The Chilean Constituent Assembly – V

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By ESTER GAMMARDELLA RIZZI*

A new Constitution is very often in tension with the social reality that will regulate

“Each time the human realm seems doomed to weight, I tell myself that, like Perseus, I should fly to another space. It is absolutely not a matter of escaping into dreams or the irrational. I want to say that I need to change my point of view, that I need to consider the world from another perspective, another logic, other means of knowledge and control. The images of lightness that I seek must not, in contact with present and future reality, dissolve like dreams…” (Italo Calvino, Six proposals for the next millennium).

In February 2022, I lived a sunny summer in Santiago. Not just because there was constant, intense sunshine between 7am and 21:30pm. Not just because there were 14 days without any rain and very few clouds (the central Chilean region is experiencing a worrying process of desertification and political disputes over water). Not only. Also because Chile is experiencing a sunny historical period, in which people are devoting time and energy to thinking about how Chile and Chilean society can be better in the future. They are “pregnant” with projects and desires for change that will be crystallized in the constitutional text now being debated.

To return to Brazil is to return to a country that is going through a difficult period, and whose president is a disastrous figure. A country that is in the process of looking at its historical rottenness and emphasizing them, which is no longer the “country of the future” to be the country in which many only see violence and pain. And… it's hard to want to change and want to plan a better future for what you don't love (as Tiago Tranjan always reminds me). Anyway, we live here in a difficult “corner of history”. Not in Chile. Or also in Chile. But in Chile, the difficulties now seem to be shining brightly. Incidentally, it is possible to sit in the rising sun, still weak, and forget for a few moments the darkness that is falling behind. And planning and wishing for the intense sun to come. A better future, less exclusionary and unequal, with more rights.

One of the "constituent town halls” (a self-organized participatory instance to discuss the new Constitution) held in Valparaíso had the following trigger questions (so to speak, questions “to start the conversation”): “¿Qué le duele en Chile? What enchants in Chile?”. Pain and charm. And this pain, but also this enchantment for the country, are moving society towards a new Constitution, towards new norms capable of pushing society towards a better place.

When traveling to Chile I flew, like the Perseus quoted by Italo Calvino, to another space, to another point of observation, with the aim of observing the same historical period that, from here, was perhaps seeming too heavy and dark. I came back sunny: there is the possibility of a better future if we don't abandon the enchantment for our land, for our people, for ourselves, for who we are. If we retain some sense of belonging. (I also asked my interviewees if it still made sense to “call Chile Chile”, given the different indigenous nations being recognized. Apparently, if the goal is to write a new constitution for Chile, some unity and some belonging has to be done. sense). What I realized was that Chilean men and women are collectively making this effort of imagination to say where they want to go. And they will put these wishes into the text of the Constitution that is being discussed and approved at this very moment.

 

1.

How, though, can this collective effort take shape?

At the end of September and beginning of October 2021, together with the General Regulations, the Constitutional Convention approved its Regulation of Mechanisms, Organizations and Methodologies of Participation and Constituent Popular Education. It foresees a series of instances and participatory processes that seek ways to politically include “historically excluded groups”, as indicated in the title that begins in article 55. It is worth highlighting the most relevant of these processes: (1) Popular initiative of constitutional norm ( articles 31-35); (2) self-convened meetings (or constituent town halls) (art. 36); (3) intermediate referendum (arts. 37-41) and, finally, (4) mandatory public hearings (art. 42).

On February 11, 2022, the journal The country accused the Constitutional Convention of living "The disorder, the extreme positions and the lack of leadership". The criticism could not be more unfair, as I observed. The Chilean constituents seem committed to the proper functioning of the Convention and to the delivery of a constitutional text that respects – at least procedurally – the planned participatory instances. How to judge as “disorder” a place where members whisper to talk to each other (as if they were in a silent library or even in a religious place)? They do this so as not to disturb the voting or the progress of the collective meeting. From what I have observed, the members of the Constitutional Convention are solemn and correctly assess the importance of the institution they form, the historical magnitude of the task entrusted to them. All this solemnity, easily felt inside the Convention building, somehow contrasts with the informal clothes that many wear and with the practices “outside the walls”: it is frequent to see conventional holding meetings or sunbathing sitting on the grass outside the building of the former Chilean National Congress. There is no political disorder, however.

Os conventional had the difficult task of elaborating a decision-making method capable of dealing with the many potential constitutional texts brought, through popular participation, for appreciation of the Constitutional Convention (the main route for including text was the popular initiatives of constitutional norms). In this process, they favored voting instead of discussions. Thus, they listened to the proposals being exposed and asked a round of questions to the proponents. The next step was to vote on whether the text would remain in debate or be discarded. Political agreements between the many groups that make up the Constitutional Convention take place, for the most part, outside the official microphones of the Convention building.

In addition to the need to create a method of political deliberation capable of responding to participatory processes and, at the same time, writing a Constitution, there is one more element that needs to be taken into account: the extremely short period for these decisions to be taken. They must deliver the final version of the Constitution, for consideration by Chilean society, on July 4th of this year.

The deadline for declaring support for popular initiatives (15.000 signatures were needed for the text to be discussed in the Convention) and for presenting initiatives by Convention members (each proposal had to be supported by at least eight conventional) ended on February 1, 2022. The Convention itself promised in its schedule deliver a first draft of the Constitution to the Harmonization Commission by May 16 of the same year. Between the initial moment of discussion of the texts, on February 1st, when all the more than a thousand norms and chapters were on the table, and May 16th, when the draft Constitution has to be ready, there are only three months and quite. It is a monumental task in a minimum amount of time. The work to face it demands seriousness and concentration.

Why not extend that deadline? This is a question that seemed natural to me, and one that I asked many of the people I interviewed. I heard from some of them that the Convention does not want to try, for example, to change the period of operation because this could cause problems. On the one hand, the Convention itself could decide – through a vote – to extend its term beyond the limit provided for in article 137 of the 1980 Constitution, but this procedure could be questioned by the Constitutionality Control mechanism of article 136. (As already explained in Part 4 of this series, the constituent process was included as constitutional reform in the 1980 Constitution).

On the other hand, the Convention could make a request to the Chilean National Congress and hope that, through a constitutional change in Article 137 itself, a new deadline will be established. In this second path, however, the Constitutional Convention could be politically weakened. Furthermore, the decision on whether or not to extend the term would not be under your control.

A similar debate took place when the two-thirds quorum for approval of constitutional norms was discussed. The Convention's decision was to approve – in a simple majority vote – a regulation that confirmed the two-thirds quorum initially provided for in article 133 of the 1980 Constitution and confirmed in articles 96 and 97 of the Regulation. Furthermore, in its Article 103, the Regulation established that, in order to modify the two-thirds provided for in Articles 96 and 97, two-thirds would be necessary, unlike the rest of the regiment, which could be modified by simple majority.

The political decisions of the Convention so far have been to fully respect what was established in December 2019: a two-thirds quorum and a maximum period of one year. Sérgio Grez, professor of history at the University of Chile, analyzed in an interview the likely effects of this high approval rating. He claims that the approved norms will be less transformative than they could be if a decision by simple majority were adopted, or if an intermediate solution were adopted, with controversial proposals being submitted to a plebiscite.

The "intermediate referendum”, in fact, was foreseen in articles 77 and 97 of the Regulation General of the Convention. In addition, it was regulated in articles 37-41 of the Regulation of Mechanisms, Organizations and Methodologies of Participation and Constituent Popular Education. It is interesting to observe, however, that article 37 of this normative document adopted an open text, in which only the possibility of using this mechanism is mentioned, and not its obligation: “Article 37.- Definition. The Constitutional Convention may resolve the holding of a plebiscite dirily with respect to certain constitutional norms (…)".

The proposal was that those norms that did not reach the full two-thirds of the Convention, but reached three-fifths, would be taken to a single plebiscite in which the population could opine on the content of several controversial constitutional norms. Whether because such a broad participation was not desirable by conservative parts of the Convention, or because the deadline for concluding the work of the Convention is extremely short, the idea of ​​an intermediate plebiscite ended up being abandoned and was not incorporated into the schedule functioning of the Constitutional Convention. It was therefore chosen not to carry out the possibility that was provided for in article 37.

If the intermediate plebiscite were held, it would be an effective way for direct popular participation on specific issues – controversial, probably – and not a consultation on the final, ready and complete Constitution, as will probably happen in the second half of this year. Sergio Grez regrets that Chile has lost the opportunity to consult the population on sensitive issues, which will probably not obtain the necessary two-thirds to be approved in the full Convention, but which eventually would get the majority to advance to a popular consultation.

Finally, the final plebiscite in which Chilean society will say whether it approves (I approve) or reject (rechazo) the constitutional text drawn up by the conventional throughout this working year, unlike other elections in Chile, attendance will be mandatory for registered voters (Article 142 of the 1980 Constitution). As the work of the Convention is scheduled to end on July 4, if the schedule is met, the final plebiscite should be held in mid-September.

In addition to the two-thirds quorum and the tight deadline, the Chilean Constitutional Convention has also suffered from institutional and budgetary precariousness since the beginning of its work. In July 2021, when it was installed, neither the building in which it operated nor an adequate budget for hiring advisors and other technical services was adequately provided for. There was also no effort by Piñera's government to solve these problems.

Gradually, however, these weaknesses were being faced. Officials from the National Congress and public universities were seconded; borrowed buildings and workrooms; civil society with specific technical competences – for example, in participation software – were summoned. The Constitutional Convention resolved its frailties and weaknesses by asking other institutions of Chilean society for help. This was an informal way of opening up to the participation of other members. Due to a deficiency, it has become more democratic.

 

2.

It is very interesting to see a Constitution being drafted. Drafting a Constitution seems to be an exercise in institutional imagination, creating a normative document that will, at the same time, establish a way of organizing the State; create ways to distribute (and limit) the exercise of power in society; establish rights and principles that organize social life and establish, among other things, what are the functions that the State should play in this future that is being built with many words, debates and normative texts.

A new Constitution is very often in tension with the social reality that it is going to regulate. It would make no sense for Chilean society to draw up a Constitution that is absolutely “adequate” to its society. It was the desire for change that led to the convening of the Convention to draft a new constitution. It comes, in a way, to answer the questions: “How does Chilean society want to be in the future, what does it want to see changed, altered?”. Thus, to win political disputes in the Plenary of the Constitutional Convention is to win a normative text that contains a desire for change. The road for this text to become a reality in Chilean society is much longer. In any case, it is a privilege to see this exercise of institutional imagination, political consolidation and organization of social desires being carried out by 154 elected representatives. I came back from sunny Chile.

*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 third part of the series click on https://aterraeredonda.com.br/a-constituinte-chilena-iii/

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

 

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