Chile’s Constituent Assembly: La Tercera

"One of the great ironies of the Chilean situation is that its Constitution was imposed by a military dictator and yet the country has conducted seven entirely fair presidential elections over the past thirty years.” – Bruce Ackerman, Sterling Professor at Yale University

La Tercera: What do you think of Chile's decision to respond to the social conflict that erupted on October 18 by writing a new constitution?

Bruce Ackerman: I see it as a great opportunity. The question is whether the constitutional process will be designed in a way that will allow the Chilean people to take advantage of this opportunity in a genuinely democratic fashion. If this happens, it will not only serve as a remarkable tribute to the Chilean people, but the successful construction of a democratic constitution will be an inspiring example for the rest of the world. If, however, the system is poorly designed, the chances are very high that the broad popular movement for constitutional reconstruction will fail, generating bitter disappointment and despair.

LT: What are your objections to the proposed design of the constituent process?

BA: There are two options under consideration. In one, only half of the constituent assembly will be popularly elected; the other half will be selected by the current regime. In the other, the entire assembly will be directly elected by the voters.

It is only this second option that promises to be successful. This will allow the president and congress to focus on the very serious problems that Chile is currently experiencing while the Constituent Assembly can ask itself a very different question: How should be the flaws in our current regime be corrected so that democracy will flourish in the future?

If you allow the existing regime to control half of the seats, these members won’t be very interested in correcting the status quo. They will be far more interested in manipulating the assembly to facilitate the resolution of their short-term problems. Indeed, the provisions for calling a convention should explicitly state that no member of any branch of the current government can be elected as a delegate to the assembly.

LT: Poland serves as an important case study in Ackerman’s most recent book. He shows that political elites tend to rush into agreements that seek to contain popular movements, without taking the time to weigh the longer-run consequences of their decisions. Shouldn’t this serve as a caution to the Chilean leadership, which reached an agreement to call for a convention on November 15, a little more than three weeks after the start of street demonstrations?

BA: I think the Italian case is more relevant than the Polish. Just after the Second World War, Italians went to the polls to adopt a new Constitution that repudiated the fundamental principles of the Mussolini regime – even though it was endorsed by a very narrow majority of the voters. Despite this fact, the electorate supported a broad coalition of parties, which were all committed to supporting the new Constitution over the next generation. To be sure, as time went on, Italians amended the text in important ways. Similarly, the Chilean assembly should very carefully consider the system for future revision.

Yet this should not divert us from the main point. If the Italians could sustain a decisively democratic Constitution in the immediate aftermath of Mussolini, surely the Chileans can repudiate the existing Constitution of 1980 after conducting seven democratic elections over the past 30 years!

During this more recent period, Chile has revised Pinochet’s original Constitution in important respects. Once the convention has completed its work, a majority of the voters may well reject its initiative and decide that the current version of its 1980 system provides the best framework for future development. This ultimate question is for the voters, not the politicians, to resolve.

I am focusing here, however, on the way the convention should be organized to maximize its chances of advancing a thoughtful proposal for more fundamental change.

LT: Could something similar happen to us as happened with the constituent processes of post-war France and Italy, with very fragmented assemblies and with little capacity to join consensus? The Chilean convention will operate with a two-thirds quorum to approve the norms ...

BA: You are right. It will indeed be necessary for different movements and political parties to reach an agreement with one another at the convention. But that’s precisely what they should be trying to do. One group shouldn’t simply impose its will on all the others. Nor should any single member of the convention act as if he or she is the sole incarnation of the will of the nation.

Indeed, one of the assembly’s principal missions should be to consider whether the current Chilean system of super-presidentialism is a big obstacle to the long-run success of the democratic project.

LT: In what sense?

BA: The very institution of an elected presidency encourages the incumbent to make demagogic claims that he or she speaks for the people far more authentically than parliament – frequently leading the president to appeal to the military to dissolve the legislature when it resists his demands, as Latin American history demonstrates. 

In contrast, parliamentary systems encourage more constructive forms of political collaboration. In the typical case, a number of political parties – representing different positions from the left to the right – win seats in the legislature, but no single party wins a majority. As a practical matter, this requires centrist politicians to negotiate with moderate leftists and moderate rightists to form a legislative majority that allows them to govern the country until the next election. Since the parliamentary representatives of the extreme right and extreme left are excluded from the government, they are encouraged to function as a “loyal opposition” urging voters to seriously consider a more fundamental change when they next go to the polls.

On rare occasions, however, a second parliamentary scenario emerges. In these cases, a well-organized political movement receives a mandate from a majority of the electorate for fundamental reforms. When this happens, the prime minister may well act as if he or she were a “strong president” enacting major changes in existing social and economic arrangements. 

Yet this scenario is relatively rare. The first case is far more common, in which centrist political parties negotiate more modest changes in the status quo in response to current events.

LT: The Chilean constitution is super-presidential, so that President Piñera’s successor’s role will be profoundly shaped by the decisions made at the convention. Indeed, if the election for the convention is postponed as a result of the coronavirus epidemic, it may well coincide with the date scheduled for the next presidential election. Would this be desirable?

BA: No, and it would be even worse if the election for the convention occurred after the next president was selected. If this happened, the campaign for convention delegates would degenerate into a shouting match between supporters and opponents of the new president -- something that is obviously not healthy.

LT: In his new book, Ackerman highlights the role of the judiciary in resolving procedural disagreements generated in the course of the convention’s deliberations. In the past, it has been the Supreme Court, rather than the Constitutional Court, that has played the decisive role in these matters. Should the current convention follow these past precedents?

BA: No. The convention should resolve procedural disputes on its own, without appealing to judicial outsiders.  My book emphasizes the danger of allowing judges from the existing regime to intervene in the affairs of a convention considering a serious revision of existing constitutional arrangements. As I show, the consequences of such intrusions have often been disastrous.

As I mentioned previously, voters should be given the opportunity to reject the convention’s new constitution in favor of the status quo – and I fully endorse the current plan’s assurance of the electorate’s democratic right to say no. But for analytic purposes, suppose that the majority chooses to say yes to the convention’s new constitution: How should the courts respond?

They should self-consciously recognize that they confront an exceptionally difficult task.  After all, the existing judicial corps has spent their entire careers interpreting the Constitution of 1980, and the Constitution of 2022 will predictably contain many provisions that depart from preexisting arrangements. What is more, highly esteemed attorneys have been invoking 1980-style modes of argument for decades – and they will find it natural to continue advancing these familiar forms of reasoning in the future.

The challenge for the judiciary is to emphasize that these old-fashioned arguments are no longer acceptable. Given the high quality of the Chilean judiciary, there is good reason to hope that its opinions will interpret the new words of the Constitution of 2022 in the light of the new principles vindicated by a decisive majority of Chileans after a full and free debate.

LT: Ackerman’s new book defines constitutionalism as a systematic effort to impose checks and balances on the most powerful officials in the government. However, during this pandemic, governments throughout the world have used “states of emergency” to suspend these limitations and operate in an autocratic fashion.  What risks do you see in this, given that the crisis does not seem to recede?

BA: The risks are obvious. The challenge is to design a constitutional response which reduces the clear and present danger of autocratic rule. The problem is particularly serious since “states of emergency” have been invoked throughout the world since 9/11 to justify autocratic responses in the “war against terror.” These abuses of emergency power over the last 20 years have set the stage for another cycle of abuse in response to corona-disaster.

LT: Do you have a particular solution in mind?

BA: The Constitution should recognize that emergencies do arise which require such a quick response as to make it impossible to engage in the normal kind of democratic deliberation. But it should contain provisions which prevent would-be dictators from continuing the “state of emergency” beyond this relatively brief period. I have proposed a system to prevent the “normalization of emergency powers” in my book, Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism (Yale, 2007).

I call it the “super-majoritarian escalator.” Under this system, the head of state can unilaterally declare an emergency; but if this official wants to continue the emergency beyond two months, he or she must gain the approval of a parliamentary majority. At that point, the emergency will expire unless a legislative super-majority of 60 percent support its continuation for two more months. At the end of this period, however, 70 percent approval will be necessary for another two-month extension; and 80 percent will be required for each additional period. As a practical matter, this means that the government cannot rely on its own political supporters to continue the use of its extraordinary powers. It must instead gain the increasing support of the parliamentary opposition – which will naturally be reluctant to support extensions unless the broader public believes that continuation is absolutely necessary. Perhaps the convention will consider an appropriate version of “super-majoritarian escalation” in the course of its deliberations on Chile’s constitutional future?