On July 4, a formal delivery was made to President Boric of the proposal for the new constitution, which will be submitted to a plebiscite on September 4, 2022, the most important election that Chileans will have, to define the country’s own future. It was quite an achievement, considering that the term was one year and 2/3 of the 144 constituents were needed. The harmonization commission and the technical secretariat did their job well and managed to reduce the original 499 articles to 388, plus 57 transitory provisions.
The same cannot be said for the content. I would very much like to have a different opinion, but rarely have I been so convinced of an opinion as I am now. I have read all the articles, and some of them three times (when they were approved in the respective commission, when they were entered into the draft and now). I have not only read them, I have studied them too. I have resorted to specialized literature, including its application in other countries of news for Chile. I took special care in several of the regulations that are experimental, in the sense that I have not heard of the same regulations in other constitutions, current or in the past, in other places.
I have acted with humility, prudence and seriousness, without prejudice or judgment in advance. I feel that I have prepared myself for many years on this subject, since I began my academic career in the last century as an assistant in the field of Constitutional Law in Chile, and not only taught there, but also in the United States, England and Sweden. I did not actively practice as a lawyer, but I was a professor of Constitutional, Political Science and dean. Also substitute minister in the Chilean Constitutional Court, without votes against in the Senate.
In my words, more than emotion there is reflection. In addition, due to family history I would have liked them to be different, since my parents arrived as political refugees from the Pinochet dictatorship in the United States and personally, I was sentenced by Court Martial to prison, being totally innocent.
In my career in politics, in the media and in academia, I have always argued for reforms to the current one, including a presidential candidacy, where I had the freedom, as a testimonial candidacy, to become the first to make regionalization and decentralization of Chile, identifying the 17 articles that it was necessary to modify, totally or partially, a candidacy that was offered to me precisely because of my university dedication to the subject of local governments.
Today I have no doubt that I must reject in the exit plebiscite on September 4, adding that, in the previous plebiscite, I could not vote, since my electoral residence had not yet been transferred to the United States, where I am living.
Technically, this proposal has many problems, which invite (with the experience of having integrated the Court of Appeals and the Constitutional Court) extreme judicialization (and paralysis), in addition to the existence of many inconsistencies between regulations in the draft. I do not disqualify her because this process was the result of the violence that was imposed in Chile, starting in October 2019, and that is at its origin, in addition to the fact that it is still not officially known what led the Piñera government to take this step, as The reasons for many of the congressmen who ceded their constitutional powers are also unknown.
This proposal was totally legitimate in its origin, having received 78% of the voters (undoubtedly few for a decision of this magnitude) in favor of a new constitution and a similar percentage for it to be drafted by new people, elected for this purpose, and not by senators or deputies in office, but it was losing legitimacy, for having rejected any dialogue with minorities that thought differently, so it was not everyone’s house, but like the previous ones, including Pinochet’s, the imposition of one group of Chileans to another.
The final result not only has experimental provisions, unrelated to the constitutional past of the country as well as to others, but, above all, it has extreme characteristics, it ends with that historical construction that is Chile, not that of the last decades, but of the last two centuries. It has very authoritarian features, and points to locks that go beyond the usual difficulty to reform any constitution, to make it impossible to substantially modify it, exactly the trap for which the 1980 constitution was criticized.
Plurinationality, as such only established in the constitutions of Bolivia and Ecuador, which should not be confused with the constitutional recognition and/or multiculturalism of developed societies, puts an end to the unitary notion of Chile, and by application of International Law alone leads to separatism. Regionalization as it has been stamped, leads to disintegration rather than integration, not as a gradual agreement, but as a sudden and abrupt change, in a country that has no tradition in this regard, neither as an independent republic nor as part of the empire. Spanish, being able to become a setback, being a true leap into the void.
The notion of judicial power disappears with a limited Supreme Court as power to become a kind of public service, with a politicization and total control from a Council that will have a minority presence of professional judges.
Institutions present since the birth of the country such as the Senate (1811) disappear, which together with a handcuffed justice mean that the separation of powers is not such, but an executive that can be perpetuated, above all, if it obtains a majority in the only relevant Chamber , that of Deputies, with a frightening addition, since special quorums disappear, even for legislation of great relevance, and it is thus that, even in an emergency situation, the vote of the majority of deputies present at that time would suffice , to pass expropriation legislation or the formation of state monopolies, just to cite one example. Deep down, it is forgotten that democracy is also a system that seeks to limit power, including those who are temporarily in those positions.
The State loses its ability to act against violence, with special legislation and anti-investment measures, especially in mining, and the prior approval requirements of native peoples, in the 11 territories that Chile would divide, with its own statutes, authorities and autonomies, would make the issue of the necessary resources to advance progress very difficult.
It enormously increases what is related to free rights for the population, Chilean or immigrant, which raises the issue of how these rights are financed or who pays for them, which is not least for the economic and political stability of the country, since, in addition , the wording of these regulations empowers any person, citizen or not, to go to court to sue the State for non-compliance, for example, with access to decent housing.
The list is long, but due to the need to comply with a self-imposed limit for the extension of this column, the main argument is the same as that of those of us who voted NO in the plebiscite rejecting the permanence of General Pinochet (1988), since this constitution does not improve democracy in any of its forms, on the contrary, it distances us from a quality democracy.
The truth is that both the republic, the res publica of the Romans, is at risk as well as the institutions of a democracy without surnames, the one that Churchill warned is not a good system, except that the known rest was much worse. .
So is the unity of that historical construction called Chile, since as the draft was written, 11 autonomous territories, with independent justice, with a veto on common provisions and the entry of military personnel, is a denial of equality before the law of democracy, since it inevitably brings privileges.
As presented, the proposal cannot be fixed, and it would be difficult for the victors to accept its subsequent reform, and it must be remembered that, at least in Chile, there was a cultural change before the political change, and today a new elite has appeared, which like that any other similar group in history, seeks to perpetuate itself in power.
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