The Chilean Constituent Assembly – IV

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By ESTER GAMMARDELLA RIZZI*

Women, indigenous people, independents and young people – the face of the Chilean Constitutional Convention

Since I returned to Brazil, many people have asked me “Ester, what do you think? What were your impressions there? Constitutional Convention happening, Boric elected, everything”. It was my mother, Regina, who got straight to the point: “If you had to choose one thing to tell, what caught your attention the most, what would it be?”.

I answered right away, without rehearsing or thinking too much: It's impressive to see a political space with so many women and people so young. So different from anything I've seen in Brazil. Furthermore, they have an immense political task and very little time. They have to deliver a finished Constitution by the 4th of July. This is a little harrowing, but I came back optimistic.

The Chilean Constitutional Convention is parity - there are currently 77 women and 77 men among the Conventional Constituents. This parity was guaranteed through the electoral rules that organized the process. In addition, the participation, under equal conditions, of independent candidates, without any party ties, was also allowed. Finally, 17 seats were reserved for indigenous people. Women, independent and indigenous are strong presences among the 154 conventional, and this seems to be a direct consequence of the way in which the election was made. Less easy to explain is the generational issue. 42,6% of conventional (66 representatives) are under 40 years old. 36,8% are between 40 and 55 years old (57 conventional), and only 20,6% are over 55 years old. https://interactivo.latercera.com/tu-match-constituyente-los-elegidos/ The generation with the greatest presence at the Convention, therefore, is the youngest, under 40 years old.

The shape of the elections that generated this composition of the Constitutional Convention began to be designed in the turbulent end of 2019. On November 15, 2019, the parties signed the “Agreement for Social Peace and the New Constitution” (link here). Pamela Figueroa Rubio, a professor at the University of Santiago de Chile, says that shortly after the document was signed, a joint Technical Commission was set up in which he participated (half of members appointed by the opposition and half of members appointed by the situation). The Commission's objective was to transform the political agreement that had been signed into a normative text. This normative text was included as a reform to the Chilean Constitution of 1980, through the Law 21.200, of December 23, 2019. It created a complete chapter (arts. 129-143) that provides for the procedures for drawing up a new Constitution. Much more detailed than the agreement signed in November, it had to be approved by consensus in the Technical Commission and respected, in general lines, what had been agreed in the original political document.

Article 130 of the amended 1980 Constitution thus began to regulate the calling plebiscite held with the following questions:

"a) ¿Quiere usted una nueva Constitución? (I approve or reject)

b) What type of body should the new Constitution write? Mixta Constitutional Convention or Constitutional Convention."

Due to the COVID-19 pandemic, the initial referendum was held only on October 25, 2020. For the question “Do you want to support a New Constitution?“, 78% of Chilean voters responded “I approve” and only 22% answered “Rejection”. In that same plebiscite, the population was also asked if the Constituent Convention would be an exclusive convention (with members elected exclusively to carry out the constituent process) or if it would be a Mixed Convention, with conventional elected for this specific purpose alongside parliamentarians already in office. The answer was similar to the first question: 79% of voters voted in favor of the exclusive constituency. The plebiscite indicated that the process that would lead to a new Constitution for Chile had great popular support.

Before voting was voluntary in Chile, turnout percentages were around 60-80% turnout. After the approval of the voluntary vote, it no longer reached 50% participation, reaching a minimum of 35% in the 2016 elections. (https://twitter.com/mmlagoscc/status/1397279209639358465/photo/1) Thus, the October 2020 plebiscite was the vote that obtained the greatest number of votes since 2011: 49,2% of eligible voters went to the polls.

Before the plebiscite, however, Chilean society was already beginning to establish the institutional design that would determine the composition of the Constitutional Convention. On March 20, 2020, the 21.216 / 2020, which brought two important changes for the elections of May 15 and 16, 2021: (a) “For the election of the members of the Mixed Constitutional Convention or Constitutional Convention, lists of independent candidates can be presented, which will be governed by the following rules"and "the list of a political party, electoral pacts of political parties or lists concluded between independent candidacies, must indicate the order of precedence that will tend the candidates on the ballot for each electoral district, starting with a woman and alternating, successively, you are with men."

 

After the plebiscite of October 2020, yet another important change in the way of composing what would become the Constituent Convention of Chile was approved, in Ley 21.298, of December 23, 2020 (https://www.bcn.cl /leychile/navegar?idNorma=1153843) : “the Constitutional Convention will include diecisiete escaños (seats) reserved for indigenous pueblos."

Ready. Elections through lists, headed by women, which could be composed of independents, and the establishment of parity: half of those elected would have to be women and half men. In addition to these rules, 17 places were reserved for indigenous people. The normative framework that made it possible for women, indigenous peoples, independents and young people to have such a strong presence in the Constitutional Convention that is currently working in Santiago was complete. (See the facsimile here from one of the ballot papers used for the election of conventional in May 2021)

As Pamela Figueroa pointed out, however, it is possible that this institutional design, which clearly expanded the possibility of political participation by previously excluded or underrepresented sectors, was used as a bargaining chip so that the main characteristics of the Chilean State were difficult to change . Let us therefore return to the analysis of the Law 21.200, of December 23, 2019, which included articles in the Chilean Constitution of 1980 and regulated the constitutional change process.

Article 136 deals with the “constitutionality control” procedure of the Constitutional Convention. How could an institution that is drafting a new constitution undergo judicial review? Compared to the previous Constitution of 1980? This is exactly what determines the article. It is clear that the functioning of the Convention should be governed by the procedures approved in that Constitutional Amendment of December 2019 and, in case of non-compliance, could be judged by five members of the Chilean Supreme Court. The Constitutional Convention, therefore, could write a new Constitution from a “blank page”, without a pre-project, but respecting the procedures established in the rules of Law 21.200/2019.

Still on the limits that the Constitutional Convention should respect, article 135 contained some provisions regarding the content of the new Charter: “The text of the New Constitution that is submitted to a plebiscite must respect the character of the Republic of the State of Chile, its democratic regime, the firm and executed judicial sentences and the international treaties ratified by Chile and which are currently in force."

 

It is important to note, in this regard, that some of the bilateral and multilateral free trade treaties ratified by Chile with 65 countries in the world, as well as free investment and patent treaties, set important limits, for example, to guaranteeing the right to health and changing the economic order of the Chilean State. Part of the debate over the new Constitution concerns the extent to which this rule, inserted in the 1980 Constitution, can limit the activity of conventional in its normative elaboration.

The new chapter of the 1980 Constitution establishes yet other limits to the original Chilean constituent power. Like article 133, which provides for approval quorums: “The Convention must approve the norms and the voting rules of the same by a quorum of two thirds of its members in office.” And article 137, which establishes a short period of operation: “The Convention must draft and approve a proposal for the text of the New Constitution within a maximum period of nine months, counting from its installation, which may be extended, for a single time, for three months."

Two of the main difficulties that the Constitutional Convention is facing this March 2022 are due precisely to these norms. First, the high two-thirds quorum for approving constitutional norms, which was respected and incorporated into Articles 96 and 97 of the Constitutional Convention's Internal Regulations (or Regulation), approved on October 8, 2021.

Second, the short deadline: the finalized and approved text of the Constitution must be delivered by July 4, 2022. This deadline is short, especially considering the effort that the Constitutional Convention has made to carry out a participatory constituent process.

On March 11, 2022, Gabriel Boric was sworn in as President of Chile. In his speech, he stated "In this first year of government, we have also set ourselves the task of accompanying, in an enthusiastic manner, our constituent process for which we have fought so much. We are going to support decisively, decisively the work of the Convention.".

*Ester Gammardella Rizzi is a professor of the Public Policy Management course at EACH-USP.

Originally published in the magazine Counsel.

To read the first part of the series click on https://aterraeredonda.com.br/a-constituinte-chilena/

To read the second part of the series click on https://aterraeredonda.com.br/a-constituinte-chilena-ii/

To read the second part of the series click on https://aterraeredonda.com.br/a-constituinte-chilena-iii/

 

See this link for all articles

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