We invited Marcela Prieto and Sergio Verdugo, I•CON’s Associate Editors, to write a Guest Editorial.
Understanding Chile’s constitution-making procedure*
For good or bad, Latin America has seen several constitution-making processes in the past decades, including the cases of Brazil (1988), Colombia (1991), Perú (1993), Ecuador (1998 and again in 2008), Venezuela (1999), and Bolivia (2009). It is now Chile’s turn.
In October 2020, close to 80% of Chileans voted in favor of initiating a constitution-making process through a Constitutional Convention. The Convention’s members will be elected in May 2021. The pressure for constitutional change was largely the result of the 2019 mass protests, which were primarily demanding social rights expansions across the country. In response to this pressure, political parties approved a multi-partisan agreement (the “Agreement”) aimed at initiating a process to replace the current Constitution.
Chile’s constitution-making process can be analyzed in various ways. We argue that, as it was designed in the Agreement, Chile’s constitution-making process can be understood from the perspective of “aversive constitutionalism.” Aversive constitutionalism focuses on “the negative models that are prominent in constitution builders’ minds.” Those models later operate as “building blocks of a new constitutional order,” thus incorporating a “sense of rejection of a particular constitutional possibility.” Using this perspective, the Chilean constitution-making process can be understood as showing a dual aversion: Pinochet’s constitutional legacy and the Bolivarian prescriptions of constitution-making.
The rejection of Pinochet’s constitutional model is not an obvious choice. After all, the current Constitution—originally imposed by the Pinochet regime in 1980—has been amended several times, and Chile has a competitive—though polarized and gridlocked—democratic regime. However, public opinion and politicians associate Pinochet’s Constitution with legislative inaction in areas Chileans care about, such as healthcare, social security, and education. Although there is no academic consensus as to the gridlock’s causes, many Chileans blame the Constitution. In any case, it is true that crucial issues associated to social and economic rights are still partly dominated by neoliberal norms that were part of the dictatorship’s original design.
The rejection of Pinochet’s Constitution also has a symbolic dimension, whereby Chile can be seen as consolidating its transition to democracy through a break with its past constitutional order. Unlike other countries, such as Spain, South Africa, and Brazil, where the transition included a total constitutional replacement, Chile’s post-authoritarian system maintained an amended version of the original constitutional text imposed by the dictatorship. The rejection of Pinochet’s constitutional model involves a desire for social transformation, the need to participate in a democratic—and not imposed—constitution-making process, and a symbolic rejection of the authoritarian legacy.
The Bolivarian approach to constitution-making is Chile’s second negative model. This model has inspired the constitution-makers of Venezuela (1999), Ecuador (2008), and Bolivia (2009), and it combines a form of transformative constitutionalism (an idea originated in relation to South Africa) with a particular constituent narrative. That narrative involves the recognition of a strong social rights model, the existence of a sovereign constituent assembly that produces norms that weaken limits on political power, a post-liberal and radical approach to democracy, and a revolutionary discourse emphasizing the (unconstrained) power of the “people” as the legitimizing driver of the constitution-making process.
The rejection of this model can be identified in the Chilean political debates—as we show in our essay published in this issue—and in many features of the Agreement. The Agreement emphasizes institutional continuity and creates a highly regulated process that imposes several procedural and substantive limitations on the Constitutional Convention. Most notably, the rules governing the Convention promote consensus-building and multi-partisan compromises through a super-majority decision-making rule, a judicial remedy in case the procedures are infringed, and an electoral system that is likely to secure a fragmented and politically diverse Convention—a feature that might prevent the rise of a dominant party. These norms are in tension with the constituent power narrative that Bolivarian constitution-makers typically advocate.
Chile’s success in effectively rejecting these two negative models will depend on whether the Convention finds a path that can accommodate the dual aversion. In order to do so, Chile’s Convention needs to design a more responsive political system that can put an end to legislative inaction in critical areas that require social reform and can provide for a strongly symbolical rejection of the Pinochet legacy. It also needs to avoid a populist narrative that may undermine the competitiveness of the democratic order, thus rejecting the Bolivarian approach. And it must do so while producing a constitution that can be accepted by both public opinion and partisan elites. This is no easy task.
First, there is a predominant transformative narrative both in the region and in Chile’s political discourse. Second, political parties, who still have some control over the process, have lost credibility, making Chile a fertile ground for populist leaders to become influential. This risk may be exacerbated due to the number of elections that will take place in Chile in 2021. Third, the dual aversion may not necessarily hold during the Convention’s functioning, as some right-wing delegates will still defend key principles of Pinochet’s constitutional model and some left-wing delegates will probably advance a sovereign narrative close to the Bolivarian way. It is unclear whether both approaches can find common ground and advance pragmatic compromises. The role of moderates from opposite sides will likely be crucial. Fourth, rejecting both negative models can lead to certain contradictions. While rejecting Pinochet’s legacy signals a break with the status quo, rejecting the Bolivarian way seeks to preserve some degree of institutional continuity.
The Chilean constitution-making process has been driven, in large part, by a demand for social transformation. Transformations, however, need not embrace Bolivarian constitution-making. Chile’s response to the demands for transformation should also preserve the competitiveness of the democratic system, avoid polarization by incentivizing long-term governmental pacts (and not merely short-term electoral alliances) and stimulate consensus-building. A solution like this would also be, hopefully, a long-term solution—in other words, it would be a transformation that would last.
Marcela Prieto and Sergio Verdugo
University of Southern California, Gould School of Law, Los Angeles, CA, United States
Universidad del Desarrollo, Santiago, Chile
In this issue
In issue 18:2 of 2020, I•CON published Neil Walker’s Foreword article. The article aimed to rescue the concept of sovereignty from irresoluble debates about the value and resilience of the state form and argued that it is through “the sovereignty surplus” that sovereignty continues to play a vital role today. Our first issue of 2021 opens with the Afterword section, where Fleur Johns, George Duke, Nicole Roughan, and Lucia Rubinelli critically engage with the Foreword article. The section closes with a rejoinder by Neil Walker.
Our Articles section begins with an article authored by Giovanni de Gregorio, which analyzes the development and main features of the European Union’s transition to what the author terms “digital constitutionalism.” Next, Harry Hobbs and George Williams conduct a legal survey of micronations through the development of a conceptual framework, an exploration of the various forms that micronations take, and an analysis of the issues micronations pose in public law.
Our Critical Review of Governance section contains an article by Melissa Loja, which analyzes cases from the courts of Singapore, Malaysia, and the Philippines, and argues that these courts, contrary to prevailing views, are engaging with international human rights law, but that this engagement is inconsistent and arbitrary.
In our Critical Review of Jurisprudence section, Po Jen Yap and Rehan Abeyratne analyze a judgment by the Appellate Division of the Bangladesh Supreme Court—whereby the court struck down amendments that restored sections of the original constitution—within the broader comparative literature regarding constitutional amendment and conclude that the decision was defensible on the basis of theoretical and pragmatic grounds.
Our Critical Review of Constitution-making section features an article by Sergio Verdugo and Marcela Prieto, which analyzes the Chilean constitution-making process from the perspective of aversive constitutionalism and argues that the Chilean process manifests a double aversion: against the Pinochet constitutional model and the Bolivarian approach to constitution-making.
In a special section, entitled Game of Laws, Fernando César Costa Xavier describes the main features of “huehue”—that is, the disruptive behavior of Brazilian users in multiplayer online games—and uses this description to develop the idea of “huehue constitutionalism,” a dysfunctional constitutional environment where political actors engage in disruptive behaviors.
This issue’s symposium, entitled “The PSPP Ruling of the Bundesverfassungsgericht,” discusses the recent German Federal Constitutional Court’s (FCC) decision against the Public Sector Purchase Programme (PSPP) established by the European Central Bank (ECB) (also referred to by some as “the Weiss case”), whereby the German Court found a judgment of the European Court of Justice and acts of secondary Union law to be ultra vires. Joseph H.H. Weiler introduces the symposium and argues that Weiss was the somewhat predictable result of both structural and contingent factors present in the European Union, but a poor case for the Court to make a stand. In the first article of the symposium, Jürgen Basedow et al. engage in a critical analysis of the ruling, arguing that it breached Union law and erred in its interpretation and application of German constitutional law, as well as examining the difficulties, both theorical and practical, that arise as a result of the judgment. Next, Ulrich Haltern argues that the FCC and the European Court of Justice operate at different ends of constitutionalism and within different understandings of authority and legitimacy, and that the irreconcilable constitutional conflict is about collective values. The real contradiction manifested in the judgment lies in this dimension, argues Haltern, and the decision provides a form for that contradiction to resolve itself. Tom Flynn compares Weiss with the jurisprudence of other constitutional courts on EU supremacy, and views the case as a “mixed bag,” flawed in many respects but ultimately a result of tensions inherent in the EMU. Thereafter, Karen J. Alter argues that the mainstream critique of the judgment misdirects the conversation we should have about when and how constitutional review can effectively push back against the negative effects of economic globalization. She defends national judicial pushback that is used to protect individual rights, democracy, and the national constitutional order, but claims that the judgment of the FCC does not further these goals. Stefanie Egidy explores the role of central banks and provides a three-step argument concerning the role that the principle of proportionality should play regarding monetary policy, thus proposing a narrow reading of the judgment that could reconcile the conflict between the ECB and the FCC while still providing for a sufficient level of judicial accountability regarding the ECB’s monetary policies. Finally, Marco Dani et al. discuss the FCC’s judgment from a political economy perspective, thus situating the debate in the broader context of the transformation of the Economic and Monetary Union over the last decade, its flaws, and its changing role. Within this context, the authors emphasize the judgment’s transformative potential and the ways in which it reveals the unsustainability of the current framework.
In the Book Review section, we feature two reviews essays. Erika Arban engages with Ran Hirschl’s City, State. Constitutionalism and the Megacity from a range of different perspectives. In his review essay on Gao Quanxi, Zhang Wei, Tian Feilong, The Road to the Rule of Law in Modern China and Zhang Yongle, The Remaking of an Old Country: 1911-1917, Lucas Brang opens up the world of Chinese scholarship to our international readers, as these scholars address questions of sovereignty and state theory with reference to China’s imperial history and also in exchange with European thinkers.
JHHW and GdeB
* This editorial presents a short version of the main arguments included in our essay entitled “The Dual Aversion of Chile’s Constitution-Making Process”, in this issue of the journal.
 Acuerdo por la Paz Social y la Nueva Constitución [Agreement for Social Peace and the New Constitution], Nov. 15, 2019.
 Kim Lane Scheppele, Aspirational and Aversive Constitutionalism: The Case for Studying Cross-Constitutional Influence Through Negative Models, 1 Int’l J. Const. L. 296, 300 (2003).
 Id. at 300.