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.
Read the rest of this entry…