After nine months, Chile’s Constitutional Convention is steadily working towards the drafting of a new Constitution. At the date of this writing, the new Magna Carta would have more than 200 articles, all approved by a quorum of more than two thirds of the Convention Plenary.
Javier Pineda Olcay is an attorney and advisor to the Constitutional Convention.
This article was published in cooperation with Jacobin Latin America. Translated by Nicolas Allen.
Those articles give some idea of what the backbone of the new Constitution would look like, and Article 1 of the New Constitution, approved by the Plenary of the Convention, provides a concise summary of their content:
Article 1. The State
Chile is a social and democratic state guided by the rule of law. It is a plurinational, intercultural, and ecological state.
The state is hereby established as a republic based on solidarity. Its democracy is based on gender parity and the recognition of dignity, freedom, substantive equality of human beings, and their indissoluble relationship with nature as intrinsic and inalienable values.
The protection of individual and collective human rights are the foundation of the state and guide all its activities. It is the duty of the state to create the necessary conditions and provide the goods and services to ensure the equal enjoyment of rights and the inclusion of people in political, economic, social and cultural life so that they may prosper.
To better understand the principles and history behind Article 1 of Chile’s still-emerging Constitution, here is a quick review.
The cornerstone of the Chilean neoliberal system, as established in the 1980 Constitution, is what is deceptively known as the “social state”. The social state is underpinned by the principle of what in Chile is called “subsidiarity”: essentially the idea that the state be subordinated to the market, reducing the former’s role to subsidizing private activity in such basic areas as education, health, and social security.
Attempts to move past Chile’s “social state” are pursued along two important fronts in the Convention: by defining the role of the state as being to guarantee social rights through public services and institutions, and by codifying its active role in the economy.
Where the first is concerned, the Commission on Fundamental Rights has put forward a series of proposals that consider it the duty of the state not only to guarantee social rights but to create the necessary public institutions to ensure their full provision. For example, the right to housing requires that the state take an active role in developing and executing a housing plan, together with the administration of a Public Land Bank; the right to healthcare requires the establishment of a universal, public, and integrated National Health System; if the right to education is to be an effective guarantee, a fully Public Education System is what is required. What is needed to guarantee basic social rights, in other words, are decisive steps to strengthen the public sector and decommodify those same rights.
As for the second point, the Environment and Economic Model Commission has approved a set of standards and guidelines so that the state will have the responsibility to take an active role in economic activity, adopting different forms of ownership, management, and economic organization to develop business activity while also being able to exercise the exclusive provision of goods or services when general interest requires it. That same proposal includes the possibility of taking control of natural goods currently exploited by private companies, such as water and mineral substances, as well redesigning a fiscal policy based on a progressive tax system.
Towards a Participatory Democracy
One of the criticisms of the existing Chilean state is that it enshrines a restricted or low-intensity model of democracy. Hemmed in by authoritarian strongholds like the Constitutional Court, counter-majoritarian quorums in Congress, and a lack of mechanisms for direct participation, Chile’s democracy is decidedly weak.
Under the new Constitution, democracy would be based on an inclusive model exercised in a manner that is direct, participatory, community-based, and representative. The new Constitution would also create institutions of direct democracy, such as regional and communal plebiscites. A second proposal concerning Chile’s democracy would allow for mechanisms such as popular initiatives, recall referendums of public authorities, and the repealing of laws.
The Political System Commission has decided that, where representative democracy is concerned, the presidential model will remain but the Executive branch will also enjoy less power to create laws. In particular, it the presidency would lose its specific authority to underwrite law initiatives.
The Legislative Branch also underwent important changes. After decades with a “symmetrical bicameral regime”, in which both Senate and the Chamber of Deputies and Representatives held the same law-making powers, Chile is now moving towards a regime of asymmetrical bicameralism thanks to the proposals of the Convention.
This new regime tilts the legislative scales in favour of the Chamber of Deputies, whose composition will be based on gender parity and contain so-called “reserved seats” like those found in the Constitutional Convention (principally reserved for indigenous representation). As for its responsibilities (pending approval by the plenary), the Chamber will hereafter be concentrated exclusively on legislative matters, while the Senate would be abolished and in its place a “Chamber of the Regions” erected along gender parity and plurinational lines.
The Chamber of the Regions, with much more restricted powers, will participate in drafting laws affecting regional and local matters. The change has been criticized by political elites, many of whom had used the political power of the Senate to consolidate centuries-old oligarchies.
Another important advance in terms of democratizing the state comes in the form of political, administrative, and financial decentralization. Reflected in the construction of a regional state authority and by an increase in local power for the Autonomous Municipalities, this decision to devolve political decisions to local territories is also part of what is considered a more democratic state, leaving behind the unitary and centralized State whose existence dates back to the 1980 Constitution and well beyond.
Democratization of state institutions will even reach the judicial system, putting an end to hierarchical structures and devolving key administrative appointments to more democratic institutions like the Council of Justice. Likewise, certain autonomous bodies are shifting from one-person directorates, which depend largely on the executive branch (as with the Public Prosecutor’s Office, the Public Defender’s Office, and the Human Rights Institution) to collegiate superior councils, where civil society and Congress are involved in appointments.
Finally, and perhaps most encouragingly, gender parity will become a standard not only for popularly elected positions, but also in all state institutions.
Restorative Justice after 500 Years of Dispossession
The issue of plurinationality has been one of the centrepieces of the Constitutional Convention. Expressed in the Convention as the recognition of the existence of peoples and nations that predate the existence of the country they inhabit, the concept of plurinationality above all seeks to recognize their self-determination, which implies the right to the full exercise of their collective and individual rights.
An expression of this general principle is the constitutional recognition of the right of indigenous to their autonomy and self-government, to their own culture, identity and cosmovision, heritage and language. It also includes the recognition of their territories — including maritime territory — and of nature in its material and immaterial dimension, particularly considering the special bond that indigenous people maintain with the natural realm. Plurinationality also means recognizing the cooperation and general integrity of traditional indigenous institutions, jurisdictions, and authorities, and allowing those institutions and authorities to participate fully, if they so wish, in the political, economic, social, and cultural life of the Chilean state.
A plurinational state would also mean officially recognizing indigenous legal systems — an issue that has already emerged in other countries but remains unprecedented in Chile. At the territorial level, the Commission on the State Form has proposed the recognition of autonomous indigenous territories as the units capable of exercising self-determination, but it has not yet been approved by the plenary of the Convention. In the same situation is the codification of the right to land and territory, and to the custodianship of the natural commons in indigenous inhabited territories.
Interculturality, included as a fundamental principle of the new Constitution, consists of the recognition and promotion of horizontal and transversal dialogue between the diverse cosmovisions of peoples and nations that coexist in Chile. The state must create the institutional channels necessary for this dialogue to take place, overcoming the existing asymmetries in access, distribution, and exercise of power in different spheres of society beyond the overtly political.
In other commissions, this has been expressed in terms of the right to education and intercultural health, to culturally informed or sensitive housing, as well as the recognition of different knowledge systems.
Finally, plurinationality is recognized through reserved seats in local, regional and national elections, as well as through the inclusion of indigenous people in all institutions, including the National Council of Justice.
Codifying the Relationship between Nature and the People
The Constitutional Convention is fully aware that is working in a context of climate change and ecological crisis. The first constitutional norm approved along these lines was the duty of the state to take actions to prevent, adapt to and mitigate risks, vulnerabilities and other effects brought on by climate and ecological crisis.
Another important advance is the recognition of the rights of nature. In the current wording of the Constitution, nature has the right to be respected and protected, cared for and restored if necessary, according to its cycles, ecosystems and biodiversity. This is also expressed in a series of norms that recognize the protection of the environment and nature as limits to the exercise of certain economic activities and even to the exercise of certain rights and freedoms.
Nature as a subject of rights also affects the current property regime. It does so to the extent that nature ceases to be considered a “natural resource” and puts the natural world under the domain of natural common goods that can only be used while maintaining the harmony of ecosystems. This is particularly critical in the area of water regulation, where the necessary common good would be recognized as essential for life.
Regulatory proposals have also been made by the Environment Commission to establish a constitutional statute for each of the existing natural common goods, such as mines, forests and soil, and the atmosphere, among others.
Finally, there has been a proposal for the recognition of “environmental human rights”, as based in the Treaty of Escazú. This would codify a notion of environmental justice expressed in the right to access public information on environmental matters, access to courts to defend the rights of Nature, and the right to popular participation in decision-making on projects that impact ecosystems. Regarding the role of the custodianship of nature, there is a proposal to create an autonomous body in charge of the defence of the rights of Nature, and another in charge of the environmental evaluation system, with the working title “Autonomous Environmental Council”.
A Feminist Perspective
Although it is not part of the new definition of the Chilean state, the new Constitution contains an advanced feminist perspective and is a faithful reflection of the presence of feminist organizations in the Constitutional Convention.
The feminist perspective, most apparent in the Commission on Constitutional Principles, has been expressed in the standards of substantive equality, which states that the new Constitution ensures substantive gender equality and requires equal treatment and conditions for women, girls, and sex-gender dissidents before all state organisms and civil society organization.
In the Commission on the Political System, this perspective has been expressed in the norms on gender parity democracy, establishing as a democratic minimum the participation of women in all state institutions.
The Commission on Justice Systems has already approved an article on the gender perspective as a principle of the National Justice System, which is expressed in gender parity in all judicial institutions, as well as in the application of the gender perspective in all courts.
Likewise, the new Constitution would be the first such document to recognize the voluntary interruption of pregnancy as part of sexual and reproductive rights.
The People to the Front
Although there is no single document containing a detailed plan of how the new Constitution will become reality, the proposals discussed here are part of the struggle that the Chilean people and popular organizations have demanded of the state. It is sometimes difficult to make out the path of Chile’s constitutional process, but without a doubt, it is walking on two legs.
This has brought with it a systematic attack by the economic and political elites, who have not lost one day in discrediting the work of the Constitutional Convention. During the first months, the slogan of the elite was that the Convention members were “lazy” and “did not work”. Once the normative proposals were presented and the first articles of the draft of the new Constitution were approved, the epithets were “maximalists”, “revanchists”, “ignorant”, and so on.
The truth is that Chile’s Constitutional Convention is consolidating a correlation of forces rooted the political and social field that found expression in the popular revolt of 2019. It is not a maximalist or refoundational project, as the defenders of the old order claim — it is an institutional change pushing to leave behind an exhausted neoliberal model.
In the final exit Plebiscite, scheduled for 4 September 2022 — the same day, but 52 years after the popular triumph of Salvador Allende — the people of Chile will have to decide at the ballot box whether this new Constitution is approved or rejected. Beyond any speculation on the outcome of the plebiscite, it is worth remembering Allende’s words, which provide one of the few certainties in turbulent times: social processes do not stop.