Context:Chile’s draft Constitution is an example of a framework for an enduring and egalitarian democracy.
Background
In 2019, a wave of protests engulfed the country of Chile.
These protests were triggered by familiar themes: social inequality, the cost of living, and probity in governance.
But at the heart of the protests was also the fact that Chile’s Constitution was no longer fit for purpose.
Drafted in 1980 previous constitution led to Chile becoming one of the most unequal countries in the world.
Consequently, one of the demands of the Chilean protesters was to replace Pinochet’s Constitution with a democratic Constitution, written by the People of Chile, for themselves.
Inclusive constitution
The Chilean government eventually conceded to this demand.
This led to the formation of a directly-elected Constituent Assembly, which was strikingly representative: 51% of the Constituent Assembly members were women, and there were 17 reserved seats for indigenous peoples.
Constituent Assembly members also included people from across the socio-economic and geographical spectrum of Chile, sexual minorities too.
This intensely representative and participatory process has led to the drafting of a Constitution that is both inclusive and visionary.
Constitutionalism – evolution
In the early to mid-20th century, constitutional drafting around the world often followed the United States model.
It was believed that the purpose of a Constitution was to constrain state power.
To this end, Constitutions set out enforceable bills of rights, and divided power between the three wings of State — the legislature, the executive, and the judiciary.
In the latter half of the 20th century, it came to be understood that this vision of constitutionalism was necessary, but inadequate, to address the many problems faced by countries across the world.
In response, starting in the 1980s, Constitutions began to include “socio-economic rights” — such as the rights to housing, to education, and to health, among others — within their bills of rights.
Second, it was recognised that the complexities of governance require a set of institutions that are independent of the State and can hold them to account. Some familiar examples include information commissions, human rights commissions, and electoral commissions.
These are sometimes referred to as “integrity institutions”, as their task is to ensure integrity in the functioning of state agencies
Third, it was recognised that mere periodic elections constitute only a thin and attenuated version of democracy.
This has come to be known as the requirement of “public participation
It’s a document of vision
However, what is even more striking is that the Chilean draft Constitution not only draws upon past wisdom; it is a future-facing document as well
The Constitution grapples with the pervasive role of technology in lives by stipulating the existence of a National Data Protection Authority, as well as guaranteeing a right to digital connectivity. The draft Constitution’s move to enshrine within it – the need for an independent data protection body.
Similarly, the draft Constitution acknowledges the gravity of the climate crisis, and constitutionalises important principles of international environmental law, such as inter-generational equity.
It also guarantees a right to nature, which is something that courts in different countries, from India to New Zealand, have recently explored.
Thus, when we consider the draft Chilean Constitution in its historical and present context, a remarkable picture emerges: this is a document, drafted through an intensely inclusive, participatory, and egalitarian process, and which — in its substantive content — both draws upon the wisdom of the past, and looks to the future. It is, in many ways, a model for how Constitutions in the modern world ought to be drafted, and a lesson to the rest of the world.
