The use of force — or its tacit acceptance — as a means of pressure to obtain legislative changes is structurally incompatible with the logic of the legal order. It substitutes coercion for procedure, destabilising the very framework within which any durable change must ultimately be grounded.
Can political party agreements concluded outside institutional channels infringe constitutional guarantees? Can Executive or Legislative inaction violate citizens' rights — including the right to property over existing norms and legally established processes?
If the answer to those questions is yes, the relevant legal remedy exists: the writ of protection (recurso de protección) with an order of non-innovation — a mechanism that would activate a genuine check between the three branches of government.
The legal order is a complex, systemic legal structure in which every piece fulfils an essential function. There is a logic to the legal order as a whole and to each individual part that makes it up. That is precisely why the use of force — and its express or tacit approval — as a means of pressure to obtain legislative changes is structurally incompatible with that logic: it substitutes coercion for procedure, and in doing so, destabilises the very framework within which any durable change must ultimately be grounded.
The direct and immediate consequences have been the country's permanent exposure to social and legal instability. How is it possible that, under duress, an agreement is reached to submit Chile's current Political Constitution to a plebiscite? How is it possible that, in addition, a plebiscite is held under the "mixed" slogan — one that offers the option of allowing an unknown third party to gain the power to appoint other unknown individuals to contribute to drafting a new Constitution, the parameters of which also appear to be unknown? How is it possible that this agreement originates from political parties and is, moreover, backed by the Executive and Legislative branches?
"There is a legally established process for carrying out legislative changes, including legislating on a new Constitution. 'To legislate' is the absent governing verb."
There is a legally established process for carrying out legislative changes — including legislating on a new Constitution. "To legislate" is the absent governing verb. Members of Parliament hold a specific legal mandate to fulfil the legislative function within the context of the legally established legal order. For that reason, I question, in general terms, the legal validity and enforceability of agreements that political parties reach outside institutional channels, regardless of whether one or more branches of the State or their representatives lend those agreements their support.
A similar situation arose in April 2016, when then-President Michelle Bachelet appointed 216 people as "monitors" for the so-called "constituent process" town hall meetings (cabildos). Those individuals were subsequently referred to as "experts" after completing a three-day course at the University of Chile. That same President also appointed a "Citizens' Council of Observers." All of these acts constituted a legal overreach on the part of the then-representative of the Executive branch.
So why do Chileans now appear willing to sign a blank cheque in favour of those very people they accuse of having squandered their trust in recent years?
Can political party agreements infringe our constitutional guarantees? Can the action or inaction of the Executive or Legislative branches violate our constitutional rights — including the right to property over currently applicable norms and the legally established process for carrying out legislative changes, including constitutional ones?
The current situation raises the following legal questions: is it possible for political party agreements to infringe our constitutional guarantees? Is it possible for the action or inaction of the branches of the State — in this case, the Executive and Legislative — to violate our constitutional guarantees, including, among others, the right to property we hold over currently applicable norms and the legally established process for carrying out legislative changes, including constitutional amendments? If the answer to both questions is yes, then there exists a pertinent legal remedy: the writ of protection (recurso de protección), with an order of non-innovation.
Should this remedy be filed and accepted by the relevant Court of Appeals or Supreme Court, as the case may be, we would witness a genuine act of checks and balances among the three branches of the State — Executive, Legislative, and Judicial. On one hand, an authentic representation of order and respect for the rule of law; and on the other, a true protection of democracy and democratic acts in the country — because Chileans vote when there are elections, and we do not delegate our vote or decision-making power to anyone, known or unknown.
"Those who have squandered our trust will return — only now with more power. We will watch them dismantle the very institutions and respect we so earnestly wish to uphold."— Dr. Verónica Pollak, El Mercurio Legal, February 2020
Should no writ of protection be filed — individually or collectively — or should one be filed and subsequently rejected, we will spend the next two years — at minimum — watching and listening to those who have squandered our trust, only now wielding greater power. We will watch and listen as they make and unmake the very institutional order and respect we so ardently wish to have.
If the Legislative and Executive branches are today incapable of respecting and enforcing institutional order and the law — and struggle enormously to sit down and seriously reason through what they wish to modify, what they believe would be appropriate to draft, and with what specific objective (that is, with an eye toward the effects of new legislation) — then do not expect them to do so in two years, or three, or ten. Today, in 2020, they are looking fifty years backward, when in reality they could invest their time and judgment in a consolidated national vision for the next fifty years ahead. What do they want to achieve?
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