Last week I was in a café in Bogotá and at the neighboring table a dialogue began that was impossible not to hear. It was a Chilean couple and they were talking about the constitutional project in their country. One of the two characters pontificated, with arrogance and ignorance at the same time, about some of the supposed “barbarities” of the draft Constitution in Chile. One of the pearls that I involuntarily heard: “You know, with that Constitution if some Indians want to enter your house and stay there, you have to let them pass. But if you want to enter their houses, they are not obliged to let you in.” Also that the text contains confiscatory norms, since the payment for expropriations was omitted. None of this, however, is true.
I show these anecdotal examples as one more expression of so many other simplistic assessments —or erroneous as in that dialogue— in this growing avalanche of distortions in the polarized debate on the text that will be submitted to the referendum on September 4. Text that, without a doubt, has some excesses and norms that could have been raised in another way, but not “atrocities” like that or others.
Despite the fact that I already referred to the subject of the new Constitution in these same pages (7/8/2022), the arborescent rise in temperature in public debates forces me to return to the subject. Three thoughts arise in my mind about this.
First, the multi-ethnicity and identity of indigenous peoples. Finally, the country’s multi-ethnicity is recognized, leaving behind the retarded stagnation contained in the Pinochet-era Constitution that ignores this reality. Constitutional text that, although it has undergone positive changes after the restoration of democracy in 1990, continued to omit even mentioning the existing vigorous indigenous peoples who are an essential part of national history and identity.
The multi-ethnicity and the existence of several indigenous identities is an indisputable anthropological fact. The project recognizes this and does well to do so so that Chile does not continue to be the only country in the region that does not even mention them. This has, by the way, several important conceptual derivations in the text (such as legal pluralism, for example) around which some alarmist and irresponsible voices are raised. In the sense, for example, that the recognition of plurinationality would be something like a “bridge” for the later fragmentation of the country. Nothing more absurd and with little foundation. To make a synonym of this with a supposed plurality of “Nation-States” is a serious error and an authoritarian claim to deny an evident multi-ethnic reality that cannot continue to be ignored.
The project establishes interesting parameters on the insertion of indigenous identities within the General State, not outside it. For example, recognizing the “legal systems of indigenous peoples and nations” (art. 310), establishes, in the same article, the obligation to “respect the fundamental rights established by this Constitution and the international treaties and instruments on human rights to which Chile is a party”. Given the hypothetical and eventual collision between justice systems, the project establishes that “The Supreme Court will hear and resolve the challenges deduced against the decisions of the indigenous jurisdiction”thus granting it the central, cohesive and unifying authority.
Second, in terms of justice there are several interesting concepts and they are, in general, in accordance with the most recent developments on the subject in various States. The creation of the Council of Justice (art. 342 and following) is an objective that is linked to the most advanced guidelines and recent experiences in the world in a context in which Judicial Councils or Councils of the Magistracy are being established in many countries. Well, because it indicates that matters that are not jurisdictional, such as appointments, promotions or management, are a specific and specialized function of a body created for that purpose.
Judges —and the Supreme Court— to administer justice and resolve cases. Next door, this specialized and independent body, making Chile part of the most advanced currents of institutional development. This is a step that is in direct connection with the recommendations of the United Nations and with the Agenda 2030 for Sustainable Development established by consensus in the UN. Issues such as the tenure of judges (art. 314), as a guarantee of their independence, or the “access to justice” (art. 108), as a fundamental right to be guaranteed by the State, are some of the many other norms in the project that express that agreement.
Third, yes, the project is excessively long and goes into details that are not usually part of constitutional frameworks. On the other hand, it establishes such a wide —and even voluntary— range of state obligations that the obvious question is how they can be enforced. With this important nuance, the broad catalog of rights/obligations is correct, but it should be seen as a programmatic guide for action rather than as a catalog for its immediate fulfillment.
There is no doubt that if the text were approved in the referendum, it could —and should— be fine-tuned and improved. It is fair, at the same time, the concern of some people and organizations that sympathize with the project about the inconvenience that it be approved “scratch” and with weakened legitimacy. Now the text cannot be touched and as it is, the vote on September 4 will be used. Pointing, however, to its subsequent fine-tuning in case it is approved, it would be a matter of resorting to the same text of the new Constitution and adjusting it by applying the procedure for its own reform: the vote of four-sevenths of the parliament (art. 383).
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