Pedro Pizano. Pedro is the Northwestern-McCain Public Interest Legal Fellow at the McCain Institute for International Leadership.
“. . . it was the spring of hope, it was the winter of despair . . .” – Charles Dickens
As Chile gears up for a national referendum on April 26, 2020, much ink will be spilled on whether it is wise for a country to re-write its constitution.
The outcome and processes with which it is done will be a harbinger of things to come. Some have said that “the discussion of liberty in the region will never be the same again.” Others have celebrated it, or at least understood it, as the obvious consequence (in hindsight) of a bloated pensions regime, soaring inequality, growing middle class, and a history that never rests.
Here are some thoughts, having lived in Colombia—which had the second-oldest constitution in the region until it rewrote it completely in five months in 1991—and currently living in the U.S.—which has never re-written its constitution but only amended it, and just 27 times.
Here are some facts, as I understand them:
- Chile’s current constitution is forever tainted with Pinochet’s bloody rule. It was approved in 1980, with Pinochet in power; it was what allowed him to be named senator for life.
- Thanks in part to that constitution, and Pinochet’s ouster, Chile has become—arguably— the freest, safest, and most prosperous state in Latin America.
- Pinochet’s ouster was through a national referendum—same process with which the constitution will be re-written.
- Chile’s pension regime may be bloated and unsustainable; it was first put into place three months after the 1980 constitutional referendum.
- Its growing middle class has not seen the benefits that the 1%—which include the current president, a billionaire—have received.
- Chile’s current constitution is still perceived as that of an exclusionary, conservative state that must be updated.
- Current protests, putting aside their intent or reasonableness, have allegedly caused 1.4 billion US dollars in damages.
- Constitutional conventions, whether mixed or representative—the two options also on the ballot in the April 26, 2020 referendum—are dangerous and also full of promise.
- One hundred one days out from the referendum, 67% of Chileans support re-writing the constitution.
Here’s the text in English of the Chilean constitution as of 2015. There seem to be three major changes sought, none of which requires a new constitution. The first is the subsidiarity of the state; the second is its connection with Pinochet; and the third is about the scope of some rights.
The argument in respect to subsidiarity, which does not appear in Article 19 of the Constitution or anywhere else, is that Chile’s state is just a subsidiary to the economy, property, health, education, pensions, and social security. This allegedly means that the state only “guarantees” or “supervises” these rights—language which does appear in the Constitution—but cannot intercede or regulate them to the extent that the supporters of a new constitution want it to. The argument for its connection to Pinochet is that Pinochet’s constitution is forever tainted, regardless of the amendments of 1989 and 2005, and also in 1991, 1994, 1997, 1999, 2000, 2001, 2003, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015, and 2017 (some count these amendments as totaling 30, 43, 50, 140, or 200). Furthermore, it is still signed by former socialist President Ricardo Lagos, who led one of the pushes for 58 amendments and who was the one who ousted Pinochet. Lagos even removed Pinochet’s signature from the document. Lastly, the argument about the scope of rights is that it does not protect government employees’ right to strike, indigenous rights, the legislature’s co-equal powers, and legislative quorums. All of these can be addressed by amendments, rather than re-writing the whole text.
Nevertheless, the vote to rewrite the Constitution from scratch is set for April 26, 2020. A supermajority of Chileans support starting the process to re-write the Constitution (two other subsequent referendums are envisaged: to elect the members of the constitutional convention and to approve the final text). Yet, even if approved, few things will change: juristocracy is seldom a force for real reform. The risks however, are huge. Take it from us in Colombia: no person is wise enough to consider all possible future controversies, nor should any person or group of persons be given that responsibility or that right. (Which is, of course, the claim against the prior Constitution). Remember that, on average, no other region in the world has had more constitutions than Latin America.
One must know when it is time for radical change and when it is time for incremental change. More often than not, the latter triumphs in the long run. In Chile, it may be “the best of times, it [may be] the worst of times.”