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A New Constitution For Chile

Let’s remember a ways back; back before Chileans elected a new congress, and before they elected a new President (35 year old Gabriel Boric), all to take charge on March 11, 2022. Just before those important elections, they chose a group of 155 citizens to redact a new constitution to replace the one born in the Pinochet dictatorship and in effect to this day.

While our attention was focused on the regular election cycle in Chile (see the last two postings on this blog), the notably irregular process of writing a new constitution struggled to take off. For several months, centered in the ornate environs of the old Chilean Congress building in the center of Santiago, members of the convention wrangled over organizational and procedural issues, ventured into all sorts of political machinations, posturing and declarations on subjects well outside of their straightforward charge to establish the boundaries and rules for this Andean country’s future. However, what they went through does seem to have been a type of “Coming to Jesus” moment, a collective catharsis during which Chileans exposed all the hopes and fears they harbor about their nation, and want to address in the process of writing the new constitution.

But, they finally did get organized, and they did get going. Seven working commissions were established to develop the main elements of the constitutional proposal: political system; constitutional principles; form of the State; fundamental rights; environment and economic model; systems of justice and autonomous organizations; and systems of knowledge, culture and science.

For the past several weeks, these commissions have been receiving briefings by think tanks, educational institutions, lobbyists for productive sectors of the economy, political groupings, known specialists, past presidents Bachelet and Lagos, out-going president Piñera, and representatives of all levels and groupings of civil society. They traveled to different parts of the country to meet with local groups. Actually, for the last few months, Chile has been a virtual seminar on constitutional government, and what a constitution must contain to be effective and durable into the future.

Admittedly, organizing a group of citizens from all walks of life, most of whom had never worked with the others before, was going to be challenging; everyone knew it would take some masterful leadership from within. Sceptics predicted failure, and even the optimists, while ecstatic about the opportunity ahead, crossed their fingers. The initial timeframe for completing the convention’s work was nine months, beginning on July 4, 2021. A three-month extension was built into the legislation which created the convention, so as you would suspect, the group assumed from the start they had a year to do the job. So did everyone else, so expectations are that the proposed new constitution will not be ready until July 4, 2022. The plebiscite required for its approval will be held several weeks later. Given what appeared to be a slow start for the convention, many predicted that the group, which is being paid quite nicely for their work, would sooner or later propose even a further extension. That proposal looms in the background, but it has not yet happened.

Some of the most important issues are being addressed by the commission on the political system, beginning with the definition of the political regime, structure of the executive and legislative systems, and the electoral processes to choose political representatives. This is the commission that must determine, for example, if Chile will remain a unitary nation or adopt proposals that the nation be defined as plurinational, to recognize the existence of several original peoples (nations), and if it should more directly recognize and accommodate multi cultural and multi racial reality. They will also determine if Chile should stay with a strong president and a bicameral legislature, or move to a more parliamentary system or at least one with better balance of power between the executive and the legislative branches of government.

The commission charged with crafting the underlying constitutional principles upon which the rest of the document rests, must define what nationality and citizenship implies, the mechanisms for public participation in all dimensions of being Chilean. This commission will propose the means by which indigenous peoples will exercise their rights and responsibilities with, and within, the Chilean nation. They will try to propose a better explicit definition in the constitution of human rights as they apply to children, the elderly, and the disadvantaged, and how international human rights, environmental, and economic agreements and treaties interact with and affect Chilean law.

Chile is a highly centralized state, divided into regions and districts (comunas/municipalidades). Political and economic power is greatly centered in Santiago, in spite of several failed attempts in the past to push resources and authority outwards. This centralization is seen to have been an impediment to Chile’s development which is based on resources, both human and natural, principally found in the very diverse regions. Hence, the big question for the form of the state commission is how far to go towards a truly “regionalized state”, in order to decentralize Chile. An attempt to continue to define Chile as “One and Indivisible”, as it is now, will be questioned, due to the desire to recognize regional strengths by giving the territories more autonomy, authority, and resources. But there is resistance to going as far as a federalized structure of autonomous regions with their own executive, legislative, and judicial systems. This commission must address the form of local governments and forms of taxation, once the structure of the decentralized state is agreed upon.

The estallido social of October 2019, which is credited with forcing President Piñera and the actual congress to formalize this rewrite of the Chilean constitution, focused aggressively on rights the citizenry felt were being denied: right to decent shelter, timely and accessible health care and other social services, employment and adequate retirement, and free high quality education. The fundamental rights commission will determine to what level rights like these, and others, should be specified and guaranteed in the new constitution. Freedom of the press, opinion and expression seem vulnerable under pressure in the discussions of the convention, so how these are addressed will be important. Add to this sexual and reproductive rights, right to life, the right to personal physical security and mental health, and equality under the law for the elderly, women, disabled, sexual dissidents and immigrants, and you can see how this commission will have a lot to say about whether the new constitution is a tightly packaged framework for the future, or a Christmas tree of aspirational albeit unenforceable demands.

The environment and economic model commission probably has the most far reaching and potentially most controversial agenda. Given the topic, and the makeup of the commission, a myriad of proposals have begun to be vetted that blend protection of the environment with extreme restrictions on private ownership and management of natural resources including mining, water, forests, and agricultural land. An increase in government presence is explicit in most of the proposals being considered by this commission. Many proposals in this segment of the convention were put forward by private environmental groups and by indigenous groups who are very serious about their cosmovision of how resources should be owned, treated, exploited, and protected. Add to this that Chileans have often felt they were being cheated out of their rightful share of the benefits from copper and other mining, and that the future benefits of Chile’s large deposits of Lithium and other valuable rare earths must be exploited in a way that directs more of the benefits to Chilean needs, rather than multinational mining companies, and you have a very volatile mix to sort out. The generalized desire to change the “neoliberal economic model”, demanded loudly during the estallido social and in the context of the recent presidential campaign, is the basis for many of the proposals from this commission. The thought that the “model” might be significantly redirected towards a more socialistic economic system is producing an understandably high level of anxiety in Chilean and foreign investors.

The commission charged with systems of justice and autonomous organizations is dealing with issues of independence of the justice system, local justice and the administration of justice. The problems related to judicial pluralism have to be addressed due to the proposals from another commission for greater decentralization of powers to the regions, localities, and even indigenous nations should they eventually be delineated politically. The importance of autonomous organizations like the central bank, government accountability office, constitutional tribunal, and supreme court to the operation of the public sector as a whole, and the independence they require, is of utmost concern in the context of a new constitution. Unhappiness with the way these institutions may have operated in the past is showing up in proposals for time in service and age limitations for judges, the creation of citizen oversight panels, etc. These ideas, should they end up in the final constitution, would weaken the autonomy and hence the independence of their decisions, and in the long run weaken the checks and balances required of a constitution for a liberal democracy.

The present constitution of Chile doesn’t pay much explicit attention to culture and science. For a country with two Nobel prize winning poets, a burgeoning startup economy, the most notable astronomical installations in the Atacama desert, research stations in the Antarctic, and an exciting green energy sector poised to face terrific climate change issues in this country of coastal and mountainous terrain, the members of the knowledge, culture, and science commission are working on constitutional language to help the country face this uncertain future. They are considering proposals for the protection of the biocultural patrimony, patrimonial reserves and the recognition and protection of the rights of authorship over literary, artistic, and cultural works. Overall, they want the new constitution to give a boost to science and culture, sectors they believe will respond if given the resources and legal and regulatory framework to flourish.

So earlier this week, all the commissions began bringing their proposals forward to the plenary for consideration and approval. In total, there may be over a 1,000 proposals to be considered for inclusion in the final constitution.

The rest of the process is as follows: a proposal that has received at least a majority vote in commission can go forward to the plenary. In plenary, it is explained, discussed, and voted in general. If it passes by a two thirds vote (this is now 103 votes, since one of the original 155 members was removed for lying and misrepresentation), it will be considered again with more specific scrutiny of each component part. Whatever passes by 103 votes again, goes forward to be included in the draft constitution. If a proposal does not get 103 votes in the first general consideration in plenary, it can be returned to the commission to be amended to improve its chances of being approved. A proposal can only be returned to commission once and resubmitted. When all the commissions have presented their proposals, the ones receiving 103 votes will be fit together by a harmonization committee, like a big puzzle, to ensure compatibility and eliminate conflicting proposals.

This process of review and approval of proposals to go forward will take several weeks.

After that, the convention must approve the whole package by 103 votes, and pass it on to be put forward in a plebiscite. Only a majority approval is required to adopt the new constitution. Of course, once the new constitution is approved, the really difficult work begins, the tedious work of reforming or forming new institutions, writing regulations and producing compatible laws in the legislature. Adoption of the new constitution will fall in the laps of President Boric and the Chilean congress sometime towards the end of this year, 2022; it will surely take years to be totally implemented.

But in the meantime, many of the proposals starting to find their way through the process in the convention, when reported by the local press and interest groups most affected by the proposed changes, seem to be suggesting that the mood of the convention is re-foundational rather than reformist. More an extreme rebuild than a moderate remodeling. While it is too early to tell how the proposals will eventually be amended, amalgamated, and approved, big questions are beginning to be aired in the concerned public following the process. Will Chile continue to be a “unitary and indivisible” state, or will the efforts to provide more autonomy to the regions and other entities such as indigenous nations create fissures in the idea of the Nation of Chile? Will the autonomous agencies that now provide checks and balances to the functioning of the state be weakened? Will the desire to streamline the legislative process result in better legislation to satisfy the great needs of the Chilean middle and lower classes, or a populist rush to the detriment of fiscal responsibility and economic growth in the future? Will the desire to wrest control of the natural resources of water, minerals, forests, land, away from those who now have it through legal arrangements like concessions, result in more effective and efficient resource use and provision of benefits to the citizens of Chile, or provide a disincentive for investors and a withdrawal of much needed capital from Chile to other investment opportunities?

The deepest concerns come from the right of the political spectrum, who for the most part did not support the whole effort. But also from older academics, politicians, and business leaders who are being shoved aside by the youthful left and independent factions in Chilean society. But there is also a “Yellow” movement, made up of center and center left academics, writers, opinion leaders, and ex politicians (actually, you are never an ex politician, and many in this group are ex Christian Democrats who have left the dilapidated party over the past few years.) This group is beginning to sound the alarm that if the convention proceeds along the path it seems to be on, the outcome could be too extreme, and run the risk of only narrow passage, or rejection when put before the populace in the exit plebiscite.

President elect Boric has stated that to carry out his program, he needs the new constitution. It is not clear precisely what he thinks he will get in the new constitution that will facilitate his job. He needs legislative support for his programs, but the incoming congress does not give him even a majority of votes, so even if the new constitution eliminates the troublesome super majority requirements on some legislation, he will still have to form a wider coalition in congress than what he has now. Maybe he believes the new constitution will eliminate the senate (it is being proposed), which tends to be conservative and thusly checks the wilder reach of the more populist chamber of deputies. But a new configuration of the Chilean congress will take months, possibly years, to enact. It’s worth noting here that Boric has stated repeatedly that he saw his election as the beginning of a project that would reach well beyond the first four years of his presidency. Yes, the constitutional convention could very well remake so much of the Chilean public sector apparatus, and reassign political and economic power, that it would take years to implement and see the results. But the generation sweeping into power now in Chile seems to have the vision, energy, and maybe the patience to coax the constitutional rewrite process along firmly, but slowly enough to give the different interests at stake time to understand and adjust, so the change process can move ahead.

Boric, and all Chileans, should want the new constitution to pass by a huge majority vote. Almost 80% of the voters approved the idea of a constitution rewrite in a plebiscite. It would seem that an approval rate close to this in the final plebiscite would indicate a job well done by the convention. We will just have to wait a few more weeks to see if the collection of proposed constitutional changes contribute to building upon Chile’s successes, while constructing the country everyone wants, “La Casa de Todos“.

Posted on February 21, 2022, from Dave’s balcony overlooking greater Santiago de Chile.

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David Joslyn
David Joslyn, after a 45-year career in international development with USAID, Peace Corps, The Inter-American Institute for Cooperation on Agriculture (IICA), The Chicago Council on Global Affairs, and private sector consulting firms, divides his time between his homes in Virginia and Chile. Since 2010, David has been writing about Chile and Chileans, often based upon his experience with the Peace Corps in Chile and his many travels throughout the country with family and friends.
David Joslyn

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