Constitutional Process NATIONAL

Here’s what you need to know about the Convention so far

The Constitutional Convention is working towards a draft for ratification in July. So many pieces are being discussed, it is hard to keep track of them all. Chile Today tapped an expert for an update.

The Constitutional Convention is currently in the “installation phase,” which began July 4, 2021 and was originally slated to last between nine and 12 months. It began by electing a president and vice president, it then established operating procedures, and, now, it is considering draft language with the aim of ratifying a new proposed Constitution on July 4, 2022.

Chile Today spoke with Constitutional Convention expert Claudio Fuentes Saavedra, and political science professor at Diego Portales University to find out more about the current situation.

CT: Where is the Convention in terms of the installation phase?

CF: We are just in the middle of the process of going back and forth from the committees to the Plenary and the Plenary to the committees. The Convention has already approved 145 articles, but we don’t yet know how many more are left. It will probably be about double the amount of articles that have already been approved, but the Convention still has the whole of April and two weeks of May to finish this process. There are some key issues that have not yet been discussed. For instance, fundamental rights, which is a big chapter within the Constitution, and the political system — all the machinery of power within the state, like the legislative, the presidential system, etc. — have not been approved yet. Environment, which is another issue that is very relevant, has not been approved either. So I would say that we are at a little bit less than half of the work of writing the draft today.

CT: What are the most important articles that have been approved by the Plenary so far?

CF: I think that there are two main sections that are relevant. The first one is everything concerning the decentralization of the State, which is called “forms of the State,” or “formas de estado” in Spanish. This is related to all the powers that the different regions within the state will have, like for example the regional governors, the local assemblies, the power of the municipalities and the level of autonomy that they might have. The Convention approved the idea of having a regional state, which is in between a unitary state and federal state. It is a bit closer to a federal state, with some autonomous power by the regions, but not like a federal state where they have their own legislature, constitutions, police and public services; it does not go that far. Regions will have a stronger power than they used to have, as Chile has historically had a very strong centralized state, so that will be a big change.

The second one is related to the judiciary and the whole infrastructure of the judicial power …. They include some innovations, particularly related to indigenous rights. They are currently debating whether indigenous communities can have judicial powers, like with judicial pluralism, which is to accept the idea that indigenous communities will have powers in certain areas and a recognition of traditional judicial systems.

These are the two main and most advanced parts. There are some other parts, like fundamental rights, where they have approved some rights but not others, the environment a little bit, etc., but these two are the most advanced aspects of the current draft.

CT: Do you think the Convention will be ready by the announced deadline?

CF: I think that they don’t have another option. As you may know, if the convention does not have a draft by July 4th, the Convention itself needs to be dissolved and the rules of the current Constitution will apply, which means that nothing will change. Given that the stakes are so high, this is a strong incentive to produce a draft.

Secondly, the Convention has a very strict timing and agenda, which they are actually strongly tied to. This is why they are often working 12 to 13 hours a day to approve these texts, because they have this structure. So I think that they will have a draft on time, but the quality of it is another question.

CT: Have any important proposals been rejected by the Plenary so far?

CF: There are several small debates about certain issues that did not get the support of the whole Convention. … [T]here are some proposals that didn’t even get approved within the thematic committees themselves, … for example the nationalization of all private companies and other very radical positions. I don’t recall exactly which texts were most relevant, but in general, because you need the approval of two thirds of the Convention — 103 votes at least — and given the fact that at least seven or eight of those votes are more central and moderate, it is very unlikely that extreme positions will pass the Plenary. … [A]t some point they were debating whether judges could be submitted to a test after 10 years and potentially fired from their positions. In the Convention and the debate they said that this is affecting the independence of the judiciary, so you have to have a rule that prevents being able to just fire them at any given time. You have to have a certain amount of stability of judges, otherwise they might start trying to get in touch with politicians in order to gain their support and that might create corruption. In the end, even the Supreme Court issued a statement about it, which created a huge debate, so the Plenary decided to reject it.

CT: Has there been a lot of misinformation – especially from conservative sectors?

CF: First, it is very natural that some stakeholders might be threatened by some ideas guiding the Convention, and particularly because this is a very progressive group of people. What will come out will probably be a more social democratic kind of Constitution with a strong state and a strong charter of rights, so all of those who are pro status quo are very threatened by it.

There are some key issues where a lot of misinformation is being circulated, like for instance the whole debate at first around the judicial power. The Convention decided to change the word “judicial power” to “system of justice” in one chapter, because they thought it would make more sense given that you have an entity that contains the fiscal, the supreme court, the lower judiciary system, and so on, which creates a network of different systems. Because of that, many opponents of the Convention started saying that the judicial power is no longer in place in Chile, which of course was a totally misinformed statement.

Then there was also a whole debate around indigenous rights. Some depicted the Constitution as being an “indigenous constitution” and said that the pluri-nationalistic recognition of indigenous rights is basically creating the conditions for an autonomous and independent state within the Chilean state. They were also saying that there would be territories that will be entirely owned and controlled by the indigenous, which is not the case. 

Now the Convention is debating the pension system and there was a huge scandal this week about one of the Convention representatives saying that all the savings that we have in the pension system will be expropriated and taken by the state and that people would no longer be the owners of their own pension funds. The Convention actually just made a strong statement saying that it was false.

And of course there was also a lot of misinformation about abortion, where more conservative groups were spreading rumors that, with the new Constitution, women could have an abortion at eight or nine months of pregnancy, which is absurd.

So yes, I think that there is a very strong campaign of misinformation. In our project, we have followed it closely on the internet and particularly on Twitter and it’s very clear that these are organized campaigns addressing issues of rejection. We cannot know who exactly is initiating these campaigns, but usually they are supported by the more conservative pro-Pinochet groups in Chile.

CT: What is your expert opinion on this new Constitution so far? Do you think it has reached a happy middle between satisfying those who are more progressive and those who are more conservative?

CF: First, from knowing who the representatives are and what the positions are — after conducting various surveys — they do have very progressive positions, it is quite obvious. So, I would not be surprised to see this Convention consider stronger rights than before, a strong role for the State, a very strong chapter on environmental issues, on indigenous issues, and on equality within certain groups, like particularly gender equality and women’s rights. The composition and the distribution of power within the Convention do indeed reflect those kinds of ideas.

Now, we need to understand two things: these more progressive or some say “radical” groups usually represent around 60 percent of the Convention and in most cases between 50 and 63 percent. But, in order to approve a rule you need 67 percent. The more moderate sector within the Socialist Party and within some small parties that are more moderate therefore became key in approving constitutional rules. There is this bargaining process which is currently ongoing, and what we have seen within the last few weeks is that all the more radical positions have been dropped or the committees are told to review, rephrase, and get back. So the content and statements of these 143 articles that have been approved are nothing particularly radical.

They just approved concepts such as freedom of expression and the right to private property, so typical rights that are found in most Constitutions and that do not strongly threaten stakeholders. I believe that we need to wait a little bit because we’re still in the middle of negotiations, so I think that the most relevant articles need to pass the Plenary in the next three weeks; particularly fundamental rights, pensions, health, education, housing and water rights — which have not reached the Plenary yet. These will be, in my opinion, the key issues that will define the spirit of the Constitution.

CT: Is it important to remember that all these members of the Convention have been democratically selected and therefore represent the will of the people?

CF: Yes indeed. The other debate that has been addressed by the more conservative groups is that around 11 percent of the Convention seats are reserved for indigenous representatives elected by their own people. That has created some small political tensions because indigenous groups now have bargaining power which they are using for the first time in history and some people were very upset with that for some reason.

Read more:

Installation: The first stage of the Chilean Constitutional Convention

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