DSpace Repository :: Browsing by Author "Verdugo, Sergio"

Browsing by Author "Verdugo, Sergio"

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How can constitutional review experiments fail? Lessons from the 1925 Chilean Constitution
(2021) Verdugo, Sergio
Constitutional designers establishing a new judicial review mechanism can fail to make that mechanism a relevant instrument for checking the power of incumbent legislators or presidents. Judges may refuse to exercise their newly established powers, politicians may refuse to obey their rulings, or the judiciary may be packed, among other possible reasons. The causes can be attributed to the existence of a dominant party system, the lack of political competition, problems of institutional design, or judicial culture. This article contributes to the understanding of this problem by exploring the failed constitutional mechanism that Chilean constitutional designers established in 1925. The 1925 Chilean Constitution established the power of judicial review of legislation for the first time in Chile’s history, but the Supreme Court generally avoided to be involved in political battles. Chile had a competitive political system with frequent and regular rotation in power. The literature claims that, under these conditions, we should expect judges to be more independent and empowered, but this is not what happened in the Chilean case. Scholars studying this period of Chilean constitutional history generally associate the passivity of the Supreme Court with a legalistic culture promoting an apolitical and formalistic judicial behavior. This article claims that the narrative of judicial apoliticism served to justify, and perhaps to persuade, the Supreme Court’s choice not to intervene in politics, but more attention needs to be given to the institutional weaknesses of the judiciary of that time and to the possible strategic judicial choice.
How Judges Can Challenge Dictators and Get Away with It: Advancing Democracy while Preserving Judicial Independence
(2021-08) Verdugo, Sergio
The literature on constitutional courts in authoritarian and hybrid regimes typically suggests that judges who challenge such regimes in high-stakes cases risk substantial political backlash. Accordingly, some comparative constitutional law scholars argue that courts should develop strategies such as judicial avoidance or weak judicial review practices to prevent a clash with the governing regime. This Article proposes an alternative, suggesting that those strategies are unnecessary where courts are able to preserve or promote democratic values without incurring backlash. Where feasible, judges should prefer this case-specific confrontational tactic to survival strategies, such as weak judicial review or constitutional avoidance. To succeed, judges must identify and predict the regime’s expected costs of disobeying a judicial decision. If the projected costs are high enough, the regime’s leaders might prefer to comply with the ruling. One way in which this judicial strategy can work is by triggering a constitutional paradox. This term describes the dilemma dictators face when they are forced to decide whether to support the constitutionally-rooted institutions they themselves have established, or to disobey the unfavorable decision while risking to divide the regime’s supporting coalition, harm their own credibility, or weaken the legitimacy or authority of their regime’s institutions. As a tool of judicial statecraft, the well-crafted paradox raises the costs to the regime of ignoring any single judicial decision, and those costs may be sufficiently high to pressure autocrats into acquiescence. This Article uses the Chilean Constitutional Court during the Pinochet Dictatorship (1973–1990) to show how the constitutional paradox can push dictators to respect adverse judicial rulings in high-stakes scenarios, and to identify the preliminary conditions in which judges may be able to successfully deploy this strategy against the regime.
How Political Narratives Affect the Self-Enforcing Nature of Interim Constitutions
(2021) Prieto, Marcela; Verdugo, Sergio
This essay seeks to contribute to the literature that asks how interim constitutions can become self-enforcing norms capable of producing a successful constitution-making process. It uses the Chilean constitution-making process as an example to theorize on how the political narratives associated with the November 2019 Agreement, which sets the framework for constitutional change, can influence its self-enforcing capacity. The authors identify and reconstruct the two prevailing normative theories underlying the Chilean constitution-making process: the evolutive and the revolutionary narratives. These present themselves in both radical and moderate versions. While evolutive ideas emphasize institutional continuity, consensus-building, and an incrementalist approach to constitutional change, revolutionary arguments rely on the constituent power theory and push for a profound social transformation that can break with the past. Even though these narratives are in tension with each other in many respects, they have both influenced the design of the rules of the constitution-making process. The authors claim that the self-enforcing capacity of the interim constitution partly depends on whether, and to what extent, the moderate versions of these narratives succeed or prevail in the political discourse.
INAPLICABILIDAD Y VICIOS DE FORMA. ¿UN PROBLEMA RESUELTO?
(2010) Verdugo, Sergio
La discusión acerca de la idoneidad de la acción de inaplicabilidad para revisar los vicios de forma de las leyes generados en el proceso legislativo, que existía cuando esta acción era de competencia de la Corte Suprema, aún tiene asidero. El autor, luego de revisar la reacción de la doctrina a la reforma constitucional de 2005, de la cual se muestra crítico, detecta incoherencias en las sentencias del actual Tribunal Constitucional. Luego propone un marco para solucionar el problema, el que comienza cuestionando la manera en que se ha entendido la acción de inaplicabilidad y el control concreto y finaliza proponiendo posibles soluciones alternativas
Lastarria y la Revisión Judicial de la Ley en el marco de la Constitución Chilena de 1833
(2016) Verdugo, Sergio
Se identifican algunos textos de Lastarria, donde sugirió establecer un sistema de control judicial de la ley en el marco de la Constitución chilena de 1833. Luego de revisar la literatura pertinente, se argumenta que la propuesta de Lastarria fue original entre sus pares académicos conocidos, y la más antigua identificada hasta ahora. Además, el trabajo sostiene que la propuesta de Lastarria es consistente con el resto de su pensamiento político-constitucional relevante.
Limited democracy and great distrust: John Hart Ely in Bolivia and Chile
(2021) Verdugo, Sergio
This article shows that John Hart Ely’s defense of judicial review, as elaborated in his book Democracy and Distrust, has had little influence in Bolivia and Chile. However, that observation does not mean that a theory justifying judicial review when a political market failure is identified is useless for examining both countries’ judicial decisions. The author argues that an Ely-an procedural approach to judicial review can help justify or reject Chilean and Bolivian rulings—or judicial inactions—if certain conditions are taken into account to adapt Ely’s theory to both jurisdictions.
The ALBA Constitutional Project and Political Representation
(2019) Díaz de Valdés, José Manuel; Verdugo, Sergio
After the Cold War era, significant constitutional changes took place in Latin America. One distinct trend is the neo-Bolivarian constitutionalism, which has taken place in the ALBA countries, including the constitutional replacements of Venezuela (1999), Ecuador (2008) and Bolivia (2009). Many scholars have rightly criticized these constitutional experiments arguing that they have helped to deteriorate a liberal notion of democracy. This essay approaches a question that complements those criticisms from a different perspective: how the ALBA countries have resorted to varied notions of political representation. The authors use the classic work of Pitkin to identify the different sorts of political representation involved in the ALBA constitutional experiments, finding a combination of symbolic and descriptive representation. The former is linked to the figure of the President as a caudillo that centralizes political power, whereas the latter is fostered by both the President and the contents of the new constitutions related to the original peoples. As a result, the empowering purpose of constitutionalism has been preferred over its constraining purpose.
The Civil Law Tradition, the Pinochet Constitution and Judge Eugenio Valenzuela
(2021) Verdugo, Sergio
The depersonalization of the courts that the civil law tradition encourages makes it less likely that judges in those types of jurisdictions will become towering judges or, at least, it will make their influential jurisprudence anonymous or less visible. By exploring the experience of Eugenio Valenzuela, a Chilean judge that served at the Constitutional Court in the 80s, this Chapter shows that, despite the limitations of the civil law tradition, sometimes it is nonetheless possible to identify a towering judge in a civil law country. The author studies how judge Valenzuela led a group of judges within the Chilean Constitutional Court and succeeded in challenging critical pieces of legislation enacted by the military Junta during the Pinochet dictatorship. By showing how the Valenzuela jurisprudence helped to advance the transition to democracy against the interests of the authoritarian regime, the author claims that founding moments in fragile institutional settings of civil law countries may provide an opportunity for a political towering judge to emerge.
The dual aversion of Chile’s constitution-making process: Bolivarian constitutionalism and the Pinochet Constitution
(2021) Verdugo, Sergio; Prieto, Marcela
Chile initiated a constitution-making process in late 2019, after the major political parties signed an agreement to respond to the massive demonstrations that took over the streets in October of 2019. Dominant trends in Chile and Latin America’s constitutional thought typically examine this type of process through the lenses of the constituent power or transformative constitutionalism. The authors of this essay offer a different view. They argue that Chile’s constitution-making process, as designed by the multiparty agreement, manifests a double aversion: to avoid the Bolivarian way of constitution- making—including its associated constituent power narrative—and to put an end to the institutional and symbolic legacy of the Pinochet regime. In attempting to stay clear of these two negative models, the authors argue that the rules of the constitution-making process have adopted the main features of the post-sovereign model of constitution-making.
The fall of the Constitution’s political insurance: How the Morales regime eliminated the insurance of the 2009 Bolivian Constitution
(2019) Verdugo, Sergio
Some scholars argue that constitutions may include an insurance that aims to protect the political rights of prospective electoral losers and prevents a dominant ruling coalition from undermining the competitiveness of the political system. Although some insurance scholars have recently paid more attention to the conditions that make an insurance more likely to be effective, the scholarship seeking to identify the limits of the insurance is still scarce. The literature on courts and democratization may help us to understand those limits by exploring successful and failed experiences. In this article, I argue that after constitution-makers agree to including an insurance, the incumbent regime may delay its implementation or, if the insurance is implemented, the regime may employ different political and legal strategies to eliminate it. I identify some of these strategies using examples from the Bolivian constitutional system. I argue that the Bolivian 2009 Constitution included an insurance and that the Evo Morales regime eliminated it with the help of the Constitutional Court. Although insurance theory expects constitutional courts to guarantee key institutional arrangements, the Bolivian experience shows that constitutional courts may in fact execute the opposite task, and that after constitution makers negotiate and approve an insurance, the challenge is to secure its implementation and survival.

Browsing by Author "Verdugo, Sergio"

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