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When in December it was decided that representatives of the Supreme Court and not of the Constitutional Court (TC) were the ones who composed the dispute resolution body for the constitutional process, in the legal, political and legislative world it was considered the signal clearer of the weakness of the TC and the condition of discredit – in the eyes of citizens and Congress – in which the body chaired these days by the lawyer María Luisa Brahm is.
For many years, the TC has been the focus of harsh political and legal questions, mainly because it has played a “third chamber” role, often distorting the will defined by the majority in the Legislative Branch. Despite the reform carried out in 2005 –at the end of the Ricardo Lagos Government–, the criticism of his “political” interference never diminished and, for his critics, the powers given to him with that amendment ended up distorting an institution necessary “in due measure” for the rule of law. The appointment system, which responds in part to the power of the government in office, combining its composition, little and nothing has contributed to the legitimacy of the body.
But it was the harsh statements that Brahm made over the weekend about the management of his predecessor, Iván Aróstica, when he affirmed that he was “on the verge of corruption”, which has put the Constitutional Court in check. Not only did they reveal the internal crisis that was dragging on a while ago, something that was known in a good part of the lawyer’s post, but an internal fracture that was installed became public. ad portas of the constituent process, which leaves the organism on a tightrope. Not a few people considered the move made by the president of the TC “suicidal”, even more considering the work she had done so far to improve the image of the institution.
Brahm’s statements exposed the crisis, but the real drop that spilled over the glass in the internal conflict of the TC, claimed various lawyers, was the shock that occurred with the debate on the requirement of Chile Vamos so that several of the tenants of Punta Peuco were included in the commutative pardon that the Government proposed, as a sanitary measure in the face of overcrowding in the country’s prisons and the risk of contagion from the coronavirus. Those who know about the work within the body, said that in the internal vote the balance turned against the ultra-conservative world of the court and that responded to “a jewelry job by the president.”
For the constitutional lawyer of the UDP and the University of Utrecht, Javier Couso, the accumulation of tensions has a name and a surname: “This was conceived in the Aróstica presidency, where there was contempt for the total Constitution, an activism. In constitutional law that is a bad word, it is being unfair to the Constitution, because, instead of applying it, under the excuse of interpreting it, I change it, inventing things that were not, such as Sernac was unconstitutional, that union ownership it was unconstitutional or that conscientious objection was a right that resided in the institutional framework. That activism gave an image of a partisan organ ”.
In the opinion of the constitutional lawyer, María Luisa Brahm had been doing things well in the presidency of the TC, but she made a catastrophic communication error, since with her accusation “her presidency is not even at stake, the existence of the Constitutional Court is at stake here.” An opinion shared by several consulted jurists who chose to remain confidential.
Ad portas of the plebiscite, the open wound with which the TC walks today only sharpened the flanks weighing on the organism. In this context, the lawyer Juan Pablo Hermosilla said this week –through his social networks– that “one of the issues to think about when we return to the institutional discussion on constitutional justice; our TC is no more, a shame the level of discussion ”.
La Moneda has not been oblivious to this conflict, since it touches their interests, because – they confessed in the Government – it cannot be that now resorting to the Constitutional Court becomes a “moral dilemma, thinking about how discredited it is.” Not only that, it splatters and complicates President Piñera, because he proposed Brahm and Aróstica to the court in 2013 and they were both part of his cast of work in the Palace during his first administration.
Aróstica was the head of the Legal Division of the Ministry of the Interior in 2010 and Brahm was her chief adviser in her first term, but they also share a long political career together under the wing of RN, to the point that she is known for being a historical piñerista.
From La Moneda they have followed the case “discreetly”, through the press and with personal consultations with the ministers involved, but so far nothing has been done officially. The conflict, although it has been a comment at the corridor level between the high authorities, has not been on the table in the meetings between the President and his ministers. For now, those who are monitoring him are the Minister of Justice, Hernán Larraín, his peer from the Interior, Gonzalo Blumel, and de la Segpres, Felipe Ward.
Thinking about the future of the TC, the lawyer Jorge Correa Sutil said that “there is not, nor will there be, an institutional design capable of surviving the load of expectations that have been placed on a constitutional text, first, the right to avoid changes and, now, the left to propel them. When legitimate political debates are transformed into legal debates of rights, there is no court that can withstand the pressure. The Constitutional Court, but first the citizens, must understand that the legal debate cannot drown or substitute the political one.
The lawyer who chaired the advisory commission for the constitutional process, Sebastián Aylwin, pointed out that “this situation has dragged on for many years, where the action of the TC is perceived as a defense of interests, which did not succeed in succeeding in the rules of the democratic system. , in the legislative system. We are openly facing minority interests, in this case, which are related to justice around human rights violators, but it is one more part ”.
Ideological fracture
One of the reasons given in La Moneda for not going out publicly to intervene in the TC conflict, is that they know that the clash between Brahm and Aróstica is an issue that divides waters both in Chile Vamos and also in Palacio, because both represent souls other than the right, the liberal and the ultra-conservative, a tension that has existed in the ruling coalition in various fields since the 1990s.
Brahm, although he fulfilled functions in the dictatorship working for Odeplan, his work afterwards was always more linked to the liberal world, through the Libertad Institute, RN’s center of thought. Although in several of his failings in the TC he has coincided with Aróstica, others, such as the one he made in favor of the abortion law in three causes, are – stated those who know it – part of his credentials that put him on the opposite sidewalk to the conservative right.
Aróstica, admirer of the military world and collector of corvos, on his way he approached Pablo Rodríguez, the founder of Patria y Libertad. In the first Government of Piñera, he quickly found in the current head of advisers on the second floor, Cristián Larroulet, a perfect partner and it was through that relationship that he came to the direction of the Department of Public Law of the Universidad del Desarrollo (UDD) .
Both graph two sectors of the current right. A tug-of-war that, for the political analyst Andrés Cabrera, constitutes a differentiation between conservatives and liberals that “is deeply hegemonized by the conservative spectrum and this is observed with the request that the senators of the RN and the UDI raised, considering the law discriminatory pardon. “
Cabrera added that, although there is a liberal spectrum, today in sight, supposedly with the installation of Evópoli, it does not give them much more space than they have demonstrated to manage, since the “sector electorate continues to be on the historic (conservative) side ) ”.
A different view was the one presented by the academic of the Faculty of Government of the Central University, Marco Moreno, who stated that “in the struggle of the TC, what we observe is a stark struggle to conserve or maintain spaces of power, but without that mediates a political project that places the actors involved at one extreme or the other. There are invoices receivable and accounts passed, but of doctrinal discussion, little or nothing ”.
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