The draft prepared by the Constitutional Convention effectively brings an end to the sovereignty of the Chilean nation—a principle enshrined since the founding of the Republic. Sovereignty, in this context, refers to the power of citizens to define individual rights and determine the structure of their government.
Following the victory at the Battle of Maipú, Chile’s first Republican Constitution was enacted in October 1818 under the leadership of Bernardo O’Higgins. That Constitution affirmed that “sovereignty, or the authority to establish its government and enact its laws, resides with the Chilean nation.” Similar provisions were included in the Constitutions of 1833 and 1925. The current constitutional text, in force since 2005 and signed by President Ricardo Lagos and his cabinet, explicitly reaffirms that sovereignty resides in the nation.
All of these constitutional texts uphold the legal principle that the State of Chile is unitary, and that the Chilean nation is one and indivisible.
By contrast, the Convention’s proposed draft opens in Article 1 by declaring that the State of Chile is “plurinational, intercultural, regional, and ecological”—terms that represent a significant departure from Chile’s constitutional tradition. Article 5 recognizes the coexistence of eleven nations within the Chilean State and requires that their right to self-determination be guaranteed. Article 187 authorizes the creation of territorial entities, including indigenous nations, which are to be granted political autonomy. Article 309 acknowledges the existence of separate legal systems for these nations, distinct from the national judiciary. Article 191 stipulates that any changes to matters affecting indigenous nations must have their prior consent.
In sum, the proposed draft grants autonomous status and self-determination rights to eleven nations within the Republic of Chile, and makes those rights subject only to the approval of the nations themselves. Consequently, any effort to amend or limit these rights would require the consent of the indigenous communities concerned.
In effect, this marks the end of Chilean sovereignty as it has been understood until now.
Perhaps this is why the Convention chose a fragmented Chilean flag as the symbol for presenting its draft.
By: José Luis López Blanco,
Lawyer, ASL Corp
