—Javier Couso, Universidad Diego Portales & Utrecht University
[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2017, see here.]
In a constitutional state, law is supposed to be the ultimate benchmark that governmental acts ought to be measured against. Hence that old axiom of Public Law, according to which while a private individual can do whatever she wants –unless it is expressly forbidden by law—, state entities can only do that which is expressly permitted by law.
The centrality of law for the operation of a constitutional state does not, however, exhaust the issue of the nature and scope of governmental action. In fact, recent developments in Spain and Chile reveal that, while the above is the general rule, there are instances in which good governance ought to include actions by the administration which –if not against the law— go beyond it.
In the case of Chile, the issue came about when a group of four Mapuche activists (who have spent over eighteen months in so-called ‘preventive prison,’ while waiting trial for arson) started a hunger strike as a way to protest the use of the harsh anti-terrorist legislation being applied to them for acts which they consider do not qualify as ‘terrorist’, and which, according to most international human rights observers, do not fully respect procedural due process standards. Confronted with the actual risk that one of the Mapuche activists might die, the government asked the courts to allow the strikers to be held under home arrest instead of preventive prison. Chile’s government action was immediately denounced by domestic conservative groups as a ‘capitulation’ against a group of violent terrorists, as well as an action that weakened the rule of law. The administration replied that its duty to govern included preventing the escalation of the centuries-old conflict between the Mapuche and the Chilean state (which the death of a group of hunger strikers would most certainly generate).
Moving to Spain, the national government mobilized police forces to harshly repress Catalonian citizens trying to participate in a referendum declared unconstitutional by the country’s Constitutional Court, but firmly backed by the regional government. Stating that the national administration was acting according to the law, Prime Minister Rajoy refused to negotiate with the Catalonian authorities, and restricted himself to implementing the ruling banning a referendum aimed at asking the people of Catalonia if they want to become independent from Spain. The scenes that followed were so disturbing (including old ladies being beaten by the national police for merely trying to vote in the referendum), that it is not implausible to expect that the repression exercised by the national government could have actually increased the nationalist sentiment among Catalonians who — if we are to believe the opinion polls — are still largely against independence from Spain.
The different attitudes of the governments of two liberal-constitutional states (such as those of Chile and Spain) confronted with the clash between legality and legitimacy represents just another iteration of a centuries-old problem. On this occasion, both the Mapuche activists and the Catalonian government were acting against valid national law. But they both had strong reservations regarding the legitimacy of the constitutional and legal norms been forced upon them. Faced with this problem, the Chilean government opted to maneuver the existing legislation in order to avoid the escalation of a social, cultural, and political conflict deeply rooted in the country’s history, proactively trying to reduce the tensions surrounding the issue, so that the possibility of solving it in the future remains is not further hindered. Contrasting with this strategy, the Spanish national government took refuge in implementing existing constitutional norms and rulings, even if doing so could actually worsen the problem at hand.
Even though it is hard to assess the long-term consequences of the different approaches adopted by the Spanish and Chilean governments to two admittedly hard conflicts, what seems clear is that a liberal-constitutional response to such complex issues on occasion demands something different than the mechanical application of legal norms viewed by many of the actors involved as illegitimate. In fact, it could be said that governing a constitutional state remains a profoundly political affair, demanding such centuries-old skills such as prudence and vision.
Suggested citation: Javier Couso, Governing in a Liberal-Constitutional State: Dealing With the Clash Between Legality and Legitimacy in Chile and Spain, Int’l J. Const. L. Blog, Oct. 17, 2017, at: http://www.iconnectblog.com/2017/10/governing-in-a-liberal-constitutional-state-dealing-with-the-clash-between-legality-and-legitimacy-in-chile-and-spain-i-connect-column/