Social protest is a manifestation of the right to freedom of expression that has been based not only on the subjectivity of the person who expresses himself but also on his collective dimension, while the exercise of this right is an essential contribution to the democratic debate that promotes a society’s capacity for self-determination (Fiss , 1997). Thus, as a manifestation of freedom of expression, social protest emerges both as a response to the limitations of traditional representative democracy – which is often exhausted in the vote – as well as a complement to democracy that allows citizens to express themselves and draw attention to specific issues of interest.
Recognizing the value of social protest in promoting public deliberation, societies require mechanisms that not only process conflicts once they emerge, but provide for them without protest being a necessity to address issues of public relevance. For decades we have seen how in Chile the process of demands and search for greater democratization has strained the historical institutional model still in force. Hence, in the face of legitimate disagreement in public debate, society must have deliberative mechanisms beyond the elections. This requires institutionally conceiving dialogue as a public policy to be mainstreamed by all actors at different levels. As Squella argues, if democracy has an eminently deliberative character that allows us to think and debate things in depth, in order to achieve in each debate something like a general reason based on particular reasons (Squella, 2019), both the constitutional discussion and its outcome must enshrine that character. However, we know how Chilean constitutional history has understood the debate; in general there have been a few, usually men from privileged groups, who have discussed and defined the institutional model of the country. That is why the process that is soon beginning is an exceptional opportunity to promote participation and deliberation both in the constitutional debate and in the design of the new Charter. In terms of participation, the recent experiences of Ireland and Iceland provide valuable insights to be taken into account.
The case of Ireland
In 2009 Ireland began a process of constitutional reform that emerged from the consensus of the main political coalitions of the country, which after the success of the experiment called “We the Citizens”, in 2012 agreed to form a citizens’ assembly to address a series of reforms. The assembly was composed of one hundred members, of whom sixty-six were randomly elected citizens, and the rest representatives of the National Assembly and political parties. The Irish Constitutional Convention met for nearly two years until March 2014, addressing each of the issues before it, including same-sex marriage, lowering the voting age, the relationship between the state and the church and issues related to the electoral system. To enrich the debate, the Convention received proposals from citizens, including in its agenda some of the proposed topics, in addition to holding regional meetings and hosting comments from Irish residents outside the country, making their work available to citizens on the Internet through different social networks (Suteu, 2015). Some of the criticisms of this experience lie in the limited number of issues discussed, as well as the control that political power had over the process and its final outcome. However, the process stood out for the participation of ordinary citizens in the discussion of the issues raised, despite their complexity. On this, the former secretary of the Constitutional Convention of Ireland, Art O’Leary, has stated that the role of experts was important in supporting the work of elected members, but not replacing it, adding that the composition of the Convention was key to better reflecting society’s preferences on certain issues that until then political institutions represented differently (O’Leary , 2020).
The Icelandic experience
The constitutional process that has taken place in Iceland since its 2008 financial crisis has promoted an innovative participation model. Despite the obstacles it faced – and which until today have prevented the adoption of the new constitution – according to some it constitutes the first case in history in which the refoundational text of a country is drafted with a more or less direct participation of the population. Following Landemore (2015), three reasons explain the inclusiveness of the Icelandic process: (1) It promoted the direct participation of citizens in several phases (not only at the end of the process and in binary mode, as is the case with referendums or plebiscites), which was driven by digital means for citizens to present their opinions , enriching the text through an iterative process of comments and crowdsourcing; (2) There were significant efforts to incorporate elements of descriptive representation, randomly selecting ordinary citizens, in particular through the 2010 National Forum that chose from the national registers people seeking representativeness in terms of gender, age and geographical origin; as well as in the election of the Constitutional Council, composed of 25 elected members, almost half women, elected from among 522 people who presented their candidacies and with a composition that excluded parliamentarians and professional politicians; and (3) The debate promoted transparency so that citizens could witness and play a leading role in the drafting process, in which they were able to send contributions directly to the drafters. This was ensured through online transmissions and the publication and periodic discussion of the progress in the drafting of the text by mail, Facebook and Skype.
Learning for Chile
The cases of Ireland and Iceland are of interest to Chile in at least four ways. On the one hand, they reflect that it is possible to promote participatory, representative and transparent processes of constitutional deliberation in which citizens are actively involved when there are issues of public importance. The participation shown by the Chilean citizens in massive protests and the organization of self-convened cabildos in the process promoted at the end of the second government of Michelle Bachelet are proof of the interest in becoming part of the great collective debates, which constitutes a radical change from the historical constitutional discussions that have taken place in Chile. Second, the Icelandic case reflects that political systems are often resistant to change; while in Iceland it has been the National Parliament that has prevented the discussion and adoption of the new constitutional text, in Chile the unprecedented experience of cabildos and citizen dialogues was later shelved by the new government and Congress. Third, the unresolved problems in the constitutional processes in Ireland and Iceland must serve to understand the challenges facing the Chilean process. Among them is the risk that the traditional political class will seek to appropriate the process, directing it according to pretensions that will not align with the common interest. Although the constitutional rules establish clear procedures, an undue intervention of institutional policy is a concrete threat that must be guarded (meaning an interference in the process beyond the political influence that will naturally be sought to exert). On the other hand, the cases of Ireland and Iceland were not safe from making mistakes and in several respects they were not perfect. In the case of Chile, this must be translated, for example, into taking on board the demographic and geographical diversity of the country, so that the Constitutional Convention integrates into the discussion those who are often excluded or underrepresented, such as children and adolescents, immigrants, persons with disabilities, the elderly and persons deprived of liberty, together with bringing the constitutional dialogue to the regions. , promoting better degrees of descriptive representation in the debate and preventing it from being centralized in closed circles and away from the citizenry, especially the less digitized or rural.
And finally, the lessons of Ireland and Iceland must serve to avoid the idealisation of the processes; degrees of inclusivity will never be optimal, and participation, representativeness and transparency are likely not to be perfect. On the other hand, it will be useful for the debate to have the technical support of experts, but taking care that they do not supplan the will of the elected members, so attention must be paid to the risk of “technifying” the process by those who are not called to do so. Furthermore, in view of the opacity in the holding of sessions and decision-making, transparency must be constituted as a guiding principle of each of the procedures that take place within the Chilean Constitutional Convention, but not ex post weeks after each debate, but with a design and use of means that allow it as soon as possible. And finally, expectations of inclusivity must be met.r defined in advance in a clear, democratic and transparent manner, in order to guide the processes with clear goals and evaluate the results according to the objectives initially proposed.
In addition to the risks of intervention – which can come from both experts and government and institutional policy – there is the possibility that participation will be conceived as a mere mailbox to receive ideas and proposals and not as a process of deeper deliberation between the Convention and the citizens. In these terms, perhaps the most relevant thing about insisting on the need to promote participation in the constitutional discussion is to assume this right and principle in a genuine way, which requires distinguishing participation from deliberation (Suteu & Tierney, 2018). While participation seeks to answer about who is involved, deliberation requires analyzing how those involved in the process participate and to what extent they are involved in a real exchange of reasons and perspectives. This requires the Constitutional Convention to make a greater effort than just opening channels for receiving opinions. The pluralistic composition with which the Convention was formed seems to reflect in a lesser way the diversity of the country, which by the way invites optimism when thinking about the deliberation that will be promoted there. The elected members make up in an unprecedented way a constituent body in which men and women will participate in equal proportion, together with 17 constituents of the native peoples recognized in the country. While some constituents will represent political parties, most are citizens and independents linked to movements that were part of social and environmental protests in previous years, who have declared their commitment to be part of the process of the country’s diversity, in a transparent, participatory and territorially relevant manner.
A broad and genuine participation of the citizenry will contribute to the Fact that, as in the cases of Iceland and Ireland, the Chilean Constitutional Convention represents social diversity in a more faithful way and, as Gargarella proposes, that it promotes the law – in this case constitutional – as the result of a conversation between equals. The composition of the Convention, moreover, augurs that the elites and those who have historically held power will not impose their interests by preventing an institutional design that will further promote participation and social dialogue. However, the participation of citizens must take into account the recent Latin American experience; she is illustrative of the need not only to focus the constitutional debate around rights – which certainly matters – but also on the distribution of power (Gargarella, 2013). Hence, it is argued that changing the distribution of power will allow for better discussion of social changes along with promoting a broader and more periodic democratic dialogue within society, which is more intense compared to the previous constitutional designs followed in Chile. Today, citizens demand to participate in this process, in a more active way than the representative institutions were accustomed to or thought they represented; promoting genuine participation and deliberation in the debate that take into account the diversity of the country guarantees a huge gain in democratic legitimacy, quality of constitutional content, longevity of the adopted text and in the renewal of the design of democratic participation in Chile.
Fiss, O. (1997). The Unruly Character of Politics. McGeorge Law Review, 29. Available in: https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2318&context=fss_papers
Gargarella, R. (2013). Latin American Constitutionalism, 1810-2010: The Engine Room of the Constitution. Oxford: Oxford University Press.
Gargarella, R. (2021). The “conversation between equals”. Diario Clarín, Buenos Aires, Argentina. Available in: www.clarin.com/opinion/conversacion-iguales-_0_NR06SRbNr.html
Landemore, H. (2015). Including Constitution-Making: The Icelandic Experiment. The Journal of Political Philosophy, 23(2), 166-191.
O’Leary, A. (November 14, 2020). Art O’Leary, former secretary of the Constitutional Convention of Ireland: “I’m very interested in the Chilean experience, they are very ambitious” (The Third) Available at: www.latercera.com/la-tercera-domingo/noticia/art-oleary-ex-secretario-de-la-convencion-constitucional-de-irlanda-estoy-muy-interesado-en-la-experiencia-chilena-son-muy-ambiciosos/7LBVZ72E5BF57GAVUHYZG4QL7I/
Squella, A. (2019). Democracy crisis, decline or collapse? Valparaíso: University of Valparaíso.
Suteu, S. (2015). Constitutional Conventios in the Digital Era: Lessons from Iceland and Ireland. Boston College International and Comparative Law Review, 38(2), 251-276.
Suteu, S., & Tierney, S. (2018). Squaring the circle? Bringing deliberation and participation together in processes of constitution-making. In R. Levy, H. Kong, J. King, & G. Orr (Edits.), The Cambridge Handbook of Deliberative Constitutionalism (pp. 282–294). Cambridge University Press.
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