Sergio Verdugo, docente de la Facultad de Derecho, publico una columna página web de IACL (International Association of Constitutional Law)
Se trata de una columna publicada a propósito de una serie de trabajos asociados a un proyecto comparado donde identificamos jueces destacados de distintos países del mundo. Entre otros, han colaborado en este proyecto académicos tales como Alon Harel (Hebrew University), Tom Daly (Melbourne), Rosalind Dixon (UNSW), Mark Tushnet (Harvard) y David Landau (Florida).
April 04, 2019
Universidad del Desarrollo School of Law
Iddo Porat and Rehan Abeyratne identify “three dimensions along which a judge may be towering – political, institutional and jurisprudential.” To become a towering figure, a judge should tower at least in one of those dimensions. They also briefly suggest that Eugenio Valenzuela – a judge that served in the Chilean Constitutional Court in the 1980s – was a political towering judge because he helped “to oust an autocratic regime.” Why does Judge Valenzuela fit that description?
The Chilean Constitutional Court of the 1980s was situated in an unlikely context for a “towering” judge for two reasons. First, a dictatorship led by General Pinochet ruled the country since 1973. Second, judges typically used Chile’s formalistic civil law to benefit that regime. In her post, Jaclyn Neo reminded us that towering judges are more likely to appear in common law jurisdictions than in civil law systems, although David Landau offers an example of a Colombian Justice (Manuel J. Cepeda) that became a towering judge – at least in the institutional dimension. The Chilean political and legal context of the 1980s however, made even it harder for a civil law judge to become towering. As Lisa Hilbink has argued, Chilean judges of that time promoted an apolitical judicial ideology that aligned with the dictatorship’s plans while providing a sense of legal legitimacy to the regime. An example of this is the fact that the Junta did not need to intervene or pack the Supreme Court because that Court automatically contributed to the regime’s goals. The Junta, an institution composed of the heads of the armed forces, was the legislative branch of the regime.
The Constitutional Court was an even more fragile institution than the Supreme Court because the expected role of the former was strongly associated with the political and constitutional plans of the regime. The Pinochet regime had established the Constitutional Court to serve its own interests and expected it to use its ex-ante judicial review power to rubber-stamp the legislation enacted by the Junta while helping the regime to enforce and legitimize its Constitution. The Junta controlled the judicial appointments directly or indirectly, judges only served part-time and released a minimal number of decisions per year. Judicial tenures were relatively short (8 years) and judges terms could be renewed after the end of their terms.
Under those conditions, when the Constitutional Court was supposed to review legislation enacted by the Junta, only a few people expected the Court would challenge the regime. However, as Mara Malagodi explained in her post, sometimes dramatic circumstances provide an opportunity for a judge to become a towering figure. Such an opportunity existed in Chile, and Judge Eugenio Valenzuela took it.
The National Security Council – an institution controlled by the Junta – had appointed Eugenio Valenzuela to the Court, after he was recommended by Pinochet’s Secretary of Justice. Along with appointing Valenzuela, the National Security Council also selected Enrique Ortúzar, a close advisor of Pinochet that had recently chaired the Constitution’s drafting committee.
The Court had several functions and one of them was to review the legislation enacted by the Junta. The Junta was supposed to submit to the Court all bills that regulated ‘organic law’ matters before those laws could be promulgated – partly imitating the French mandatory and abstract form of review of legislation. In the beginning, the Constitutional Court was not a threat to the Junta, but this attitude changed after the Junta started to submit bills regulating key electoral processes and institutions for the 1988 plebiscite and future elections.
The regime had easily won a fraudulent plebiscite in 1980 to approve its Constitution, and Pinochet also expected to win the 1988 plebiscite extending his rule. Pinochet had decided to allow that plebiscite because he hoped to succeed under favorable institutional conditions that were designed to prevent the opposition from running a successful campaign; by allowing the regime to control key features of the electoral process.
As I explained in my article, Judge Valenzuela convinced some of his colleagues to enact decisions that were going to force the 1988 plebiscite to be held in fairer conditions. He wrote most of the decisions that challenged Pinochet’s interests himself. The most critical case came in 1985 when the Court reviewed the organic law establishing the Electoral Court (STC rol 33). The Constitution had provided for the Electoral Court to be implemented after, and not before, the 1988 plebiscite, and the Junta’s bill merely detailed that constitutional rule. Valenzuela ignored the literal meaning of the constitutional rule and creatively interpreted the Constitution by arguing that political-electoral principles required the Electoral Court to be implemented before, and not after, the 1988 plebiscite. This argument challenged the prevailing legal tools of interpretation at that time and signaled to the opposition that the Junta was not going to have complete control over supervision of the electoral processes. Also, Pinochet and the Junta could not oppose the Court’s rulings because ignoring the Court’s decision would have impaired the regime’s plan to secure the enforcement of the 1980 Constitution. This is why I have argued that Valenzuela succeeded in triggering a ‘constitutional paradox’.
Valenzuela also drafted, or voted in favor of, other judicial decisions that followed the same democratic approach. For example, in 1986 the Court decided to limit the power of the Director of the Electoral Service to cancel citizens’ electoral inscriptions (STC rol 38). Similarly, in 1987 the Court challenged several rules included in the statute regulating political parties, strengthening the organizational possibilities available to factions that opposed the dictatorship (STC rol 43). The regime reacted by not renewing Valenzuela’s judicial term but, as with the 1985 decision, the dictatorship could not ignore the Court’s rulings. These examples show how Valenzuela’s jurisprudence helped to secure favorable electoral conditions for Pinochet’s opponents. That opposition used the opportunity to organize a successful ‘No’ campaign, Pinochet was defeated, and the regime was forced to call for presidential elections.
Robert Barros has argued that the Chilean case is an example of how a constitution can effectively constrain an authoritarian regime, and he is probably correct. The example also shows that under unfavorable conditions, a combination of timing and a sound judicial strategy triggering a constitutional paradox may help to create the conditions for the rise of an unlikely towering judicial figure.
Sergio Verdugo is a Professor of Constitutional Law at the Universidad del Desarrollo School of Law (Santiago, Chile).