Newsletter 4 (July 2017)

Editorial summary

Indigenous peoples and the Araucanía Plan. As we have noted before, the problem of the relation between the Chilean State and the indigenous peoples seems to be the area where there is agreement across almost all of the political spectrum regarding its direct connection to constitutional issues. In this regard, it is remarkable that even from the Right there are proposals for the constitutional recognition of indigenous communities.

Of course, the motivations behind each proposal and their details vary significantly. While the Left recognizes the need to declare the plurinationality of the Chilean State and recognize the right to self-determination of indigenous peoples (as Beatriz Sánchez’s current platform document does), in the Right, there is a weaker acknowledgment of the need for constitutional recognition of the various cultures that constitute the Nation, as well as the “contribution” of indigenous peoples to its conformation (as the right-wing coalition Chile Vamos has stated in a document that elaborates on its constitutional proposals). Even on the furthest end of the right-wing part of the political spectrum there is a position, recently expressed by representative Osvaldo Urrutia, of the Independent Democratic Union [UDI] party, that asserts the need for constitutional recognition for instrumental reasons, driven in particular by what he perceives as the threat that indigenous communities other than the Mapuche people might resort to violence in order to enforce their demands. According to this position, constitutional recognition of all indigenous peoples, including political representation in Congress, would discourage those who resort to other forms of political action.

Meanwhile, the “Plan for the Recognition and Development of the Araucanía Region” (the “Araucanía Plan”), where most of the rural Mapuche population is located, and which was presented by President Bachelet seems motivated by reparatory concerns and the need to face a “history of disagreements and postponement” rather than by a direct recognition of the rights of indigenous peoples. Perhaps that explains some of its limitations. Some of these limitations, as some have observed, stem from the fact that the Plan reproduces some aspects of the proposals of the Presidential Advisory Commitee for the Araucanía Region, such as the emphasis on economic development in the region, which is “far from taking care of the core problems of the relationship between the Mapuche people and the State”, as José Aylwin –councilman of the National Institute of Human Rights– has put it. In the same vein, Marcial Colín –councilman of the National Corporation for Indigenous Development [CONADI] has argued that they “have not been well received by Mapuche communities informed and interested in their rights, because it essentially moves away from the rights recognized in the country, away from the recommendations made by United Nations Rapporteurs, and away even from the common sense of those who propose a different relationship between the Mapuche people and the Chilean State”.

Colín also emphasizes the absence in the Araucanía Plan of any mention of the demand for a recognition of plurinationality, which stands out in the results of the participatory stage of the Indigenous Constituent Process led by the Government, as well as in the proposed “Indigenous Constitutional Statute” drafted by the Legislative Committee of the CONADI’s National Council. The issue is directly related to constitutional change for recognizing Chile as a plurinational country is precisely the kind of fundamental declaration about the political community that should be found in a new Constitution.

Be that as it may, on August 3 will begin the consultation process on constitutional recognition and political participation of indigenous peoples for the new Constitution. Considering the precedent that some of the criticisms directed at the recommendations of the Advisory Commitee aimed at the lack of adequate representation of its members — which would violate the indigenous peoples’ right to choose their own representatives– particular attention should be paid to ensuring that the consultation process meets the standards required by ILO Convention 169. Unfortunately, a first misstep seems to have been that the Araucanía Plan itself is not the result of such a consultation process, something that had been denounced, among others, by government Senators and representatives of Mapuche community after the presidential public report in June 1 where Plan presentation was announced.

Chile Vamos and constituent process. After Sebastián Piñera’s victory in the presidential primaries of the right-wing coalition, Chile Vamos, it is likely that the former President will need the support of defeated forces to increase his chances of winning in November, or at least to ensure governance during a possible second term. Piñera has recognized that “we will do our best to strengthen the unity within Chile Vamos and attract all the other candidates”, in particular his defeated opponents, conservative Senator Ossandón and the more liberal Deputy Felipe Kast. Given the differences between those who competed in the primaries with regard to the need for, and the way of carrying forward, a constitutional change, it is worth asking if the unity sought will solve these differences, and in what direction: that of new Constitution through Congress (as proposed by Kast and Ossandón), or that of “improvements” to the current one (as Piñera proposes).

In general the attitude of the defeated candidates towards the constituent process led by the Bachelet government was of skepticism rather than rejection. Ossandón criticized the decision by Chile Vamos to exclude itself from the process and, on the contrary, called for the Right to participate in it. Meanwhile, Kast’s party, Evópoli, decided to participate in the process, with Kast stating that “we believe it is the healthiest way of not renouncing to any space in which to present our ideas”. As for the need for constitutional change, both Kast and Ossandón have recognized deficit of legitimacy of current Constitution before the citizenry. Kast has proposed a new Constitution, while Ossandón has defended the need for reforms through a process that would allow the constitution to “improve in legitimacy”.

Piñera, on the other hand, questioned the legitimacy of the participatory state of the constituent process led by the government and has not questioned the legitimacy of the current Constitution, simply recognizing that it’s advisability of “improving and perfecting it”. Such proposals for improvement would be those included in the document by Chile Vamos’ Constitutional Committee, and to which the former President usually refers. The search for convergence with a view to a potential right-wing coalition government will test the conviction behind the views expressed on the issue of constitutional change expressed by Ossandón, and in particular by Kast and his sector, given the more encompassing constitutional proposal of the latter. In addition to their differences with respect to the dichotomy between constitutional amendment and constitutional replacement, as well as the institutional procedure to carry out the change, there are important differences regarding the characteristics that the new (or amended) Constitution should have. While Kast and his sector prefer a “minimalist constitution” that rejects the explicit recognition of robust principles “such as subsidiarity or solidarity, that aim to ideologically guide the Constitution”, Chile Vamos’ proposal for improvements explicitly opts for a conception of the State according to which it “must develop its action based on principles and values such as dignity, social peace, freedom, solidarity and subsidiarity, merit and equality of opportunity, justice and responsibility, probity, transparency and good governance”.