The elected president of Chile, the leftist Gabriel Boric, 36, will take office next Friday. One of the peculiarities of the first stage of his mandate (2022-2026) will be the coexistence with a constitutional convention that works against the clock to present a proposal for a Constitution that, until now, profoundly changes the current constitutional framework and, therefore, therefore, the institutions.
Time is running fast for the body that will be dissolved, according to the law, on July 4 of this year. It is made up of seven thematic commissions that present their reports to the convention as a whole, where each of the norms must be approved by two thirds of the constituents, that is, 103 members. But only four commissions have presented part of their proposals to the plenary less than two months before, on April 28, they must deliver the text to the harmonization commission, which will be in charge of formulating a coherent body.
“I calculate that less than 25% of the regulations of the final text are ready,” says Natalia González, director of Legal and Legislative Affairs of Libertad y Desarrollo (LyD), a right-wing think tank. Currently, conventional vessels work even on weekends to reach port and, although it does not seem impossible, it is difficult for Congress to extend their term of operation.
It is a convention dominated by the leftist axis of the Chilean political system – where moderate groups have contained some controversial norms in plenary –, parity between men and women and with 17 seats reserved for indigenous peoples.
“There is a fairly straight line between the social outbreak of October 2019, the election of conventionalists in May 2021 and the constitutional proposals,” explains constitutionalist Tomás Jordán, who is struck by the fact that this point is not considered in the analysis and that , since in mid-February the plenary session of the convention began to vote on the norms that will be part of the final proposal, part of society has been surprised by the articles, profoundly different from the current Constitution. He would not call them “refoundational”, as González does, who considers that a “180 degree turn” is taking place. For Jordán, these are proposals “very different in their paradigms from the current Constitution”, for which he prefers to speak of “profound innovations”, because in plenary they have been moderated. “It is a structural transformation and not a reform,” explains the lawyer, who coordinated the constituent efforts of the second government of Michelle Bachelet (2014-2018).
The norms already approved by the full convention will give rise to a text that will be plebiscited on September 4 or next September 11 (two very symbolic dates for Chilean politics, because September 4 was the date on which the presidential elections were held). until before the coup of 1973 and on September 11 the democratic breakdown occurred). “Chile is a regional, plurinational and intercultural State made up of autonomous territorial entities, within a framework of equity and solidarity among all of them, preserving the unity and integrity of the State,” says one of the articles. It is one of the largest issues approved so far. Because plurinationality has strong supporters – the norm was approved by 112 votes against 32 –, but at the same time important detractors. The historian Sofía Correa Sutil, an academic at the University of Chile, has said that with plurinationality “the Chilean nation is destroyed, understood as a unit that welcomes the most varied diversity.”
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The convention approved, in turn, the following norm: “The State is organized territorially into autonomous regions, autonomous communes, indigenous territorial autonomies and special territories”, totally reconfiguring what currently exists, where the unitary State prevails with a tradition about 200 years old and where the president was the political and administrative head of all state units (Chile is organized into 16 regions without autonomy).
In another article it is indicated that “the autonomous regions, autonomous communes and indigenous territorial autonomies are endowed with political, administrative and financial autonomy for the realization of their goals and interests”, although they may not “attempt against the unique and indivisible character of the State From Chile”. Thus, the regional governments elected by the citizens will make their debut, which will have their respective elected legislative assemblies that, although without legislative power, will have normative, decisive and supervisory powers. Each region may, in turn, create its own public companies. For González, “the way in which the central level is related to the regional level has not been resolved at all, which is very complex, especially from the fiscal point of view,” he says.
legal pluralism
If the proposed Constitution is approved by the citizens –in a plebiscite that will be mandatory–, Chile will have legal pluralism, something that exists in some of the countries that constitutionally recognize native peoples. It will be one per town –10 in total– plus one for the non-indigenous. “The State recognizes the legal systems of indigenous peoples, which by virtue of their right to self-determination coexist coordinated on an equal footing with the National Justice System”, ensures the norm approved by 113 votes against 39 that, again , has sparked a deep debate. It still remains to be defined by law if the Supreme Court will be the highest court of all regional justice systems and determine the powers and matters that will be governed by indigenous justice.
“In Chile, the indigenous population does not live in reserves, but rather throughout the territory, precisely because of the process of miscegenation,” says González, who declares that she is concerned about the “legal uncertainty” of plurinationality. “There would be indigenous autonomies – with budgetary, regulatory, financial capacities – and in turn indigenous justice systems would be generated. You generate so many nations within a nation that there is a risk of a separatist environment,” says the director of Legal and Legislative Affairs of LyD.
The group that works on knowledge systems, in turn, managed to get the plenary to approve the norm that guarantees that “pre-existing peoples and nations have the right” to “the restitution and repatriation of objects of worship and human remains that were confiscated without the consent of the peoples”, with a scope that until now the experts do not dare to venture with respect to the Spanish conquerors. For Jordán, “what has had the greatest impact on the text approved so far has been the indigenous perspective, which is new and alien to the legal culture of the last three Chilean constitutions,” which do not even recognize the peoples.
Same with parity. In the election to positions of the new territorial entities, parity must be respected, as in the jurisdictional function.
Especially relevant in this matter will be the new proposal of the environment and economic model commission. On Friday, a large part of the proposals of the commission in charge of these issues – made up above all of environmental activists – were rejected in plenary session, in which an ecocentric and biocentric paradigm prevailed that understands nature as a subject of law. One of the articles that did not reach the quorum It was the one that recognized the “sentience” of animals and established that the State should protect them, recognize their individuality and right to live a life free from abuse. He managed, yes, 100 votes in favor, 29 against and 25 abstentions, due to the concern of the livestock, poultry or salmon industry.
The commission will have to reformulate its first proposals –in a replacement report or second report–, but the conviction prevails of incorporating the perspective of indigenous peoples in matters of the environment, who have a very different worldview from non-indigenous peoples. They could be asked for their prior consent for any productive activity in the territory, with a binding participation. What results in this area will be fundamental, because it could profoundly change the paradigm of the Chilean State’s development model, which, until now, has been subsidiary, predominantly economic, with an emphasis on freedom of enterprise and productivity.
Equally relevant will be the proposals of the fundamental rights commission, which the plenary has not yet reviewed. Key issues such as property rights and indigenous property will be discussed.
At the end of this week, meanwhile, the fate of the Senate will begin to be sealed. The convention promotes the empowerment of the political chamber – that of the deputies – and a Senate that would be renamed the Territorial Council, possibly without the current powers and without the same ability to influence the legislative process. The Judiciary would also change its name and be renamed the National Justice System.
According to the latest Criteria survey, 31% approve of the work of the convention (two points less than the previous month) and 48% disapprove, four points more than last month. It remains, however, the political institution with the greatest support.
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