On Thursday 2 June (according to the timetable that has been set), the plenary of the CC will vote on the fate of the new constitution. Paradoxically, in that act, part of the work done by the CC during the eleven months of its operation could turn out to be sterile. And, in so doing, some of the hopes of a national community confident in its constituent members will be dashed.

Political composition of the CC

It would be foolish to claim that the new constitution to be approved in the plebiscite of 4 September this year is a work of art. None has been in the past; there is no reason why the one that is being finalised these days should be. However, it is the only one that, throughout our history, has been drafted by people we all elected and put our trust in. And that in itself gives it a legitimacy vastly greater than any other. That legitimacy is the most powerful argument for voting ‘I approve’.

The composition of the CC was, from its inception, largely represented by members of political parties and a strong contingent of independents who were able to assert their status as such because social movements forced the previous Parliament to accept the creation of ‘lists’ of citizens who did not belong to those organisations. Contrary to what many thought (and still think), the social contradiction in those years was not between ‘left’ and ‘right’, but between the national community and ‘political elites’, understood as party militancy, the government of the day, the group of senior state executives or heads of public administration, and ministers of state, known in doctrine as the ‘high state bureaucracy’; In general, the same stratum that Nikos Poulantzas considers eager to gain access to the best paid positions in the state apparatus.

Such a Constitutional Convention, despite having a strong political/militant presence, was not to the taste of the dominant sectors, let alone their natural and spurious political representation. For this reason, from the outset, the CC was not only attacked by the natural representatives of creole conservatism (the Chile Vamos parties), but also by those who represent it spuriously (the parties of the so-called New Majority), eager to maintain their privileges and perks.

Beginning of the debate

On 18 May, when there had already been a debate within the government on the advisability of extending the term of office of popularly elected state posts (Parliament and the presidency of the nation, in particular) until 2026 and there was a consensus to accept this, but there were doubts about how to do it, The Comptroller went to the CC’s Transitory Norms Commission in Antofagasta to point out that, if the approval were to win, one way to facilitate the transition from the old to the new constitution would be to resort to an old practice and thus avoid an additional charge on Congress to pass laws:

“With respect to the administration of the State, the dictation and empowerment of the President of the Republic could be explored, so that he can dictate decrees with the force of law to adapt, as a kind of new regulation that could perhaps help this period. This would help those regulations that affect the administration of the State to be issued in a very short period of time and overcome some of the difficulties of the law”[1].

This was not a far-fetched idea. Not by any means. The administrations of Jorge Alessandri and Eduardo Frei had, in the past, used the mechanism of asking Parliament for the power to issue ‘decrees with the force of law’ to carry out the programme of their respective governments.

The debate originated precisely in the proposal to delay the entry into force of the new constitution until 2026 so as not to affect the interests of the ‘honourable’; furthermore, so as not to harm those who were elected with mandates that exceeded the aforementioned four years, it was considered that the senators who were favoured with the idea could continue to perform their functions, but in the Chamber of the Regions: basically, the idea was not to lay off these officials.

The idea of governing during this transitional phase, initially accepted by President Boric, was rejected by some members of his own coalition who, convinced that there was talk of ‘decree laws’, were reluctant to accept a mechanism that reminded them of ‘dictatorial ways of acting’ (sic!).

To avoid such suspicions, the government – which was aware of the provisions of articles 81, 82 and 83 of the draft constitution – found nothing better than to propose that the immediate use of the quorums established in the constitution be accepted, after it had been approved in the plebiscite of 4 September. The response was immediate: a discussion, to say the least, innocuous, because it went beyond the principles that guide public law.

Government’s attitude

The idea of protecting the permanence of parliamentarians in office is one of the pillars of the strategy of the coalition Apruebo/Dignidad, which favours agreements with the political scene in order not to hinder the approval of bills sent to Parliament. And they are sparing no effort in this direction. That is why it is not surprising that, after a meeting in La Moneda on 27 May, the liberal deputy Vlado Mirosevic confessed that the government would not support Fernando Atria’s proposal but would insist that the new quorums established in the new constitution should come into force immediately:

“Minister Giorgio Jackson informed the pro-government benches that the government does NOT share the proposal of 2/3 that is intended to be imposed on Congress for constitutional reforms; on the contrary, they are in favour of the new quorums coming into force immediately”[2].

In fact, during the course of that day, the president himself said in this regard:

“Our position on this issue is that the quorums have to operate in actum, what does that mean? That there does not have to be a special quorum for a particular legislature […] Congress has all the powers to be able to debate democratically according to the quorums that the Constitution establishes”.

“I don’t think there should be special rules, we don’t think there should be special rules governing one Congress as opposed to another”[3].

The debate was beginning, and the Socialist Party, involved in the debate, through the mouth of its substitute president Andrés Santander to Radio Biobío, would affirm:

“I think that this is a mistake because for so many years the Constitution of the dictatorship had a 2/3 majority that prevented democracy from being expressed in Chile, and today to try to establish the same quorum for the next period, with a democratically elected parliament, seems to me to be a mistake. We do not agree with this position and we hope that it will not be approved in plenary”[4].

The problem is compounded by another circumstance: any government (whatever it may be) enjoys immense gravitas over the political spectrum that supports it. It is no different with the Dignity Approval government. So, it should come as no surprise that the FA and the PS have ended up opening up to the idea of not supporting the 2/3 initiative (and, consequently, allowing the current Parliament to modify the constitutional text, taking advantage of the quorums established in the new constitution):

Some members of the Frente Amplio and the Socialist Party were open this Friday to not going ahead with the proposal to establish a 2/3 quorum, so that the current Congress can modify the future Constitution [5].

But is it possible that a Congress, elected under a given fundamental charter, can modify the charter that puts an end to the one under which it was elected? What kind of morality is that? What is protected by such a manoeuvre?

When should a new constitution come into force?

Constitutions are not changed to be kept in the attic, as is the case with those who have made a habit of postponing everything in countries where everything is postponed. However, when one looks at the reason for the changes, the urgency of putting them into practice becomes imperative. Then, what is innocuous or superficial ceases to be so. And then comes the inevitable reaction: what is needed is implemented; what is urgent is set in motion. And the policy of ‘chute everything forward’ becomes a thing of the past.

A document produced by the Latin American Observatory on the constituent process in Chile states that the main recommendations of the Observatory on the incorporation of transitional norms is that

“The new constitution should come into force immediately, with a call for elections in all bodies, and it should include condemnations, such as the dissolution of Parliament, if it does not come into force automatically”[6].

According to the Observatory,

“…] it makes no sense to think that a constitution would remain unimplemented for several years for an unjustifiable reason: the reluctance of the constituted powers to leave office for fear, it can be assumed, of not being re-elected. The constitution is the will of the Chilean people, and the will of the Chilean people cannot remain with folded arms waiting for the members of a chamber to decide for years to resist democratic changes. This would be an obstacle to constitutional change and, of course, a disappointment for all the people who stood up, demanded and voted for a better future, not a repetition of a past from which they want to escape”[7].

7] “[…] if new elections were not called immediately, it would be leaving in the hands of the powers of the State that belonged to a previous constitutional system the development of a constitutional framework for which they were not elected”[8].

A reason why certain events occur

But… If this has not happened in Chile, nor does it seem likely to happen, then what has happened?

Well, let’s start by saying that the protection of the Senate has undoubtedly been the trigger for the crisis. However, its efficient cause is not to be found in that circumstance. In our opinion, it can be found in the strategy chosen by the ruling coalition, which we already know about.

The strategy used by the ‘Apruebo/Dignidad’ conglomerate to carry out its government programme has been (and is) dialogue, in addition to unrestricted adherence to constitutional norms. This way of administering the country has become difficult after last year’s parliamentary elections when the new Parliament was formed. The fact that none of the major coalitions has a majority in the new Congress forces those involved in the nation’s political scene to talk, to seek agreements with the opposing forces.

It so happens, however, that it is not only collective class interests that are aired in Parliament, but also private or particular interests, which is also a form of how the interests of the dominant sectors are manifested. And an interest that unites the members of this corporation is the permanence in office, from which emerges a ‘political elite’ that demands the perpetuation of the state (permanence of the Senate and the senators) because the exercise of these interests is also a class interest. And this is what affects the current government: it must satisfy these sectors. It must risk doing so in order to be able to carry out its programme of government. Even if necessary, by risking the constitution or, what amounts to the same thing, by risking all the constituent work done by the CC, conduct which, if accepted, borders on immorality. Because, for us, it borders on immorality to act in the interests of the dominant sectors.

It seems to us that no one can override the will of the people. A constitution such as the one that the CC is delivering, if it is approved, is above all else. Or as Rubén Martínez, professor of Constitutional Law and Political Science at the University of Valencia, points out when commenting on the work of the CC:

“[…] the important thing is that the constitution can only be modified by the Chilean people and this is something that guarantees that the constitution will always be democratic and not fall into the hands of partisanship or the constituted powers”[9].

If the recommendation given by academic bodies advises putting into effect immediately a constitution that has just been dictated, why has it already been established that, if approved, the new fundamental charter of Chile would come into force in 2026 for the sole purpose of respecting the terms established by the current one, in terms of the duration of presidential and parliamentary mandates?

Protecting narrow interests

There is no doubt that the most immediate motive behind this innocuous debate has been the protection of the office of senator, a matter on which most members of the ‘political elite’ agree, with the honourable exception of Senator Fabiola Campillai, who told Radio ADN, shortly after being elected, that she was willing to resign from her post and face new elections if the new constitution so provided.

“Senator Fabiola Campillai asked the president of the Constitutional Convention, María Elisa Quinteros, that the drafting body eliminate the upper chamber of the National Congress.

We don’t need it, the laws are trapped there and they don’t want to repair everything that happened […] they are against giving even a sign of humanity. The Senate cannot exist'”[10].

10] President Boric was no different, and when Marcela Cubillos proposed shortening his mandate, he responded vigorously:

“I am totally open to discussing the length of the mandate that the people have given us, I have no problem with that. We did not come here to cling to power”[11].

If this is the case, why, then, was Marcela Cubillos’ proposal not considered or counterbalanced, recalling the content of Article 138 of Law 21.200, according to which

“…] the New Constitution may not put an early end to the term of office of the authorities elected by popular vote, unless the institutions they comprise are abolished or substantially modified”, proposed the following

“It seems to me that it would be necessary to incorporate the Executive Branch, the duration of the current presidential mandate and the authorities of the Executive Branch, because it also changes substantially, the Presidency changes substantially in its attributions with respect to what it has today […] the cabinet changes, the ministers change. Not only the issue of incorporating the Minister for Native Peoples, but also the powers of the President of the Republic change completely, the whole system changes”.

“So, I think that the transitional period, the duration of the mandate of the current President and the authorities of the Executive Branch, should also be under discussion”[12].

Why did no politician take up the gauntlet thrown down by Marcela Cubillos when she proposed reducing the term of office of the President and, in contrast to that, offered the early termination of the current Parliament and the presidency, as well as the holding of new and immediate elections? Was there, perhaps, fear on the part of the coalitions, of losing the power they had acquired? Was there fear among parliamentarians or government officials of losing the positions they had won in the electoral contests or in the fights in the corridors? Was it preferable, perhaps, to sacrifice the new constitution, forget the people, forget the hardships of the underprivileged and worry only about their own security?

Jorge Baradit was right when, listening to the debates on simple majorities and 2/3 majorities, he bitterly constructed an analogy that has been harshly criticised, but which nevertheless reflects the essence of the debate. For after stating that the constitution had been

“[…] written by a tremendously representative body […]”, he added, Baradit

Baradit added:

“It seems to us that it belongs to all democracy to allow this baby to express itself, to let it cry before they stick a knife in it”[13].

We don’t know if, at that moment, the constituent convention member was thinking of that phrase which, in his glory years, immortalised that politician and brilliant orator Radomiro Tomic and which is shaping up as a serious warning to the current rulers:

“When you win with the right, it is the right that wins”.

To allow the current Congress, elected according to the rules of the old constitution, which has not hesitated to declare Mapuche organisations ‘terrorists’, to carry out logging or readjustments to the provisions of the new constitution is, in itself, a naivety bordering on naivety; But, not to have taken advantage of the moment when a representative of the so-called ‘right’ proposes new elections and, on the contrary, to engage in an innocuous debate wondering whether or not, for the exercise of legislative work, it is convenient to use the quorums established in the new constitution – forgetting that in Public Law only what the law authorises is done, and that only in Private Law can everything be done that the law does not prohibit -, or if a quorum of 2/3 is necessary, represents an even greater folly. And unforgivable.

Santiago, 31 May 2022

[1] Editor: “La ‘sintonía política’ entre el contralor Bermúdez y el FA que puede ser crucial para el gobierno”, ‘El Líbero’, 24 May 2022, bold in the original.

[2] Editor: “President Boric: ‘Congress has all the powers to be able to debate democratically according to the quorums that the Constitution establishes'”. Radio Universidad de Chile, 28 May 2022.

[3] Editor: Id. (2). The bold is from the original.

[4] Ossandón, Josefina: “Presidente (s) del Partido Socialista: ‘Gobernar por decreto es un retroceso democrático'”, Radio Biobío, 28 May 2022. Bold from the original.

[5] Vera, Diego: “FA y PS se abren a no insistir en quórum de 2/3 para que actual Congreso reforme la constitución”, Radio Biobío, 27 May 2022.

[6] Moya Plaza, Ociel: “Observatorio Latinoamericano sobre el proceso constituyente en Chile: vigencia de nueva carta fundamental ‘debe ser inmediata'”, Radio Universidad de Chile, 22 May 2022.

[7] Moya Plaza, Ociel: Id. (6). Bold in the original.

[8] Moya Plaza, Ociel: Id. (6).

[9] Moya Plaza, Ociel: “Rubén Díaz Dalmau: ‘La Constitución creada por el pueblo chileno sólo puede ser modificada por el pueblo”, Radio Universidad de Chile, 29 May 2022. Bold in the original.

[10] Editor: “Fabiola Campillai asked the CC to eliminate the Senate: ‘We don’t need it'”, CNN Chile, 24 March 2022. Bolded in the original.

[11] Editor: “PresidenteBoric: ‘No vinimos aferrarnos al poder'”, Radio Universidad de Chile, 05 May 2022.

[12] Equipo El Dínamo: “Marcela Cubillos pidió abrir debate sobre el período del actual mandato presidencial”, ‘El Dínamo’, 03 May 2022.

[13] De Vicenzi, Pamela: “‘Que alcance a llorar esta guagua’: la desafortunada analogía de Baradit sobre la Convención”, ADN, 27 May 2022. The bold is from the original.