What has been occurring in the country at the outset of this new year 2023 related to the Constitutional Convention and the recent so-called Agreement for Chile, makes us think that our citizenry appears to have recovered its appreciation of our national political institutions and the guarantees derived therefrom.
“Institutions” are defined as “constitutional organs of sovereign national powers”, On the other hand, the word “majesty” is defined as “superiority and authority over others”.
Consequently, it can be reasonably inferred that constitutional bodies and republican principles enjoy a mantle of authority that makes them acceptable to the citizenry . The establishment of institutions that allow an adequate and efficient Government, as well as the peaceful coexistence among people, and the respect for essential rights, has been an important task for the rulers of Chile since the first days of the Republic.
The first Political Constitution, issued under the Government of Bernardo O’Higgins, in 1818, provided that it was incumbent upon the Chilean Nation the sovereignty or faculty to install its own Government and issue its own laws toward its own governance. Constitutional texts adopted subsequently in 1833, 1925, 1980 plus the current ones in force since 2005, reiterate the same principles and enshrine the basic concepts with respect to national emblems, determining that Chile is a Unitary State, that it is a Democratic Republic, and that State Organs must subject their action to the Constitution, additionally establishing the division of powers between the Executive, Legislative and Judicial Branches of Government.
The recently terminated Constitutional Convention, comprised of 155 persons, began operating in July 2021 delivering its final 397-article constitutional project to the President of the Republic in July 2022. Such text, however, substantially altered some of the above-mentioned basic tenets. Therefore, it was considered partisan and refoundational. It proposed a Plurinational State, identifying various peoples – defined as nations – which presumably made up the State of Chile; while also granting political and economic autonomy to the various regions into which the country was divided.
With respect to certain matters, a right of veto was granted to the so-called original peoples; the Senate and also the Judiciary were to be ipso facto terminated upon its approval; the right to property was weakened and the national water irrigation system was dramatically modified; in some paragraphs, the wording was poor, and rather seemed to reflect the aspirations of certain political groups.
The citizens of Chile, in the plebiscite held on September 2022, representing the highest vote count – 13 million people – in the country’s history, expressed their outright rejection of such constitutional project by 62% of the votes. Recently, however, after several months of intense political negotiations, the above-alluded “Agreement for Chile” was signed by 14 political parties and 3 political movements, representing the vast majority of the country’s population.
The core of the referred draft agreement establishes 12 institutional and fundamental bases or limitations, which the final constitutional project ought to necessarily incorporate.
As far as the fulfillment and execution of the Agreement is concerned, the agreed text includes a Constitutional Council comprised of 50 persons elected by popular vote whose sole purpose shall be to discuss and approve a new constitutional text. It also includes an Expert Commission to be commissioned to write a preliminary constitutional draft for the Council’s discussion. Another very important approved function is to be fulfilled by a Technical Committee on Admissibility, a body comprised by 14 renowned expert lawyers of proven and outstanding professional record of accomplishment, whose function shall be to ensure -at the request of the Constitutional Council or the Expert Commission- that the new constitutional text indeed abides and adheres to the 12 agreed core principles, in line with the corresponding majority quorums thus established.
The Agreement for Chile, therefore, evidences a solid and harmonious political construction in which, along with recognizing the basic criteria on which the country has been organized ever since its republican origins, it also incorporates modern concepts, such as the progressive development of social rights, the recognition and respect of all Indigenous peoples, and the care and conservation of nature.
Thus, the Agreement in comment constitutes a very important solution mechanism for a new constitutional text, to be reflected and stated in appropriate legal language in representation the country’s citizen majorities.
By: José Luis López Blanco
Lawyer and founding partner of the law firm, ASL CORP
