The articles adopted in the draft Constitution that place Chile at the forefront internationally

RIO DE JANEIRO, BRAZIL – With the articles adopted so far, the draft of the new Constitution shows signs of a new institutional concept based on a model of balance between a central unitary state and a structure of regional autonomy, crossed with the recognition of a plurinational state.

These advances in the political order imply a profound transformation of institutions as the country knew them, complemented by the incorporation of norms inspired by citizens’ demands, such as gender equality and parity, recognition of the climate crisis, freedom of the press and expression, and more.

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In addition to this group, there are also avant-garde visions that, although they must all be submitted to the Harmonization Commission, show a change that goes beyond the borders of the country, and where the norms approved by the plenary are the true thermometer of the Convention and not the result of the committees that create mirages that are artificially cannibalized.

The new Constitution is taking shape and the thematic commissions continue to present their proposals while waiting for the Convention plenary to vote on all the rules before incorporating them into the final text that will become the constitutional proposal presented to the citizens in the mandatory referendum on withdrawal from the Constitution to be held next Sunday, September 4.

Among the more than 160 articles approved, in particular, by the Plenary of the Constitutional Convention and already part of the draft of the new Constitution, there are several elements that imply a profound transformation of the State, others that go back to historical demands of the citizens, and some that give Chile a pioneering role in the international context.

Below is an overview of the final document to date, which must be ordered and made coherent by the Harmonization Commission, the final working body of the constitutional body, before the referendum on exit.

COMMISSION “POLITICAL SYSTEM

In the chapter on democracy, Article 4 establishes that Chile is a plurinational and intercultural State that recognizes the coexistence of different nations and peoples within the unity of the State. In the third paragraph, the Mapuche, Aymara, Rapa Nui, Lickanatay, Quechua, Colla, Diaguita, Chango, Kawashkar, Yaghan, Selk’nam and others that may be recognized in accordance with the law are recognized as pre-existing indigenous peoples and nations.

Article 5, which delves into the rights of indigenous peoples, states in the first paragraph, “The pre-existing indigenous peoples and nations and their members, by virtue of their right to self-determination, have the right to the full exercise of their collective and individual rights. In particular, they have the right to autonomy and self-government, to their own culture, identity and worldview, heritage and language, and to recognition of their lands and territories.”

The third clause states that the State must ensure the effective participation of indigenous peoples in the exercise and distribution of power by including their representation in the structure of the State, its organs and institutions.

This is a new institutional model in the country, for which there are some international examples, such as Bolivia and Ecuador, and which allows for the assumption that within the Chilean state there are different political communities that share a common territory and institutional structure, but where the differentiation of each is also respected. This is a response to the historical demands of indigenous peoples who feel excluded and violated in terms of their individual and collective rights.

For the Observatorio Nueva Constitución, the recognition of the fact that indigenous peoples are very diverse corresponds to the strategic concept of conventional reserved seats to be distributed in the different commissions, so that the indigenous perspective becomes a reality and also has an impact on political decision-making.

This concept reflects another reality, which is the assumption that different political communities can coexist within the state, sharing a common territory and institutional structure, but also respecting the difference of each of them.

“Although it is a step forward, I nevertheless note it with caution, because it must not remain a mere political declaration or a declaration of good intentions. Plurinationality is much more than a declaration, and more important than this declaration is the content that gives it this character, a content related to the recognition of the individual and collective rights of indigenous peoples. We are still at the beginning of the recognition of collective rights, but there are still some very important ones missing,” says Rosa Catrileo, the representative of the Mapuche people, who is also the coordinator of the Political System Commission.

A plurinationality proposed within the unity of the state, although certain elements still need to be fine-tuned to clarify how this concept can be put into practice. “I think plurinationality has much more to do with recognition than with complex implementation. There will be very complicated issues, but it seems to me that the regional state is much more challenging in all respects, including legal, financial and logistical,” says Javier Couso, constitutional lawyer, academic at Diego Portales University and professor at Utrecht University (Netherlands).

FORM OF GOVERNMENT: CHILE AS A “REGIONAL STATE”

Article 1 of the text approved by the Plenary establishes that Chile is a regional, plurinational and intercultural state, composed of autonomous territorial entities, all of which have equal rights and solidarity and preserve the unity and integrity of the state.

This new form of organization is one of the key issues for the future distribution of political power and the design of the new institutional framework, and has dominated much of the constitutional debate. The early agreement on a plurinational and intercultural regional state composed of autonomous territorial entities is the starting point for understanding the structure of the new constitution.

Article 2 establishes that the state is territorially divided into autonomous regions, autonomous municipalities, indigenous territorial autonomies and special territories. All these territorial entities are governed by the principle of non-tutelaire, according to Article 12; Article 18, in turn, defines autonomous regions as “political and territorial entities endowed with a legal personality under public law and their own assets, with autonomy in the development of regional interests, the management of their economic resources and the exercise of their powers.”

All these determinations imply the pursuit of regionalization, in line with the historical demand for decentralization, taking into account that Chile is probably one of the most unitary states in the world, with enormous political and economic centralization. The enshrinement of a regional form of government seems to be an answer to this demand, but it still has open ends and many elements that will be defined in the transitional constitutional rules that will have to be discussed in the coming weeks in the State Formation Commission.

Esteban Szmulewicz, decentralization expert, academic at the Faculty of Law of the Catholic University of the North and doctoral student in law at Leiden University (Netherlands), sees this proposal as a step forward and a historical deepening, and understands it as a prelude to a series of processes that will be strongly concretized and implemented by law in the coming years. He also pointed out that it is an innovative element, since the regional state does not explicitly appear in any constitution in the world.

“I believe that the regional state achieved is a great step forward that should be recognized, as it opens a possibility for greater development of territories with more territorial equality, with more political, administrative and financial autonomy, although the mechanisms of financial solidarity have yet to be defined. Local authorities, which play a fundamental role in the provision of some public services, need to be further specified and given more substance,” says Szmulewicz.

In the context of this decentralization process, the researcher warns that, according to what has been decided, the regions would not have legislative powers, which could be considered the first complexity of the Chilean regional state formula. In order to make this process efficient, the autonomy of the territories must be complemented, on the one hand, by the ability of these territories to participate in the decisions that affect them.

Regarding the competences of the Autonomous Region, Article 27 establishes that these mainly concern the organization of the regional government, the political-administrative and financial organization of the Autonomous Region, the promotion of the social, productive and economic development of the Autonomous Region within its competences, the conservation, protection and restoration of nature, and the implementation of regional policies in the areas of housing, urban development, health, transport and education.

On this aspect, not yet fully defined, which has to do with financial or fiscal autonomy, i.e. with the ability of regional governments to determine the use of their funds, Convention member Jeniffer Mella, coordinator of the Commission on Form of Government, asserts that “we are fully aware that on the part of the State there must be fiscal decentralization of spending, and that is, what we propose, that it should be implemented mainly through equalization mechanisms, direct transfers and equalization payments, but also to constitutionally anchor the contributions and taxes so that they are also available to these autonomous entities once they have been collected by the tax authority.”

Another novel aspect listed in Article 1 of the Second Report of the State Formation Commission is the definition of the autonomous municipality as a “basic territorial unit of the regional state, endowed with a legal personality under public law and its own assets, and having autonomy in the fulfillment of its purposes and the exercise of its powers, in accordance with the provisions of the Constitution and the law.”

JUDICIARY

Among the norms approved by the Plenum and included in the first report of the Judicial Commission is the recognition of legal pluralism, according to which the State recognizes the legal systems of indigenous peoples, which exist on an equal footing with the national legal system by virtue of their right to self-determination (Article 2).

With regard to the work of judges and the independence of the judiciary, Article 3 stipulates that judges must be independent of each other and of any other power or authority in the exercise of their jurisdiction and must act and rule impartially. Article 14 also states that the principles of parity and equality shall apply to the exercise of judicial office. It is thus clear that the State must ensure that the principle of parity is observed in all appointments in the national judicial system and that courts must decide with a gender perspective in mind.

Finally, Article 5 of the second report establishes that the national judiciary has financial autonomy and that the resources necessary for its proper functioning are allocated annually in the State Budget Law.

ENVIRONMENT AND ANCHORING A NATURE STATUTE

The Commission on Environmental and Economic Models is probably the one that has faced the most difficulties in its discussion, as its own members perceive difficulties in addressing issues related to nature and its statutes, but also to the economic model itself, with which it is closely linked.

In this regard, analysts agree that this is a very innovative issue for which there are few precedents, for example, when it comes to imposing a duty on the state to protect nature, to take into account the climate and environmental crisis, and also to recognize animals as subjects of law. Aspects that, although already part of the draft of the new Constitution, necessarily depend on the contours to be established by the legislature and the corresponding jurisprudence.

The novelty is that Chile would be the second country, after Ecuador, to impose in its constitutional text a duty on the State to protect nature, but also to recognize the current climate and environmental crisis. In this context, Article 1 defines the duty of the State to “take measures to prevent, adapt and mitigate the risks, vulnerabilities and impacts caused by the climate and environmental crisis.”

The coordinator of this Commission, Convention member Juan José Martin, considers it an important step forward that issues such as the protection of nature and the recognition of the climate and environmental crisis become constitutional issues, and assumes that this will be the basis for a so-called “ecological constitution,” although he acknowledges that there are three issues that he considers the most complex and that will determine the coming discussions in the Commission. He refers to the modernization of the water, mineral and economic sectors.

Regarding the rights of nature, Article 4 states that nature has the right to respect and protection of its existence, as well as regeneration, maintenance and restoration of its dynamic functions and balance, which includes natural cycles, ecosystems and biodiversity. Thus, it is the duty of the State to guarantee and promote these rights, as established in the Constitution and laws.

A very avant-garde aspect, not found in any other constitutional text in the world, is the recognition of the special protection of animals. Article 23 of the first report states that the State has the duty to ensure the protection of animals, recognizing their sentience and their right to live free from mistreatment. It also states that the State and its authorities should promote education based on empathy and respect for animals.

Tomás Jordán, constitutional lawyer and coordinator of the Observatorio Nueva Constitución, warns that “the second report contains 355 articles, so it seems that the approach of this commission is the same as its first report: a high number of rejected articles to make corrections along the way. This seems to be the formula for the Environment Committee, especially on very complex issues, many of which try to interfere in purely legal matters.

FUNDAMENTAL RIGHTS

One of the rules already adopted by the plenary, contained in Article 7, concerns freedom of conscience and religion. It states that “everyone has the right to freedom of thought, conscience, religion and belief.” It also states that no religion or belief shall be an official State religion, “without prejudice to its recognition and free exercise in public or private life through worship, the celebration of rites, spiritual practices and teaching.”

Article 8 establishes that every natural or legal person has the right to freedom of expression in any form and by any means. This right includes the freedom to seek, receive and impart information and ideas of all kinds. It also establishes that there shall be no prior censorship, but only such further powers as may be established by law.

With respect to sexual and reproductive rights, Article 16 states, “All persons have the right to sexual and reproductive rights. These include, inter alia, the right to make free, self-determined and informed decisions about one’s own body, the exercise of sexuality, procreation, pleasure and contraception.”

With this norm, the State is responsible for guaranteeing the exercise of sexual and reproductive rights without discrimination, with gender orientation, inclusion and cultural relevance, as well as access to information, education, health and the services and benefits necessary for them, and for ensuring to all women and persons of childbearing potential the conditions for pregnancy, voluntary abortion, voluntary and protected childbirth and motherhood. Likewise, it guarantees that they can be exercised free from violence and interference by third parties, whether individuals or institutions.

KNOWLEDGE SYSTEMS, CULTURES, SCIENCE, TECHNOLOGY, ART AND CULTURAL HERITAGE

Article 8 of the first report of the Committee on Knowledge Systems and Cultures, and in relation to freedom of expression, defines that “any person who is offended or unjustly attacked by a means of communication or information shall have the right to have his or her clarification or correction broadcast free of charge by the same means by which it was sent.”

This innovative provision is in addition to the one contained in Article 2 of the report on the second constitutional proposal, which establishes freedom of the press and pluralism in the media and defines limits to media concentration.

In the context of seeking to reduce gaps in access to and participation in digital spaces, devices, and infrastructures, Article 18 establishes that all people have the right to universal access, digital connectivity, and information and communication technologies, with full respect for the rights and guarantees enshrined in the Constitution and the law. Article 21 states that the state must ensure free, equal and decentralized access to basic communications services with adequate and effective conditions in terms of quality and speed.