—Johanna Fröhlich, Pontificia Universidad Catolica de Chile, Facultad de Derecho
Previous entries in this Symposium on the Chilean Constitutional Referendum have identified and analyzed key aspects of why the exit referendum about the new Chilean constitution was rejected. Reading these and other explanations, one can hardly deny the complexity of reasons behind the collective decision that the Chilean political community made on September 4th. The lack of representative legitimacy of the Constitutional Convention, limiting, or even abandoning the classical party structure, the broad inclusion of independent members and its consequences, the structural and ideological tilt in the composition of the Convention, the problems related to the procedural rules of the Convention, including the politicization of the exit referendum, and finally the substantial issues of the constitutional draft itself – all contributed to the outcome that we are trying to understand here.
Remaining faithful to what we, lawyers, can do so well, I would like to raise an additional problem.
There is no novelty in proposing that making a new constitution carries various controversies. To pick one as a starter, whichever design a political community chose in order to draft its constitution, the aspect of self-regulation and self-legitimization cannot be eliminated. Whichever organ drafts the constitution, it will be written by a concrete group of people with personal and institutional interests and biases,[1] while the resulting document will be legitimized on the grounds of its “rule of higher law”-status as something detached from those who actually made it. It is a paradox that cannot be fully eliminated, only aggravated, or alleviated by sensitivity and moderation during the decision-making process. Another paradox has been raised in a previous post in this Symposium about how the crisis of the classical representative system makes constitution-making especially difficult in a democratic setting where precisely these classical representative principles are expected to define the procedure. The disproportional number of independent members forming anti-party platforms or/and having single issue approaches contributed to the fact that proposals disregarding the preferences of most Chileans had to be adopted and more moderate alternatives rejected. [2]
There are two further contradictions that pushed the process towards a more power-centered and less receptive approach. The first I would like to mention is already a well-known paradox, but it needs to be highlighted on the one hand to analyze its impact on the Chilean process, and on the other, to introduce my final point in this post.
Concepts such as the doctrine of the – regionally particularly popular – constituent power[3] raises the constitutional authorship problem.[4] Related to the issue of self-legitimization, the difficulty with relying exclusively on the popular sovereignty argument is that, as a result of its internal logic, it opens up an ample doctrinal possibility to violate or abandon previously established rules. This indeed poses a paradox, as in a constitutional democracy we disapprove the idea of any unlimited power, and we do not measure a good decision exclusively on the grounds of “who said so?”.
Perhaps the most evident example when the Chilean Convention was attracted to adopt this posture was its attempt to dump the two-thirds majority rule applicable for the approval of the provisions of the new Constitution. Following the arguments of the initiators (the mainly independent, anti-establishment or left-wing members of the Convention[5]), the 2/3 majority rule is against the sovereign nature of the Convention, it seeks to preserve privileges and oppose social expectations. According to their original proposal, the quorum should have been lowered to simple majority, or a qualified 3/5 majority, but in the end 90 to 63 votes the initiative was rejected and the 2/3 majority rule stayed in place.
Another example was the case of prisoners of the 2019 October protests. In the very beginning of its operation, the Convention approved a declaration about the amnesty for those “imprisoned during the revolt” (related to a procedure that was set in motion earlier in the Congress), and additionally, requested the demilitarization of Wallmapu, a traditional territory of the Mapuche indigenous people in the South of the country, among other things. This was a clear overstep of the competences of the Convention set out in art. 135 of the Constitution[6] that was designed to regulate the process of constitution-making.
These examples take us to my final point. There is a special paradox[7] about embracing social justice demands as constitutional problems, while explicitly questioning the legitimacy of the methods of the legal discipline. As transformative theories in constitutional law swept through Latin America,[8] including Chile, the distinct sociological elements of legal problems became more and more relevant in defining the nature of these problems, as well as in how they should be resolved. This resulted that legal definitions, procedures or standards invoke more value judgements and ideologically charged concepts, instead of relying on legal methods, favoring pragmatism in highly contested issues, and remaining faithful to the meaning of core concepts. The classical legal approach has been challenged by transformative and neo-constitutionalist theories according to which social transformation should be achieved by the constitution and primarily by constitutional adjudication. This entails a different vision of law and its application, one that required an argumentative turn[9] towards creative and non-legal methods, the use of substantial concepts, as well as the expansion of the margins of classical notions.
A good example could be the different issues around interculturality. As it became one of the structural principles of the new draft Constitution, interculturality provoked several core changes, such as the indigenous judicial system,[10] the introduction of a plurinational state[11], or the autonomy of indigenous territory guaranteeing “the necessary competences to adequately exercise the right to free determination of indigenous people and nations”.[12] Besides the general and ambiguous formulation of these provisions, the problem with these rules is that they strike at the core of deep social problems that Chile is facing in its Southern territories, offering a simplistic, unvaried solution to a complex set of affairs related to public order, property rights and human rights in general.[13] The same approach is applied to such affiliated issues as the restitution of indigenous lands, where the draft guaranteed the right to use those “resources” that the indigenous people have been using or occupying, as well as those “that are indispensable for their collective existence”.[14] These and similar provisions seem to be insensitive to the complexities of both the design of a justice system and to the realities of the 12% of culturally diverse indigenous communities that live in Chile today.
So, hard social-political-legal problems are transformed into and viewed as exclusively legal problems until they become part of the constitution, but afterwards – and that is the paradox – the formal-legal aspects of law and the constitution are denied or minimized because of the substantive and, in nature, social problems it strives to resolve. In other words, social-political puzzles are “formalized” or “legalized” by way of constitution-making, while later, in the phase of adjudication, they are “deformalized” or “delegalized” based on the argument to achieve social justice.
Unfortunately, this tendency has severe consequences on the authority and normativity of law, as it introduces a critical level of ambiguity and uncertainty in what all should be able to identify and respect as the supreme law of the land, opening it up to abuse and bias on various contested issues. These problems might have affected the normative character and the potential authority of the draft constitution in the public eye.
It is very risky to redraft a country’s constitution, thanks to the several traps one can fall into. Besides the practical, technical or procedural problems, there are various paradoxes about constitution-making. However, these paradoxes are hard or even impossible to fully eliminate, they could be tempered and reduced with moderation and self-constraint, sensitivity and honest respect for the other and faithfulness to the methods and inner coherence of the discipline one engages with. It seems that these qualities could have been important for the success of the constitutional proposal, but they can still serve as guidance in the process of drafting a new constitution for Chile.
Suggested citation: Johanna Fröhlich, The Contradiction of Social Justice Constitutionalism, Int’l J. Const. L. Blog, Oct. 4, 2022, at: http://www.iconnectblog.com/2022/10/i-connect-symposium-on-the-chilean-constitutional-referendum–the-contradiction-of-social-justice-constitutionalism
[1] Jon Elster, “Forces and Mechanisms in the Constitution-Making Process,” Duke Law Journal 45 (1995).
[2] Sergio Verdugo, “El Poder Constituyente Impopular,” Actualidad Jurídica 46 (2022). See https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4211366
[3] E.g. Jorge González-Jácome, “From abusive constitutionalism towards a multilayered understanding of constitutionalism. Lessons from Latin America” International Journal of Constitutional Law 15 (2017).
[4] Michael Michelman, “Constitutional authorship by the people,” Notre Dame Law Review 75(1999).
[5] Platforms such as Pueblo Constituyente, Movimientos Sociales y Escaños Reservados, as well as at that momento Chile Digno that was tied to these left-wing platforms.
[6] Art. 135. sec. (1) of the Constitution of 1980. „The Convention may not intervene or exercise any other function or attribution of other bodies or authorities established in this Constitution or in the laws.”
[7] I started to elaborate this idea in a previous post elsewhere on Restoring Constitutionalism. See, Johanna Fröhlich, Do We Want a Constitution? (Verfassungsblog, 2021.December 20) https://verfassungsblog.de/do-we-want-a-constitution/
[8] Armin von Bogdandy et al (eds), Transformative Constitutionalism in Latin America (Oxford, OUP, 2017).
[9] See, a region-wide empirical and comparative study on Comparative Constitutional Reasoning in Latin America, forthcoming in Hart Publishing at www.corelatam.com
[10] The proposal created a parallel indigenous justice system equal to the national justice system, but without any differentiation among types of cases or communities, or considering certain conditions or parameters about the defendant or the victim. See this and other critical points, Análisis crítico de la propuesta de la Convención Constitucional. IES (August 30, 2022). https://www.ieschile.cl/2022/08/especial-analisis-critico-de-la-propuesta-de-la-convencion/
[11] E.g. the complete redesign of the judicial system. See, https://foroconstitucional.uc.cl/wp-content/uploads/2022/08/Sistemas-de-Justicia.pdf
[12] Art.235. Proposal of the new Chilean Constitution, 2022.
[13] Another example is the initiative to dissolve the traditional division of powers and create one single Plurinational Assembly of Workers and Peoples composed of 600 members. This idea was, however, rejected, but it carries various signs of the problem mentioned above: cluster various heavy social issues (ranging from the self-determination of peoples and distrust in representative bodies, to plurinationality, use of ancient territories, or structural and income inequality, just to mention a few) and offer a plain and unvaried solution. See, https://www.cnnchile.com/pais/propuesta-eliminar-poderes-estado-asamblea-plurinacional_20220209/
[14] Art. 79. (4) Proposal of the new Chilean Constitution, 2022.
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