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On October 5, 2020, the Inter-American Dialogue hosted “The Context of the Constitutional Reform in Chile: The Comparative International Experience,” part of a series of events related to the process of constitutional reform in Chile convened in conjunction with the Washington College of Law at American University, CSIS, International Republican Institute (IRI), National Democratic Institute (NDI), and the National Endowment for Democracy (NED). The webinar featured opening remarks from Michael Camilleri, director of the Peter D. Bell Rule of Law Program at the Inter-American Dialogue, and analysis from Sergio Bitar, member and non-resident senior fellow at the Inter-American Dialogue, Alexandra Huneeus, professor at the University of Wisconsin Law, Catalina Botero, dean of the Law School at Universidad de los Andes, and Carlos Ayala, member of the executive committee of the International Commission of Jurists and professor of constitutional law and human rights in Venezuela.
The conversation began with remarks from Sergio Bitar, who explained that the Covid-19 pandemic serves as a second political framework, along with social and economic forces, that propelled the demand for constitutional reform. For Bitar, the pandemic presents an opportunity to address issues that hadn’t surfaced previously, such as emergency funds for families, limiting the role of armed forces in states of emergency, forming a new social contract, and creating sustainable economic growth in the post-pandemic. Additionally, there are three conditions and expectations that need to be met to have a successful constitutional reform: 1) a gradual process with no expectation of radical change; 2) an optimistic view of the future; and, 3) placement of individuals in leadership who are able to create coalitions that include the opposition as well as other marginalized groups. Bitar emphasized that there is already a “change of consciousness” in Chile that facilitates this reform, however, efforts need to be made to isolate extremist perspectives, create spaces for dialogue to construct a common vision, and defend human rights to assure the process’ success.
Alexandra Huneeus posed a set of considerations to reflect on as Chile undergoes the constitutional reform process: 1) the role that human rights and international law should play in the reform 2) the evolution of human rights considerations that differ from those present in the 1980s, and, 3) the fact that Chile has never accepted the idea of control de convencionalidad. Huneeus elaborated on the three considerations by stating that the reforms should continue adherence to international treaties that were acknowledged previously. Huneeus also added that there must be a clearly outlined role for judges’ interpretation of the constitution and cited the Chilean lawyer Fernando Atria in stating that giving Chilean judges the power of judicial review “is similar to a victim handing a hammer to their abuser.” Furthermore, she emphasized that the new constitution is being formed in a context where there is a base of dialogue with the Inter-American Court of Human Rights (IACHR) that was not in effect during the previous constitution. This relationship in turn facilitates the integration of the American Convention on Human Rights and international law into the constitution.
Offering the Colombian context, Catalina Botero recounted that the 1991 Colombian Constitution was created during a period of high fragmentation, and under the 1886 constitution this did not allow for constitutionality. Despite this, a constitutional assembly was created, summoned by a group of students that were able to incorporate the voices of indigenous groups, women, and churches aside from the Catholic Church, in creating a plural and unified voice. Botero pointed out that this move broke with the common practice of governments creating constitutions as part of their political projects, as well as by placing people rather than bodies of authority at the center of the constitution. For Botero, “the best constitution is one that serves the majority to govern, but also serves the minority to present their opposition.” By placing people at the center, the Colombian constitution was able to create strong institutional protections of fundamental rights paired with organs and judicial functionaries that “took the constitution seriously.” In terms of mistakes to learn from the Colombian case, Botero highlighted the need to carefully outline the election of high commissioners for the protection of institutions so that the process did not become politicized. Also important is the mitigation of impunity within the military, given that the design of military courts in Colombia were not suitable for addressing human rights violations caused by their officers.
Carlos Ayala pointed to the symbolism of a new constitution in Chile as a signifier of a new era, and emphasized the complex nature of reforming a constitution in a time of crisis. Given the lessons learned from the ratification of the Venezuelan constitution in 1999, he warned against the possibility of political leaders “kidnapping” the constitution for their political gain. Ayala stated that the new constitution should be an “x-ray box of the people,” alluding to the necessity of reflecting the will of the people. Meaning, as there are only a few months provided to draw up the constitutional reform, the process should include high participation from civil society, an overall consensus, and strong leadership. Unlike in Venezuela where the reform was propelled by a referendum that had not reached a consensus, Ayala stated that the Chilean process should reach an inclusive consensus to assure the longevity of the new constitution. Moreover, Ayala added that this period of reform offered the opportunity to take a new creative approach to incorporate international frameworks of human rights into the new constitution.
The webinar concluded with questions regarding the obstacles posed by the pandemic on this process of constitutional reform, the ability of a still-developing state to be able to deliver on constitutional promises, and the role of indigenous communities on reform. The panelists once again emphasized the need for strong leadership, inclusiveness, and prevention of the politicization of the constitutional reform process, in order to achieve short and long-term success.