ON THE ARGUMENTS AGAINST REJECTION

It is barely a week since the CC put an end to the work of drawing up the draft constitution commissioned by the community. One might have thought that, after the end of this task, an enriching debate on its content could be generated, a debate that, in some way, would enhance the great undertaking carried out by the constituents. However, this has not been the case. Unfortunately, this has not been the case. On the contrary: rarely has the country’s political history registered such a low and deplorable national debate.

Indeed, it is a well-known fact that the political representation of the ruling classes and class fractions does not need to make too much effort to defend the course of the system – which has its own dynamics – because, in order to achieve this, it is enough for it to simply allow itself to be carried along by events. This circumstance should not, however, be their incentive for the indiscriminate use of absurdities or blunders aimed at winning the argument in any way whatsoever; still less should they suppose that their assertions constitute arguments with a rational basis. Because they are not.

A few days ago, our good friend Victor Musa asked us on his programme ‘Pauta Semanal’ what we thought about the same thing. And we answered that we were not prepared for it. That we seemed to be playing the role of that medieval knight who wears his iron armour to go out to fight the enemy who, in the end, turns out to be a mosquito. It is true. We recognise that. We are not prepared for that kind of debate. It exceeds our limits. It is beyond us. Just as insults and rudeness are beyond the person who wants to debate. That’s not the way forward, let’s see why.

FEATURES OF DEBATE

The features of the debate have been, in synthesis, quite deplorable. However, we can try to group them together.

Let us make that attempt.

1. Inability to cite the paragraph or article of the draft, which motivates the rejection.

Except on very rare occasions, the criticisms made of the work of the Constitutional Convention cite a sentence or article which is objectionable to the person who formulates them. As a rule, this is the most distinctive feature of the language used by those who wish to reject the CC’s draft: omitting the paragraph or article that motivates the rejection, which is nothing more than avoiding the very basis of the criticism. There is no quotation or citation whatsoever to substantiate the assertions, because, as one columnist points out, “The Rejection has no basis whatsoever for the criticism:

“El Rechazo has no proposal for this crisis. It is content to repeat empty slogans about social unity, the desire for peace, the homogeneity of the Chilean people, and so on. Its yellow desire not to go backwards has no problem in coexisting with groups and practices that openly claim classism, misogyny, xenophobia and exalt contempt for democratic culture. They have no problem in having among their representatives people who whip up the basest passions, resorting to the dissemination of lies, to denigration disguised as political incorrectness, to digital trolling and cyber-bullying of opponents, to speculating downwards with political discredit for personal gain (such as Trump in the US and all the extreme right-wingers in the world)”[1].

2. Vagueness, tendencies are indicated.

Along the same lines, and in addition to avoiding which expression, which paragraph or article motivates the rejection, a large part of the Rejection’s followers incorporate theoretical vagueness, aspirations, generalities that do not inform but rather appear to be dilutions, inaccuracies and often misleading. This way of proceeding is called ‘nomothetic’ by some authors, who highlight the extreme generalisation of facts and contexts, as happens in the field of law. Among this type of assertions we can cite the following:

“When the regulatory maelstrom and the constituent obsession have passed, we will surely have time to refocus on some fundamental issues on which, indeed, Chile’s progress depends. Among them, it seems to me, are social dissolution, the erosion of coexistence, a growing anomie and the crisis affecting very diverse areas of national development, issues that should claim our thinking and action, before it is too late, if it is not already too late”[2].

We ask ourselves, where, where, in what part, what provision of the draft of the new constitution promotes ‘social dissolution’? Where does the draft contain the rules that ‘erode coexistence’? Where does it establish a ‘growing anomie’? Where, the crisis? Nothing, absolutely nothing. These are assertions that, in the end, turn out to be whimsical, without any basis or support whatsoever.

3. No theoretical basis

When there are assertions such as these, it is useless to ask for a theoretical basis from those who make them. Nobody gives what they do not have’, says a legal axiom that is worth remembering. Generality and superficiality take over the direction of the debate. Then, the moment of making vague affirmations, the moment of considering as absolute truths the usages or customs of certain times, becomes present with the FORCE of an event. This is what Eduardo Frei does when he states as an unshakeable truth in his letter-declaration:

“The proposed political system does not establish an adequate balance and division of powers, creates an omnipotent House and is exposed to the risk that an occasional majority that controls the presidency and the political Chamber, could move towards a dictatorial regime of the kind that are becoming frequent in the world. Even though the text opted to maintain the presidential regime, the powers of the President of the Republic were weakened, especially by sharing the exclusive initiative to initiate legislative debates on certain matters, and by excessively weakening his veto power”[3].

Where does this assumption that there must be a ‘balance of powers’ in any constitution come from? Who supports this thesis? Is Parliament the appropriate body to achieve this balance? Who ensures it? By what right? What about a Parliament with two chambers? So, are countries that are ‘unicameral’ and therefore do not have two chambers ‘unbalanced’ countries?

In this area, too, the statements of the British newspaper ‘The Economist’ seem to be anthologised. Its criticisms are limited to nomothetic statements, among which we can point out: the project is ‘absurdly long’, ‘fiscally irresponsible’ and ‘excessively progressive'[4], statements that provoked an angry protest:

“The Economist’s defence of the Pinochet constitution is consistent with its ideological stance; the problem is when a media outlet of this international stature publishes an article of highly questionable journalistic quality, lies to its readers with false information, and, in an act of arrogance befitting the country in which it was founded, dares to tell Chileans how to vote”[5].

4. Use and abuse of analogies.

Perhaps the most notable case of the use and abuse of analogies that are timeless (anachronistic) and out of place (ectopic) can be found in the interview that journalist Constanza Santa María gave to Michelle Bachelet’s former Finance Minister, Andrés Velasco, on the news preview programme of the 24 Horas channel, in the week between the 4th and 11th of this month, who did not answer the questions like a scholar but with a set of analogical barbarities, of misused examples that would shame any student of philosophy.

In an article he later wrote for Cristián Bofill’s magazine, he once again ventures into these treacherous fields, with an astonishing levity, because a specialist should be careful when pronouncing on matters, he does not know:

“The constitutional project omits, incomprehensibly, the electoral system. This is equivalent to writing the rules of football without specifying how many players make up each team”[6].

A constitution never contemplates electoral rules but leaves it to the law to pronounce on this matter, so the analogy is ectopic, and the question becomes obvious: in a serious debate, is it possible to give theoretical foundations only on the basis of analogies? Does this way of arguing have any solidity?

5. Ignorance of the use of laws and the constitution.

However, where much of the criticism of the proposed new constitution seems to converge is on what is to be understood as fundamental charter and law (or common law). A constitution is not a law but a ‘fundamental law’, the organic skeleton of a community. A constitution cannot contain specialities or specifications. First of all. That is why it cannot be required to include particularities of a law. That is contrary to legal technique. For the same reason, Andrés Velasco’s statement in the above-mentioned paragraph, when he demands an electoral system from the constitution which can only be granted by law, is out of place.

But, in addition, it cannot be judged without an adequate concordance of its provisions, which can only be resolved with the help of the rules of legal hermeneutics, because the law, although it is not a science in the manner of physics, became a discipline as did the economy, sociology, history: it requires certain studies that help to understand it.

It should come as no surprise that many of the criticisms emanating from the Rejectionist camp relate to matters that should never have been considered in the draft of the new constitution. The proverb ‘cobbler to your shoes’ is dramatically relevant in this regard.

6. Criticising matters that have nothing to do with the content of the draft.

The case of the invitations to the closing ceremony of the Convention was one of these matters that served to disqualify the work of the Convention. The person in charge of this work was the Evopoli deputy Felipe Kast, who accused the Convention’s board of having invited the former president of the Coordinating Assembly of Secondary Students ACES, Víctor Chanfreau, which was not true. Did this invitation – if it had been issued by the board – have the status of a constitutional provision? Did Mr. Kast want to ‘take us for a ride’ with his remark?

The newspaper ‘El Líbero’ argues, for its part, that ‘the links of five members of the convention with prisoners for violent actions’ should be considered in order to understand the meaning of the CC project [7].

More than for the actions carried out during his senatorship, Felipe Kast has become known for his foolish statements, one of which led him to formulate -on one of the radio stations owned by the opposition in Araucanía- a phrase for bronze, referring to the draft constitution:

“This is not only an attack on the human rights of the unborn child, because here we no longer only allow abortion on three grounds or abortion in the first weeks of pregnancy, as all the countries of the world do. We would be the only country that promotes and allows abortion up to nine months of pregnancy” [8].

It should come as no surprise that, in the face of such ignorance, former presidential candidate Marco Enríquez-Ominami responded, sarcastically:

“[…] ‘abortion at 9 months’ is called childbirth”[9].

7. Use of one’s own prejudices as an argument against the work of the Convention.

In the final part of the article written by Michelle Bachelet’s former Minister of Finance, we can read the following paragraph that accurately illustrates the use of prejudices in the criticism of the CC project:

“No progressive can want an authoritarian and conservative populist to reach La Moneda. That is one more reason for the centre-left to dare and vote Rechazo -not to conclude the constitutional task, but to continue it with the same hope of the plebiscite in the first place”[10].

What is a ‘progressive’? What is an ‘authoritarian and conservative populist’? How is it possible to use such categories without specifying what they are? Are we not in the presence of prejudice?

Of those who use prejudice as a valid argument against the work of the Convention, the most emblematic is Convention member Harry Jürgensen, an RN activist, who said the following about the Chilean judicial system in April this year:

“I want to talk to you about the Bolivarian agenda that is intended to be installed in our country: there is now talk of a maximum term of 14 years for all judges. There are hundreds of judges who will have to leave their posts now and they themselves will have to be replaced, all of them taking office during this presidential term and above all with a political commitment and not with truth and justice for the citizens” [11].

How can this statement, which makes no sense, be reconciled with a similar one made by the lawyer Lautaro Ríos, professor emeritus at the University of Valparaíso, for whom the agenda followed by the CC is Bolivian? Is it Chavism that reigns in the Convention or the ideas of Evo Morales?

In a letter sent to the newspaper El Mercurio on 23 June, he said in this regard:

“A couple of months ago, afterwards a comparative study with other contemporary constitutions, I discovered that the Chilean draft,whose text went to the Commission for the Harmonisation of the New Constitution, was nothing more than an imitative copy of the new Bolivian Constitution, which was being studied by the Commission for the Harmonisation of the New Constitution.”[12] This is not effective.

This is not true. But, if it is, is it a serious matter to copy a legal text? Should Don Andrés Bello be censured for copying Napoleon’s Code? And Ecuador, which has copied most of our legal framework? Or is it only the draft of the new constitution that is reprehensible?

8. Frequent use of lies and falsehood (fake).

The use of lying, of deceiving, of falsifying what is happening, is one of the oldest weapons resorted to in political contests; that is why it should come as no surprise: it is used mainly when there is a well-founded fear of losing in a fair that has to be faced. In Chile it has always been used, although not with the intensity and frequency that has occurred in the present circumstances. Chile is a nation that tends to reproduce the behaviour of the dominant classes of other social formations, especially the rich ones. The Creole ruling classes and class fractions reproduce the behaviour of their counterparts in those regions. It cannot be ruled out that, in the present circumstances, the way of proceeding of Donald Trump, a subject that exerts great influence on the political representation of the dominant classes and class fractions, has been imported, as Pedro Santander points out:

“[…] afterwards Trump’s triumph, the use of lies – explicit, obvious and crude – as a political weapon, has become quite common in the conservative forces, so we should not be surprised”[13].

In this case it is not ignorance but perversion. There is also perversion when one is critical of a work before it has been completed. As when Johannes Kaiser, last April,

…] affirmed that the work carried out by the Constitutional Convention is violating the human rights of Chilean men and women, and affirmed that if the “I approve” option wins in the exit plebiscite, a “civil resistance” must be generated”[14].

His brother Axel, an economist linked to El Mercurio, was found by Mega Noticias to have made eleven false statements in May of this year and six of dubious qualification, when the CC had not yet finished its work 🌻.

Although it had published a summary of them, the television channel Mega later deleted all traces of the information. These false statements were, among others:

“The effective protection of the right to property in all its forms is over”.

“The end of all limits on abortion”[15].

WHY SUCH A PUERILE CAMPAIGN?

Why do the supporters of the Rejection have such weak arguments? Why do they resort to lies, insults and falsification of facts? Why do they have to show such theoretical indigence in the debates that are opened about the plebiscite? Why do they even resort to the theft of works of art made by artists of the populations, for their political propaganda?

There is no doubt that none of this is simply a coincidence, let alone a mistake. On the contrary, we know that this is part of the political strategy of this sector, aimed at discrediting the work of the CC and contributing to the triumph of the Rejection, but this is only the veneer of something more profound.

Because the ruling classes will never discuss their status as such with the dominated sectors. They never will. They will never engage in philosophical or theoretical discussions – much less scientific debates – about something which, for them, is axiomatic: domination. They debate the domination of concrete, earthly things, rights, possessions, belongings. In short, about the preservation of privileges and perks; and, of course, about the exercise of the right to own, use, enjoy and dispose of what belongs to me and not to you. These are confronting classes and class fractions; not academic debates where, perhaps, reason can prevail. In this case, it is the interest of each group that prevails. And since every human being sees the others as a reflection of himself or herself, this sector assumes that their opponents also act in the same way, which is why they use foolishness, showmanship and deceit as a way of dealing with the political contest. In fact, this is what they have said on many occasions, because they are convinced that they are dealing with an ignorant and ideologised people. That is why their arguments are puerile. Foolish. They know that a community can be misled and be made to repeat it over and over again throughout history. For no other reason, they come together to sign a pact whereby, if the Rejection wins, they pledge to draft a new constitution, assuming that the middle sectors will believe them, even though they have never kept their promises.

However, when lies and showmanship are employed, when blatant deception is used, such as the pact just signed by the Chile Vamos parties, the Apruebo alternative seems, paradoxically, to be strengthened. Because those who are sure of their triumph never take desperate actions as the supporters of Rejection do, a circumstance that leads us to suppose a possible triumph of the Apruebo.

[1] De la Ravanal, Martín: “Rechazo es retraso”, ‘El Desconcierto’, 09 July 2022.
[2] San Francisco, Alejandro: “El fin de la Convención. Balance de la refundación”, ‘El Líbero’, 03 July 2022.
[3] Frei Ruiz-Tagle, Eduardo: “Declaración”, 08 July 2022.
[4] Castro, Mauro: “A 60 días del plebiscito: ¿qué se leó The Economist?”, ‘El Desconcierto’, 06 July 2022.

5 Baeza, Alejandro and Hendrick, Elise: “The Economist spreads misinformation on the Chilean constitutional process and should apologise”, ‘Resumen’, 10 July 2022.

[6] Velasco, Andrés: “Razones para votar Rechazo”, ‘ExAnte’, 09 July 2022.
[7] Editor: “Los vínculos de cinco constituyentes con presos por acciones violentas”, ‘El Líbero’, 10 July 2022.
[8] Editor’s note: “Kast is accused of lying in radio message by saying that draft constitution ‘promotes abortion up to nine months'”, ‘La voz de los que sobran’, 22 June 2022. Bold in the original.
[9] Editor’s note: Id. (7).
[10] Velasco, Andrés: Art. cited in (6).
[11] News desk: “Siguen las noticias falsas en la CC: desmienten ‘agenda bolivariana’ denunciada por convencional Harry Jürgensen”, ‘El Mostrador’, 09 April 2022.
[12]Olea,Magdalena: “Abogado Lautaro Ríos: ‘La Constitución chilena quedó embarrada con la imitación servil de la Constitución boliviana'”, ‘El Líbero’, 09 July 2022.
[13] Editor: “‘With Trump, the use of lies as a political weapon has become very common in conservative forces’: academic Pedro Santander and the strategy of rejection”, ‘La voz de los que sobran’, 06 July 2022.
[14] Editor: “Johannes Kaiser promises ‘civil resistance’ and quotes Ghandi in march for the Rejection of the new constitution”, ADN, 09 April 2022.
[15] Editorial staff: “Mega deletes note where Axel Kaiser’s lies about draft of new constitution were exposed”, ‘La voz de los que sobran’, 23 May 2022,