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CHILE AND ITS DEMOCRATIC CONSTITUENT OPPORTUNITY

Auxiliado Honorato is a lawyer specialised in public law and anthropologist. She was Secretary of Institutional Action and Secretary of Public Administration of Podemos. She also served as a Deputy in the Spanish Congress in the XI and XII Legislatures, where she was spokeswomen of the Treasury and Public Service.

On November 15, the so-called “Agreement for Peace and a New Constitution” was signed after more than a month of intense mobilisation, amidst one of the most high voltage political crisis of recent years in Chile.

This agreement established a referendum in April, in which the Chilean people must decide two key questions. The first, if the people do or do not agree with adopting a new constitution; and the second, the type of body in charge of drafting a new magna carta.

The two options for the body include a mixed convention (one half elected representatives and the other half designated from current parliamentarians), or a constitutional convention in which all the members would be elected for the sole purpose of drafting a new constitution.

Elections for either form would be held in October, coinciding with regional and municipal elections.

Multiple are the groups that have been demanding for a long time a constitutional process, with an overwhelming majority of the population in various polls showing they support the approval of a new constitution.

The current “Political Constitution of the Republic of Chile” was approved on August 8, 1980, under a full-blown military dictatorship. Although the text has been subject to multiple modifications since then, through which a type of surgery has been attempted on the original text by trying to camouflage its authoritarian and anti-democratic origins, it is not difficult to find features that, one way or another, may surprise.

To give some examples, but far from being exhaustive.

The family appears as the fundamental nucleus of society in Article 1, when we are living through an authentic mobilisation on a global scale that demands gender equality and sexual options.

In the digital age and amidst the demand for transparency of public powers, Article 8 allows a great margin of ambiguity to impede citizen’s access to public information.

Or, for example, Article 19, which establishes the death penalty, prohibits the rights of civil servants to strike, or establishes that protests will be governed by the Police.

But beyond the concrete content that today the Chilean Constitution permits, any analysis should focus on the right of the Chilean people to develop and be at the forefront of a constitutional process, a radically democratic process in which it can shape the basic rules.

Since the beginning of the 1990s in Latin America, we have witnessed the emergence of what Martínez and Viciano call the “New Latin American Constitutionalism,” a movement that begun with the constitutional process in Colombia (1990-1991), and matured with the celebration of the Ecuadorian constitutional process of 1998.

However, the process was perfected when the first constitutions were approved through a “referendum of popular ratification, proving to be the core aspect of the legitimation of the constitution.” Here, we are talking about the constitutions of Venezuela (1999), Ecuador (2008) and Bolivia (2009)

What is special about this movement? The principal characteristic is “the democratic legitimacy of the constitution regaining the radical and democratic origins of jacobin constitutionalism, bestowing it with current workings that can give it a stronger identity of popular will and constitution.”

This is to say that at the beginning of the 1990s in a number of Latin America countries, a collective conscience emerged around a clear “disparity” that exists between constitutions and their realities.

It was then decided to address the problem through the radical and democratic drafting of a text in which the different identities, ethnicities, sensitivities and world views that exist could be reflected.

They are extensive and complex texts because they try to guarantee the primacy of constituent power over constituted power. They are also ambitious texts that escape from just being limits to public powers.

They seek to incorporate various mechanisms of participatory or direct democracy, of intervention in decisions regarding natural resources, as well as guarantee the presence of native peoples in the different powers of the state. All this while they recognise “nature” as having rights and allow the state the ability to intervene in the economy.

The “Agreement for Peace and a New Constitution” seems to open, finally, the possibility of a constituent process in Chile.

To begin a constituent process should imply a radically democratic process in which constituent power is manifested in all its spirit. It should be a foundational and sovereign process that should overcome the partisan structures and typical political representation that includes the participation of diverse sectors of the population.

The Agreement is fruit of the actual constituted power that finds itself mired in a deep crisis of legitimacy. Thus, once the will of the Chilean people is expressed and shaped – in this case through a new constitution – it can not be shackled by any constituted power.

In this sense, it is deceitful to try to establish the rule of a two-thirds majority for the approval of provisions, through which the current constituted power is trying to impose itself upon the future constitutional power in an attempt by the establishment to avoid losing control of the process.

In the same vein, the technical commission, created in point 10 of the Agreement, can not become the long hand of a past that tries to monitor the future. It should limit its actions to the purely formal aspects and rely on the highest levels of participation of the relevant sectors.

The success of the process will depend in great part on the ability to incorporate everybody and to trigger an authentic popular outpouring. It will also depend upon an eagerness to take ownership and to make the Agreement its own in relation to long put-off questions of natural resources, inequality, and rights and guarantees.

In addition to this, it must allow for an update of norms for the 21st Century with a view towards feminist and egalitarian demands. It must allow the people to take stock of their territorial structures and the resource deficiencies of the region. It must allow for the inclusion of excluded groups and native peoples.

Above all though, it must allow for the construction of a state in which the people recognise themselves, in which they see themselves, in which they believe and can trust, a state that is the fruit of democratic radicalness.

This article originally appeared in CELAG, and can be found here. It has been translated and edited from its original version.

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