Constitutional Process NATIONAL OPINION

The Failure of the Constitutional Experts

A draft for Chile’s new Constitution was returned to the Expert Commission, which defined the foundations of the text in the first place. But the popularly elected Constitutional Council was dominated by a far right that showed its teeth at every turn. And due to lack of agreement among the experts, the proposal is poised to have very sharp conservative edges.

The politically appointed Expert Commission reviewing the constitutional draft the popularly elected Constitutional Council came up with is failing, Chilean politics is failing – again.

The 24-member commission was appointed in backdoor deals to draft the bases of a new Constitution and 50 council members, elected in May, were supposed to build on these minimum agreements. But the elections resulted in a super majority for the far-right Republican Party, which, in coalition with the traditional right, could ignore the bases and turn progressive members into mere spectators.

A draft presented last year was overwhelmingly rejected in a plebiscite, among others, due to accusations the popularly elected drafting body, dubbed the Constitutional Assembly, was sidelining conservative voices, which did not receive enough votes to exert much influence. The Expert Commission was meant to prevent a similar development.

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Chilean Human Rights Commission: Preliminary draft ‘preserves the essence of the 1980 Constitution’

Power and Might

Republicanos exercised its majority in the Constitutional Council in a brutal but legitimate way – they got 35 percent of the vote – while the experts have been unable to agree on changes. At the bottom of the commission’s failure are a lack of will, too much rigidity, and poor foresight.

Still, the experts agreed to reverse provisions that would have eliminated gender parity in elections or others like eliminating housing taxes, which 70 percent of the population don’t have to pay anyway. Crucially, they could not agree on legalizing abortion, but the issue is defining in the plebiscite on Dec. 17. Chile’s current abortion law is relatively new but brutally restrictive. To get an abortion, a woman must prove within weeks that the pregnancy resulted from rape, threatens her life, or that the fetus is unviable. Private clinics, which make up a sizeable portion of the healthcare system, also have the right to refuse abortions on religious grounds if the mother’s life isn’t in immediate danger.

An agreement was also lacking on letting prisoners aged 75 and older and convicted for human rights violations to serve their sentences at home. This provision was designed to help the henchmen of Augusto Pinochet, a grand gesture toward and reflection of the power of the country’s reactionary oligarchy. Agreement was also lacking on better defining private health or education providers and pension funds, which strengthens these companies’ influence at the expense of public and effective social security.

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The Republicans’ constitutional push to protect the armed forces and prevent abortion

The way forward backward

Starting Oct. 16, the council will determine which of the experts’ suggestions to include or reject. Issues the council cannot agree on will go to a joint expert-council commission, where the right also has a majority.

The right will fight hard to keep issues it defined as non-negotiable, like making abortion impossible by allowing hospitals to refuse services and pressuring pharmacies to refrain from selling abortion pills, even though 70 percent of the public support the right to abortion.

The final draft, slated to be delivered to President Gabriel Boric on Nov.7, will look very conservative.

A broader question to ponder will be how to analyze a society suffering from amnesia and contradictions, which elected first a highly progressive body to draft a new Constitution and then a highly regressive one, and which embarked on mass protests to change the status quo, although these protests are now denigrated by left and right voices as crime sprees.

But let’s be clear. The text dispatched by the council represents the majority will expressed at the polls on May 7. Who knows what leitmotif voters will follow for the plebiscite, but it is a fact that they will have even less time and less interest to digest the text than they had last year.




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