The president of Chile, Gabriel Boric, signs this Monday, July 4, the decree that calls for a mandatory plebiscite on September 4. Alberto Valdés (EFE)
The debate that will run until the plebiscite on September 4 to confirm -or not- the constitutional text adopted in the Constituent Convention in Chile is and will continue to be intense.
It is already seen that there are issues that are the subject of intense controversy;
in particular those that have to do with private investment, social obligations of the State and its structure.
Until the plebiscite, in which the vote will be compulsory, a polarized and polarizing controversy will continue.
Former President Ricardo Lagos has just made a statement this week stating that the constituent process should continue beyond the plebiscite, since he maintains that the vast majority of citizens do not feel summoned before "the two alternatives at stake."
The course of the political tensions of the previous more than two years and more has been intense, one of its by-products is this draft of the new Constitution and its text could not be alien to that context.
Indeed, taking as a starting point the social outbreak of October 2019 and the weeks that followed, going through the plebiscite in favor of a new Constitution a year later (October 2020) and, finally, the election of the Constituent Convention (May , 2021) there is a
rebellious
continuum .
This was expressed in the correlation of forces in the constituent and in the text that emerged from there.
In the political
tempo
in the election of the constituent, the representation of those who nurtured the social protests of 2019 was especially relevant.
The fact is that in the presidential and legislative elections at the end of 2021, those temperatures were not the ones that prevailed.
In it, a broader range of currents were imposed and resulted in a distribution of power different from that of the constituent.
In the Senate, for example, the right reached the largest representation since the return of democracy.
This delicate phase has entered the discussion on the draft of the new Constitution in which winds of polarization intersect along with political conceptions in which deep-rooted conservative sentiments are mixed with thoughts that are not necessarily right-wing and that take a cautious distance from the project .
That is why a complex alignment/realignment of chips for or against the project is being seen.
Within this complicated context and in which there are very sensitive issues that have to be debated carefully, there are, however, two important ones in which, I believe, there are interesting contributions in the text under debate: the rights of peoples indigenous people and the justice system.
Whatever the result of the plebiscite, these issues can no longer be ignored.
If some criticisms of the derivations of the constitutional text in matters of economic policies can be considered, much of what is said against the project regarding these two issues -indigenous and justice- is not always based on a careful reading of the project or, worse still, it feeds on the ignorance of important constitutional developments produced in the region.
Let's look at the issue of the rights of indigenous peoples.
The Constitution that comes from the times of Pinochet does not even mention the indigenous peoples nor does it recognize, therefore, rights that are today of universal validity.
Recognition of the multi-ethnicity of Chilean society, one of the outstanding aspects of the project, leads to an innovative definition of the State:
“…plurinational, intercultural, regional and ecological”
(art. 1.1).
That the indigenous issue deserves constitutional attention is, by the way, encouraging.
Both because in Chile there is a relevant presence of several indigenous peoples (Mapuche, Aymara, Diaguita, Atacameño and Quechua, among others) and because it is the only Latin American country that still does not mention or recognize indigenous peoples and their rights in its Constitution.
Legal pluralism and the right to identity of indigenous peoples ceased to be under discussion for years, for example, in the other Andean countries such as Bolivia, Ecuador, Colombia and Peru.
It is evident that Chilean society owed its indigenous peoples a constitutional text in which their rights were expressly recognized.
In Colombia, for example, the autonomy of the indigenous constituencies stands out, established for more than 30 years, governed by their authorities
"...according to the uses and customs of their communities"
(art. 330 of the Constitution) as well as special constituencies of indigenous representation in the legislature.
In Peru, in peasant and native communities, according to the Constitution, their authorities can
"exercise jurisdictional functions within their territorial scope in accordance with customary law, provided they do not violate the fundamental rights of the person"
(art. 149 ).
That the “plurinational” and the exercise of indigenous rights be seen as an imminent threat to the integrity of the State, as some critics of the constitutional project maintain, is a serious mistake.
Legal pluralism and its exercise by local indigenous authorities have not threatened the integrity of the State in countries such as Colombia or Peru.
Confusing the spaces of the multinational with "nation-states" is not correct;
the first.
What is multinational or multi-ethnic is an anthropological verification of reality and not the design of independent nation-states.
Regarding the justice system, the draft Constitution has important innovative components in a contributory line of judicial independence.
Among the criteria of the proposed constitutional text stands out that of removing political power from the processes of appointing judges, starting with the Supreme Court.
Neither Congress nor the president will intervene in it.
This is also related to the questioning of the current vertical institutional design and that adds to the courts and tribunals a series of administrative and management powers that are not strictly judicial and that must be in the hands of specialized instances.
An autonomous and independent Justice Council is created;
The budgetary management of the Judiciary will correspond to him and he will be in charge of the appointments in which the executive and the superior courts are currently involved.
In the Council the judiciary will predominate in number.
Those -in the minority- who represent Congress in the Council must go through a "filter" of merit with regulated, open and transparent selection processes.
All this points, correctly, in addition, to provide the members of the judiciary with an internal independence that is threatened today.
For example, in the current promotion systems.
That since it is now a function of the higher judicial instances, it affects the principle of internal independence;
verticality encourages a reverent jurisprudence before the superior who will evaluate the judge and determine promotions, transfers and appointments.
Having said all of the above, the process of discussion and debate in the few weeks ahead for the plebiscite will not be easy.
The result of the plebiscite is therefore very difficult to predict.
But it seems necessary to hope that the debate revolves around rigorous assessments and not derived from judgments and prejudices.
If this project is not approved in the plebiscite, the paradox will be that the democratic and social explosion of 2019 ended up giving continuity to the 1980 constitutional text that, with variations, is still in force after more than 40 years.
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