Blog of the International Journal of Constitutional Law

Constitution-Making and Democracy

In light of the current crisis of Honduras, Chile’s constitutional plight represents an interesting, contrasting case.While in Honduras the crisis started when the sitting President tried to bypass the Constitution’s prohibition against amendments aimed at allowing his own reelection, in Chile, a dictatorial regime managed to perpetuate important features of the military regime through the imposition of a Constitution which has only been reformed when both former opponents of the dictatorship and the political ‘inheritors’ of it have concluded an agreement.Due to this dynamic, Chile’s Constitution of 1980 still exhibits important democratic deficits (most prominently, a ideologically ladden Bill of Rights and the requirement of a quorum of 4/7 of the actual members of Congres to ammend or derogate the most important legislation passed by Augusto Pinochet’s regime, the so-called ‘Leyes Orgánicas Constitucionales).Given the illegitimate restraints on democratic self-government that the Constitution of 1980 imposes on Chile’s current democratic era, over the last years there have been repeated calls for the introduction of a new Constitution, notably by former President Eduardo Frei (who led the country between 1994 and 2000, and who is now running again for the presidential election of December, 2009).The problem, however, is that the very Constitution of 1980 that many Chileans want to substitute for a more democratic one, forbids the executive or the legislative branches to call for a referendum aimed at asking the people if they want a New Constitution. Furthermore, the rules governing the ammendment of the Constitution (2/3 of actual members of Congress for the most important subject matters) make any constitutional ammendment not favored by the political inheritors of the dictatorship impossible. This has been the case with many democracy-enhancing ammendments which would have damage the privileged political position enjoyed by the latter.In this context, the following question arises: How can a democratic polity deal with the anti-democratic constitutional legacy of an authoritarian regime without risking a huge constitutional crisis?


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