Abstract
This article discusses the concept of constituent power and its application to the situation in Chile after the 18th October 2019. In particular, it discusses the relation between constituted and constituent powers, with a view to understanding the significance of the 15 November Agreement that opened the way for the ongoing constituent process.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
This distinction between the Constitution and constitutional laws is, as Carl Schmitt rightly says, ‘for constitutional theory the beginning of any further discussion’ (Schmitt 2008, p. 75).
‘As the pouvoir constituant that antecedes the legal constitution, the constituent power of the people cannot be legally established by the constitution itself, nor can the forms in which it expresses itself be fixed’ (Böckenförde 2017, p. 175). Notice that this statement must be read both ways: constituent power is not only not limited by constituted forms, but is also free to use them.
See the views of some Chilean constitutional scholars in Muñoz (2020).
Thus (in the Chilean discussion), Professor Carlos Peña argued: ‘According to Carl Schmitt […], constituent power is always outside the rules: the sovereign is the one who decides when exceptions are made to the rules and not the one who complies with them. If people are to be the sovereign, then they cannot be subject to rules!’ (Peña 2015). This is contradictory: since people are sovereign, the form in which constituent power expresses itself would be, to a certain degree, ‘fixed’: not through constituted procedures.
See, for example, Zúñiga (2015, p. 193), who opposed the idea of a constitutional referendum claiming that ‘it stinks like a constitutional loophole’ that was likely to lead to ‘Caesarisms or authoritarianisms’, reducing Parliament to the condition of an ‘accomplice to the President’ in the latter’s attempts to ‘irregularly crush political minorities’; also Patricio Zapata, who claimed the referendum was a ‘shortcut’, a ‘cunning trick’ (‘pillería’) (see López and Faúndez 2015). Professor Zúñiga is a prominent constitutional scholar, member and regular advisor of the Socialist Party; Professor Zapata, on the other hand, had recently been appointed by President Michelle Bachelet to chair the Council that would oversee her government’s (eventually failed) attempt to set off a constituent process.
Constituted procedures of constitutional reform are defined by two features (see a detailed explanation in Atria 2015): on the one hand, there is a constitution in force that will continue to be in force as long as it is not reformed; on the other, they must satisfy high countermajoritarian requirements (in the Chilean case, the vote of 2/3 of members of Congress). This means that those who support the status quo need only a third (plus one) of the vote to carry the day. This is the unilateral veto that supporters of Pinochet’s regime claimed for themselves, and they used it assiduously over the last 30 years to prevent the amendments of the cheats that define the Constitución tramposa (except of course, when they had no use for them). By removing the first condition of procedures of constitutional reform (the new Constitution will have to be agreed from a clean slate), the Agreement eliminated this unilateral veto: since there is to be a clean slate, nobody is in a position to use a minority to maintain the validity of a constitutional provision. The veto is now contained in the 2/3 requirement, but it is significantly different: now it is a negative veto (a minority of more than 1/3 can prevent a given content to gain constitutional status), and is entirely reciprocal (any minority of more than 1/3 enjoys it).
According to what is widely seen as the most reliable poll (available at cepchile.cl), support for the President was at an all-time low of 6%, and Congress fared even worse with 3%.
The social force that irrupts saying ‘No to the current order’ need not be politically articulated. No political articulation is necessary in this moment of negativity. But in order to act in the moment of positivity political articulation is necessary. And because of the radical rejection of political parties already mentioned, the social force that irrupted on 18th October lacked political articulation. This is the reason why, as explained in the main text, unless this problem is solved somehow (and there are under way different initiatives to solve it), that social force risks exclusion from the Constitutional convention.
In the 2017 presidential election, 46% of those entitled to vote (a surprising 49% in the ballotage). In the previous local elections of 2016, 35%; in the previous, 2013 presidential election 49% (41% in the ballotage). Detailed and aggregated data is available at www.servel.cl/estadisticas-de-participacion/.
References
Allende, Salvador. 1972. La vía chilena al socialismo y el aparato del Estado actual (Report to the Socialist Party). In Martner, Gonzalo (Ed). Salvador Allende: Obras escogidas. Centro de Estudios Políticos Simón Bolivar, Fundación Presidente Allende. 1992.
Arendt, Hannah. 1969. On violence. San Diego, CA: Harcourt Brace and Company.
Atria, Fernando. 2013. La constitución tramposa. Santiago: Lom Ediciones.
Atria, Fernando. 2015. Sobre el problema constitucional y el mecanismo idóneo y pertinente. In La solución constitucional, ed. Claudio Fuentes and Alfredo Joignant, 41–69. Santiago: Catalonia.
Atria, Fernando, Constanza Salgado, and Javier Wilenmann. 2017. Democracia y neutralización. Sobre el origen, desarrollo y solución de la crisis constitucional. Santiago: Lom Ediciones.
Böckenförde, Ernst-Wolfgang. 2017. The constituent power of the people: A liminal concept of constitutional law. In Constitutional and political theory: Selected writings, ed. Mirjam Künkler and Tine Stein, 169–185. Oxford: Oxford University Press.
Kelsen, Hans. 1960 (trans. 1967). The pure theory of law. Berkeley and Los Angeles: University of California Press.
López, Hernán, and Gloria Faúndez. 2015. Patricio Zapata, Abogado: ‘Quienes se sumen temprano a la discusión van a salir en los libros de historia’. In La Tercera, 21 November. Available at https://www.undp.org/content/dam/chile/docs/PNUD_en_la_prensa/undp_cl_pnudprensa_La_Tercera-22-nov.pdf.
Muñoz, Andrés. 2020. Podrá la Convención Constituyente arrogarse poderes que no tiene? El debate que enredó a Corral, Atria y Joignant. In La Tercera, 20 February. Available at https://www.latercera.com/la-tercera-pm/noticia/podra-la-convencion-constituyente-arrogarse-poderes-no-debate-enredo-corral-atria-joignant/1015947/.
Peña, Carlos. 2015. Fin del misterio constitucional. In El Mercurio, 24 May. Available at http://www.elmercurio.com/blogs/2015/05/24/32075/Fin-del-misterioconstitucional.aspx.
Peña, Juan. 2019. Allamand y los 2/3: 'Nunca alguien pensó que si no hay acuerdo eso significa que se transforma en ley simple'. In El Mercurio, 20 November. Available at https://www.emol.com/noticias/Nacional/2019/11/20/967819/Allamand-nueva-constitucion-convencion-constituyente.html
Schmitt, Carl. 2008 (1928). Constitutional theory. Duke Universtiy Press.
Zúñiga, Francisco. 2015. La potestad constituyente y la nueva constitución. In La solución constitucional, ed. Claudio Fuentes and Alfredo Joignant, 187–203. Santiago: Catalonia.
Author information
Authors and Affiliations
Corresponding author
Additional information
Publisher's Note
Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.
Rights and permissions
About this article
Cite this article
Atria, F. Constituent Moment, Constituted Powers in Chile. Law Critique 31, 51–58 (2020). https://doi.org/10.1007/s10978-020-09258-8
Published:
Issue Date:
DOI: https://doi.org/10.1007/s10978-020-09258-8