Usually, constitutions are the national issue of each country, and only exceptionally other countries should worry. However, it is this second scenario that must summon the Argentine Republic, since what is emerging from the Chilean Constitutional Convention will have an internal impact.
It is the indigenous issue, and specifically, with the repercussions that it could have on the Mapuche minority, since both nations share by history and actuality, the issue of Wallmapu. It is not yet a final constitution, since what exists in Chile is a Convention that must draft a proposal for a constitution, to be plebiscited, formed by 155 constituents, including 17 seats reserved for native peoples.
In some months, July 4, 2022, the deadline expires, and probably in September the exit plebiscite should be held, where Chilean voters must approve or reject. However, the project that is emerging leaves no doubt when it comes to indigenous peoples.
In the first place, there is an acceptance of the so-called legal pluralism, where a national justice system coexists on equal terms with those of the eleven nations that would integrate the Plurinational State, and where the concept goes far beyond the limited jurisdictions of other countries to put them on an equal footing with the national one.
Beyond the fact that in Bolivia, the indigenous world represents 62,2% of the population and in Chile only 12,8%, it exceeds what Evo Morales did, since there is a determination of crimes for indigenous jurisdiction in the law, while nothing similar still exists in Chile where it is not known in which crimes will be applied, so it becomes in fact one of the first postmodern constitutions, since it is identity rather than citizenship that will define rights and who judges who through the recognition of the different indigenous legal systems, a situation that could lead to breaking the unity of jurisdiction of the State.
What has already been approved goes far beyond constitutional recognition by entering entirely through the identity path in a constitution with differentiated rights for indigenous people, not only individuals, but also collective, and assures them representation in the structure of the State, including the Justice, Central Bank, and in the organs of popular election, whether local, regional or national, that is, the articles of the bill grant self-government to the 12% indigenous, with the right to reserved seats in elected bodies from municipalities to congress.
Territorial autonomy and self-determination can provide a dynamic that will encourage and promote separatism, that is, effects rather typical of internal or international wars, than of a constitutional text.
It does not correspond to the autonomies of Spain, since that reality is typical of nationalities such as Basques or Catalans. In Chile they would be nations to which a pre-existing quality is attributed, although there was also in some cases, transit from other lands, be it Alaska or the current Argentina, or also displacement of other peoples when reaching their current location.
What exists for these new territorial units is the duty to guarantee binding participation, which could perfectly prevail over national bodies in matters of ethnic interest, which could lead to institutional fragmentation, which goes far beyond the consultation established in Convention 169 of the International Labour Organization (ILO) of wide presence in Latin America, but that has not been ratified by countries of recognized success in the indigenous subject, such as Canada and New Zealand.
Argentina’s interest should be because both countries share the theme of Wallmapu, that is, a project that in some sectors is separatist, from east to west that covers territory on both sides of the Mountain range, and that today belongs to Chile or Argentina. In what has been advanced in the Chilean constituent convention, there is the right to integral reparation and territorial restitution, and the experience of recent years is illustrative that in Chile the project is more advanced and consolidated, and that there is only a lag of a few years in the manifestation and agitation of similar petitions and demands in Argentina.
The fact that they are collective rights of the whole ethnic group and not only individual of the people, means that someone will speak on their behalf with the same authority as the holders of the powers of the national State, placed on equal terms by the constitutions.
It will not be an easy process. and can pose to the States of Chile or Argentina the same problem that even the Spanish empire had, in terms of the multiplicity of interlocutors instead of just one, since the strength of the Mapuches was the same as their weakness, that is, they never managed to constitute-unlike mayas, Aztecs or Incas- a state, and they organized themselves in the form of tribal groups, which gave them flexibility for their military triumphs and cultural survival, but not for their political unity.
At the international level, the legal substratum may be less than required, since ILO´s 169 that serves as the basis, is not a Treaty but a simple convention, so its legal framework may be weak. At the local level, when the State fails to be respected as such, there is generally a situation that encourages the emergence of more radical groups that surpass the more moderate in ethnic representation, in addition to creating a greater problem if the perception of having more rights than non-indigenous people grow in the country.
In Argentina, perhaps interest has been limited, although it may become a refoundational experiment. Experience indicates on this subject that what has been done in Chile crosses the Andes, and with some delay it manifests itself. Different to Chile, violence is not yet expressed in a way that forces the deployment of the army.
Australian Steve Killelea, creator of the Global Terrorism Index and the Institute for Peace and Economics puts Chile 18th in the world and second in the region (behind Colombia) and says that “the mortality of attacks by Mapuche armed groups is 0.03%, which would indicate that they want to negotiate”, that is, a successful low-intensity offensive that has the state very cornered.
Above all, it is the consequence of not having addressed the issue in time, ranging from the delay in the much-needed recognition of its constitutional existence to having denied the reality of this violence by piously calling it “rural violence”. It is true that both in the conquest and in independent Chile, abuses and unjustified crimes have been committed, but equally negative is to analyze with today’s eyes facts from centuries ago, depriving them of historical context, and transforming them into a narrative of good and bad, in a reality that ceased to be black and white, to become of many colors.
Chile was slow to recognize that violence has nothing to do with legitimate demands and has a problem, where separatist violence takes place at the same time than drug trafficking, timber theft and organized crime of whites, who have no ties to the Mapuche cause. Nor is it related to the political orientation of who is in power in Santiago, since the first activity of Izkia Siches, the interior minister of president Boric, was to visit the Araucanía in a hasty and very poorly organized way, and despite having only been in government for a few days, she was received with bullets, demonstrating how wrong the idea is that dialogue depends on political color. The truth is that only a State that respects itself and is also respected by all can achieve a solution and maintain it, thus being the precondition for all dialogue.
It is very different to think constitutionally of the country as a plural nation than to see it as a grouping of nations that only coexist. Chile was slow to take the first step and now faces a reality that could transform it into an identity republic. Where little had changed, everything is changing rapidly.
It also took too long to confront violence, and the problem is not their rights but separatism, one where the first victims are Mapuches, those who have a different electoral behavior than these radicalized groups, even conservative in some instances.
In both countries governments are challenged by the Wallmapu, and when Minister Siches does not fulfill her official duty to denounce the attack committed with her entourage or the Ambassador of Argentine supports a Mapuche activist accused of violence in Chile, they both make the same mistake, one that will be turned against both countries at the UN, given the sympathy of this issue in the globalized world.
Argentina has paid insufficient attention, but there is still time.
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(*)Lawyer, Ph.D. in Political Science, former presidential candidate (Chile, 2013)
“The opinions published herein are the sole responsibility of its author”.
