1980’s Constitution possesses an illegitimate origin that will not be corrected. However, this does not generate nor create neither a juridical conflict that prevents interpreting the law nor less the functioning of all and each one of the institutions. The conflict that it originates expresses itself in a crack in the identity of the citizens with the ethical imperative that is behind the Constitution, affecting strongly the social cohesion. This disaffection is also growing and it puts in danger the stability and institutional governability.
For those who do not share its essential aspects, this distance with the constitutional order does not create a problem as long as you advance towards a crisis of political character that will allow its substitution in a more profound way. The negative aspect though, is that the situation created between the beginning of this crisis and its end by means of a new Constitution, can take longer in the sense that the old order resists changes. This resistance does not only retard putting in functioning the new constitutional order but also can, by itself, turn it more unstable and of course violent.
The detractors of the Constituent Assembly have been categorical when affirming that their realization considers an exercise of political and social chaos. This is of course possible, mainly considering that those who oppose themselves are precisely those who hold the power of the public force, recognized institutionally as the one in charge of preserving the order. In consequence, they are the ones who have the possibility and the will of defending the constitutional order materially be this support by conviction or due to interest, and they are the most probable candidates to decide the use of force to assure the maintenance of the order.
Surprisingly, these detractors of a Constituent Assembly with the argument of it being a non-institutional path are also, the main defenders of the Constitution of 1980 originated by a non-institutional way. The sources of Law can be the same Law or the historical facts, these lastly, those non- institutional. The Military Coup of 1973 usurped and then transformed the power of the State in an illegal and not institutional manner. It destroyed the prevailing State of Law and created another order making that the Constitution of 1980 did not have as a source a right but a fact; and now those that criticize the Constituent Assembly for supposedly having a non-institutional origin put in the same sack that same vice in the Constitution of 1980.bad habit they put to the pocket that same bad habit of the Constitution of 1980.
Now then, one could counter argue that two errors do not make a correct answer. We propose that before this there be dictated a law of Constituent Assembly. This law would have to recognize as original source of the constitutional power the only susceptible source of receiving this denomination: the people gathered in Assembly, or by default, a Plebiscite. This law would also have to norm its summoning so as to avoid that with each new government there could be a change of Constitution and lastly, it should be clear that as long as the Assembly sessions and acts, the previous functioning institutionalism continues.
This design does not have anything of non-institutional and it corrects the bad habit of illegitimacy of origin of the Constitution of 1980 without doing the same thing that the coup generals and their near civilians did.
What should this Constituent Assembly discuss? Evidently all which is desire to be discuss. However for the time being appears clearly like main topics the following ones: the character of the Chilean State; the Economic Public Order; the amplification of the constitutional guarantees; political, administrative and economic decentralization; a balanced political system that is participative and that puts an end to the excessive presidential rule; and the public-state possession of the natural resources.
Carlos Arrué. Head of Legislative Area at ICAL
Published on July 24th, 2013