Third Time’s A Charm?

The second process to draft a new constitutional text in Chile ended on November 7. A referendum to be held on December 17 will decide upon the fate of the constitutional proposal that resulted from it. Polls indicate that the proposal will be rejected, even if the option in favor of the proposal has been gaining support lately. Irrespective of the outcome of the referendum, it might be fair to say that this second version of the constituent process has already failed. In particular, I argue that just like the first draft, the second proposal seeks to constitutionally entrench the goals of the political factions that held the majority within the drafting organ, instead of providing a constitutional framework that would allow for broad self-governance based on the democratic principle.

Background

The second process was initiated as a new chance for an institutional solution to the political and social crisis that unfolded by the end of 2019. Then, a seemingly harmless raise in subway fares (4% increase) sparked protests that questioned the deep inequalities and exclusions that are still very much present in Chile even after decades of sustained economic growth. The protests quickly crystalized into a demand for a constituent process that would generate a new social order.  A first attempt, initially supported by a vast majority of citizens, ended in September last year with the surprisingly clear rejection of a constitutional draft that had been prepared by the left-leaning Constituent Convention. The second process, which started earlier this year, was in turn dominated by right-leaning parties. In both cases, the minorities in each of the drafting organs – the right during the first process and the left during this second process – have claimed – not without reason – that majorities have used and abused their position to draft ideologically motivated proposals. In particular, the respective majorities arguably abused the function of fundamental rights within a constitutional settlement by using them to immunize their political goals from the operation of the democratic principle and ordinary legislation.

Constitutions and Co-originality

One of modern constitutionalism’s basic assumptions is that the existence of a political community, of “the people”, is twofold: On one side, as individuals, and on the other, as a collective. Habermas famously claimed, in his co-originality thesis, that none of them can be reduced to the other; that both need to be considered at the very root of the modern constitutional state. There seem to be good arguments for that position. The political form that fundamentally expresses the value of “the collective” in modern constitutionalism is democracy, a realm in which individuals exist as a part of a much larger entity: the demos. The modern democratic state is one that cannot be properly conceived or understood only from an individual perspective: Democratic decisions are – critically! – not decisions that have been taken by every member of the community, nor does every member agree with them. Their collective dimension is irreducible to an individual one.

This is, of course, radically different in the case of the paradigmatic institutional expression of individuality: fundamental rights. Not only are they conceivable in purely individual terms in the sense that such an understanding, in principle, exhausts their conceptual force; their very function is precisely to guarantee that the space of individuality will not be absorbed by the collective.

Modern constitutionalism is (also) a specific form of arbitrating the relationship between the individual and the collective and thus between fundamental rights and democracy such that they exist in a relationship of mutual dependence. To this end, constitutions give legal shape to collectives and organize how they can act through more or less complex structures. They enshrine a set of fundamental rights as individual entitlements in the realm of law. They safeguard representative organs and democratic procedures to allow for the articulation and pursuit of collective goals. And they provide institutions and mechanisms to arbitrate tensions between the individual and the collective, including courts with the competence to enforce constitutional provisions.

Yet, the constitutionally engineered relationship between the individual and the collective can turn into one marked by conflict instead of productive tension. This has been facilitated by two developments: (i) an understanding of constitutional rights that allows for almost any interest to be reformulated in these terms and to thus claim its hierarchical priority vis-à-vis ordinary legislation, and (ii) a dramatically expanded constitutional jurisdiction. Constitutional rights, then, can become a constant threat to the political process and democratic decision-making. This is what is at play in what has become the institutional paradigm of the conflict between individuals and the collective: constitutional courts striking down democratically produced legislation in the name of individual fundamental rights.

Chile’s Dysfunctional Constitutional Order

The broad range of interests that can be presented as a fundamental right and the connected claim to declare democratically produced legislation void can serve to detach them for their original function of safeguarding the space of individuality from being subsumed by the collective. Instead, it facilitates the instrumental use of the notion of fundamental rights to advance the goals of different political factions.

This certainly reflects a dynamic very much present in Chile, where striking down laws has become a means to pursue political goals without the majorities required to pass ordinary legislation. This has been the case under the current constitution, and would arguably not be any different under any of the drafts produced by both constituent processes over the last years. Both drafts seem to show that the advancement of collective political goals is no longer seen as structurally connected (only) to the democratic principle, that is, to engaging and debating with others in a process that cannot be properly conceived in purely individual terms. Instead, the realm of fundamental rights appears to have become just as much of an – perhaps even the preferred – institutional tool through which the collective goals (of political factions) can be secured.

First draft

The rejected first draft was deeply committed to an overhaul of Chile’s social and political landscape. In its best light, the draft sought to directly tackle the country’s inequalities and to serve as a fundamental foundation for the inclusion of minorities. It would have created a constitution whose normative substance was meant to permeate all spaces of social, political, and cultural life.

The vehicle for that purpose was fundamental rights: The first draft was structured around spaces of equal autonomy for individuals and groups [see esp. arts. 17 – 113, which dealt with fundamental rights]. As I have argued before, in such an institutional context, those spaces of equal autonomy were the core of the political project of the first constitutional draft. The democratic principle and its subject, the collective as a whole, thus stood for little more than uncertainty, threatening to thwart the carefully designed constitutional blueprint. The drafters of the first constitutional proposal made sure that their goals were fixed as fundamental rights so that the democratic principle and the sphere of politics and democratic legislation could not significantly impair them.

Second Draft

The second draft, decisively influenced by the right-wing parties, and particularly by the far-right Republicanos, revolves around fundamental rights as well, even if less obviously so than the first draft. There are fewer of them; their role, however, is exactly the same: the constitutional entrenchment of political goals by immunizing them from the political process. The provision on liberty of thought, conscience and religion in the proposal (art. 16, nr. 13 of the draft) is illustrative.

In the draft, the fundamental right to liberty of thought, conscience and religion explicitly includes the right to conscientious objection. While the text is very similar to art. 10 of the Charter of Fundamental Rights of the European Union, the norm’s inclusion was arguably driven by recent developments in Chile’s constitutional approach to abortion. Until 2017, Chile criminalized abortion under all circumstances. Then, Congress passed a law decriminalizing abortion in three cases: risk of the woman’s life, fetal anomaly incompatible with life, and rape. When deciding upon the constitutionality of the law, the Chilean Constitutional Court, however, ruled that conscientious objection, foreseen in the legislation for individuals taking part in the medical procedure, was not only applicable to them, but should also be extended to medical institutions, which could now deny providing abortion services entirely.

The decision was highly controversial in Chile, mainly due to the fact that the Constitutional Court autonomously decided to expand the scope of the conscientious objection. The current Chilean constitution doesn’t recognize the conscientious objection in its provision on religious freedom, which means that the Court’s addition thereof could be overridden by ordinary legislation. The draft is designed to preempt precisely that move by constitutionally enshrining the conscientious objection exception. In other words, the constitutional inclusion of the conscientious objection doesn’t affirm any positive value linked to the status of the individual in the constitutional order, but functions merely as a negative element, a boundary to avoid affecting a status quo, which certain political factions don’t want to see modified.

Another particularly dramatic expression of the prioritization of fundamental rights vis-à-vis democracy can arguably be further found in art. 16, nr. 31 e). Hidden within a fundamental right to equality regarding public burdens, it establishes a general state liability clause for legislative acts that contravene the Constitution. This might at first glance have a certain appeal as a guarantee of the rule of law. Further reflection, however, quickly shows that such a clause is highly problematic, not only because of the risks of imposing tremendous financial burdens on the state. The clause presupposes a legalistic and extremely rigid idea of the constitution, assuming that the standards it imposes, traditionally contested, are sufficiently clear as to justify making legislatures liable for their contravention. Furthermore, the clause can easily be abused in a way that stifles political discussion and democratic decision-making. In particular, it could allow labeling parties and groups that pushed for legislation later found to be unconstitutional as foes of the constitution and the institutional order.

Third Time’s a Charm?

Chile’s long constituent process has failed, because the political and social elites in charge have been unable to produce drafts that could be read as anything else than using the constitution to impose their views and preferences on the rest – not one, but two times. Still, as of now, there is someone that deserves praise: Chile’s citizens. So far, they had the good sense of rejecting the first draft. It must be remembered that the draft was the result of a referendum in which almost 80% of the voters supported the idea of a new constitution, and that it was produced by a fully-elected Convention, in which left-leaning parties won by a landslide. Still, the first draft was clearly rejected. One can only hope that they will see that this time, too, the proposal does not deserve their support. It is a sad irony that they would then find themselves voting twice in favor of maintaining the Constitution nearly 80% of them wanted to leave behind. But in doing so, they just might show everyone that when they voted to give themselves a new constitution, they meant a real one.