Newsletter 5 (July 2017)

Editorial summary

Constitutional innovation for the crisis of representation. One of the outstanding aspects of the results of the participatory stage of the constituent process carried out by the Bachelet government is the inclusion therein of new constitutional demands. The systematization of the results of the deliberations that took place in the self-convened meetings and citizens assemblies shows that the participants proposed many contents that new Constitution should contain which are novel. These include, for example, demands for participatory democracy, decentralization, environmental protection, right to decent housing, protection of historical and cultural heritage, institutions such as plebiscites, referendums, and consultations, and an Ombudsman, as well as a demand for plurinationality which arose from the the indigenous constituent process. As noted by Rolf Alter, Director of Public Governance of the OECD, in the presentation of the report and assessment that the organization prepared regarding the participatory stage, such catalogue presents a formidable challenge for any government seeking to meet the demands contained in it.

The variety of novel demands contrasts with the way in which key actors of political have proposed to respond to the constitutional problem. The proposals recently presented by the Senate as well as the Constitution Commission of the Chamber of Deputies are very limited, besides –at least in the case of the latter– lacking systematic unity. The proposal by a group of senators to amend the current constitution in order to include a “Council of Ministers” and facilitate the incorporation of congresspeople to positions in the Executive branch as ministers, in an attempt to move the current system of government closer to a semi-presidential one, has been presented as a response to “the complex situation of governance affecting political systems”, including Chile’s, characterized by a “distrust of the citizenry towards politics and institutions, the discredit of all public powers and growing demands of a demanding civil society, very active in social networks”, as well as by “a mismatch between the more traditional political structures of government and social reality”. Despite the correct diagnosis, it is hard to see how the proposed amendment would help to restore the lost confidence. Despite the elements presented in the diagnosis, the solution offered seems to understand the “complex situation of governance” as one that can be mitigated by ensuring legislative effectiveness through a better collaboration between the Executive and Legislative branches.

On the other hand, the proposal agreed to by some members of the Constitutional Commission of the Chamber of Deputies does not include relevant innovations. Indeed, much of the proposed amendments don’t go much further than expressly recognizing principles and protections which to a large extent are already included in the current constitution, have been recognized by the Courts, or at least have already been guaranteed at a legislative level. Examples of this are the proposals of including a principle of transparency, a guaranteed access to information, and the right to due process. Others are modest improvements regarding the recognition of rights such as a right to receive damages for judicial errors, or the right of assembly. The most substantive proposals of this project are similar to the Senate’s proposal, focusing on the relations between the Legislative and the Executive (on issues such as the President’s control of Congress’ legislative agenda, or the mandatory attendance of ministers to special commissions of Congress), or affect the movement of officers between ministerial and parliamentary positions (modifying the replacement process of congresspeople who take positions in the Executive, or eliminating the ban on holding public offices which affects those who have been removed by impeachment). The only proposed reform aimed in the direction of restoring public confidence in representative institutions seems to be the proposal to include the uneligibility for Congress of persons who have been criminally convicted.

Loss of transparency of the constituent process. While it seems that no constitutional innovations will come from Congress, if the government acts according to its announcements, it is the draft new Constitution which the President will submit to Congress later this year where the innovations proposed by citizens will be collected, as well as those others necessary to face the legitimation crisis of the political system. However, the way in which this stage of the constituent process designed by the government is developing is taking place under secrecy.

Indeed, the current stage of the government’s constituent process is moving away from the transparency that characterized it up to the publication of the Citizens’ Bases for the New Constitution which contained the results of 2016’s participatory process. This loss of transparency includes the suggestion that transforming the Citizens’ Bases into a constitutional text is a technical work, as was suggested by the Government spokeswoman when she answered a question about who is drafting the presidential project by stating that “they will be known in due course” and that for now, it is important to “let them work quietly so they can develop this draft”.

Of course, the lack of transparency risks jeopardizing the legitimacy of the process before the citizens, particularly those who participated in the local meetings and assemblies, and who expect their opinions to be reflected in the government’s proposal, as was promised by the President. The government showed satisfaction with the OECD’s report’s assessment of the participatory stage of the constituent process, but the current stage is critical and the organization’s report highlights it, drawing attention to a weakness for which no solution is in sight. The report states: “Citizens may feel their inputs were not taken into consideration, especially given that the consultation results are not binding” –although it is difficult to understand how they could be, given the vagueness of concepts expressed– but also because “no active feedback has been provided, and no possibility of co-production and public engagement has been implemented”.

Insofar as the Government has chosen to prepare a new draft Constitution, and this is being carried out by a group of people whose legitimacy lies exclusively on the confidence the President places in them, the challenge it will face at the time of submitting the finished proposal will be to demonstrate convincingly that what will be contained in it, despite the secrecy and the natural difficulties of translating abstract and controversial concepts into a legal text, reflects the views of the citizenry so they –or at least those who took part in the participatory stage– could reasonably approve of it.