Opinion polls and constitutional issues: the case of Chile

The complex relationship between public opinion and constitutional issues is highlighted by the case of Chile, where a presidential election will take place this Sunday. Polls appear to suggest low public interest in constitutional issues, despite a ‘constituent process’ pushed by the current Bachelet government. Nonetheless, polling also indicates that the public is overwhelmingly in favour of constitutional reform. Alberto Coddou Mc Manus argues that polling is an important source of information for constitutional debates, but that findings should be critically assessed rather than taken at face value.

In general, opinion polls ask about our political preferences within established political systems. They ask us to express our political preferences or attitudes regarding the range of political options that the current constitutional system allows, either in the form of political candidates, ideas or reforms. In the US, opinion polls on constitutional matters have been fundamental for the analysis of the jurisprudence of the Supreme Court, either for predicting judgments or for explaining its reasons. Moreover, opinion polls are an important instrument for ascertaining the degree of support, political approval, or legitimacy that a certain political system garners among the population. However, opinion polls are also an important tool for asking people hypothetical questions, such as the ones that emerge from the exercise of constitutional powers. Indeed, opinion polls can be an interesting device for investigating the possibilities that may derive from exercises in constitutional imagination.

In this scenario, the relationship between opinion polls and constitutional issues is multifarious: on the one hand, they can be an interesting measure of the degree of legitimacy of an extant constitutional arrangement; on the other, they can inquire into the possible outcomes or possibilities that may be open under alternative constitutional frameworks. In the middle, we can find those techniques of social research that attempt to capture the degree to which issues of legitimacy may result in positive dispositions towards creating new political institutions, or crafting a new institutional arrangement for addressing political issues. In countries not at risk of experiencing violent political conflict, or that are not close to institutional collapse, the different relations between opinion polls and constitutional matters constitute an important source for broader political analysis.

In the case of Chile, opinion polls reveal a complex relationship between public opinion and constitutional issues. In the face of a presidential election that will take place on November 19, the relevance of constitutional issues for the political agenda is a matter of debate. Although the country is undergoing a ‘constituent process’ pushed by the government of Michelle Bachelet, which during 2016 implemented a consultation process (which included self-convened meetings and open citizens’ assemblies organized by the government) for the people to discuss what constitutional issues should be included in a new constitution, there has been scant ‘popular’ mobilisation around the issue after the end of that consultation process in August of 2016. We are not witnessing the degree of popular mobilisation and exchange of opinion that would be required for a ‘constitutional moment’, according to Bruce Ackerman. Chile has one of the lowest rates of political participation around the world, and it is part of a select list of countries where the fall of political turnout has been the sharpest since 1990 (a list which includes Congo, Libya, and Madagascar, countries which, unlike Chile, have experienced recent and serious political conflicts). According to a recent report by the United Nations Development Programme (UNDP), political disaffection and the loss of popular trust in political institutions should be a warning sign for Chilean democracy.

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Making sense of the uncertainty following Catalonia’s declaration of independence

Catalonia faces an uncertain future following the events of the last month, but the regional elections now scheduled for 21 December are likely to be a key moment in determining its trajectory. Mariana S. Mendes assesses how the crisis developed following the 1 October referendum, arguing that by calling early elections, the Spanish government has attempted to give the pro-independence bloc little opportunity to build momentum behind their resistance efforts, but that if pro-independence parties secure a majority the crisis could escalate again.

A surreal month in Spain’s political life ended the way the Catalan and the Spanish governments had promised to start it – with a unilateral declaration of independence on 27 October, followed by the suppression of Catalonia’s autonomy. Uncompromising positions took the lead and neither the authorities in Madrid nor in Barcelona showed the necessary will or statesmanship to avoid the greatest political crisis Spain has faced since the end of Franco’s era.

That it took the pro-independence bloc 27 days to proclaim independence rather than the 48 hours promised following the 1 October referendum shows, however, that attempts were made at avoiding such a drastic measure. Potentially important factors in this were dissenting voices within the ruling coalition, firms withdrawing from Catalonia, and the lack of international support.

The ambiguous announcement of a ‘suspended declaration of independence’ on 10 October – to make room for dialogue with Madrid – highlighted the conundrum that the head of the Generalitat, Carles Puigdemont, had to confront. On the one hand, pro-independence hardliners threatened to withdraw their support and break up the pro-independence parliamentary majority if independence was not declared. On the other hand, pro-independence pragmatists were alarmed by the potentially high costs of such a move – visible in the more than one thousand firms that moved their headquarters out of Catalonia – and preferred to take a more cautious approach.

To be sure, no one inside the ruling pro-independence coalition expected the Spanish government to react with complacency. What many certainly hoped for was that Madrid’s response would help move Catalonia a step further to independence. If the Spanish authorities reacted with a heavy hand, the case for separation would be further strengthened and so would support for independence – which still requires a convincing majority within Catalonia itself. If instead Madrid had accepted Puigdemont’s call for dialogue, he would be given some leeway to negotiate possible concessions: potentially the acceptance of constitutional changes allowing for a legal referendum, or, as a second best option, a reform of the Statute of Autonomy. At a minimum, he would have sought to avoid the suppression of Catalonia’s autonomy and what is most likely a long prison sentence for him.

But Madrid’s authorities did not need to tie themselves to either model. Instead, they followed the ‘carrot and stick’ approach of Puigdemont. Whereas the latter’s ‘carrot’ was a proposal for dialogue – while keeping the potential stick of a blunt declaration of independence on hand – Madrid’s ‘carrots’ were a series of requests that Puigdemont would have to abide by if they were not to apply article 155 of the Spanish Constitution – the ‘nuclear option’ of suspending Catalonia’s autonomy and deposing the regional government.

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Monitor 67: Brexit blues

The latest issue of Monitor, the Constitution Unit’s regular newsletter, has been published today. The issue covers all of the major UK constitutional developments over the past four months, a period that has seen several rounds of Brexit talks, the introduction and second reading of the EU (Withdrawal) Bill, the publication of the Burns review on the size of the House of Lords, plus much else besides. The front page article is reproduced here. You can read the full issue at this link

The previous issue of Monitor was published just after the surprise result of the snap general election. The Prime Minister was back at the helm, but with a reduced number of MPs, and dependent on a confidence and supply arrangement with the Northern Ireland Democratic Unionist Party (DUP). We noted that the road ahead looked rocky.

So it has proved to be – though Theresa May remains in post, and the real parliamentary showdowns seem still to come. The Prime Minister has been dealt an exceptionally difficult hand – managing legislation on Brexit of unprecedented constitutional complexity, alongside the fractious negotiations with the EU, while leading a divided party in a House of Commons in which she has no partisan majority. Over the summer, and particularly during the party conference season, her leadership was regularly questioned, but must gain some stability from the fact that few would really want to be in her shoes. Meanwhile, rumours suggest that she has used the threat of a Boris Johnson premiership to coax other EU leaders to the negotiating table.

As discussed on pages 2–3, the official Brexit negotiations have made slow progress. Despite Theresa May’s attempted injection of momentum through her Florence speech in September, EU partners have not yet agreed to move on to ‘Phase II’ (i.e. post-Brexit trade arrangements), and a serious sticking point remains the so-called ‘divorce bill’. Partly as a consequence, the prospect of a ‘no deal’ outcome has increasingly been talked up. This is presented by some in the Conservative Party as a necessary negotiating strategy to get the EU-27 to give the UK what it wants, but others seem to view it with a degree of relish. Meanwhile, business groups appear to be increasingly concerned.

One thing that remains little-known is the state of public opinion, and how that may develop. While the June 2016 referendum came up with a Leave result, today’s question of what Leave should mean is a good deal more complex. As such, it is not readily suited to opinion polling. Here the results of the Citizens’ Assembly on Brexit, run by a team led from the Constitution Unit and funded by the ESRC (see page 15), can shed some useful light. Assembly members, who included more Leave than Remain supporters, expressed a preference for the kind of bespoke trade deal that the government says it is seeking. But members were very clear that if this cannot be achieved, a ‘no deal’ outcome was undesirable. They preferred that the UK remained a member of the Single Market and Customs Union to this. Politicians should reflect on such findings carefully, because boxing themselves in to no deal could prove electorally dangerous.

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A new phase for Italy’s regional system? The referendums in Lombardy and Veneto on greater autonomy

On Sunday 22 October voters in the Italian regions of Lombardy and Veneto expressed their support for greater regional autonomy in two consultative referendums. Is this the start of a new attempt at overhauling and modernising Italy’s two-track regional system, after a constitutional reform proposal that would have re-centralised Italy’s regional system (and reformed its bicameralism) was rejected in December 2016? Jens Woelk provides an overview of recent developments in Italy and suggests that despite the two referendums in favour of more autonomy, consensus and a coherent design for reforms of the Italian system are still lacking.

What kind of answer do you expect to the question, ‘Do you like chocolate?’ The answer seems obvious. The same applies to the question asked in consultative referendums held in wealthy regions in northern Italy on Sunday 22 October: ‘Are you in favour of greater autonomy (for your region)’? As widely expected, including by the organisers, the results were positive. In Veneto, the threshold of 50% established for the validity of the consultation was not a problem: with a turnout of 57.2% an overwhelming 98.1% voted in favour. Although the turnout in Lombardy, where no threshold applied, was considerably lower (38.34%), the ‘Yes’ votes were a large majority (95.29%) there too.

Narrowing the gap between the two tracks of Italy’s regional system?

The asymmetrical Italian regional system consists of five autonomous or ‘special’ regions and of 15 ‘ordinary’ regions. While the Constitution itself contains detailed regulations regarding the latter, the autonomy of each special region is individually based upon a special ‘statuto’. This Act with constitutional rank lists legislative powers and administrative functions and contains specific institutional and financial arrangements. There are peculiar features in each special region; these and their powers distinguish special regions from ordinary ones which have fewer (and no exclusive) competencies and only generic guarantees of financial resources.

A constitutional reform in 2001 aimed at narrowing the gap between the two categories by strengthening the powers of the ordinary regions (therefore the reform is widely known as ‘federalisation reform’). However, the ambitious reform did not produce positive results, due to a combination of poor and slow implementation; passivity of the regions themselves, which hardly made use of their new powers; and the activity of the Constitutional Court, which has  at times overturned the devolutionary logic of the reform in order to preserve the unity of the state and the co-ordinating function of central government.

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Monitor 66: The most unexpected election

The latest issue of Monitor, the Constitution Unit’s regular newsletter, has been published today. The issue covers all of the major UK constitutional developments over the past five months, a period that has included the unexpected general election result, the confidence and supply agreement between the Conservatives and DUP that followed, Nicola Sturgeon’s announcement of plans for a second referendum (later ‘reset’) and the beginning of Brexit negotiations, plus much else besides. The front page article is reproduced here. You can read the full issue at this link

Current British politics is rarely dull. Added to the unexpected result in the 2016 Brexit referendum and the subsequent Miller case regarding parliament’s role in the process (not to mention the Conservatives’ unexpected outright majority in 2015), we now have our second hung parliament in seven years, a resurgent Corbyn-led Labour Party, and a previously popular Prime Minister who appears to be on the ropes. All this following a general election that few expected, and that some even thought pretty much impossible under the 2011 Fixed-term Parliaments Act.

Following the successful passage of the European Union (Notification of Withdrawal) Act, authorising the trigger of Article 50 (see page 4), Theresa May surprised almost everybody on 18 April by proposing a general election for 8 June. Having started with what looked like an unassailable lead in the polls, in an election where she sought to strengthen her hand in parliament during the Brexit negotiations, she managed instead to lose her slender Commons majority and was forced into a confidence and supply arrangement with Northern Ireland’s Democratic Unionist Party (DUP) (see page 6). Her authority within her own government is much diminished, and ministers have openly squabbled with each other over Brexit priorities. Meanwhile, Labour’s unexpected gains leave its previously fractious parliamentary party appearing suddenly united behind Jeremy Corbyn.

The results were also a blow to Nicola Sturgeon, whose Scottish National Party (SNP) lost twelve seats to the Conservatives, six to Labour and three to the Liberal Democrats. Conservative leader Ruth Davidson (who spoke at a packed Constitution Unit event during the campaign) in contrast made a strong case for the Union and gained further stature and negotiating power. Sturgeon acknowledged on 27 June that she would have to put the campaign for a second Scottish independence referendum on hold for the time being (see page 11).

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How would Emmanuel Macron govern without a parliamentary majority?

An Emmanuel Macron presidency would not represent quite the political earthquake of a Marine Le Pen presidency, but in some respects it would nonetheless take France’s political system into uncharted territory. Macron’s En Marche! movement currently has no MPs and, even if it performs well at the parliamentary election in June, it is highly unlikely to win a majority. Andrew Knapp explains what this could mean for a Macron presidency, suggesting that the most likely possibility is the formation of a minority government relying on different majorities on different issues.

Emmanuel Macron could still lose to Marine Le Pen at the second round of France’s presidential election on 7 May. If he continues to behave as if he has already won – which he mostly has since his first-round victory on 23 April – voters could return the favour and stay at home for the run-off. Or he could perform disastrously at the debate with Le Pen set for 3 May. Or a particularly fruity scandal could break over his head (his declaration of his own net worth, for example, looks suspiciously modest when set alongside his earnings when a banker with Rothschild’s). Barring these eventualities, however, Macron will become the eighth President of the Fifth Republic: the margin of victory suggested by current polls (62 per cent to Le Pen’s 38), very much greater than that expected for the Remain vote in the UK, or for Hilary Clinton in the United States, could well be reduced, but is unlikely to be reversed. Macron would also be the Fifth Republic’s youngest president by a margin of nine years (the current record-holder is Valéry Giscard d’Estaing, elected in 1974 at age 48).

What then? Would President Macron govern, or merely reign? To categorise the Fifth Republic as a semi-presidential system, which it broadly is, does not take us very far towards an answer, because semi-presidential systems vary so widely among themselves. France’s President is clearly the EU’s most powerful head of state, which is why he (not, so far, she), and not the Prime Minister, represents France at the European Council. But is he also the most powerful head of the political executive of any EU state? That is more debatable. The formal powers vested in the President by the Constitution of the Fifth Republic are considerable, but quite insufficient to govern as he chooses. To do that, he needs the backing of a parliamentary majority. The chances of Macron getting that, in the legislative elections to be held on 11 and 18 June, are very uncertain.

Untangling those presidential powers that stem from the constitutional text from those that depend on circumstance is a favourite pastime of students of French politics. And the Macron case offers a new terrain for speculation in this area because his victory on 7 May would, in certain respects, take France’s political system into uncharted territory.

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The Italian Constitutional Court judgement on the ‘Italicum’ electoral law: another new reform for Italy?

Last month the Italian Constitutional Court declared several crucial elements of the ‘Italicum’ electoral system for the Chamber of Deputies, approved by parliament in 2015, to be unconstitutional. Further electoral reform is therefore now being discussed, ahead of an election that must take place by next spring at the latest. Roberta Damiani explains the background to the judgement and its implications.

On 25 January the Italian Constitutional Court announced its judgement on the latest electoral law for the lower chamber of Parliament (the Chamber of Deputies), promulgated by Matteo Renzi’s government and approved in 2015, known as the ‘Italicum’. While retaining some of its features, the Court declared that several of the Italicum’s most crucial elements are unconstitutional, and modified them accordingly. It effectively turned what would have been a majoritarian system into a proportional one.

Before examining this judgement in detail, we need to understand how it fitted into broader debates about the appropriate constitutional structure for Italy.

The Constitution of the Italian Republic, founded in 1946 in the wake of the experience of fascism, was based on the principle that power should be dispersed, in order to prevent the rise of another dictatorship. This was achieved through the creation of two coequal parliamentary chambers: not only did both have to agree all legislation; in addition, either could dismiss the government through a vote of no confidence. Some level of governability was achieved only by the fact that both chambers were directly elected through proportional representation: their compositions were almost identical, such that they rarely disagreed sharply with each other.

Nevertheless, by the 1980s there was a widespread perception that the dispersion of power had gone too far. The need for fundamental reforms became particularly acute after a major corruption scandal, known as ‘Tangentopoli’, that was uncovered in 1992 and led to an almost complete breakdown of the party system. In response, a new electoral system – the so-called ‘Mattarellum’ – was introduced in 1993, which reduced electoral proportionality in both chambers.

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