Is it possible that today marks a before and after in Latin American constituents? It could be. Today, May 7, 2023, Chileans elect 50 popular representatives for the so-called Constitutional Council, who will have the historic responsibility of approving or disapproving, according to the established procedure, the text of the Draft Constitution that will be presented by the Expert Commission appointed by the Chilean Congress on June 6 of this year.
The new constituent process, in full swing in Chile, comes after the rejection by 62% of the Chilean people of the first constitutional project presented for their consideration on September 4, 2022, and convinces me even more of the profound differences that we Latin American countries have among ourselves to address the changes, despite the insistence of many that the so-called "fever" of Constituents is presented for the same reasons in all our countries.
Even though Chile has the highest development indicators in Latin America, the Chilean political country considered it necessary to place itself once again in the "delicate zone" of instability in order to revise its fundamental text, a concept defined by Dr. Roberto Viciano Pastor, Director of the Doctorate in Constitutional Law of the Universidad Mayor de San Andrés, La Paz, Bolivia, and General Coordinator of the Latin American Observatory on the Constitutional Process of Chile. Roberto Viciano Pastor, Director of the Doctorate in Constitutional Law of the Universidad Mayor de San Andrés, La Paz, Bolivia, and General Coordinator of the Latin American Observatory on the Constituent Process in Chile, on the occasion of the first discussion of the Chilean Constituent: "Constituent processes have emerged in Latin America, as well as in other parts of the world, when a major social crisis appears. If there is no important social crisis, no State, no country enters a delicate zone, a zone in which it is unstable, by definition, as it is to redefine the rules of functioning of the State, of the economy, of the society..." (see Constituent Ideologization, en https://ticsddhh.blogspot.com/p/constituent-ideologization.html).
And apparently, despite having the best development indicators in Latin America, Chileans consider that there is a social crisis in the country that warrants an adjustment in the Social Pact that governs them as a Nation. It is important to point out that the discussion of whether or not this crisis was induced by radical factors of the Chilean left is still on the table. But that is not the reason for this article, since regardless of how the Constituent Assembly was convened, what is relevant for the destiny of Chileans is how this discussion was approached in principle, and how it will develop until a new Social Pact that gives political stability to Chile is born.
After the political disaster that occurred for President Boric's government with the popular rejection of the constitutional project in September 2022, the political factors grouped in Congress designed a very different mechanism to approach the Constituent discussion. What they all seemed to agree on was that a new Constitution for Chile was necessary. And in a much more controlled procedure than the previous one, Chilean politicians decided that the new Constitutional text would not be drafted off the bat by elected Constituents, but by an Expert Commission of 24 people, appointed by the Congress itself, which would produce a Preliminary Draft to be submitted to the consideration of a smaller group of popular representatives, called Constitutional Council, constituted by 50 people.
Perhaps the name Expert Commission was not the most appropriate because it was clear that it would be composed of politicians of all tendencies. Perhaps it should have been called Political Commission. But as in all countries, including ours, politicians are devalued, hence the Chilean Congress decided to create an Admissibility Committee (also called Arbitration Committee) composed of 14 recognized jurists to ensure that the text produced by the Expert Commission would comply with previously agreed Constitutional Bases and that they would not be violated under any circumstances.
Twelve Constitutional Bases were drafted, which function as a framework that cannot be transgressed by the new Constitution, such as the name of the country and its democratic character, national emblems, three independent Public Powers, respect for Human Rights, respect for indigenous peoples, guarantee of fundamental freedoms, subordination of the Armed Forces to civilian power (see in Spànish Constitutional Bases of the Constituent Process, in https://lupaconstitucional.malaespinacheck.cl/2023/03/05/cuales-son-las-bases-constitucionales-del-proceso-constituyente/).
Once the final Preliminary Draft of the Constitution has been prepared, the Expert Commission submits it to the Constitutional Council, which has, from June 7 to October 7, three months to approve and/or modify the Preliminary Draft. There will also be a Mixed Commission composed of 12 members, 6 from the Expert Commission and 6 from the elected Constitutional Council, to seek solutions to any differences that may arise once the Preliminary Draft has been submitted to the Constitutional Council for consideration.
Once this is done, the text returns to the Expert Commission, which has 5 days to respond. At the end of that time and with the text back, the Constitutional Council reviews the final work, and approves it with 3/5 of its members (30 Councilors) or rejects it with 2/3 of its members (33 Councilors). If approved, they will publicly submit the text to the people on November 7, 2023, where in a little more than a month, on December 17, 2023, it will be submitted to a Plebiscite to the Chilean people (see in Spanish New process step by step - Political block, in https://youtu.be/X3VeJLMgFjA).
All this procedure, more controlled, can give Chile a Constitutional text, more adjusted to the expectations of all, in the middle of the extreme political differences that occurred in the framework of the Constituent discussion of the past attempt that failed on September 4, 2022.
With healthy envy I see that Chileans have responded politically to the urgency of obtaining a Social Pact convenient for all by using a procedure adjusted to their political idiosyncrasy, clearly improving the previous procedure that gave the Constituents the direct responsibility for that task.
What happened in Chile brought to my memory a similar procedure, used in Spain in 1977 for the elaboration and approval of the Spanish Constitution of 1978, where the Congress of Deputies created a Constitutional Commission with the task of drafting a Constitutional Project. The Commission took approximately 5 months (between August and December 1977) to accomplish its mission. The fundamental difference was that in the Spanish case a popular representation was not elected for the approval of the Draft, but it was directly submitted to a popular referendum once it was approved by both Chambers of the Spanish Congress (see in Spanish Elaboration and Approval of the Spanish Constitution of 1978, in https://app.congreso.es/consti/constitucion/elaboracion/index.htm).
This mixture of political procedure and legal expertise, which has given the Spaniards almost 45 years of political stability, is what has been applied in Chile with the corresponding differences adjusted to its problem, giving the rest of the Latin American countries a lesson of political maturity. Venezuelans, when approaching a Constituent process necessary in the country by virtue of the complete destruction of the political institutionality, will have to approach the most suitable procedure, like the one achieved by the Chileans, which will guarantee us the greatest sum of political stability. Let us hope that when we get there, we will be like them, at the height of that commitment...
Caracas, May 7, 2023
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