Blog of the International Journal of Constitutional Law

Cost-Benefit Reasoning Versus Proportionality: A Rejoinder

Xin Dai* and Yun-chien Chang**

[Editor’s Note: this is a rejoinder, from the latest issue of ICON, by Xin Dai and Yun-chien Chang to two replies to their article, The Limited Usefulness of the Proportionality Principle.]

We appreciate the two insightful replies authored by Professor Anne Peters and Professors Cristóbal Caviedes and Francisco J. Urbina. Both replies acknowledge that the proportionality principle (PP) has its shortcomings but reject our proposal that cost-benefit analysis (CBA) does better what proportionality purports to do. In this rejoinder, we briefly address key issues raised by these replies in order to bolster the case for CBA as a better procedure than PP for legal analysis in many, if not all, institutional contexts. Our core message is that even in the constitutional review context, where not all considerations should be taken into account by courts, PP is still not the most ideal decision-making tool.

  1. Quantification is never required but is usually helpful

CBA requires comprehensive balancing but not necessarily quantification of values, which both replies view as implausible and meaningless. As Profs. Caviedes and Urbina rightfully suggested, we could have spelled out that by CBA we referred very generally to the type of rational, consequentialist, all-considered decision-making procedure. The critical superiority of CBA over PP, as we have argued in the original essay, is that CBA enables decision-makers to “balance all relevant considerations,” which is what many proponents believe that PP does (it does not). The major advantage in making decisions by first identifying all thinkable pros and cons (with or without quantification) is that such a procedure helps overcome the human tendency of attending to only a subset of relevant factors when making difficult decisions. A structured decision procedure such as PP, as we explained, reinforces exactly such a tendency and, as a result, is a crippled, under-inclusive CBA.

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Published on November 12, 2021
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The Governmentalization of Global Human Rights Governance – A Rejoinder

David McGrogan*

[Editor’s Note: this is a rejoinder, from the latest issue of ICON, by David McGrogan to a reply to his article, The Population and the Individual: The Human Rights Audit as the Governmentalization of Global Human Rights Governance.]

The latest issue of ICON contains a Reply by Maxime St-Hilaire to my 2018 article, ‘The Population and the Individual: The Human Rights Audit as the Governmentalization of Global Human Rights Governance’.[1] I am grateful to Dr St-Hilaire for his comments, and to the Editors-in-Chief at ICON for giving me the opportunity to respond. That opportunity is particularly timely, as earlier this year a book of mine was published which elaborates considerably on the themes explored in that article.[2] This Response therefore allows me not only to reply to Dr St-Hilaire’s comments, but also to briefly summarise the way in which the book expands on what I consider to be the central observation of the article – namely, that something similar to what Foucault described as the ‘governmentalization of the state’ is taking place in what I call – with apologies – the ‘governmentalization of global human rights governance’.

First, then, a brief word on Dr St-Hilaire’s Reply. It is chastening when one encounters the response of a reader to the presentation of one’s ideas and it becomes evident that what one had hoped to state clearly was, in fact, unclear. Let me, then, take the opportunity here to attempt to re-state my argument. I confess that I do not in general find Foucault’s work to be particularly insightful or interesting. But the concept of ‘governmentality’ as elucidated in the Security, Territory, Population lectures[3] is an exception, because it hits on something important about the nature of governance and the role that law plays within it.

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Published on November 11, 2021
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Gender Equality and the Complete Decriminalisation of Abortion

Mara Malagodi, The Chinese University of Hong Kong, Faculty of Law

[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]

Recent legal changes in a number of jurisdictions that have entirely decriminalised abortion are steeped in the language of gender constitutionalism and human rights – whether these changes have taken place via constitutional litigation or statutory reform. As a result, the campaigns for complete decriminalisation in other jurisdictions have now begun to engage in a pragmatic comparative law exercise to advance their cause. Activists deploy the legal arguments and strategies marshalled in those jurisdictions that have completely removed abortion from the purview of their criminal laws alongside domestic constitutional principles and international human rights standards. As such, we are witnessing a global cross-pollination of legal ideas anchored in substantive notions of gender equality and human dignity to challenge legal restrictions to women’s bodily autonomy.

Abortion is the only medical procedure that continues to be consistently treated as a crime around the world. Even those jurisdictions that have partially liberalised their legal regimes continue to criminalise abortion outside of the terms explicitly provided by law. Only a handful of jurisdictions such as China (1979 – excluding Hong Kong and Macau), Canada (1988), Northern Ireland (2019), New Zealand (2020), and Australia (2021), have entirely removed abortion from the purview of their penal laws. Canada did so via constitutional litigation, while the other jurisdictions via statutory reform.

The default legal treatment of abortion as a crime across the modern world reflects a context-specific combination of demographic policy controls, patriarchal family structures, religious norms, social taboos, and in many instances colonial transplants. Recently, medical professionals have been increasingly calling upon their respective governments to remove abortion from the purview of criminal law and subject it solely to health law and professional standards like all other medical procedures. For example, in 2017, the UK Royal College of Obstetricians and Gynaecologists voted to remove criminal sanctions for abortion, while not calling for any changes in gestational limits.[1] In the same year, the American College of Obstetricians and Gynaecologists called for the decriminalisation of self-induced abortions.[2]

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Published on November 10, 2021
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ICON Volume 19, Issue 3: Letters to the Editor

[Editor’s Note: We are reprinting here the two letters to the editor in ICON’s latest issue, Volume 19, Issue 3.]

Letters to the Editors

The population and the individual

Dear Editors,

I was very pleased to read Maxime St.-Hilaire’s Reply to my 2018 article, “The Population and the Individual: The Human Rights Audit as the Governmentalization of Global Human Rights Governance” in this issue of I•CON (at 000). As well as being a valuable contribution in its own right, his Reply also provides me with the opportunity to make a clarification, and I have done so in the form of a Rejoinder on the ICONnect blog.

In summary, my argument is that the value of Foucault’s concept of governmentality is that it allows us to define and describe the results which follow from attempts to govern purposefully (or “manage”) in circumstances of complexity. Since human rights are often both the justification for purposeful governing and a tool for doing so, and since the circumstances in which this is done are highly complex, this makes governmentality a useful lens through which to examine the sociology of rights.

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Published on November 9, 2021
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What’s New in Public Law

Maja Sahadžić, Visiting Professor and Research Fellow, University of Antwerp

In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email

Developments in Constitutional Courts

  1. The Supreme Court of Russia declined to hear the so-called „Gulag Children“ Case.
  2. The Constitutional Court of Armenia declared the article dismissing ex-chief of the army’s General Staff constitutional.
  3. The Constitutional Court of South Korea rejected the first-ever impeachment of a (retired) judge.
  4. The Constitutional Court of St. Maarten rejected a request for austerity measures.
  5. The Constitutional Court of Togo approved the mandatory presentation of health passes to access every administrative building.
  6. The High Court of Australia found that the higher tax rate for visiting UK workers is discriminatory.
  7. The Constitutional Court of Spain temporarily annulled the PlusValía tax or capital gains tax.
  8. The Constitutional Court of Spain declared that the second state of alarm to combat the pandemic is unconstitutional.

In the News

  1. The Israeli Parliament approved the first state budget in three years.
  2. Portugal’s president dissolved the parliament and calls a snap election.
  3. The Ethiopian Parliament approved the state of emergency proclamation.
  4. A first albino will be sworn into Malawi’s parliament.
  5. The Cambodian parliament adopted constitutional amendments prohibiting dual citizenship for top leaders.
  6. The Italian Senate blocked a proposed amendment that sought to punish violent acts against members of the LGBTQ+ community.
  7. An Australian regulator ordered US software company Clearview AI to delete all collected data.
  8. The Chinese new law protecting online user data privacy took effect.

New Scholarship

  1. Patricia Popelier, Giacomo Delledonne, and Nicholas Aroney, Routledge handbook of subnational constitutions and constitutionalism (2021) (providing a toolbox of definitions and typologies to develop a theory of multilevel constitutionalism and subnational constitutions).
  2. Fruzsina Gárdos-Orosz and Zoltán Szente, Populist Challenges to Constitutional Interpretation in Europe and Beyond (2021) (exploring the relationship between populism or populist regimes and constitutional interpretation used in those regimes).
  3. Endre Orbán, The EU-Member State Relationship as a Principal-Agent Problem 13(1) Perspectives on Federalism (detecting three types of agency relationships within the European Union, and presenting legal and political solutions of the founding treaties which aim to tackle the agency issues).
  4. Cédric Lombaerts, The Role of the European Union in Secessionist Conflicts 13(1) Perspectives on Federalism (analyzing secession in a EU context from a multilevel governance aspect).  
  5. Werner Reutter, Subnational Courts of Last Resort in Germany and the USA 13(1) Perspectives on Federalism (exploring the judicial dimension of federal systems from a subnational perspective).
  6. Armando Rocha, Private Actors as Participants in International Law, A Critical Analysis of Membership under the Law of the Sea (2021) (examining the status of private actors as subjects of law under the rules of the international law of the sea.).

Calls for Papers and Announcements

  1. EURAC organizes a Webinar series „Federalism and the Law of Diversity: Islands or Archipelago?“ to be held online. Registration is required.
  2. The Queen Mary University of London organizes Queen the annual lecture on Immigration Law to be held Online on 17 November 2021.
  3. The University of Aberdeen organizes the third conference „International Law and Technological Progress Conference 2022“ to be held in Abeerden on 23-24 June 2022. The deadline for abstracts is 20 December 2021.
  4. The European Society of International Law organizes the 17th Annual Conference „In/Ex-clusiveness of International Law“ to be held in Utrecht on 1-3 September 2022. The deadline for submission of abstracts is 31 January 2022.
  5. The University College Dublin announces the 2022 Public Law Conference „The making (and re-making) of Public Law“ to be held in Dublin on 6-8 July 2022.
  6. The University of Oxford hosts the Fourteenth Biennial Modern Studies in Property Law Conference to be held in Oxford on 29 April and 31 March 2022.
  7. International Atomic Energy Agency organizes the First International Conference on Nuclear Law: The Global Debate to be held in Vienna on 7–11 February 2022. The deadline for submission is 15 November 2021.

Elsewhere Online

  1. Nicolò Alessi, Languages in Aosta Valley – Countering old research narratives in political and legal studies, Eureka!
  2. Cassandra Somers-Joce, Daniel Hoadley, Editha Nemsic, and Joe Tomlinson, Better Evidence of Judicial Review Decision-Making: Exploring the Potential of Machine Learning, UK Constitutional Law Blog
  3. Mark Elliott and Nicholas Kilford, Devolution in the Supreme Court: Legislative supremacy, Parliament’s ‘unqualified’ power, and ‘modifying’ the Scotland Act, Public Law for Everyone
  4. Kimberly Wehle, Will Supreme Court allow constitutional oversight to be outmaneuvered by Texas abortion law?, The Hill
  5. Wouter Pors, The Unified Patent Court has picked up speed again, Lexology
  6. Radosveta Vassileva, Yellow Light for Disciplining Inconvenient Judges?, Verfassungsblog
  7. Eirik Holmøyvik, No Surrender to Poland, A Norwegian court suggests surrender to Poland under the EAW should be suspended in general, Verfassungsblog
  8. Quinta Jurecic and Alan Z. Rozenshtein, Mark Zuckerberg’s Metaverse Unlocks a New World of Content Moderation Chaos, lawfareblog
  9. Richard Parry, The dilemma of devolution – more powers but potentially worse off, Centre on Constitutional Change
  10. Simon Drugda, Presidential Incapacity in Slovakia, slovakconlaw
  11. Cristiano d’Orsi and Juan Pablo Serrano Frattali, The right to food and housing for Internally Displaced Persons in Colombia and the Democratic Republic of Congo (DRC): geographical distance does not forcibly mean different situations, AfricLaw
  12. Gautam Bhatia, The Retrospective Application of Constitutional Statutes: Notes from the High Court of Kenya, Indian Constitutional Law and Philosophy
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Published on November 8, 2021
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ICON Volume 19, Issue 3: Editorial

Editorial: I•CON in Spanish—I•CON en Español; Brexit, the Irish Protocol and the “Versailles Effect”; Cancelling Carl Schmitt?; Changes in the masthead; In this issue

I•CON in Spanish—I•CON en Español

I•CON has no “nationality.” It is unlike, say, the Ruritanian Journal of Public Law. It attempts to cater for an international readership and, although we regularly publish articles with a focus on this or that jurisdiction, one of our selection criteria, even for such articles, is that they will be of interest to readers with no particular interest in the local jurisdiction because they offer, for instance, an important theoretical contribution. We are, of course, not alone in that type of orientation and aspiration.

The same is true for ICON•S. It, too, has no “nationality” (though we encourage and support the ICON•S national and/or regional chapters). But the very fact that it is an English-language publication—which has a powerful rationale, being the most widely used second language—the domination of English in both I•CON and ICON•S is not without important symbolic and practical significance.

The Santiago ICON•S meeting in 2019 was a turning point in the life of the Society. The Council of ICON•S took the bold decision that, given the huge importance of Spanish, a language spoken in no less than twenty countries, the Santiago meeting would be bilingual: English and Spanish. Most of the reactions we received from both Hispanohablante members and others was that this was a very positive development, both symbolic and practical. It enabled a far wider participation and many of our members who speak Spanish were exposed to impressive scholarship which would not otherwise be part of the ICON•S program.

Given the prominence of Spanish as the primary language in such a large number of jurisdictions, we have taken two initiatives, for now on an experimental basis, which attempt to consolidate the Santiago meeting experience.

Our blog ICONnect now has a thriving, autonomously managed sister blog, IberICONnect (, which publishes in Spanish and Portuguese. Since its inception in October 2020, the blog is turning out to be, not surprisingly, an important voice in public law scholarship.

And, starting this year, I•CON will be publishing five, rather than four, issues a year, one of them entirely in Spanish (with English abstracts), with Marcela Prieto and Sergio Verdugo acting as Editors. The first issue is already in the pipeline and includes scholarship from the Spanish-speaking world in two continents. We are grateful to Oxford University Press for their willingness to join in this experiment (also a first for them).

The experiment will run for at least three years, after which we will decide whether to make this a permanent feature of I•CON. And to those who are wondering, yes, we will at that point consider extending this initiative to one or two other languages that have a similar jurisdictional ubiquity, French being, naturally enough, a prime candidate.

GdeB and JHHW

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Published on November 7, 2021
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Giving Substance to Singapore’s Fake News Law: Online Citizen

Marcus Teo, Sheridan Fellow, National University of Singapore’s Faculty of Law

The threat that fake news poses to free speech and democracy is now well-established, though less established is how Governments should address it. Legislation which requires social media companies and intermediaries to remove or rebuff falsehoods posted on their platforms, like Germany’s Network Enforcement Act, are now no longer rarities,[1] though some countries like the United States continue to resist regulation. Even then, among states that do regulate online falsehoods, it remains rare for laws to require individuals to take responsibility for their statements. This responsibility is potentially very onerous, since individual statement-makers may lack the information or resources needed to prove the legitimacy of their statements.

Singapore’s Protection from Online Falsehoods and Manipulation Act 2019 (POFMA) is an example of such a law: it grants the Minister for Home Affairs power to issue Directions against statement-makers who make false statements of fact deemed threatening to the public interest.[2] These Directions oblige statement-makers to either append a notice to their statements (which the Act calls “subject statements”) stating that they are false,[3] or remove those statements entirely,[4] on pain of criminal penalties.[5] Websites which repeatedly post statements subject to Directions may also have access to them blocked or disabled by internet service providers or social media platforms.[6] POFMA, however, does contain an avenue of redress: statement-makers may appeal Directions to the High Court on several grounds, including that the subject statement was not a false statement of fact, which the Court must assess de novo.[7] A further right of appeal to the Court of Appeal is also available with leave.[8]

Given POFMA’s potential implications for individuals, the right to appeal POFMA Directions is of considerable importance. Yet, the text of POFMA itself leaves several important questions unanswered: is the Minister’s ability to identify subject statements unfettered or guided by law? Who bears the burden of proving the truth or falsity of subject statements in an appeal? And more fundamentally, is POFMA consistent with the right to free speech enshrined in Article 14 of Singapore’s Constitution? In The Online Citizen v Attoney-General,[9]its first decision rendered on appeals from POFMA Directions, the Singapore Court of Appeal set out to address these questions.

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Published on November 4, 2021
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Germany v Italy: Jurisdictional Immunities—Redux (and Redux and Redux)

J.H.H. Weiler, co-Editor-in-Chief, International Journal of Constitutional Law

[Editors’ Note: This piece will be published in the next edition of the International Journal of Constitutional Law (I•CON) as part of the Editorial.]

Will we ever see closure to this saga at the center of which one finds the somewhat controversial decision of the International Court of Justice of 2012 and the very controversial decision of the Italian Constitutional Court of 2014 which rebuffed that decision?

There is no need to recap fully the endless “puntatas” in this story, which have been followed assiduously like a successful series on Netflix, not least on the blog, EJIL: Talk! (see here and here and here and here and here and here and here). I will just mention, since this is germane to my argument, that Italy and Germany had reached a settlement in the 1950s and 1960s, through treaties, on agreed compensation for all German crimes during World War II, which would preclude any further claims by Italy. Far from a King’s ransom, but the Italians accepted it. Germany duly paid what was agreed. Italy “unduly” spent the money on post-war reconstruction rather than compensating individual victims. Plaintiffs tried unsuccessfully to obtain relief in the German courts for a variety of legitimate legal obstacles.

In the wake of the ICJ decision, the Italian government and parliament, acting (entirely correctly) in exemplary good faith, introduced legislation that gave full effect to said decision. One thought at the time that this was the end of the series. A happy ending for the Rule of Law (though not so happy for the hapless victims of the German atrocities, sympathy for whom should not be forgotten).

Yet, to the surprise of most spectators, the “regia” thought otherwise and a new season was announced, featuring an application to the Italian Constitutional Court which struck down that legislation as violative of fundamental principles of the Italian Constitution and restored the right of the victims to bring civil actions for damages in the Italian courts.

As autumn follows summer, such actions were brought; as winter follows autumn, Germany (entirely correctly) refused to appear in such proceedings. And as spring follows winter, default judgments for damages were entered and German assets in Italy were attached.

Now it appears, as summer follows spring, that the Germans are losing their patience and word is that they are contemplating bringing the matter (the non-compliance of Italy with a decision of the ICJ) before the Security Council and/or starting new proceedings before the ICJ.

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Published on November 3, 2021
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Roundtable Discussions on the State of Constitutionalism in the World | November 9-19, 2021

Richard Albert, Professor of World Constitutions and Director of Constitutional Studies, The University of Texas at Austin; Allan Rock Visiting Professor of Law, University of Ottawa

We recently published the fifth edition of the Global Review of Constitutional Law, an annual publication bringing together dozens of jurisdiction-specific reports written by scholars and judges—often in collaboration—on constitutional law developments over the previous year.

This month, the editors of the Global Review will host a series of 5 roundtable discussions with some of the contributors. Details of participants are highlighted below. All are welcome to join us to learn about recent developments in constitutional law in various jurisdictions and to discuss the state of constitutionalism in the world.


2020 Global Review of Constitutional Law

Online Roundtable Discussions

Tuesday, November 9, 2021
2:00pm to 3:30pm UTC

Host: Pietro Faraguna

Meeting ID: 737 2626 1033
Passcode: V2kpCp
AlbaniaArta Vorpsi
Bosnia and HerzegovinaMaja Sahadzic
EgyptEman M. Rashwan
Ahmad Ali Lotief
GreeceAlkmene Fotiadou 
North Macedonia Jasmina Dimitrieva
PortugalCatarina Santos Botelho
Ana Teresa Ribeiro


Friday, November 12, 2021
10:00am to 11:30am UTC

Host: Simon Drugda


KenyaJill Cottrell Ghai
NigeriaDr. Solomon Ukhuegbe
Dr. Gabriel Arishe 


Monday, November 15, 2021
8:00pm to 10:30pm UTC

Host: David Landau

BrazilJuliano Zaiden Benvindo
Aline Osório
Costa RicaOlman Rodriguez Loaiza
Sigrid Morales
Bruce Wilson
MéxicoIrene Spigno
Alfonso Herrera
Mauro Rivera
VenezuelaCarlos Garcia Soto
Daniela Urosa
Raul Sanchez Urribarri


Wednesday, November 17, 2021
7:00pm to 8:30pm UTC

Host: Richard Albert

EstoniaPaloma Krõõt Tupay
GeorgiaMalkhaz Nakashidze
Palestine Sanaa Alsarghali 
TaiwanMing-Sung Kuo
UkraineOleksandr Marusiak


Friday, November 19, 2021
10:00pm to 11:30pm UTC

Host: Simon Drugda

Zoom Link

Czech RepublicMonika Kováčová
Maxim Tomoszek
PolandPiotr Mikuli
Grzegorz Kuca
SlovakiaKamil Baraník

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Published on November 2, 2021
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Constitutional Boot-strapping in Chile?

Benjamin Alemparte, Duke Law School, and Joshua Braver, University of Wisconsin Law School

Three months into its deliberations, on October 7th, the Chilean Constitutional Convention finished approving its internal regulations. Most significantly, the Convention infringed its legal mandate by tampering with the threshold for its voting rules. In so doing, the Convention claimed that its legitimacy no longer derives from the Constitution, but from the people themselves. These flirtations with illegality are at this point mostly symbolic, but in time they might be the starting point for weightier legal violations in the constitution-making process.

Up until now, the process had been completely legal. In response to massive protests known as the “social outbreak,” and with the support of all the major political parties, Congress had amended the Constitution to permit the calling of a constitutional convention. Those amendments laid out a detailed structure for how the process would unfold.

Most importantly, the amendments limited the Convention’s to the task of drafting and proposing a new constitution. Article 133 of the current Constitution required that “the Convention shall approve the provisions [of the draft constitution] and its voting rules by a quorum of two-thirds of its members in office.” The amendment also states that the Convention “may not alter the quorum or procedures for its operation and for the adoption of agreements.” Article 135 prohibits the Convention from claiming the “exercise of sovereignty” by “assuming other powers than those expressly recognized by this Constitution.” In other words, the Convention could not usurp the powers of the government, such as legislating, executing, or applying the law. In drafting these provisions, the Congress had in mind previous experiences in the region, specifically in Venezuela and Ecuador, where constitutional conventions claimed they were sovereign, outside all law, and had purged the governments. For these reasons, many have argued that the Chilean process is a legal one based on an aversion to the Bolivarian model of Venezuela or Ecuador.[1]

We call attention to three possible infringements on these rules. First, the Convention approved its voting rules by a majority vote, not the 2/3 required by Article 133 of the Constitution. This is perhaps the clearest infringement.[2]  But what’s remarkable is even as the Convention used majority vote to approve the rules, they set super-majoritarian rules blunting the radicalism of the gesture. The second infringement concerns the voting threshold for the approval of the provisions of the Constitution. There would now be two routes to approving a provision of the new constitution. The first adhered to the amended Constitution’s legal guidelines of a 2/3 vote as required by the Constitution. But a new second route would allow provisions that could not meet the 2/3 threshold but were able to garner in a second vote the approval of 3/5 of the members to go to a binding referendum or plebiscito dirimente.[3] However, the alteration may not be illegal as many supporters of the change say for a binding referendum to be effective, the Constitution would have to be amended. Such an amendment would make the referendum perfectly legal. Lastly, Article 1 of the general regulation states that the Convention has “an autonomous nature” and is “convened by the people to exercise original constituent power.” This claim signifies the Convention no longer believes that its authority derives from the amendments to the Constitution, but from the people themselves.[4]

In this blog post, we examine the theoretical conundrums raised by the Convention’s actions. First, we explore the pattern of constitutional conventions violating their pre-set rules. Second, we argue that Chile departs from the pattern in one respect because this current violation was unnecessary for the achievement of a new constitution.[5] Lastly, we distinguish sovereignty from autonomy to cast doubt on whether this is a prelude to the Convention usurping the other branch’s powers as occurred infamously in the creations of the 1999 Venezuelan and the 2008 Ecuadorian Constitutions. 

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Published on November 2, 2021
Author:          Filed under: Developments