After almost a year of intense work, the Constitutional Convention has just presented the first draft of the new constitution. In the coming weeks, it will now be up to the Convention to draw up the final draft, which will be submitted to the exit plebiscite, scheduled for 4 September. As would seem to be natural in the open and democratic political and ideological discussion that has developed around the constitutional reform, which is absolutely different from other constitutional definitions in our institutional history, there are issues that, between the logic of arguments and the logic of passions, have generated controversy, uncertainty and fears, both well-founded and unfounded, of all kinds. Perhaps on the list of the most complex and controversial issues has been everything related to indigenous peoples, in a country that, despite having a little over 10% of its population who declare themselves indigenous and despite the fact that the indigenous agenda has been an important part of the priorities of all recent governments, is still an issue that is little known, little understood and, therefore, historically manipulated.
By Diego Ancalao Gavilán and Braulio Cariman Linares
Among the norms approved in the first draft of the new constitution is that Chile will be a Regional, Plurinational and Intercultural State. A Regional State, in the first place, since it is defined that the State will be territorially organised into autonomous regions, autonomous communes and indigenous territorial autonomies (as well as special territories), figures that will be endowed with political, administrative and financial autonomy for the realisation of their purposes and interests in the terms established by the Constitution and the law. Specifically, the Indigenous Territorial Autonomies would be created so that indigenous peoples could exercise their autonomy rights, in accordance with the Constitution and the law. In this regard, there are those who mechanically translate “autonomies” with indigenous “control” or even with “independence”, even though the same approved norm states categorically that in no case may the exercise of this autonomy undermine the unique and indivisible character of the State of Chile, nor will it allow territorial secession. In other words, the Indigenous Autonomies, like the autonomous regions and communes, will be part of the political-administrative division of the State.
Secondly, it is established that the State shall be Plurinational and in these terms shall recognise the coexistence of the people of Chile with diverse indigenous peoples, within the framework of the unity of the State and, therefore, shall respect, guarantee and promote the exercise of the collective and individual rights of indigenous peoples and their members (self-determination, autonomy and self-government, culture, identity, cosmovision, heritage and language, recognition of their lands and territories and their own or traditional institutions, jurisdictions and authorities). The state must therefore guarantee dialogue between the diverse worldviews of the peoples that coexist in the country, overcoming asymmetries in the access, distribution and exercise of power and in all areas of life in society, promoting public policies that favour the recognition and understanding of the ethnic and cultural diversity of indigenous peoples; it must also respect the right to prior consultation in the adoption of administrative and legislative measures that affect them. Specifically, to overcome power asymmetries, the draft text indicates that the state must guarantee the effective participation of indigenous peoples in the exercise and distribution of power, incorporating their representation in the structure of the state, its organs and institutions, and in popularly elected bodies at the local, regional and national levels. In this way, reserved seats will be established for, for example, the Congress of Deputies. For these purposes, the number of these seats will be defined in proportion to the indigenous population of the country. At this point, it is necessary to clarify that plurinationality does not imply pluri-statehood, so that recognition and coexistence with other peoples is absolutely compatible with the existence of a single state.
Thirdly, the pluricultural nature of the state is enshrined. This implies that the State, in conjunction with the indigenous peoples, will adopt positive measures for the knowledge, valuation, recovery, revitalisation and strengthening of the indigenous cultural heritage, especially the linguistic heritage of the national territory, which will be revitalised and protected, especially those considered vulnerable. It is established that the official language of Chile is Spanish, but that the languages of the indigenous peoples will be official in their territories and in areas of high population density of each indigenous people. Now, the most commented aspect of this third pillar is the recognition of the legal systems of indigenous peoples, within the framework of the National Justice System, the Constitution and the international treaties and instruments to which Chile is a party. This point specifies that when dealing with indigenous persons, the courts and their officials must adopt an intercultural perspective in the treatment and resolution of matters within their jurisdiction, considering the customs, traditions, protocols and normative systems of indigenous peoples, which implies providing specialised legal assistance, interpreters, intercultural facilitators and consultative expertise. It is also established that the Supreme Court will hear and rule on appeals against the decisions of the indigenous jurisdiction, in a specialised chamber and assisted by a technical council made up of experts in their own culture and law, in the manner established by law. Consequently, this does not imply that there will be a parallel or independent “indigenous justice”, but rather a complementary justice, although clearly subordinated to the National Justice System and to the Constitution and the law.
In short, if we read carefully and objectively and dispassionately each of the proposals on indigenous issues included so far in the draft constitution, the vast majority of them correspond to what is already established in our own current legislation (Indigenous Law) and in the international instruments approved and ratified by Chile (ILO Convention 169, the United Nations Declaration on the Rights of Indigenous Peoples and the American Declaration on the Rights of Indigenous Peoples, for example). Furthermore, the concrete actions proposed are also part of a vast political experience in countries of the Americas and Europe, with different levels of development or socio-political matrix. Therefore, to the relief of some and the disappointment of others, there is substantially nothing new being proposed on indigenous issues that has not already been done or advanced in comparative terms. In short, the real debate that is approaching, based on a document and not on speculation, deserves to be discussed responsibly, with an open mind and from knowledge, with distance from doctrinaire positions or unfounded and intentional fears, considering nothing more and nothing less than that the constitutional decision that is approaching will determine the destiny of our country in the medium and long term.
