TRANSCRIPT: RightsUp Episode: Professor Roberto Gargarella

Gautam Bhatia (0:09)

You’re listening to Rights Up, a podcast from the Oxford Human Rights Hub. My name is Gautam Bhatia, and I’m a Post-Doctoral Research Fellow at the University of Humboldt. In today’s episode, we talk to Professor Roberto Gargarella, Professor at the University of Buenos Aires and Senior Researcher at the National Research Council, CONICET, Argentina,[1] about the drafting of the new Chilean Constitution.

Gautam Bhatia (0:48)

Professor Gargarella, thanks so much for joining us on the Oxford Human Rights Hub podcast to talk about the Chilean Constitution drafting process. As far as I understand, it’s been about a year since this intensely participatory process has been going on and we now have a draft Constitution, which will then be streamlined, and that streamlined draft will be out on July the 4^th, and then in September, there’ll be a nationwide referendum to adopt it or not.

Gautam Bhatia (1:20) 

I’ve been following this process with great interest for many reasons — historical interest, and of course, current interest. But I wanted to link this a bit with your really compelling work on Latin American constitutionalism and the idea of “the engine room”, because— your argument that contemporary constitutions often give us a catalogue of rights but unless the way in which a constitution organises power reflects, in some way, that catalogue, those rights will remain ineffective.[2] And one thing I see is that this Chilean Constitution has a huge list of rights, you know, a progressive’s  dream in certain ways. So, I guess, my first question is, from your perspective, have they also looked at the engine room?

Professor Gargarella (2:08)

That’s— that’s, for me, a very important question. But let me say something, some clarification. First, that I think there are many important reasons to vote in favour of the Constitution, in spite of the problems that the Constitution includes — among others, the problem of the engine room, which is a common problem in all Latin American Constitutions. So, in a way, this is— this Constitution is going to reduce those problems, as it happened before with the previous Constitution produced by the Pinochet regime.

Professor Gargarella (2:49) 

One thing— additional thing about that — the 1980 Pinochet Constitution has been changed a little during these years, but still remains in place with many of the problems that it included. The first one, and I think it’s the most important, is about its legitimacy. So, it lacked democratic legitimacy and that is absolutely problematic because people cannot become proud of the Constitution and cannot feel— identify with the Constitution in a very significant way.

Professor Gargarella (3:28) 

Then, it included many other, say, restrictions to the [in]coming regime. When the main drafter of the Pinochet Constitution completed the draft, he said, openly, because he didn’t find this shameful —Jaime Guzmán said in 1979 (if I don’t get it wrong), he said, we are writing this Constitution so our opponents (basically, the Left) cannot do certain things, because we are changing the rules in ways that will make it impossible for our adversaries to do what they would like to do.

Professor Gargarella (4:11)

So, that was the open purpose of the Constitution, and even though many of those restrictions were lifted, it still is a Constitution that includes many significant problems, both through the things that it expresses, but also extremely serious omissions. One, very important, regarding social economic rights. Of course, if you just include a very long list of social economic, cultural, and multicultural rights— human rights, well, you can complicate certain things, but not having certain rights recognised, that also creates important problems. So, it’s very important that the new Constitution recognise certain rights that were not recognised before and that [it] recognise, for example, the existence and the rights of indigenous people that were not present before.

Professor Gargarella (5:08)

So, before talking about many of the problems that we can find in the Constitution, I wanted to say this, in order to intervene in a discussion that is very much present today, because there is a very strong conservative opposition to the Constitution and I don’t think they have good reasons to say that.

Gautam Bhatia (5:28)

Yeah, I mean— I did see that it seems a bit of touch-and-go right now — the polls show it’s quite close, although the approve camp [is] gaining as you get closer, so— but it’s still fairly close.

Professor Gargarella (5:41) 

So, if you want, we can go to your question now, but I wanted to clarify that before.

Gautam Bhatia (5:47)

So, yeah, maybe we can now go to “the engine room” point.

Professor Gargarella (5:50)  

What is “the engine room argument”? The engine room argument is a little bit more complex— it is, of course, that you need to— if you change, in a certain way, your list of rights, typically— extending the list of rights and going for a list of rights that is more, say, social or democratic in its content and its principles that inspire it, well, you should do the same with the engine room, with the organisation of power, because if not, that part of the Constitution starts working against, or not in favour of [the] list of rights that you expanded.

Professor Gargarella (6:33)  

So, that’s part of the argument, but the more substantive point regarding that [that] is particularly important, not only but particularly important in Latin America, which is that our structure of powers come from the late 18^th century, or more clearly in Latin America, from the mid-19^th century, and that means— and it’s not that we need to quarrel with the past or denounce our founding fathers— but that means that [the] structure of power typically expressed the view of a conservative elite or a liberal conservative elite, and that’s very serious because they— clearly they design the Constitution having in mind certain assumptions that we repudiate today from a democratic point of view.

Gautam Bhatia (7:24)  

Yeah. And so, with respect to this draft Constitution, one thing that I noticed was that there is a certain kind of devolution or decentralisation of powers — they have created autonomous communes.

Professor Gargarella (7:40)  

So, the new Constitution doesn’t do anything on— anything relevant regarding the organisation of power. No, that’s not true. It does certain things. So, you mentioned one very important point, which still we need to see how it’s going to develop and how it’s going to be enforced in practice — I mean, what laws are going to come to make it possible in practice? But one has to do with the decentralisation or the regionalisation — it creates a lot of polemic, but I think that, again, taking into account the very centralised and I would say, in a way, autocratic, authoritarian organisation of powers in the traditional distribution of the— in the territory, the geographical constitution, is important— the direction— I mean, to go— the Constitution in the direction of a more decentralised, regional project.

Professor Gargarella (8:39)  

When we, at the national level, are going to, I don’t know, create new laws for thinking about federalism or changing the way that we distribute resources among the different provinces or states, [it] is fine that we consult all of them. But another thing is, I don’t know, [if] we’re going to discuss abortion or we are going to discuss an economic policy, then you need the opinion of all the different states and the agreement of— that, I would say, is an anomaly.

Professor Gargarella (9:07)  

So, the new Chilean Constitution tried to change that, and even in the Chilean draft, they have a senate that is quite, I will say, in line with the old one. So, in a way, my pity— my— if I am disappointed, it is not because they went so far— too far, as many people say, but because they didn’t go as far as they should have. But again, I mean, it improved a lot, it even changed the engine room in certain ways, which are fine, and they include the recognition of rights and groups that they should have been recognised many decades ago, and now they will be. So, there are many interesting things, even though in my favourite space or place they didn’t do everything I would have recommended them to do.

Gautam Bhatia (10:01)  

That’s really interesting and I want to focus a bit more on your point about the public participation provisions and, you know, the recognition of the indigenous groups and their right to be consulted. Because one point that you make in your latest book is, of course, this whole idea of democratic distrust, and how the history of constitutionalism has been that you get the people into vote, and then you just get them out until the next vote, and in the middle, you just eliminate all other forms of control, external and internal, and that the right to vote cannot bear the burden that, you know, you place upon it, as just the one mechanism of control.[3] And in that case, of course, this is very important. But you also mentioned in the book, and this is also something I’ve read in other books as well, that the record when it comes to implementing public participation in Latin America has been somewhat mixed. It’s still implemented top down, and so in countries like Ecuador and Bolivia, where the provisions are great, but when it actually comes to, say, an extractivist, you know, dispute, where the indigenous people want to exercise, say, a veto, or you know, consent, then the government tries to, you know, wriggle out of its obligations that it itself had put into the Constitution.

Gautam Bhatia (11:21)  

So, I was wondering if you see the Chilean process going the same way, because, of course, there is one dispute over copper, as well— so, they haven’t nationalised the copper, and that’s been one controversy. But I was thinking that— do you see a risk that these great public participation provisions might in practice be diluted, as they arguably have been sometimes in other countries?

Professor Gargarella (11:39)  

I see your point and I agree with it. So, I also want to thank you for the careful reading of my text and the good question that I’m taking. But one clarification is — I don’t want to sound hard against a new draft, because I’m going to talk about a problem which is a problem that is affecting world constitutionalism. It’s not that we have a problem with Chile, and so, “Oh, let’s blame them or accuse them because of what they did or they didn’t do”. No, I think that they are reproducing a problem that is consistent all around Western countries, which is that they do not open proper venues for political intervention, or in the best case, which is a bad case, they conceive of participation as those magic instances where you want them to press a button and say “yes” or “no” to difficult or complex question.

Professor Gargarella (12:42)  

So yes, this problem is not going to be solved now. But what is the main problem, is that— is, in a way, I would say, surprising, that we are still living under these very restrictive political systems, which basically assume that the authority, and the political authority, is and has to be only in the Congress and the Executive, with the control, somehow, from the judiciary, but where the people— I mean, they are not invited to intervene in any significant way. And they basically left to us, common citizens, just one institutional bridge, which is the periodical vote, because all the bridges that were assumed or imagined or recognised in the 18^th century, or beginning of the 19^th century, including the functioning of town meetings, including the right to recall, including mandatory instructions— I mean, they could have been good or bad devices, but there were many different bridges between the people and the representative.

Professor Gargarella (14:05)  

So, I mean, as a result of the kind of constitutionalism that came to prevail— I mean, we burned all those bridges, and we only have this. But it’s not only that we have this only bridge, which is a periodical vote. In one way, things are now worse than before, because we have a climate which is primarily defined by democratic empowerment — so, where people demand the right to intervene, the right to say— the right to have a say in things that matter to them, and we do not have the mechanisms.

Gautam Bhatia (14:49)  

I have two more questions before we conclude. You have written extensively about the history of inequality in Latin America [over the] last 200 years, and one point you make is that one reason for this is that constitutions very consciously avoid the social question. And I was wondering if you think that the Chilean Constitution actually does very well on that regard, right? From the gender provisions, it actually grapples with the social question and, you know, does a lot of good things with it.

Professor Gargarella (15:19)  

So, it’s not that they did nothing, or it’s insignificant. They did interesting things. For me, in many instances, it is— well, I mean, it would have been so easy to do much more, but what they did is important. And one more thing about, just, in respect to Latin America. At the beginning of the 20^th century, there— and that, you see it through the writings of people like Joseph Schumpeter, or what was the Trilateral Commission in the United States and the writings of, particularly, Samuel Huntington — there was a recognition of what I’m saying, and what I call in the book as these situations of “democratic dishonours”. So, it was very clear for them and in Huntington, it was— I would say, very lucid analysis, he said, (a) we have to be aware, we are going to have an extreme a crisis because we are facing this situation — we have a society that surrounds the Constitution is totally different— we have this, what they call[ed] at that time, this “sobrecarga de demandas”, it’s an overload of democratic demands that the system is not able to receive and channel. So, there is an explosion that is going to happen and what they recommend was, well, given this tension between our restricted constitutionalism, or constitutional structure, and those broader democratic demands, we had to lessen or to control the democratic explosion that is coming. So, we need to restrict democracy, in a way.

Professor Gargarella (16:10)  

So, today, the problem has aggravated, and I would say, the response is not, again, to try to control the democratic demands, but to change constitutionalism in order to recognise the place that we as citizens, deserve.

Gautam Bhatia (17:18)  

That really puts it into the historical context and the tradition that this is, in a certain sense, located within but also carrying forward. And I think that that’s really good context, both where the Chilean Constitution is coming from and where it’s hopefully going.

Gautam Bhatia (17:36)  

My final question is a slightly personal one, which is that for many of us around the world, the story of Salvador Allende has been very inspirational. My father, when I was a kid, told me about that story. And so, in that sense, watching this has been very emotional, and many of us, we just see it as, in a certain way, taking forward that legacy that was very brutally interrupted. And so I was wondering if you, perhaps, see it that way, or if you think that, in some ways, after a 40 year, you know, very violent hiatus, in a certain way, this is carrying forward that torch, both in Chile and for Latin American constitutionalism more generally? 

Professor Gargarella (18:18)  

Yeah, no, it’s a nice point. I don’t want to say more than what I am, I don’t know, able to prove, but I tend to agree that there is— that there are some interesting continuation, but I would put it this way. I usually don’t talk about political culture, because for me it’s very difficult to define or to give empirical support to what one says when talk[ing] about political culture. But there is— I mean, but there is an ethos that is different in all our countries for different reasons, and in Chile it is interesting, because it’s also— in terms of political culture, there are some particularities and so, among the members of the Convention, you find remarkable characters.

Professor Gargarella (19:00)  

I tend to idealise, perhaps, but then there are— there are objective notes. So, for example — and this, I saw with my eyes when I visited the Convention — people who are working, I mean, days and night, and when I arrived there, for example, I was going to meet a group of friends who were participating in the Convention at nine in the morning. Well, that day, and this was a normal day, they work the whole night, and they work until six in the morning, my friend, my best friend, received a call from public media or radio at seven o’clock, so he slept one hour, so woke up and they say “okay”, and then we met and then they were receiving much less money than what they were receiving in their jobs, for example, at the university and they couldn’t pay their advisors and the advisors were working with them for free. So, there’s a thing of public commitment, civic commitment — that’s what we call civic virtue. And so, yes, I want to, in way, to respond affirmative[ly] to your question, saying that there are remnants of this wonderful political culture that you still find in Chile.

Gautam Bhatia (20:28)  

Those are some great insights.

Professor Gargarella (20:30)  

I hope other people also enjoy them, but I enjoyed.

Gautam Bhatia (20:33)  

I’m sure they will, and one thing we can tell you is that all of us will be watching very closely and with great hope for the referendum on the Constitution. You know, we really hope that something good will happen.

Gautam Bhatia (20:54) 

Rights Up is brought to you by the Oxford Human Rights Hub. The Executive Producer is Megan Campbell. This episode was produced by Gautam Bhatia, edited by Christy Callaway-Gale, and hosted by Gautam Bhatia. Music for this series is by Rosemary Allmann. Show Notes for this episode have been written by Sarah Dobbie. Subscribe to this podcast wherever you like to listen to your favourite podcasts.

[1] “Roberto Gargarella”, Facultad de Derecho, http://www.derecho.uba.ar/investigacion/investigadores/cv/roberto-gargarella.php.

[2] See Roberto Gargarella, Latin American Constitutionalism, 1810-2010: The Engine Room of the Constitution (Oxford University Press, 2013); Roberto Gargarella, “The ‘Engine Room’ of the Constitution (with Some Particular Attention to the Cuban Case)” (2017) 45 Cuban Studies 14-27; Roberto Gargarella, “Latin American constitutionalism: social rights and the ‘engine room’ of the constitution” In Law and Society in Latin America (Routledge, 2014).

[3] Roberto Gargarella, The Law as a Conversation Among Equals (Cambridge University Press, 2022). See also Roberto Gargarella, “From ‘democracy and distrust’ to a contextually situated dialogic theory” (2020) 18(4) International Journal of Constitutional Law 1466-1473; Roberto Gargarella, “From ‘democratic erosion’ to ‘a conversation among equals’” (2022) 47 Varia.