Is the resignation, without a corresponding replacement, of the members of the Constitutional Convention to be considered a new aggression to those that the Constitutional Convention constantly receives?

PRELIMINARY

The Constitutional Convention is, without a doubt, ‘the’ problem of the national ‘political elite’. The functioning of this body seems to be the main problem of the dominant sectors and, consequently, that of their political representation, both natural and spurious.

This situation could not be measured in the first six months of its operation, but only now, with the opening of the second (and final) part of the corporation’s work, a phase in which the main principles on which the new Chilean institutionality will be based should be delineated.

The period through which the Constitutional Convention is passing cannot, therefore, be described as calm. On the contrary, there is a manifest aggressiveness towards its members, disqualifications and whimsical imputations, discrediting. Most notably, in contrast to the previous phase – in which it could be said that the attacks on it had a markedly “confrontational” bias – these attacks now seem to be planned: firstly, there is agreement among certain sectors interested in carrying them out; secondly, they are not just mere insults or disqualifications, but rather specific proposals or clearly expressed fears; furthermore, the protagonists are not just three exotic members of the Constituent Assembly, but well-known figures in national politics. More precisely, they are members of the ‘national political elite’. It is, therefore, a phase that surpasses the previous one and in which the main actor in the opposition to the CC is, directly, that subject, something that does not happen by chance: the ‘political elite’ is the only one that can begin to arrange the pieces of the game towards the ‘plebiscitary rejection’.

FROM ‘CONFRONTATIONAL’ CRITICISM TO PLEBISCITARY ‘REJECTION’.

In the current phase, unlike other moments in the evolution of the constituent work, the censure of it has been led by the President of the Republic himself at the time, Sebastián Piñera, who, until then, had never ventured into such slippery terrain.

“With the beginning of the vote on constitutional norms by the plenary of the Convention, the questioning of the initiatives raised by the majority of the Convention members has been exacerbated. From the so-called ‘Yellows for Chile’ movement to figures in the current parliament, the legitimacy or the way in which the Constituent Assembly is proceeding has been called into question, and this has been joined on more than one occasion over the last week by the President of the Republic, Sebastián Piñera, who in an interview with El Mercurio expressed his concern about the ‘refoundational zeal’ that, in his opinion, exists within the drafting body”[1].

In fact, when 14 articles of the first report from the Justice System Commission were approved on Tuesday 15 February and 28 of the 36 articles of the Form of State Commission report were approved on Wednesday 15 February, reaching the 2/3 quorum, the situation was not to the liking of the president, who told the press on Thursday 16 of that month:

“I have the impression that in the dialogue that is taking place in the Constitutional Convention there is a lack of better will, a lack of understanding of this transcendental aspect of projection, because if we end up with a Constitution that continues to divide us, we will not have resolved the great challenge we have of finding a Constitution that is the great framework for unity, stability, projection, and within that framework to be able to process our legitimate differences”[2].

Piñera’s criticism was not confrontational, as had been the case up to that point with what we have called the ‘exotic conventions’. On the contrary, it took on the character of the advice that a good father gives to his wayward children. It was, in other words, a ‘recommendation’. Five days later, at a ‘press point’ held on Tuesday 22 February to mark the arrival of a shipment of anti-virus vaccines from the ‘Moderna’ laboratory, Piñera once again advised the Convention that

“We have spent 40 years dividing and confronting each other over the 1980 Constitution, we do not want to spend the next 40 years dividing and confronting each other over the Constitution that we hope will emerge from the Convention.

“A Constitution must belong to everyone and it must be recognised, respected and everyone must feel incorporated and protected by that Constitution. If it belongs to one group and not to the other group, it is not the solution that Chile needs and deserves. Moreover, a Constitution must defend certain fundamental values”.

“It is not good to weaken, for example, the concept of the relationship between the State and the citizens. The state is at the service of the people and not the other way around. A Constitution should give power to the people and not just to politicians, but I also find it worrying to weaken the independence and separation of the powers of the State, to weaken the independence and autonomy of the Judiciary or the Legislature”[3].

A few days later, on the 26th of the same month, the criticism of the Constitutional Convention, which came from the lips of another authority, took on other, more aggressive overtones. The president of the Electoral Service, Andrés Tagle, in a letter sent to the editor of El Mercurio and published on Saturday 26 February in that newspaper under the title ‘The equality of the vote in the new constitution’, said that

“…] we have all had a single vote in elections in Chile. It has been worth the same in plebiscites and in elections where a candidate is elected. But it has not been the same when electing the chambers of Parliament or for the Constitutional Convention, thus violating an essential human right”[4].

Tagle’s criticism, openly ‘disqualifying’, asserted that the Convention

“Was elected with serious voting inequalities that cast doubt on its democratic origins”[5].

Faced with the wave of criticism against him, Tagle later apologised, stating that the point of his observation was not to denounce the illegality of the corporation, but to give

“…] a personal opinion, which does not compromise the other members of the Board of Directors of the Electoral Service”.

“In addition, I must point out that it was never my intention to question the legitimacy of the Constitutional Convention. I only wished to point out that the existence of elements of inequality in the vote by which it was elected reproduces the disparate representation of other elections. For the rest, the Convention members are not responsible for the way in which they were elected and the Electoral Service, over which I preside, was responsible for organising the election with total transparency and in accordance with the terms of the Constitution”[6].

The fact that there has been an evolution in criticism of the constituent body in no way implies that the confrontational tone has been forgotten. On the contrary. In this sense, the most conspicuous representative of this current has been Senator Ximena Rincón who, in an interview with Radio Pauta, said in this regard:

“If this text goes along the lines of what has been publicly outlined, obviously I, at least, will not be in favour of approving it”.

“My words are clear and require no further explanation. We will have to see how the whole text of the Convention develops. This is not about whether or not there is a Senate or threats regarding legislative votes, it is about a text that represents all citizens”[7].

Ximena Rincón’s expressions have not gone in the opposite direction to the apprehensions expressed by her comrade Ignacio Walker, in terms of defending the social democratic theses of Anthony Blair and Anthony Giddens, and affirming that ‘refoundationalism’ and ‘left-wing populism’ constitute the DNA of the Frente Amplio and, consequently, of the Constitutional Convention[8].

This position cannot be separated from that of Senator Jorge Pizarro, when he defends the existence of the Senate, nor from that of the sanitation companies when they warn that the recovery of water is no joke. In general, the other positions openly defend economic interests, both personal and corporate, which are also widely shared by the ‘political elite’.

PIÑERA’S FAREWELL

It would have been a mistake to suppose that Piñera’s farewell would have failed to warn of the danger to the dominant bloc of the functioning of the Constitutional Convention.

“I am concerned about the excessive refoundational and identity-based eagerness of broad sectors of the Constitutional Convention. Chile was not born with this Convention, Chile has a history and our Nation is much more than the sum of its parts”.

“I am also concerned about weakening the judiciary, weakening equality before the law, suppressing the Senate of the Republic, which has always played a very fundamental role (…) Nor is it good to restrict people’s freedoms such as freedom of conscience, freedom of religion, freedom of expression or the freedom of parents to form and choose their children’s education. Also, it is not good to weaken the freedom of entrepreneurship or the right to own property.”[9]

Lately, the eagerness to disqualify the work of the constituent corporation has also been strengthened by the recommendations that the American newspaper ‘Financial Times’ has wanted to send to President Boric referring to the work of the same, which it sees as

“…] dominated by the radical left and maverick independents. Proposals debated so far (but not passed) include the creation of 11 different systems of justice for different indigenous groups, the abolition of the separation of bourgeois powers and the nationalisation of mining”.

“Boric has a rare opportunity to show that Chile can again be a global trendsetter, this time by creating a fairer and greener society while preserving growth and private investment. That could be a new model, both for Latin America and the developing world. But it will be necessary for Boric to control the antics of the constituent assembly”[10].

MOTIVES OR REASONS BEHIND THE ATTACKS

The timing of former president Piñera’s initiative to direct attacks on the Convention was not coincidental. As we have already pointed out, it occurred when the proposals submitted to the plenary of the Assembly began to be approved with a vote that went beyond the 2/3 of the conventional constituents, something that seemed impossible to happen. Because it was supposed to have the necessary third to avoid agreements. The ‘strategy’ of the conservative sectors within the Constitutional Convention did not seem to work, making it necessary for the former president of the Republic himself – and those who wanted to get involved – to turn their efforts to preparing the ‘rejection’ campaign. Thus, the ‘political elite’ would once again take the reins of defending their ‘own interests’. And so strong was this conviction that RN National Renewal deputy Diego Schalper took it on as his own in a secret meeting held on Monday 28 February at the Best Western Premier Marina Hotel in Las Condes, where he told members of his party:

“How do you take away the moral force of the Convention? By telling people that all the popular initiatives on standards will have been discussed by the committees for an average of one hour. They have collected 50,000 signatures only to end up with an hour’s discussion. That takes away the moral force, because they say they are participatory”.

“We have to make the Constitutional Convention compete with the Constitutional Parliament, how? With an alternative, and our alternative cannot be a party alternative or a right-wing alternative. It has to be a majority alternative and that is called Michelle Bachelet’s project”[11].

THE PLEBISCITARY REJECTION

The dominant classes are dominant because they dominate, and they dominate because they are conscious of their social role. When one strategy fails, another must be built; and if this also fails, another. And another. And so on. For this reason, even reviving a project like that of former president Bachelet may be possible for these sectors. If the confrontational discrediting had failed, if the formation of a group aimed at blocking the proposals within the plenary and preventing the agreements had also failed, there remained the preparation of the plebiscitary rejection, a route that required the joint work of the ‘political elite’. An ‘elite’ that

“…] oppose the new Constitution and call for a rejection vote. To do so, no doubt, it will spare no resources whatsoever. Moreover, she will do so in the name of what ‘Chile needs’, what ‘Chile wants’. For who better than she to interpret the wishes and needs of ‘her’ people”[12].

This critical proposal prepares, from now on – without even waiting to know the project that the corporation will present to the national community – to call on the citizens to vote for the rejection of the Constitutional Convention’s draft constitution because, according to art.142 of the reformed Pinochet constitution,

“Once the President of the Republic has been notified of the proposed constitutional text approved by the Convention, he must call a national constitutional plebiscite within three days of said notification, by means of an exempt supreme decree, for the citizens to approve or reject the proposal”.

“This plebiscite shall be held sixty days after the publication in the Official Gazette of the supreme decree referred to in the first paragraph, if that day is a Sunday, or the Sunday immediately following”.

That ‘immediately following’ Sunday is 11 September 2022, so we can assume that the decisive plebiscite should be held on that day.

Cristián Valdivieso, of the Criteria survey, a resounding opponent of the corporation, points out in this regard:

“[…] people do not know what to do or would rather tend to approve. Rejecting appears to be an unattractive decision, because there is no other option but to return to the 1980 Constitution.

That said, the picture one sees is not positive for the Convention. Nor is it positive for the exit plebiscite. Because we see a picture that will end up very polarised. An election in which the mobilised minorities will make a difference, but the majority of the population will remain on the sidelines, feeling that it is a Constitution disputed by the political powers. In no case will it end up as a constitution applauded or embraced because it is a constitution for all”[13].

But is that the only option open to the dominant sectors? It does not seem to us that political action aimed at neutralising the work of the Conventional Convention should be exhausted by simply waiting for the plebiscite to be held. It would be a very low estimate of the consciousness that the ruling classes have of the fulfilment of their role.

RESIGNING WITHOUT REPLACING

In September 2021, an investigation by the newspaper ‘La Tercera’ revealed that the Constitutional Convention member Rodrigo Rojas Vade was not suffering from cancer, as he had claimed, but from another illness. To top it all off, the Constituent Convention member had held a raffle for his own benefit to help pay for his treatment. A deception of the community, an excuse needed by the ‘political elite’ to provoke a scandal of proportions. It mattered little or nothing that Rodrigo Rojas had not emptied the fiscal coffers (like the high command of the Armed Forces) or gouged out the eyes of 500 people (like the government authorities). He should have been removed from the Convention and even sent to prison.

However, the law that had amended the constitution did not provide that members of the constitution could resign from it. Parliament had to resolve this situation, which led to the submission of a new bill and the consequent enactment of Law No. 21.432 on Constitutional Reform on the resignation of members of the Constitutional Convention, dated 09 March 2022, the sole article of which states

The following text is added to the first paragraph of article 134 of the Constitution of the Republic, after the full stop which becomes a full stop: “Without prejudice to the provisions of article 60, the members of the Constitutional Convention may resign their position when serious events severely affect their performance or jeopardise the functioning of the Constitutional Convention, as determined by the Electoral Qualifying Tribunal”.

Although there was a strong discussion about the replacement of Convention members who resigned, Parliament did not approve the possibility of replacing them, as was to be expected. There is no official explanation for this legal vacuum. To say that there was no agreement is not a reason. What is clear is that this was not a simple oversight but a conscious and deliberate action on the part of the members of Parliament. And of the presidency at the time. The question that haunts us, therefore, is what would happen if all the ‘right-wing’ Convention members resigned. What happens if the members of the corporation cease to be the original 155? What does the law say in such cases? Would the work of the Constitutional Convention be considered aborted? Would the whole corporation be considered vitiated?

Honi soit qui mal y pense’ goes an old French proverb. We must be ‘well thought out’. However, another proverb, very Chilean, teaches us ‘Think wrong and you will be right’. For it is clear that it has not been a simple oversight of the legislator to allow the resignation of the constituents and not to pronounce on their suitable replacement. Which makes us wonder: is the Congress thus resolving in advance a threat to itself in order to hand over a formidable weapon to those who want to destroy the Constitutional Convention, by allowing whoever wishes to resign to do so without being replaced?

We do not know. But at a time when confidence in political representation and in the institutions of the state is deteriorating, it is worth explaining what will happen to the work of the corporation if all the ‘right-wing’ members of the Constitutional Convention announce their withdrawal from it.

[1] Cisternas, María Luisa: “Claudio Salinas: críticas contra la convención constitucional ‘van en la misma cuerda que la campaña de Kast'”, Radio Universidad de Chile, 28 February 2022. Bold in the original.
[2] Martínez, Catalina: “Presidente Piñera: ‘En el diálogo que se está desarrollando en la Convención Constitucional falta mejor voluntad y comprender ese aspecto trascendental de proyección'”, ‘La Tercera’, 17 February 2022.
[3] Editor: “Presidente Piñera y trabajo de la Convención Constitucional: ‘No queremos pasar los próximos 40 años dividiéndonos'”, ‘El Mostrador’, 23 February 2022.
[4] Editor: “Andrés Tagle: ‘La Convención fue electa con desigualdades graves en el voto que ponen en duda su origen democrático'”, CNN, 26 February 2022. Bold in the original.
[5] Editor’s note: Id. (5). With bold in the original.
[6] Claro, Hernán: “Andrés Tagle: ‘Jamás he tenido la intención de cuestionar la legitimidad de la Convención'”, ‘El Dínamo’, 27 February 2022.
[7] Lozano Perafán, Diana: “La presidenta del Senado no estaría hoy por aprobar la nueva Constitución: ‘Mis palabras son claras y no requieren más explicación'”, ‘El Libero’, 04 March 2022.
[8] Walker, Ignacio: “Refundacionismo y populismo de izquierda: el ADN de Apruebo Dignidad”, ‘El Mostrador’, 04 March 2022.
[9] Vera, Diego: “‘Chile no nace con esta Convención’:Piñera critica a la CC en su última cadena nacional”, Radio Biobío, 09 March 2022.
[10] Meza, Cristián: “El consejo sincero del Financial Times a Boric: que controlle las payasadas de la Convención”, ‘El Dínamo’, 10 March 2022.
[11] Editor: “Diego Schalper asked to remove ‘moral force’ from the Convention and ‘atrophy’ Boric’s government”, ‘El Desconcierto’, 01 March 2022. Bold in the original.
[12] Fernández Darraz, Enrique: “La Convención Constitucional y el dolor de la elite”, ‘El Mostrador’, 03 March 2022.
[13] Editor: “Cristián Valdivieso, director of Criteria: ‘La foto del plebiscito de salida no se ve positiva'”. ‘Ex -ante’, 04 March 2022.