WEBINAR 3: AMERICAS - COVID-19 Constitution-making in Chile
Jorge CONTESSE
16 November 2020
Chile is going through a unique constitution-making moment. At the end of October 2020, the Chilean people overwhelmingly voted — for the first time in the history of the country — to adopt a new Constitution, and to do so through a constituent assembly. The perception that the Constitution has become an obstacle to, rather than an avenue for, political change is the gist of the country’s constituent moment. This contribution focuses on two aspects: first, it discusses some of the main causes of the dramatic constitutional change that is underway, with an emphasis on the role of the Constitutional Court as a key factor for triggering the constituent impetus. Second, it assesses the constituent process as a distinctive case of democratic renewal, that is, an instance where decay is democratic, as when the normal (but imperfect) functioning of the constitutional system may lead to its own destruction (a sort of institutional implosion) followed by a moment of constitutional creation.
How did we get here?
The 1980 Constitution was drafted by a commission made up mostly of men, all of whom were sympathetic to the regime of Augusto Pinochet (1973-1980), without any public discussion, with political parties outlawed, and without reliable electoral records to ensure trust in the result of the plebiscite with which it was approved. (In fact, commentators have noted that electoral fraud was committed in that plebiscite.) And, of course, in the midst of massive and systematic human rights violations.
In 1989, when Pinochet had already lost the referendum that would have allowed him to remain president for eight more years and the country was preparing to hold its first presidential elections since 1970, the opposition parties and those loyal to the Pinochet regime negotiated a package of constitutional reforms that did not shake the foundations of the Chilean constitutional architecture. It took fifteen years to renegotiate a major constitutional reform that, although it introduced significant modifications (such as the power given to the Constitutional Court to review the applicability of laws), did not remove the foundations of the constitutional regime inherited from the dictatorship either. In spite of this, then President Ricardo Lagos proclaimed that Chile had a new constitution; one that would not divide Chileans.
This was not to be the case. It only took a few years for the streets to be filled with protesters, especially but not exclusively students, who demonstrated, first, in favour of a non-commercialized education system, and subsequently, in favour of the environment, women’s rights, social security, the environment, and so on. Their demand soon became a constitutional one, since protesters found themselves against a wall: the Constitution. It was the Constitution that prevented the radical modification of the neoliberal system that Pinochet had bequeathed.
The Constitutional Court
As each of the social demands came up against the Constitutional Court, Chileans realized that the Court was the most eloquent obstacle to social change. Yet, since the Constitutional Court was the guardian of the 1980 Constitution, it was inevitably the Constitution that had to be replaced.
During the 2013 presidential campaign, inspired by the Colombian example of the Seventh Ballot, civil society organizations launched a campaign that called for the marking of votes with the acronym ‘AC’ for ‘asamblea constituyente’ (‘constituent assembly’ in Spanish ). The idea was to convey, through marks on the ballots, that the demand for a constituent convention was real and needed to be addressed because it was key to carrying out the desired changes. The campaign faced accusations of fraud and the nullification of votes — ironically, even attracting the label of ‘unconstitutional’! — but it also sparked a sort of constituent energy among the people. The government of Michelle Bachelet took up the demands and initiated a constituent process which mobilized hundreds of thousands. However, as the administration’s popularity declined, the process waned until it eventually receded into invisibility with Bachelet sending Congress a proposal for a new Constitution only days before the end of her government, in an act without any political—much less constituent– transcendence.
In March 2018, the conservative government of Sebastián Piñera stepped in. In an address to the country’s most powerful businessmen, Piñera’s secretary of Interior (also his cousin) sent a clear message: ‘we do not want to advance the proposal for a new Constitution’. The demand for a new Constitution was put to sleep… until a 30 peso (USD 0.4) subway rise triggered a new wave of student protests in Santiago, and on Friday, October 18, 2019, after several subway stations were set on fire, the government decreed a state of emergency. Suddenly, the matter of the Constitution became impossible to ignore.
An institutional implosion
Never before in the history of the country had constitutional change been carried out through democratic means, in the sense of mechanisms that allow for the participation of citizens in the process of constitutional creation. Almost fifty years ago, the 1925 Constitution was brought to an end through the bombing of the presidential palace of La Moneda. And, a few years later, a Constitution was drafted in the midst of a regime that systematically violated human rights, without any public debate.
One of the most interesting features of the process we analyse here is the decay that is itself democratic and democracy’s capacity for renewal. In general, we think that it is democracy that is decaying; and it certainly is. There are many examples around the world of how in recent years numerous constitutional regimes have been weakened, generating a real crisis of constitutional democracy that specialists have been concerned with studying and confronting.
However, with the Chilean case, a way of looking at the issue arises in which the decay of democracy is also democratic. What I mean is that it has been the democratic regime itself which, precisely because of its functioning, as it was designed, has lost its legitimacy. It is not that there has been a failure in the system; certainly, we can attribute the so-called “social explosion” to a series of factors, such as, for example, the fact that the binominal electoral system was replaced by a proportional one, without touching the markedly presidentialist regime, thus generating a blockade that has made it virtually impossible to govern. But the decay has occurred, so to speak, within the framework of the very institutions that are decaying and that today require reform, abolition or renewal.
In this last sense, a democratic renewal is taking place. It is democracy itself that today is offering an opportunity to the Chilean people to correct the institutional problems that have resulted from this constitutional crisis. And this process of renewal deserves careful examination. Let me mention three aspects.
First, as has been said, after the demonstrations the political elite had no choice but to agree on a constituent roadmap. While millions were demonstrating in the streets, and renowned analysts insisted that looking at the Constitution was a “fetish” issue, the overwhelming vote in favour of the new Constitution indicated that this demand was not an expression of mere youthful subjectivity, but rather a widespread sentiment among the citizenry.
Second, the Chilean constitutional process is unprecedented in the world insofar that it is the first to ensure gender parity. Perhaps one of the mobilizations that has awakened the most interest in the citizenry has been the mass, peaceful, and convening women's marches. In the same way, it has been the demand for gender equality and the call for attention to male violence that has mobilized many women and, with it, forced them to take a position in the political process. It is not trivial that Time magazine named a Chilean art collective among the highlights of the year.
Third, a central question is how the process will calibrate the high expectations that citizens have of the results. Insistence that the problems in the area of social rights — health, education, and pensions — are constitutional problems has raised the risk of failing to meet expectations with the process of drafting the new Constitution. In this sense, it is not only the Constitution to which we should look, but the way in which the Congress and the constitutional practice that follows it are constituted. It is, as I have argued elsewhere, the “intent of the constituent” that perhaps matters more than the text itself: Chile’s constituent power will want a certain type of State and certain ways to organize the distribution of powers. On the issue of rights, the constituent power will seek a certain distribution of resources that should allow for the respect and effective protection of social rights to a population that has been articulated as consumers, rather than citizens.
A COVID-19 constitution & its “Zoom-hall” meetings
One of the most interesting aspects of the process leading up to the plebiscite, which will undoubtably continue, has to do with the restrictions imposed by the pandemic. On the one hand, the health crisis — which hit Chile very hard due to, among other factors, the cavalier attitude of its rulers — forced the end of the massive protests. This was significant: the constitutional temperature dropped, especially during the harsh winter months (May to September) when the pandemic struck with great force, taking away the colour and vibrancy which characterised the constitutional awakening until March. And, since there were no protests, neither were there massive violations of human rights, as was the norm during the months preceding the arrival of the coronavirus.
On the other hand, the pandemic generated an unprecedented degree of social — or, more precisely, constitutional — connection. As it became customary to have classes, conferences, and all kinds of gatherings via Zoom, there has been a real explosion of meetings between experts, non-experts and interested citizens. It was literally impossible to follow up on the number of events that were organized every day before the plebiscite. These truly “Zoom-hall” meetings have been connecting people who were in very distant places, which in a non-pandemic context would have been very difficult, if not impossible. In this sense, the health crisis has pushed Chileans to hold conversations as we had never had before: connecting with the demands and ideas of those who are united with others by the same interests - changing the constitution - but who had not necessarily participated in joint constituent deliberations. In this critical sense, Chile’s constituent process is marked by the pandemic - and as the crisis still unfolds, the constituent process is distinctively a COVID-19 one.
Jorge Contesse is Associate Professor of Law and Director of the Centre for Transnational Law at Rutgers Law School. He teaches and writes on international human rights and comparative constitutional law, focusing on the judicialization of international law and on the interaction between domestic constitutional actors and the inter-American human rights system. His work has appeared in the American Journal of International Law, the Harvard International Law Journal, the International Journal of Constitutional Law, and the Yale Journal of International Law, among others.
Jorge obtained an LL.M. and J.S.D. degrees from Yale Law School - where he was a Fulbright Scholar and a Senior Editor of the Yale Human Rights and Development Law Journal. He holds an LL.B. from Diego Portales Law School, in Santiago, Chile, where he was an Assistant Professor of Law and Director of the Human Rights Centre. In 2020-2021, he is Visiting Professor at the Université Paris 1 Panthéon-Sorbonne.