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Symposium on Chilean Referendum Part II: Chile: The Constituent Dilemma

[Editor’s Note: I-CONnect is pleased to feature a five-part symposium on the recent Chilean referendum authorizing a new constitution-making process. The symposium was organized by Professors José Francisco García and Sergio Verdugo, whose introduction is available here.]

Juan Luis Ossa, Centro de Estudios Públicos 

In the early morning of November 15, 2019, most of Chile’s representatives signed an “Agreement” [Acuerdo] to find an institutional solution to the so-called “social outbreak” [estallido social]. This agreement sought to channel the very heterogeneous demands of an increasingly empowered citizenry through an itinerary that is bound to lead Chileans into the drafting of a new Constitution.  

Indeed, since October 18, 2019, the country has gone through the most divisive crisis since the return to democracy in 1989. Hundreds of thousands of people took to the streets -sometimes violently, others peacefully- to demand changes in the way politics have been understood and exercised in the last decades. Although a possible modification of the Constitution did not stand out among the main social demands coming from civil society, over time the possibility of channeling differences via a new institutional process gained adherents amid the representatives of the political parties who signed the “Agreement”. Not so much, I argue, because of specific or technical “constitutional” issues, but because of the illegitimacy problem that still weighs on the “constituent” process that led Augusto Pinochet’s inner circle to draft the 1980 Charter and which, after various reforms, still rules the country. In the remainder of this column, I touch upon both historiographical and contingent matters to shed light on the current debate.

I firmly believe that the process that emerged in the heat of October 18 can be better grasped if we give the discussion a greater historical depth, emphasizing breaks and continuities throughout Chile’s republican history. This is an idea I have worked on my book Chile Constitucional (September 2020), where I proposed four hypotheses. On the one hand, I contended that Chile has a robust constitutional tradition whose origin goes back to the dawn of the republic. The book does not understand the concept of tradition as synonymous with “identity” or cultural “essence”. Instead, it understands it as an institutional and historical mechanism of gradualist reform, which, from the present, is deferential with the past.

Being deferential with the past does not mean, however, that tradition refers to a constant progressive and optimistic evolution. In fact, the different moments in which that tradition has manifested were very different from each other; each had its own particularities, and it is not convenient to force similarities between, say, the historical process of 1833 and that of 1925. Deference to the past has occurred above all in a rhetorical or symbolic manner, in the knowledge that history never repeats itself. Furthermore, reading and understanding history does not guarantee not to repeat the mistakes of the past.

A second hypothesis is that the Constitution of 1828 should be considered the pillar of Chilean political architecture. We know that it was reformed in 1833 (so much so that it is often seen as a “new” Constitution), and that the structure and functioning of the state took a more “conservative” turn as a result of these changes. That is undeniable. Yet, it is also true that it was during the Constituent Congress of 1827-1828 that pressing and long-standing problems were resolved: it was reaffirmed that the government would be a popular representative republic; it was decided that elections were the best mechanism for appointing authorities; and modern principles such as equality before the law were constitutionally guaranteed. All these principles had been discussed before the Constitution of 1828, but it was there that they were finally considered and accepted. Moreover, the various reforms introduced in the 1860s and 1870s ended up resembling the Constitution even more to the original version of the 1828 Charter.

The third hypothesis states that the Constitutions of 1833 and 1925, despite their many differences, were deferential to the gradualist tradition mentioned above. Both were, indeed, presented as explicit “reforms” to their predecessors. This is clear from the debates that preceded their respective publications, as well as from the explanations included in the documents that Presidents drafted to accompany the constitutions. This deference did not necessarily occur in a strictly positivistic way, and, actually, their articles differ significantly. Instead, it happened symbolically and culturally, the breaks caused by the new articles being less patent than the historical deference between one Constitution and the other. 

That tradition, and this is the fourth and last hypothesis, was interrupted after a Military Junta not only took over the executive and legislative branches in 1973, but also assumed the constitutional initiative. It was from the Junta that a Commission led by Enrique Ortúzar emerged with the aim, first, of symbolically “destroying” the 1925 Constitution, and, second, drafting a “new” Charter. It soon became clear that the objective of the coup and the dictatorship that ensued was to “re-found” the country, for which it was inevitable to recreate the constitutional arrangement. Does this mean that the 1980 Constitution did not respect any of the articles of the 1925 Charter? No, it does not mean that —actually, it kept the language of some of the previous provisions. Rather, the historical constituent process that led to the 1980 Constitution was not symbolically deferential toward its predecessors, its main objective being to “rebuild” the bases of the country.

I conclude with a few contingent ideas.

Considering the multiple reforms that the Constitution has undergone since its advent in 1980, it seems that the problem we are facing today is not much “constitutional” as it is “constituent”. By “constitutional” I mean the sum of articles in a text that, in the Chilean case and after a number of reforms, is not, I believe, significantly deficient -in fact, there are many aspects that should remain in case a new Charter is drafted. Why change it? Because the problem is above all “constituent”; that is, because it refers to Pinochet’s re-foundational rhetoric and practices from the outset of the military intervention in 1973, and which were repeated in a series of documents and public interventions throughout that decade. If were are today, forty years later, still discussing about the legitimacy of the 1980 Constitution is mainly because the dictatorship granted itself a mandate completely alien to the reformist tradition of the country.

The future members of the Convention 2020 have, in this sense, the responsibility for the present “constituent” process to be exemplary (thus differentiating itself from the 1980 process), without this necessarily meaning that they should reinvent the wheel on “constitutional” matters. Indeed, if the next Convention goes beyond its task and begins, for example, to structurally reconsider each of the country’s constitutional foundations, then its members would be replicating the re-foundational exercise of the constituents of 1980.

Although there are still many details to refine and attune regarding how that Convention shall operate, its members must start from an empirical verification: their mandate comes from the same Constitution that they have the mission to replace, which means that it is “derivative,” not “original”. That was what the representatives decided when they approved —in November 2019— not only that the new Constitution would emerge from the actual and reformed version of the 1980 Charter, but also that members of the Convention were to respect, among other things, the international treaties previously signed by the country.

Thus, the constitutional discussion in Chile does not start from zero. It does start from what it has become fashionable to call a “blank page” [hoja en blanco], in the sense that the Constitution will materially be written again. However, that does not have to be understood as synonymous with going back to “square one”, as if the country was in 1810 and we had to rebuild it. As intergenerational pacts, Constitutions must be deferential not only with the generation that has been given the task of drafting a new Fundamental Law, but also both with the past and the future. Like society and history, Constitutions are pacts between the dead, the living, and those who are yet to be born, as the Irish thinker Edmund Burke would have said. In sum, we have a unique opportunity to undo the re-foundational spirit of 1980 and seal a new pact that is neither an imposition on a political opponent nor a burden on the forthcoming generations.

Suggested citation: Juan Luis Ossa, Chile: The Constituent Dilemma, Int’l J. Const. L. Blog, Nov. 3, 2020, at: http://www.iconnectblog.com/2020/11/symposium-on-chilean-referendum-part-ii-chile-the-constituent-dilemma/

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Published on November 3, 2020
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