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The Constitution-Making Process in Chile: A Cautionary Tale from Turkey

Claudia Heiss, Universidad de Chile & Oya Yegen, Boston University

On April 21, President Michelle Bachelet of Chile delivered the second public address to Congress of her term. During that address, she reaffirmed that she would pursue constitutional changes to the 1980 Constitution written under military dictatorship, although she left open key questions about procedure. With a quotation from 1813 of Friar Camilo Heriquez, a key ideologue of independence from Spain, the President argued that the People always have the right to reform the constitution. No generation can tie future generations to its laws. She stated that a constituent process open to the citizens would start in September and argued that the legitimacy of a constitution was as important as the content of its text. Although the speech was based on a citizen demand for constitutional change, the President avoided any reference to a Constituent Assembly, a mechanism favored by civil society but fiercely rejected by key institutional actors and economic elites.

Bachelet seems to have been intentionally ambiguous in order to avoid alienating supporters. The political right rejects constitutional change in general and is particularly averse to the mechanism of a Constituent Assembly. They argue that uncertainty would damage the economy and create a legal void. Government supporters are divided amongst themselves about process. Some favor a commission of experts, others Congress, and a final group a Constituent Assembly to draft a new text. Some have suggested a plebiscite to poll public opinion about the mechanism. But such a plebiscite is not allowed by the current constitution.

Given this constraint, a plausible course of events may be the development, starting in September, of non-binding discussions in local meetings or cabildos followed by Congressional debate.  The Congress elected in 2017 will be chosen using a new electoral law allowing for proportional representation, rather than the current binomial system which largely guarantees the two major coalitions equal representation regardless of vote totals. This may make Congress a more legitimate forum for constitutional debate after 2017. However, a number of civil society actors are demanding a constituent assembly. Bachelet’s announcement in September will clarify Chile’s process of constitution-making.

Turkey’s recent failed attempt at constitutional replacement offers a potentially useful cautionary tale, suggesting some pitfalls that Chilean reformers should try to avoid. There are a number of examples of countries whose constitutions were drafted under authoritarian rule but survived the transition to democracy.[1] However, the Turkish Constitution of 1982 is perhaps the most similar case to the Chilean one.[2] Both constitutions were informed by past crises, aimed to bring about permanent political, economic and social change, envisioned a return to democratic rule, and contained legal mechanisms to curb attempts to alter the established structure. Both have experienced piecemeal constitutional change since the return of civilian rule – the Turkish constitution has been amended 17 times and the Chilean constitution 33, affecting more than 100 articles in each case. However, in both countries the desire to completely replace the constitution has remained strong. Although there have been many social demands, with the student protests in Chile and the Kurdish issue in Turkey among others, in both countries there is no immediate political crisis to force constitutional change.

Following the 2011 general elections in Turkey, where each political party campaigned for a new constitution and reiterated their positions after the results, Turkey entered into a constitutional moment.[3] Proponents of the ordinary parliament drafting a new constitution argued that the new parliament, despite the exclusionary electoral law with a 10 percent threshold, represented 95 percent of Turkish voters. An ad-hoc commission, called the Constitutional Conciliation Commission, was established from within the Parliament with equal representation from the four parties represented in the parliament. Accordingly, the four political parties elected to the parliament each received three members in the commission (despite their different levels of representation in the parliament).

According to the commission’s working principles, prepared by the commission itself, decisions had to be taken by a consensus of representatives of all four political parties. Before the deliberations began, the commission listened to the suggestions of social organizations and called for individuals and civil society organizations to communicate their views via the website set up for the constitution, as well as via mail and e-mail. Thus, it appeared as though the commission reached out to different sectors of civil society; however the political parties did not necessarily modify their positions in light of these inputs. The fact that the commission received many opinions and suggestions from civil society did not automatically mean that civil society was meaningfully involved in the constitutional process. The commission chose not to make public the input that was received.[4]

The commission also did not start off on solid ground from the standpoint of procedural legitimacy. Some commentators argued that the parliament lacked the authority to enact a new constitution because it did not possess original constituent power. Similarly the ad-hoc nature of the commission, with no legal basis in the constitution or in the rules of procedures of the parliament, led to claims that it lacked authority. Moreover, the fact that the members of the commission were concurrently serving in the parliament meant that the commission over time became susceptible to the polarizing influence of daily politics. Some also noted the 10 percent electoral threshold as a reason why the Commission was insufficiently representative; these critics called for a specifically established Constituent Assembly that would represent all social clusters within Turkey. Finally, the commission had only one female member.

Even many of those who did not critique the Commission’s authority to draft a new constitution were skeptical of its workings. One criticism directed at the commission was that it functioned in an undemocratic political climate where there are tacit and explicit obstacles to freedom of expression.[5] These restraints limited the effectiveness and range of public opinion. Another criticism was directed at the decision-making rule that required unanimity. In an atmosphere of political polarization where political parties have firmly embedded positions, the requirement of achieving absolute consensus made the process unlikely to succeed. The fact that the commission had a deadline (albeit one that was postponed several times) also impeded the likelihood of achieving consensus. The lack of transparency of the commission’s work was another major point of concern. The minutes of the commission became public only after the Commission had reached an impasse and dissolved. Prior to that, information was limited to short statements to the media.

The most important shortcoming of the process was that it relied on an ordinary parliament to draft a new constitution without first setting the debate on the procedure of making a new constitution. The commission began to work without resolving the debate on whether the Turkish parliament or the commission had the original constituent power to write a new constitution in the first place and whether it could do so despite unamendable articles of the 1982 Constitution.[6] Thus, the members of the commission kept reverting back to this question during the debates. It was also not clear whether the draft that would ultimately be produced by the commission would rely on the amendment-making rule of the constitution (Article 175) and/or public referendum. Meanwhile, the 1982 Constitution remained in force with its own amendment-making procedure and its unamendable provisions.[7]  In the end, the commission dissolved after 25 months of work, having reached consensus on only 60 articles. The ruling party’s (AKP) proposal to pass the partial amendments did not find support among the rest of the political parties, and ultimately the agreed changes were shelved.

Several lessons might be drawn from the Turkish experience. First, it is important to establish the procedure of making a new constitution with all its details before embarking on such an endeavor. Regardless of whether this involves a plebiscite to ask the people’s opinion on the mechanism, a resolution from the Congress, or a constitutional amendment that would allow for constitutional replacement, the process must have procedural legitimacy. The roadmap of making a new constitution must be clear and must receive the support of the political actors involved, thus curtailing the possibility that the process will be disorganized or delegitimized. This would possibly involve a preliminary negotiation before actually setting out to negotiate to draft a new constitution, thus preventing questions of procedure from blocking the drafting process as occurred in Turkey.

Further, the process must be shielded from the daily politics that can jeopardize compromise. Additionally, questions of representativeness and inclusiveness matter in modern constitution-making. Simply gathering opinions from civil society may not suffice to reflect the opinions of different sectors of the public. In fact, such loose and non-binding discussions may create the perception of participatory process without actually achieving it. Thus, regardless of the mechanism Chile decides to adopt, that forum needs to accommodate different factions of society in the process.

Finally, the Turkish experience reveals that debate on a new constitution may possibly launch debate on regime change. While the presidentialism debate that clouded the Turkish constitution-making experience may be unique to Turkey and the growingly authoritarian rule of the AKP government and current president Recep Tayyip Erdogan, it does nevertheless show that during constitution-making a broad and unpredictable range of issues may surface. For now, it is unclear which path Chile will take but the Turkish experience shows that key questions regarding procedure must be settled before taking on such a grand project.

Suggested citation: Claudia Heiss & Oya Yegen, The Constitution-Making Process in Chile: A Cautionary Tale from Turkey, Int’l J. Const. L. Blog, June 19, 2015, at: http://www.iconnectblog.com/2015/06/the-constitution-making-process-in-chile-a-cautionary-tale-from-turkey


[1] See Table 1 in Tom Ginsburg. 2014. “Fruit of the Poisoned Vine? Some Observations on the Chilean Constitution Purchased ” Public Studies. 133 (Summer 2014), 8.

[2] Id. at 7.

[3] The presidential elections in Chile also had such an effect, where each candidate had to clarify their position regarding a possible constitutional change. See Oya Yegen, Chile’s Constitutional Moment?, Int’l J. Const. L. Blog, November 13, 2013, at: http://www.iconnectblog.com/2013/11/2689/

[4]  Fırat Cengiz, “The Future of Democratic Reform in Turkey: Constitutional Moment or Constitutional Process?”, Government and Opposition, May 2014, pp. 1-22.

[5] Id. 

[6] The Constitution of Chile does not have any unamendable articles, however it does have entrenched organic constitutional laws.

[7] Ali Acar, Is Turkey in the process of adopting a new constitution or a large scale constitutional amendment? Some questions concerning constitutional theory, Int’l J. Const. L. Blog, May 13, 2013, at: http://www.iconnectblog.com/2013/05/is-turkey-in-the-process-of-adopting-a-new-constitution-or-a-large-scale-constitutional-amendment-some-questions-concerning-constitutional-theory/

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Published on June 19, 2015
Author:          Filed under: Analysis, Uncategorized
 

6 Responses

  1. Alexandra Huneeus

    Thanks for this interesting comparison. It seems important to mention that Bachelet made this announcement in the midst of a series of corruption scandals involving many important politicians. The corruption scandals even involve her son. While the political crisis adds urgency to the call for reform, it also raises the question of how Bachelet’s own political troubles will affect her constitution-making project.

  2. Andrew Arato

    I think the analogy between Turkey and Chile no longer works after 2007. Today Turkey is in the midst of a serious constitutional crisis, brought on by now Pres. Erdogan’s effort to replace parliamentary government by hyper-presidentialism. All his repressive acts, especially repeated efforts at the packing of courts, detailed in the daily press are meant to serve the same purpose. The failure of the Parliamentary Reconciliation Committee was caused mostly by this attempt, since no party outside the governing AKP could agree to such a change. Yes, the unfortunate unanimity rule also contributed, in light of deep opposition between the nationalist MHP and the Kurdish HDP. But it was the presidentialist project that wrecked the Committee. The 60 articles agreed upon were the least significant.

    After the election of June 7, the situation is different, and there is hope that Turkey will be able to escape the crisis. But this would require a coalition of the three previously opposition parties, still very difficult, or a coalition of one or two of the more progressive parties with an AKP freed of Erdogan’s control. That is also a difficult proposition.

    I hope however that it is already clear that the situation in Chile is in no way comparable today to that in Turkey. Here the main reason for doing a new constitution, is to get rid of the symbolism of a junta imposed constitution. In Turkey that too is a reason, but a relatively minor one under the circumstances. In Chile the structural reasons have been almost completely mitigated, especially if the new electoral law works as the authors imply (I am much more skeptical regarding the early version I did see). In Turkey the 10% threshold that has very different effects than the binomial rule in Chile still stands, though the Kurdish led HDP just managed to overcome it. Even that may be temporary, if Erdogan is able to sabotage for 45 days, and call new elections under this rule.

    One thing is certain though. In these two deeply divided polities, a sovereign constituent assembly of the Andean type would be the wrong way to go. Did I detect in this blog entry some preference for that model, introduced by extra-legal referenda? As far as I know, noone seriously contemplates stepping outside of legality in Turkey, even via referendum, nor establishing a sovereign assembly separate from the existing political branches. Rightly so. I doubt moreover that even a packed Court in Turkey would consent to a quasi-revolutionary process, as did supreme courts, unfortunately in Colombia and Venezuela (in the former saved by a rare constitutionalist president, in the latter destroyed as a result).

  3. Many thanks to Professors Huneeus and Arato for insightful comments.
    Regarding the scenario marked by corruption scandals, I agree this is relevant to the political capital available for an ambitious program of reforms. I do not think, however, the role of constitutional change has acquired higher priority as a result of the scandals, as Prof. Huneeus suggests. It was, from the start, in the third place of the program of government after tax and education reforms.
    I disagree with Prof. Arato’s statement that the main reason for constitutional change in Chile is to get rid of the symbolism of a Junta imposed constitution. The constitution is present in everyday life through a political and economic model that makes the protection of property rights the most important task of the entire political system, locating it above all other rights established in the text. The Constitution determined the relation between state and market. In addition to the illegitimacy of origin, the constitution cannot be “appropriated” by the people due to its numerous and strong supramajoritarian devices, as Fernando Atria convincingly argues in “La Constitución tramposa” (Santiago: LOM, 2013).

  4. Andrew Arato

    Dear Claudia:

    I think you misunderstood what I said. Everything you are speaking about (and you are the expert, not me) could be transformed or adjusted through amendment. I was speaking about the making of a new constitution, or replacement. In Turkey, as the current crisis shows, there is a need to replace the whole constitution, for both symbolic and structural reasons. the method of amendments from 1987 to 2004 did a lot, but could not alter the amin structural feature, namely that part of the state and the executive power are outside the constitution.

    there is no constitutional crisis in Chile. But there is the symbolic need to replace Pinochet’s constitution. If the price would be leaving the public law structure more or less as it is, it would not be a disastrous price.

    I know many on the Chilean left do not like what I have to say because they reject consensus democracy. What I like even less is the polarization you had in the 70s. You are too young to remember, but I am old enough.

    very sincerely

    Andrew

    • Andrew Arato

      Also, I am curious, what kind of property clause you suggest a new constitution in Chile should have, and how do you expect to achieve it?

      Mrs. Bachelet, i am afraid knows the answer to this question, even if it may not be yours.

  5. Dear Andrew:

    I do not think anybody, even in the far left, is seeking to go back to the polarization of the 1970s. The demand for constitutional replacement is not based on the rejection of consensual or consociational democracy per se, as conceptualized by Lijphart, but against a veto power of the political right institutionalized by the 1980 Constitution and presented as “consensual”. This scheme was never agreed upon. It was imposed by force and maintained over the years though an institutional scheme impossible to amend without the consent of its makers. Thanks to the binomial electoral system and the appointed senators, for over twenty years no law –even laws requiring a simple majority- could be approved in Chile without the consent of the right, independent of the policy preferences of the electorate. While this is slowly changing, amendment rules and organic laws still make it impossible to achieve substantial change though reform.

    The entire constitutional frame, including eighteen organic laws and several supra-majoritarian devices, was built to impede change. I agree with the general idea that constitutional provisions should be protected from circumstantial majorities by special quorums. I do not think this applies to the Pinochet decree we call Constitution. Limitations to the democratic process are justified in order to protect a broad and legitimate basic social agreement from circumstantial majorities. The call for constitution-making in Chile is precisely a demand for an opportunity to build such an inclusive and democratic basic agreement.

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