After several days of speculation about the concrete content of the constitutional reform following the “Agreement for Peace and the New Constitution”, on December 6, a concrete idea has finally been given of the first step Chile’s constituent process, which so far contained statements of a far more political than legal nature. With this document, it partially ends with a nebula of ideas that required definition for true citizen scrutiny.
This proposal refers to what the final part of the current Fundamental Charter would look like, allowing mechanisms of constitutional change that effectively mean starting “from scratch”, unlike current reform processes that do not open an instance deliberative and participatory over the entire constitutional text. But since not any proposal or any final outcome matters, it is important to ask the extent to which this draft reform responds to the country’s demands.
I would like to focus on the entry and closure points of this Reform, which give an account of the confusing guidelines that exist behind this initiative. Already since the beginning of the “procedure for the preparation of a New Political Constitution of the Republic”, (proposed) Article 130 indicates specific dates of implementation of this process, since it states that after the entry into force of this article the President ” convene by a supreme decree exempt from a national plebiscite by April 26, 2020.” Without going into discussing the problems of any advance or delay in the effective date of the plebiscite, the reform does not indicate in the abstract the date of call of the plebiscite (for example, that only indicated “120 days” or “x months”). Why would the more general rule of our legal system have to contain one, and only a possible date of implementation of the plebiscite? Doesn’t it make sense that if the law applies generally to many events and cases, this is even more valid for constitutional rules?
The above problem, which is also found elsewhere in the reform proposal, is mixed with the idea of the final section of article 142, which states that if the New Constitution is rejected in the ratification plebiscite (i.e., the citizenry does not welcome the proposal for a Constitution created by the constituent body, at the end of the process), the present Constitution will remain in force. In other words, there are no mechanisms to trigger any post-citizenship consultation procedure, or the possibility of amending hotspots of the proposal for a Fundamental Charter in the face of rejection of the proposal.
In addition to both aspects, at least two readings can be obtained discursively after the reform project. One is that the Constitution is announcing his death early, pointing out the process by which he will disappear in the face of an alleged unwavering will to end it, and therefore it is sufficient to indicate a single date for the execution of this constituent process. This would be to assume that the constituent process will necessarily end with a ratification plebiscite that approves the change, which is impossible to insure in advance, and is in fact inconsistent with the open possibility in the reform proposal that this is not Like this.
The other reading, more consistent with Article 142, is that the political will expressed in this agreement is that this process be executed only once, without the possibility of further repetition. As proposed in the draft reform to the Constitution, the implementation of another constitutional change process would again require a previous reform phase to open a new constituent process, and would therefore depend on a new will to agreements between political parties. In this case, what would start from scratch would not be the Constitution, but the whole tortuous process of political negotiation under the same rules and quorums existing in the current Fundamental Charter.
This idea of a reform that gives a single and specific opportunity for constitutional change, in addition to being objectionable in its wording and suitability for a rule of such a hierarchy, seems to be of dubious coherence with the already clear citizen demand to move forward good faith towards a New Constitution. The Reformation is not simply dealing with the possible consequences of a rejection of the constituent process, since saying no to the new Constitution proposal is not tantamount to simply accepting the one we already have. The social and institutional costs of re-running a constituent process from scratch, unaware of the will for change that exists today, can be catastrophic and are not favorable for any political sector.
Among the many edges that can be improved from the current reform proposal (such as in relation to the demands for parity and special quotas of candidates and candidates for the constituent body), one of the necessary measures is to at least establish a abstract mechanism of constitutional change, not linked to specific dates, and open to possible participatory forms of amendment of a proposal for a constitution, preventing the whole process from being thrown away after all its costly and difficult implementation. It is this vision open to change, not that of a petty concession of “unique opportunity” that will allow, among others, to repair the nexus between civil society and the political class and the reconstruction of social cohesion in the country.
The content poured into this opinion column is the sole responsibility of its author, and does not necessarily reflect the editorial line or position of El Mostrador.
