Citizens exercise sovereignty through plebiscites and elections — granting mandates to the Executive and Legislative branches. By appointing monitors and creating parallel bodies, the Executive usurped a mandate that belongs exclusively to the Legislature.
Constitutional review — whether centralised (as in Austria, Germany, and France) or diffuse (as in the US and Switzerland) — is essential to the rule of law.
The Constitution and constitutional control are essential to the rule of law. Without sovereignty, there is no democracy. The fundamental question for Chileans is whether they wish to genuinely vote — or merely participate in processes designed by others.
On Friday, 8 April 2016, the Faculty of Law of the University of Chile began training 216 individuals appointed by President Michelle Bachelet as monitors for the town hall meetings (cabildos) of the so-called constituent process. The three sessions were supervised by the Citizens' Council of Observers (CCO), whose members were also appointed to their positions by the President. In addition, the President invited the citizenry — in a national broadcast — to take part in the process.
"The so-called 'constituent process' and the slogan 'citizen participation' conceal serious violations of our constitutional rights and guarantees — principally through the wholesale undermining of democracy and sovereignty."
The so-called "constituent process" and the slogan "citizen participation" conceal serious violations of our constitutional rights and guarantees — principally through the wholesale undermining of democracy and sovereignty, as enshrined in Articles 4 and 5 of the Constitution, respectively.
All citizens exercise sovereignty through plebiscites and periodic elections. Through these, we grant a mandate for the exercise of executive power via presidential elections, and for legislative power via parliamentary elections. In this context, the President — in exercising executive power — is stripping us of the mandate we have granted to the legislative branch by initiating and persisting in this process. This is because the executive branch is not legally empowered to appoint individuals or groups of individuals to exercise, or purport to exercise, in assemblies — called cabildos — the very powers we have entrusted to the legislature.
For her part, the President holds a mandate to exercise exclusively executive power; she is not vested with any other authority. Yet she expects Chileans to believe that the individuals she appoints — monitors — and the bodies she creates — the CCO — represent us, when in fact representation belongs to those we elect and to the legally established organs of the State.
It is worth remarking that, in this individualistic act of institutional creation, the Faculty of Law at the University of Chile lent itself to providing three-day training sessions for the so-called monitors — after which they were listed as "legal experts."
The President and her coalition publicly claim to respect institutions, while simultaneously and publicly stating their intention to eliminate some of them or strip them of powers — the Constitutional Tribunal being one. It remains unclear whether the objective is to remove constitutional review altogether or to centralise it in a body such as the Supreme Court.
In general terms, constitutional review refers to a court's examination of acts by the executive and legislative branches and their compatibility with the constitutional mandate. This review may be carried out by a specialised tribunal called a Constitutional Court, or by the Supreme Court. The former system is known as centralised; the latter as decentralised, diffuse, or dispersed. Austria, Germany, and France, for instance, operate under a centralised system; the United States and Switzerland, under a diffuse one.
It is important to note that under the centralised system, constitutional review may be concrete or abstract — that is, applicable to a specific case or in general terms — whereas under the diffuse system, review can only apply to a particular case. Furthermore, unlike the diffuse system, the centralised model allows for broader normative control and review of the constitutionality of governmental acts.
"Until 1951, Germany's constitutional review rested with the Supreme Court — a body that exercised no normative constitutional control over governmental acts. The consequences were the extermination of approximately six million Jews and all opponents of the National Socialist regime, carried out within the bounds of 'legality.'"
These two differences can combine negatively under a diffuse system — that is, review limited to individual cases, incapable of broader normative or governmental constitutional oversight. The example of Germany speaks for itself: until 1951, constitutional review rested with the Supreme Court, a body that exercised no normative constitutional control over governmental acts. This gave rise to the extermination of approximately six million Jews and all opponents of the National Socialist regime — all within the margins of legal "legality." Today, Germany not only has a Constitutional Court with broad powers, but that Court is also divided into two Senates, each composed of eight members.
It is worth noting that Switzerland's referendum system does include a pre-vote constitutional filter: the Federal Chancery and Federal Council review initiatives for compliance with mandatory rules of international law (ius cogens), providing a foundational safeguard before any vote reaches the people.
The design of constitutional safeguards matters enormously. The question is never simply whether citizens participate, but within what institutional framework that participation takes place — and who bears ultimate responsibility for protecting fundamental rights when the process falls short.
The Constitution and constitutional control are essential to the rule of law. The question that arises is: why does the President dislike the Constitution and constitutional review, and why, in her determination to modify them, does she strip us of our sovereignty? The only answer lies in Articles 4 and 5 of the Constitution. If sovereignty is taken from us, we have no democracy. The question for Chileans is: do we want to participate — or do we want to vote?
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