If in the plebiscite that will be held on Sunday, October 25 in Chile, the option “Approve” wins –of those who want to change the current Constitution of 1980, drawn up during the dictatorship–, one of the central issues that the future convention will debate will be the system of government. Chile, like the rest of Latin America, has a long presidential tradition inspired by the United States, from which countries such as Peru and Uruguay have begun to move away. “But none in the region has such a presidential system as the Chilean one. Perhaps Mexico, but, as it is federal, there is more distribution of power, "says attorney Ignacio Walker, co-author of A new Constitution for Chile and former Foreign Minister of Ricardo Lagos (2002-2006). "Hasn't the time come to subject Chilean presidentialism to critical scrutiny?" Walker wonders.
For some months now, Chilean constitutional lawyers from all sectors have participated in dozens of public and private debates about the constitutional content, under the probable scenario that the option to change it will win. According to the last Active survey of September, the option for “Approve” would be around 67%, with a 53% participation of the probable vote. Even those who defend the current Constitution participate in the discussion, because they are preparing for what is considered the main battle: the content of the text that will govern the destiny of the country in the coming decades. The Government system is one of the central issues, together with the statute of social rights, decentralization, the constitutional autonomies of certain institutions and the economic public order, such as the autonomy of the Central Bank.
The prosecution of Chile's presidential system is not new, but it intensified after the riots of just a year ago, on October 18, 2019. "The social outbreak and the pandemic have shown us the crisis of hyper presidentialism before our eyes" , says Tomás Jordán, lawyer and coordinator of the constitutional process of the second Government of Michelle Bachelet (2014-2018).
For Miriam Henríquez, professor of Constitutional Law at the Alberto Hurtado University, "if a diagnosis of the design and operation of the recent political regime is made, a series of problems are observed that justify introducing changes to this hyper presidentialism." The academic explains that, in Chile, the President of the Republic largely concentrates the power of the State, in contrast to the National Congress, which has a legislative and supervisory role but does not have the institutional responsibility to govern. “In this way, Congress appears weakened in front of the Government. Furthermore, if the president does not have a parliamentary majority, as is currently the case, an institutional blockade is generated that does not favor governance. The regime as it is designed does not allow ways out of this obstacle, ”Henríquez points out.
A Constitution "protected" of citizenship
According to Walker, "in the 1980 Constitution there was a bias that was very contrary to Parliament, parties and proportional representation and the figure of the president was reinforced in a series of matters, precisely to take away historical powers from Parliament." The lawyer gives some examples: there cannot be a legislative initiative of parliamentary origin on collective bargaining, because it corresponds to the president. The same as the appointment of ambassadors, which must not be ratified by the Senate. "Pinochet, as commander in chief and supreme director, wanted a Constitution that he defined as‘ protected and authoritarian ’. Protected from whom? Of the citizenship. And authoritarian by the concentration of power in the President of the Republic. It is what we have despite the changes we have made in the last 30 years, which are not minor: 53 ”, he says.
Jordán characterizes the current system as "locked and blocked between the President of the Republic and Congress." "We raised this when we presented the draft of our text for discussion in 2018 and a year later, with the outbreak, reality showed it in an expansive way," he says about his book Chilean hyper-presidential crisis and the new Constitution: A change to the political regime?, which he wrote with the political scientist Pamela Figueroa and the economist Nicolás Eyzaguirre.
In the text, which was recently published in Chile, the authors describe well what, in their opinion, has happened with the Chilean institutional design, “specifically in relation to the relationship of the Executive Power and the Legislative Power and the effective functioning of said powers. institutions in a historical, political and social context determined by the deepest crisis of the party system ”. They indicate that the history of Chile "is a history of misunderstanding between the Executive and the Legislature."
They point to the past, but in turn to the present, especially what has happened after the riots a year ago: President Sebastián Piñera was elected in 2017 with 54.3% and entered his second term with many projects , but in a presidential government with minorities in both houses of the Legislative Power. "With a Congress of individualist leaderships and high quorum for some laws, it leaves it in a situation of having to compromise its government program, having to reconcile its electoral legitimacy with that of Parliament," they point out in the book. For the authors, "the result of a presidential government is the consequence of its program filtered through the sieve of Congress, but without incentives for the collaboration of the latter with the former."
Jordán indicates that the most serious thing that has been uncovered in the last year in Chile is "the impossibility of sustaining a government with a minority in Congress" and is committed to moving towards that search for a match between the Executive and Legislative and strong parties. “If not, we are condemned to the crisis and to only sustain ourselves in the ethics of the responsibility of politicians, not in the constitutional architecture. Strong parties and few to have the capacity to negotiate and build majorities ”, indicates the constitutional lawyer.
But there is no consensus on an eventual replacement of the presidential system. For the academic Sebastián Soto, constitutional lawyer and advisor to La Moneda on these matters, "the current crisis, more than a crisis of the government regime, is a crisis of politics and mainly, of the politics rooted in Congress." In his opinion, it is in Parliament where "politics has lost its borders and has become emancipated from its rules", which can be seen in the "abuse" of tools such as constitutional accusations (impeachment or impeachment processes): nine have been presented since March 2018. "It is a paradox that a Congress as weakened in its prestige as ours, demands more power," adds Soto.
The constitutionalist is in favor of correcting some defects of the government regime, but within presidentialism. “We should find better cooperation mechanisms between Congress and the President of the Republic, as well as ways to strengthen the alliance between the Government and the ruling party in Parliament. Both are problems that the eventual new Constitution should address ”, indicates the academic from the Catholic University.
Soto indicates that there are several “good reasons” to maintain presidentialism: due to its political tradition in Chile, where citizens demand solutions from the leaders; because the president gives stability to the exercise of power and, among others, because "in such complex societies, it is necessary to strengthen the capacity of governments" and not divide the Executive, like the French semi-presidential system, which is viewed with interest from other sectors. "In Chile there is a kind of dream about this new way of doing government that is fashionable among some intellectuals," analyzes the constitutionalist who listens to La Moneda.
The different positions are not organized on the left-right axis: there are supporters of both systems throughout the political arc. While Walker points to the benefits of a parliamentary system like Spain or Germany, Jordán is committed to a parliamentarian presidentialism, a model that he explains extensively in his book together with Figueroa and Eyzaguirre. Henríquez, meanwhile, is for "the introduction to a presidential regime of certain institutions of the parliamentary regime."