Jorge Contesse

The Unreachable Supermajority for Constitutional Reform

Air Date: April 26, 2021

Center for Transnational Law director Jorge Contesse discusses the pandemic’s global human rights fallout and the future of democracy in Chile.


HEFFNER: I’m Alexander Heffner, your host on The Open Mind. I’m delighted to welcome our guest today Jorge Contesse. He is the founding director of the Rutgers Center for Transnational Law and a professor of law at Rutgers. Thank you so much for your time today, Jorge.


CONTESSE: Thank you so much for the invitation.


HEFFNER: Jorge, how do you think the pandemic has impacted the international human rights landscape?


CONTESSE: Oh, in several ways, definitely. So, first thing I would say is that the moment this becomes a pandemic, we should remember it’s because the World Health Organization declared this to be a pandemic. So the WHO is one of the international, the major national organization. So the fact that the WHO declared something first as a disease of international concern, and later in March of 2020, an actual pandemic, that statement has both political, of course diplomatic, but it also has legal effects in the sense that countries that are members of the WHO must take action. And so, that’s the very first step in which it has impacted. And then of course, how different countries have reacted to this, I would say on the one hand, by, for example, declaring a state of exception and so grabbing power in ways that are not ordinary, not usual, that’s one way in which we’ve seen international organizations and human rights organizations reacting to how states adopt certain measures and definitely the way in which we think about, for example, health and health measures and how those social rights are enforced by the state and vis-a-vis private actors.


HEFFNER: Jorge, the historical precedent is that a pandemic will ultimately exacerbate erosions of civil rights, in other words, an event like a pandemic is ultimately more likely to be a catalyst for inhumane outcomes than humane outcomes, even as public health conditions in some countries, if not around the world, improve. Is your assessment at this point that this pandemic is going to be a catalyst for greater human rights or really against human rights?

CONTESSE: Well, it’s hard to tell, it’s hard to separate what one would sort of expect what I would wish happened with what’s going to actually happen. But I would say, I remember very clearly, April of last year, of 2020, there was this editorial in the Financial Times talking about how the pandemic, and this is just when the pandemic had just hit, right, it’s just a month or so, which had hit, at least the Western hemisphere. And so the Financial Times talking about the need to think about certain measures that have been seen and assess as radical, for example, universal basic income or changes in tax policy were now needed that. We now needed to think about this subject, these matters in a different way because of how the pandemic was and would affect right, many, many people. And so my expectation and that’s what I would hope is that we take those concerns seriously. And we think about the legal architecture that we have set up since 1945, ’48, so the Universal Declaration of Human Rights’ onwards, and how that machinery of human rights protections has a new meaning as we enter the 21st century with this big global crisis.


HEFFNER: As you point out it’s varied country to country, in terms of prioritizing public health. But it just can’t be said that only authoritarian governments were able to manage, specifically mitigate and eliminate the disease once it hit their shores. So Australia and New Zealand are a great counterpoint to China. And of course the situation in China is not the same as Taiwan or Singapore in terms of the expression of freedom, but you’re also a Latin American and South American specialist and Chile is something I wanted to talk with you about both in terms of the impact of the pandemic and constitutional politics, because in the midst of this pandemic was a vote on reforming the constitution. And the argument of the new generation was the constitution is not protecting our economic wellbeing and probably our health too. So, now that we kind of have talked about the overall landscape, we don’t know yet if the pandemic will cause more of a human rights advocacy or will, you know, tear apart human rights, we have to look at case studies. So Chile is a case study with which you are very intimately familiar. Can you tell me kind of about Chile as a case study during the pandemic?


CONTESSE: I think it’s easier for me to go kind of backwards, right, instead of saying, this is how it started. Like the first case in Chile was reported on March 3rd, 2020, but I’m going to come to right now, April of 2021, in which we’re seeing something that is, it’s making global headlines. Right, and that’s the fact that Chile has by far the most kind of sophisticated vaccination process going on, a very complex and an exemplary to a great extent, process of vaccination, right? It’s …I was reading today we are ahead of the United States in terms of the percentage of the population who have received at least one dose, and definitely a number of them who have received both doses of the vaccine, but at the same time, while we’re doing this there’s a very significant problem is that cases are soaring in ways that no one expected, or I shouldn’t say this; many people actually were saying and noting that because of the ways in which the government was somehow loosening some of the restrictions, and I think more importantly, sending a message that because of the very, the great vaccination process, the pandemic, it was kind of over, no one said this, of course, but the message that the way it was being informed to the population, sort of suggested that the worst was past, was behind us. And, and that was just not true. And so that’s in terms of how the pandemic management is undergoing now. At the same time, as you were mentioning, the fact that this is happening in the midst of a constitutional process that is unprecedented in this country, right? We we’ve never had an opportunity to actually enact the constitution through a constituent assembly. And you have had people on your show talking about the subject, which is by far the most important in the, I would say in the last decade, but certainly in the history of the constitutional history of the country, the fact that the people will have the chance to actually draft the way we’re going to live in the next, say, 30, 40 years. So, I think the pandemic is affecting this process in many, many ways. To begin with, the mass mobilizations, the protests were put on hold, of course, right. But at the same time, the fact that this government was, the current administration, had such a, was resisting many of the measures and kind of saying, we’re doing good, we’re, comparing it to other countries we are a model even for developed countries, while the people were saying, oh, we’re just not sure, if we listen to the experts, that’s not what we are hearing. We’re hearing something quite different. And the fact that now we have this exemplary vaccination process, but at the same time, 97 percent of the country is on lockdown, as we speak, tells you about why many countries around the world are saying, look at Chile, this is what we should not do. You get people to get the vaccines, but that does not mean that the pandemic is over. That’s, that’s really the, the story as of today.


HEFFNER: And that parallels to a fair extent, the United States, in so far as the kind of incongruous pattern of mobilizing mass vaccinations, and then behaving in a way that seems to suggest being vaccinated, it makes you, or your community invulnerable, which is not the case, and also relative to the polio vaccine and the smallpox vaccine, we don’t have a year’s, we don’t even have one full year post-trial to say how efficacious or effective this is going to be in the long haul, with respect to the varients, with respect to the original COVID. So, the science is to continue to be vigilant, the condition of the United States, interestingly, may be similar to the condition in Chile, where there is a desire to, you know, be amidst the masses to continue to, to live lives that are, you know, not according to the science of phasing out COVID, but rather having these waves, these constant waves. Would you say that’s true that there’s sort of an a, is it a more individualistic or rugged individualistic, kind of a frontiersman, woman attitude, or what is contributing to what you find to be the, the high rate of infection while the high rate of vaccinations is also occurring?


CONTESSE: That’s a great question. It’s really complex. I will try to… I’ll do my best to give a proper response to this, because there are many, many things. First, if you think of comparing the United States and Chile it’s, it’s hard to do that because of, of the United States having so many different responses. So you have the federal government’s response, of course, which in the middle of this pandemic has changed, right, we went dramatically from the Trump administration kind of neglecting what was happening to a very different take on the pandemic itself, but then at the level of states, right, if you compare, I don’t know, say New York State after March of 2020 with, with Florida, for example, they’re very, very different responses, whereas in Chile, because it’s not a federal, but a unitary state, the response has been really concentrated in the central government, right? And so that tells you that there’s really this sort of core source of political power that manages the pandemic. That’s I think that’s very important to keep in mind as we try to compare responses in different countries. To the second sort of layer of your question, which I think is the really more interesting, and hard to address, that is the constituent process that we are living through now, is in my view, largely in response to that individualism that was somehow embedded in the constitutional architecture that Pinochet crafted in the 1980s. What I mean by this is, he was very successful and smart, in finding the way to kind of articulate this constitutional text and structure that would somehow make sure that neoliberal policies be safe, right? And that’s really, in my view, what’s being impugned, and challenged in the past couple of, I mean, more than couple of years, the last couple of years or year and a half has been about this massive protest, but it’s been going on for a while.


So we see on the one hand, for example, the debate on whether or not Congress should allow people to retrieve, to withdraw their own savings from their pension funds and people saying, this is my money. If the government is not going to come to my rescue, it’s not going to help me with some stimulus package or anything, I have the right to use my funds. And so the discussion there, which is really a constitutional discussion is: are those funds really your funds, you as a worker, right? You’re putting that money every month in your pension fund or not. And so I would, I think what what’s going to be interesting when we look in retrospect, it’s hard to do it now that we’re in the middle of everything, right? But in retrospect, it’s like how much those different narratives of what a country should look like, which is really what’s happening in Chile right now, will impact in how, for example, we draft new, new guidelines, new social rights, the way we think about health, about education, about social security.


HEFFNER: You know, hearing you speak about the democracy in Chile, it, you know, it really does resonate that you are discussing public policy, right? It reminds me of the debate years ago in this country during the second term of the Bush administration on the privatization of social security, very analogous to that.


CONTESSE: Yup. Right.


HEFFNER: And that was like a genuine policy dispute of a kind of capitalism and then a more secure, compassionate policy that kind of considers the long-term health for everybody, that is still capitalistic. But it’s a different framework of the capitalistic system. It’s a more secure system, but when it comes to deliberating over constitutional reform, the reason why that has been perceived in the U.S. as a Pandora’s box is because of the lack protection for minority communities, specifically black and brown communities. And now we see in the flesh, the desire on the part of politicians and even judicial bodies to restrict and suppress the vote. And that is why I think it’s such a challenge to envision the possibility of a constitutional convention, which has never really happened in earnest in the last two centuries in this country. You’re in the midst of it. I mean, not you specifically, but Chile is in the midst of it. And, do you think Chileans have the security that they, there aren’t advocates in the process of rewriting the constitution or creating a new constitution who would ban certain voters from participating in a political process, discriminatory or authoritarian policies that would make their way into this new document in the way that in the United States, we genuinely have to fear that, because of what’s happened with the integrity of the vote over the last few years and the movement of an entire political party to restrict voting rights?


CONTESSE: Right. Yes. I guess the significant difference, the fact that the constitution is being written on a blank canvas, right? We call it in Spanish, we say the autor en blanco, right? It’s like a blank slate. We’re starting anew, which to some extent is true. To some extent it’s hard to, I mean, you never start anew but we’re somehow rewriting our constitution. We are reenacting this, but it’s not like we are neglecting and forgetting about where we come from. But the way the process is set up the different rules, this is sort of highly technical stuff. But I think just to put it in a simple way, is that the way this process has been set up and designed, I think prevents those things from happening. It would be really hard to have a majority, a significant majority, right? You have to have like up to two thirds so that you can actually make changes and sort of adopt new norms, new constitutional norms. So it would be necessary to have two thirds of authoritarian people, delegates, to come up with something like this, right, which is exactly the opposite of what’s happened with the current constitution, the way why the system where the sort of Pinochet system has functioned is because they were able to sort of secure those two-thirds by different ways. That’s not the case anymore. And so we’re really coming into sort of an uncharted territory in which everything seems to be open. And so many people, I should say that causes significant anxiety.


HEFFNER: As it should, right? I mean, but the question I think is, is the social or democratic capital more advanced in Chile now than it is in the United States, such that there is not as much animated concern about what will result from these deliberations and writing process.


CONTESSE: Right. When I think of comparing these two situations, we, we really have a different case in the United States, as you’re mentioning, there’s really being one central party that has been in power for at least, you know, the last administration. And before that. And so, thinking of how they have been so successful and so determined to getting voters out of, you know, to suppress voters from exercising their political rights and voting rights, that’s not really what’s, been happening right in Chile. And recently it’s been quite the opposite in which the constitutional convention was able to be was being, was set up in ways that will allow for first, these are the first constitutional convention in the world, which has gender parity, right: half and half. We do not know of any other case as of now, in which women have had half of the seats of the convention, but also with indigenous peoples, that was a very dramatic debate in Chile. And it was successfully, I mean, fortunately it ended up in good terms in the sense that they will have again, reserve seats in the convention. So that tells you that we’re really moving, not just away, but against the model that’s been in place for the past 40 years of having sort of a white male, Chilean, you know, elite governing and ruling the country.


HEFFNER: There’s also a presidential election upcoming,

CONTESSE: There’s presidential elections. There are municipalities elections, there are governors’ elections, there are plenty.


HEFFNER: How is the timing going to affect the current deliberations over the constitution with respect to the next president or the next congress if you will?


CONTESSE: That’s one of the ways in which the pandemic has affected the process, right? The referendum had to be postponed. The election for the delegates will be postponed. And we do not really know what’s going to happen with the presidential election. Now, I should say, if you look at the debates in Chile, everyone is really concerned and talking about presidential candidates, who’s going to be the next president. And that makes a lot of sense, I would say, in normal times. But now that we are moving into this new zone in which we do not know what’s going to come out of it, right? Some people say we should adopt a parliamentary system, not a presidential system. I don’t think that’s going to happen, but I’m pretty sure that we won’t have the same hyper-presidential system that we’ve had in the past 40 years. And so spending so much energy about who’s going to be the next president. I don’t think it’s really a smart thing to do. I mean, I understand that people do that and pundits and commentators who are doing these right, but first we don’t know what’s going to happen in terms of the new institutional architecture that’s going to be in place. But at the same time, I would say the next president will really be someone who is going to be the president, it’s of a transitional regime, right, going from the Pinochet regime, that we’re kind of abandoning now finally, into this new era in which we’ll have a new constitution. So, I personally am not that concerned with what’s going to happen. Who’s going to be the next president. I think it’s more important to think of what type of political regime will the new constitution set up. And then, for example, how will the next congress implement many of the solemn promises and principles that will be in striking the new constitution?


HEFFNER: It sounds like there’s no possibility that the Pinochet-era constitution would in any way be preserved. It’s out of the picture. It’s just that this is a delayed process, but it is a process by which once those delegates are appointed, the timing, it will be dependent upon, you know, those deliberations, right. We, we just don’t know the outcome of the presidential election could be decided before there is a new constitution, right?


CONTESSE: Right. So I guess I would answer that question in two ways, one as a citizen, right, as a Chilean citizen, say that constitution is dead and has been dead for a while, meaning we are really kind of rejecting, this was 80 percent, 80 to 20 percent, the vote last year in October of 2020. Right. So from that kind of political, or if you will, citizens’ perspective, yes, that document already out. As a lawyer, I should say, there’s still a chance that the Pinochet constitution survives, because if the people vote against the new text,




CONTESSE: That will mean that the 1980 constitution survives.




CONTESSE: And, and, and…


HEFFNER: So this is this is an exciting laboratory for democracy. There is a social capital just as we close in these few minutes, when you think of the constitutional conventions that are successful, they are ultimately forging consensus through compromise. And we see that in the United States that is difficult to reconcile today. Now, I don’t think you’re predicting that it will be impossible to reconcile. I think if anything, you’re suggesting maybe the opposite, but what are any of the points of contention that could prevent there from being a document that is ratified?


CONTESSE: I’m not ruling that out. I’m not ruling that out. And the reason why I say this is not just because that’s a sort of a legal possibility, that’s something that could happen, but more we don’t really know what’s going to happen, meaning the pandemic has been crucial in sort of making us realize that we do not have control over the next month. We don’t know. We do not know what’s going to happen two months from now in terms of how life will be affected by this pandemic. So what I mean by this is, first, we need to know who’s going to be sitting, who are going to be the delegates to this constitutional convention. And once we know that I think we’ll have a better picture of what could happen in terms of the type of compromises.

HEFFNER: What are the sticking points? What are the so-called third rails, where they could be, they could obstruct the passage and ratification, you know, beyond the delegate appointment process?


CONTESSE: I would say the way we understand, sort of the new understanding of social rights, that’s key, how we understand social rights. Should we have a government that guarantees that people will have health, education, and social security, and so what will those guarantees you look like? That’s one, and that’s connected to, for example, the right to property, right, there have been very obscure privatizations that took place at the very end of the Pinochet dictatorship. And that meant having some very small minority become incredibly wealthy at the expense of the rest of the population. That’s being challenged. And so the question will be, will the constitution be able to address that, and if so, how? we just don’t know now.


HEFFNER: And you can’t predict the coalitions that will emerge in a sense, you’re saying with respect to the majority vote, in order to ratify this ultimately, of the delegates who will be appointed, what is the threshold, half, a majority, a plurality, two thirds, what, what will be the, will it require a super majority or only a majority for ultimate ratification?


CONTESSE: So for adopting norms, there’s a super majority, two thirds, that’s the highest forum that we can have, that we can think of. I think it’s is it’s; I think it’s very high. I would have been more comfortable with a sort of a three fifths instead of two thirds, but that’s fine. That would require a lot of compromise. And that would require, I think, to think of a constitution that is rather minimal, that is rather brief, that it’s not this long text that everyone’s putting their, you know, their own grievances and their own claims. But in terms of the coalitions, again, that will depend on who’s going to be working, who’s going to be sitting there as delegates. Even if I were a political scientist, which I’m not, I wouldn’t be, I don’t think I would be comfortable predicting what that process will look like.


HEFFNER: We only have seconds left, but you’re saying a super majority for norms, but when there, when there’s a final passage,


CONTESSE: Okay, that, there’s actually a current constitutional debate on whether or not, some people are saying this is going to be basically the rules of procedure that the convention itself will have to set up.




CONTESSE: So we don’t know. So, some people, the right, are saying, we should have another two third vote at the end of the process.


HEFFNER: I see what you’re saying.


CONTESSE: People on the left are saying, no, that’s just to adopt norms, but those…


HEFFNER: So the process within the process will


CONTESSE: Exactlly. I’m just saying that, that that’s going to be the key, I think, to whether or not we’re going to have a text that will satisfy people, and then we can have a, a yes vote and finally get rid of the Pinochet constitution at long last.

HEFFNER: Absolutely. Jorge Contesse of Rutgers Law. Thank you so much for your insight today.


CONTESSE: Thanks to you. My pleasure.


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