Gautam BhatiaIn 2019, a wave of protests engulfed the country of Chile. These protests were triggered by familiar themes: social inequality, the cost of living, and probity in governance. But at the heart of the protests was also the fact that Chile’s Constitution was no longer fit for purpose. Drafted in 1980, under the military regime of General Augusto Pinochet, the Chilean Constitution embodied what is popularly known as Chicago School economics: market deregulation was not just a policy choice, but encoded into the Constitution, with one of its most notorious elements being the privatisation of water as a constitutional imperative. Over the years, this led to Chile becoming one of the most unequal countries in the world.
It is inclusive
Consequently, one of the demands of the Chilean protesters was to replace Pinochet’s Constitution with a democratic Constitution, written by the People of Chile, for themselves. The Chilean government eventually conceded to this demand. This led to the formation of a directly-elected Constituent Assembly, which was strikingly representative: 51% of the Constituent Assembly members were women, and there were 17 reserved seats for indigenous peoples. Constituent Assembly members also included people from across the socio-economic and geographical spectrum of Chile, sexual minorities too.
Unsurprisingly, this intensely representative and participatory process has led to the drafting of a Constitution that is both inclusive and visionary. The constitutional draft was finalised at the beginning of July, and will be put to a nationwide referendum on September 4. At the time of writing, there is intense campaigning across the country, both to approve and to reject the draft Constitution, with polls showing a close contest.
To understand the contribution of the Chilean people and the Chilean Constituent Assembly to the present global conversation around democracy, it is important to locate this draft Constitution within a longer history of constitutionalism. In the early to mid-20th century, constitutional drafting around the world often followed the United States model. It was believed that the purpose of a Constitution was to constrain state power. To this end, Constitutions set out enforceable bills of rights, and divided power between the three wings of State — the legislature, the executive, and the judiciary.
Other rights
In the latter half of the 20th century, it came to be understood that this vision of constitutionalism was necessary, but inadequate, to address the many problems faced by countries across the world. For one thing, Constitutions tended to ignore the “social question”, and issues around equitable access to material resources. In response, starting in the 1980s, Constitutions began to include “socio-economic rights” — such as the rights to housing, to education, and to health, among others — within their bills of rights.
A particularly famous example of this is South Africa’s post-apartheid Constitution of 1996. While recognising that it is not always possible for Constitutions to mandate how national resources will be allocated, socio-economic rights provisions have been useful in requiring governments to justify how resources are used, and to hold them to account where resource distribution was discriminatory, or insufficiently attentive to the needs of the most vulnerable.
Second, it was recognised that the complexities of governance require a set of institutions that are independent of the legislature and the executive, and can hold them to account. Some familiar examples include information commissions, human rights commissions, and electoral commissions. In constitutional parlance, these are sometimes referred to as “integrity institutions”, as their task is to ensure integrity in the functioning of state agencies. For example, Chapter Fifteen of the 2010 Constitution of Kenya lists out 10 commissions, and guarantees their independence from the government.
Drawing upon wisdom
Third, it was recognised that mere periodic elections constitute only a thin and attenuated version of democracy. This is exacerbated by the fact that elections require money, and — often — the backing of established political parties. Thus, to have a rich and thriving democracy, there needs to be a deeper and more substantive involvement of the people, in between election cycles. This has come to be known as the requirement of “public participation”. Once again, the 2010 Constitution of Kenya is instructive here: it mandates public participation in the process of law-making, and also envisions popular initiatives — alongside civic education and widespread consultation — as one way of bringing about constitutional change.
The Chilean draft Constitution draws upon this past wisdom, and decades of trial and error across the world, to craft a document that can serve as the framework for an enduring and egalitarian democracy. Some of the striking features of the draft Constitution, thus, are a catalogue of basic socio-economic rights (such as the right to education, workers’ rights, gender identity rights, and the decommodification of water); the existence of autonomous institutions, independent of the government; and the guarantee of citizen initiatives — including Indigenous initiatives — for introducing or changing laws in Parliament. As experience has shown, these are all integral elements for sustaining a culture of constitutionalism
Document with vision
However, what is even more striking is that the Chilean draft Constitution not only draws upon past wisdom; it is a future-facing document as well. For example, the Constitution grapples with the pervasive role of technology in our lives by stipulating the existence of a National Data Protection Authority, as well as guaranteeing a right to digital connectivity. The need for an independent data protection body is being felt in countries across the world, and the draft Constitution’s move to enshrine it within the constitutional text is, therefore, important.
Similarly, the draft Constitution acknowledges the gravity of the climate crisis, and constitutionalises important principles of international environmental law, such as inter-generational equity. It also guarantees a right to nature, which is something that courts in different countries, from India to New Zealand, have recently explored.
The draft Constitution’s progressive and inclusive bent has naturally given rise to criticism. For example, The Economist — notorious for justifying the 1973 Chilean coup — called it a “woke” document (whatever that means). The focus of the criticism appears to be that the document “goes too far” and can lead to economic irresponsibility. This criticism, however, proceeds on a range of incorrect assumptions. As we have seen, none of its provisions is outside the mainstream of contemporary constitutionalism; indeed, the provision of socio-economic rights in a Constitution has an ancient vintage in the Latin American constitutional tradition, going back to the Mexican Constitution of 1917!
Furthermore, Constitutions do not enforce themselves, but are interpreted, and interpretation always takes place in the real world. For example, the constitutional rights to housing, health, and education have not bankrupted the South African economy. Rather, they have been interpreted by the Constitutional Court of South Africa to protect vulnerable people against evictions, and in the fight against the AIDS crisis — to take just two examples. Within Latin America, the Constitutional Court of Colombia has been similarly disciplined in its interpretation of the Colombian Constitution, and is often hailed as the model of how a constitutional court ought to function.
Thus, when we take a step back and consider the draft Chilean Constitution in its historical and present context, a remarkable picture emerges: this is a document, drafted through an intensely inclusive, participatory, and egalitarian process, and which — in its substantive content — both draws upon the wisdom of the past, and looks to the future. It is, in many ways, a model for how Constitutions in the modern world ought to be drafted, and a lesson to the rest of the world; and if it is approved in the referendum of September 4, it will rightly be hailed as a historic triumph in the annals of global constitutionalism.
Gautam Bhatia is a Delhi-based lawyer
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