beatriz Sánchez (leading candidate in the Presdidential primary of the Broad Front coalition [Frente Amplio]) did when asked in a television debate with her opponent in the primary, Alberto Mayol, when asked what would be her first government action), moderate positions like that of Alejandro Guillier (Presidential candidate of the New Majority coalition [Nueva Mayoría]) who acknowledges the need for a new constitution but as a means to carry out a a platform of progressive reforms, and up to position shared by right wings candidates who express willingness to discuss, in particular, the content of proposed partial amendments to the current constitution in order to improve it.

Indigenous peoplesAn area in which public debate on the constitutional issue if indeed focused on the substance of potential amendments rather than on the amendment procedure, is that of indigenous peoples. There seems to be a widespread acknowledgment that the relationship between the Chilean State and the indigenous peoples should be constitutionally regulated. At least in this area, there is a direct connection between the political issues related to the indigenous peoples and the constitutional change. This recognition is, of course, behind the indigenous constituent process which the government is implementing, while several presidential candidates have recognized it as well: from the leftist Sánchez and the center-left candidate Guillier, to conservative right wing candidate Manuel José Ossandón. In her annual address to Congress, President Bachelet announced that the new draft Constitution she will present to the Legislative branch will include Constitutional Recognition and Political Participation of indigenous communities.

Among the recent opinions in the presidential race that of primary contender of Broad Front coalition Alberto Mayol stands out, as he not only claims there is connection between the content of the Constitution and the solution to the conflicts between the Chilean State and the indigenous peoples, but argues that this connection requires a specific mechanism for the new Constitution to be drafted. In this sense, he considers a Constituent Assembly as a way of providing a political solution to the conflict.

[Spanish full text version]