Peter D. Bell Rule of Law

The Inter-American Dialogue’s Peter D. Bell Rule of Law Program aims to elevate policy discussions around democracy and human rights, corruption and transparency, and citizens security in the Americas.

The program was established in 2015 to honor Peter D. Bell, a founding co-chair of the Dialogue’s Board of Directors, with support of the Ford Foundation. The broad scope and ambitions of the program are a fitting tribute to Peter’s expansive career as a tireless champion of human rights. 

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Chile’s Constitutional Convention: The Ascent of the Anti-Establishment Left and the Death of the Moderate Center

The failure of the right to obtain sufficient seats for a veto, the near total rejection of the moderate parties that historically have governed Chile, and the stunning power of anti-establishment, independent leftists all point towards a Convention that will draft a thoroughly leftist new constitution.

Jun 3, 2021˙

It’s time to restore asylum protections for domestic violence survivors at the US border

The intersection of domestic violence and migration in the Northern Triangle necessitates the protection of survivors seeking asylum. Biden’s stated commitments to gender-based issues and promises made on immigration reform prior to the election call on the administration to immediately restore asylum protections for domestic violence survivors.

Apr 9, 2021˙Catharine Christie

Chile’s Constitutional Referendum: A Symbolic Triumph but a Long Road Ahead

A popularly written constitution marks a new founding for Chilean democracy after the Pinochet dictatorship and the subsequent decades-long transition. But it will not assure the success of any one project in particular.

Oct 29, 2020˙

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On May 15 and 16, 2021, Chile held mega-elections for mayors, council-members, regional governors, and representatives to the Constitutional Convention. These were the first elections for public office since the 2019 mass protests and the October 2020 referendum that approved the national process to write a new constitution. The campaigns for the Constitutional Convention received the most attention due to the Convention’s history-making task to draft Chile’s new constitution over the course of the next nine to twelve months. The results of the election have sent a jolt through Chilean politics.

First, the right-wing coalition obtained only 37 of the 155 seats in the Convention. Their coalition had hoped to achieve at least one third of the seats, providing them with an effective veto over the drafting of the new constitution because the rules require a two-thirds majority for the inclusion of any article. The resulting underperformance have handed yet another defeat to President Piñera and his ministers, who are already dealing with the lowest approval ratings in the history of Chile. The right-wing parties failed to earn one third of the seats despite outspending every other coalition. While the right-wing did worse than expected, they still obtained more seats than any other electoral list.

Second, the political establishment as a whole and not just those on the right had a poor showing in the Constitutional Convention elections. The right, center-left and left obtained 90 of the 155 seats, leaving the remaining 65 seats to representatives unaffiliated with the traditional parties. Left-wing parties received 28 seats while center-left parties received 25. The most stunning result saw the Christian Democrats (DC) win only two seats while the Party for Democracy (PPD) won only three. Throughout the 1990s, these two parties dominated Chilean politics and were responsible for managing the democratic transition following the Pinochet dictatorship and massive economic expansion under Presidents Patricio Alywin, Eduardo Frei, and Ricardo Lagos. The essential null power that these two parties have in the Constitutional Convention marks a dramatic death for the politics of the transition generation, which were already on life support given the 2019 mass protests. Even if the DC and PPD were to team up with the right-wing to form a moderate block, their combined representation would not be enough to veto proposals and force negotiations.

Third, the power brokers in the Constitutional Convention will be the independent, indigenous, and non-partisan representatives. This grouping covers 65 of the 155 seats, amounting to more than 40 percent of the total. Because most of these representatives are entering formal politics for the first time and are members of newly formed electoral lists, questions abound. Who are they? What are their ideological inclinations? With whom will they negotiate and form pacts? Media and political analysts are only just beginning to answer these questions. Out of this large, heterogenous group there are initial groupings that help to understand the direction that the Constitutional Convention will go.

The Lista del Pueblo, for example, won a hefty 27 seats, which gives them more power in the Convention than the list of center-left parties that governed Chile for 24 of the last 31 years. The Lista del Pueblo is ideologically left-wing but with a sharply anti-establishment attitude and non-partisan commitments. After the election, the leader of the list declared that they will not negotiate with the right, will not defend any aspect of Chile’s current economic model, and will only come to agreements with people, not political parties.

The list of Independents for a New Constitution won 11 seats and ran on the slogan of “independent but not neutral.” They support placing human dignity as the core value behind the new constitution and hope to establish a social democratic, decentralized, plurinational and modern state.

A final group outside the political establishment worth mentioning are the indigenous representatives, which have 17 seats after being chosen in ethnicity-based elections. The most important group is the Mapuches, with seven representatives, including Machi Linconao who is a prominent activist for the recovery of ancestral lands and has previously been imprisoned four times. The indigenous representatives will presumably push for more official recognition and greater control over their territories. Their 17 votes could be key in bringing proposed articles over the two-thirds threshold.

The failure of the right to obtain sufficient seats for a veto, the near total rejection of the moderate parties that historically have governed Chile, and the stunning power of anti-establishment, independent leftists all point towards a Convention that will draft a thoroughly leftist new constitution. While constitutional change along these lines would represent a major achievement for the enshrinement of social rights, the financial press is already running headlines about the possible economic consequences. The Santiago stock exchange fell ten percent in one day after the results of the election were announced and Goldman Sachs warned that the “extreme left” could have negative effects for the market. These fears will only grow worse as the presidential elections in November 2021 draw near and left-wing candidates such as Communist Mayor Daniel Jadue continue to lead in polls. There is a strong chance that by early next year Chile will find itself in the midst of a profound economic, social and political transformation under a radical left-wing president and Constitutional Convection. Nevertheless, whatever its form, the drafting and enactment of a new constitution is an opportunity for the creation of a new social contract between the government and the Chilean people. Given that Chile has long been held out as a model of democracy and economic success, changes in the country’s social contract could have important repercussion beyond its borders and particularly for a region in the midst of intense social turmoil.

William Skewes-Cox is a human rights lawyer and a former consultant with the Dialogue’s Peter D. Bell Rule of Law Program. He holds a J.D. from Georgetown Law and a Master’s in Global Politics from the London School of Economics. He previously studied and worked in Chile for five years as a teacher and journalist. He maintains permanent residency in the country and votes in the country’s elections.

 

RELATED LINKS: 

What Will Delegates Change in Chile’s New Constitution?

Chile’s Constitutional Referendum: A Symbolic Triumph but a Long Road Ahead

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In the last few months, the flow of migrants to the US-Mexican border has been labeled a “crisis” by the media, and Vice President Kamala Harris is now leading the Biden administration’s response. While preliminary data shows higher than average border crossings in the last few months, the majority of migrants are expelled in a matter of hours on account of Title 42 – the public health mandate enacted under former President Donald Trump that blocked most migrants from entering the United States to claim asylum. The focus on sheer numbers and the crisis-framing also obfuscate the human aspect of migration, the individual stories, and motivations of those who make the dangerous journey to the border, lumping them together under the generalized label “migrant.” One group that has been largely overlooked is domestic violence (DV) survivors and their claims to US asylum.

US Asylum Applications Today

To be eligible for asylum under US and international law, a person must show a well-founded fear of persecution on the grounds of race, religion, nationality, political opinion, or membership in a particular group. In 2020, there were 151,800 total asylum applications from individuals in removal proceedings or at a US border or entry point, and today there are almost 1.3 million backlogged due to the large volume of applications and limited resources.

The approval rate of asylum applications has followed a steady downward trend over time, especially in the later years of the Trump administration. The countries most affected by high asylum application denial rates in 2020 are all in Latin America, including Honduras (87.3 percent), Guatemala (85.8 percent), Mexico (85 percent), and El Salvador (81.9 percent). These countries are also some of the most dangerous places in the world for women. In 2018, there were 13.49 femicides for every 100,000 women in El Salvador, the highest rate worldwide, and in 2021 so far, a femicide was committed in Honduras every 36 hours. This gendered violence is often a contributing factor for migration from Central America. Between 2014 and 2018, approximately 10,000 people per year were granted asylum due to gang violence or DV in their home countries. Although there is no exact data to show how many women are claiming asylum because of DV, there has been an increase in female migrant apprehensions from 2012 to 2017.

Asylum applications are filed with the Department of Justice’s immigration court system, known as the Executive Office for Immigration Review (EOIR). As part of the executive branch, the EOIR reacts directly to decrees or guidelines from executive officials. In 2018, the Trump administration used this influence to narrow the purview of asylum law and the ability of DV survivors to claim asylum. Led by former Attorney General Jeff Sessions, the administration argued that the grounds for asylum should not include domestic abuse because it is “private violence” rather than government persecution, upholding the misguided idea that violence against women is not a public health issue that warrants government protection. Human rights organizations challenged the use of these guidelines during the credible fear screening phase for asylum seekers in a federal court case. Although a federal judge ruled in their favor, this decision does not apply to the second phase when applicants are granted a court hearing. Judges can still use Sessions’ mandate to deny claims and some continue to do so.

DV & Migration under Biden

In sharp contrast, President Joe Biden has publicly stated his commitment to prioritize gender equality and rights and explicitly acknowledged the link between domestic violence and migration. He campaigned on a pledge to reform the immigration system and reverse Trump’s policies. Three of Biden’s plans, all published ahead of the November 2020 election, reference asylum protections for domestic violence survivors. Biden’s Central America Plan outlines a massive effort to invest in the Northern Triangle to address the root causes of migration. Under the section related to the rule of law, it states that Biden will restore “full access” to asylum for DV cases. The “Biden Plan to End Violence Against Women” and “The Biden Plan for Securing our Values as a Nation of Immigrants” specify that the US Department of Justice will reinstate explicit asylum protections, rescinded by the Trump administration, for DV survivors whose home governments cannot offer protection. On International Women’s Day, his administration’s fact sheet included ensuring that women and girls who flee from domestic violence are afforded the opportunity to seek US asylum.

While several executive orders on immigration have been signed into law in the first months of Biden’s term, none fulfills the promise of reinstating asylum protections. Under Sec. 4 (b) (c) (i), EO 14010, the attorney general is ordered to conduct a comprehensive review of the rules, regulations, and internal guidelines governing asylum claims to ensure they comply with international standards. The attorney general was given a 180-day review period, which ends on August 1, 2021. While the steady undoing of the Migrant Protection Protocols (MPP) is a welcome step towards fixing some of the damage done by the Trump administration to the US asylum system, Biden officials have signaled that other reforms will remain on hold. Accordingly, Title 42 remains in place – against the recommendations of public health experts – and the majority of migrants are turned away at the border. Statements by White House Press Secretary Jen Psaki and Secretary of Homeland Security Alejandro Mayorkas tell asylum-seekers to wait.

Next Steps

In the days between now and the end of the mandated 180-day review, thousands of asylum seekers will remain in precarious positions and be potentially exposed to many of the same risks that originally led to their migration. Rather than waiting until August, the Biden administration should immediately restore eligibility for DV survivors and reverse the harmful mandate enacted by Attorney General Sessions. In the long-term, legislation is required to reform the immigration and asylum systems to make it difficult for an anti-immigration administration to dismantle protections. Comprehensive legislation should also include explicit protections for gender-based violence victims under the definition of a “particular group,” ensuring their asylum eligibility. Although the US Citizenship Act of 2021 aims to accomplish some of this, the bill is unlikely to move forward in Congress as is and may instead be broken down in a piecemeal approach.

The intersection of domestic violence and migration in the Northern Triangle necessitates the protection of survivors seeking asylum. Biden’s stated commitments to gender-based issues and promises made on immigration reform prior to the election call on the administration to immediately restore asylum protections for domestic violence survivors. If the universal human rights of women and girls are a priority for the United States, we need to take action at the border.

 

RELATED LINKS: 

Gender Rights Program

Peter D. Bell Rule of Law Program

The Toxic Intersection of Violence Against Women in the Northern Triangle and the Trump Administration's Anti-Immigration Policies

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On October 25, 2020 the Chilean people voted by an emphatic margin to approve a constitutional convention to draft a new constitution. For the first time in the history of Chile, the country will undergo a process to write a popular constitution, one written by the people in elected assemblies rather than by a dictator and his team of advisers.

The symbolic significance of a popularly written constitution is dramatic because Chile’s current constitution has its origins in the Pinochet dictatorship. After the 1973 coup, Pinochet appointed a committee led by the jurist Jaime Guzmán to draft a new constitution that would check the institutional power of the Chilean left. Pinochet’s constitution was put to a vote in a 1980 national referendum that was widely rejected as illegitimate. Following the transition to democracy, carried out under the 1980 constitution, Chile’s center-left governments achieved several rounds of constitutional reforms that removed the constitution’s most anti-democratic provisions.

Because the 2020 Chilean constitution is largely free of this anti-democratic legacy, the popular enthusiasm for drafting a new constitution is best understood as the culmination of a thirty-year process to repudiate the legacy of the Pinochet dictatorship, this time down to the very institutionality of the state, and to firmly root the source of the state’s sovereignty and legitimacy in the people rather than the military.

NEXT STEPS

The Chilean people now undertake a process that will last three years before culminating in the enactment of the new constitution. In April 2021, Chileans will vote to select representatives to the Constitutional Convention, with gender parity guaranteed. Candidates are elected in the same manner as the House of Deputies but are prohibited from currently holding public office.

The newly formed Constitutional Convention will start drafting the constitution from scratch, rather than working off the current constitution. However, the new text must respect Chile’s existing international obligations. The Convention’s rules also require two-thirds support for the inclusion of all constitutional provisions. This means that the new constitution will need the support of the Chilean right, assuming that the right obtains at least one third of the seats in the April 2021 elections.

The Constitutional Convention has nine months to complete its work, but with a one-time option to extend its mandate for three more months. Then, in mid-2022, there will be a final referendum requiring a simple majority to approve the proposed constitution. The new constitution would become effective in 2023. 

HOPES AND FEARS

For the Chilean left, the drafting of a new constitution presents the opportunity to do away with the legal and institutional legacy of the Constitution of 1980. The millennial-led Frente Amplio, the Socialist Party, and the Communist Party – which together with other allied minor parties hold one third of the seats in the Congress – have dreams of turning Chile into a Nordic-style social-welfare democracy and believe that the constitution is the greatest obstacle standing in their way. Existing Constitutional doctrines like the principle of subsidiarity prevent the state from entering markets where private actors are already active, and this makes the government provisioning of public goods legally complicated.

Moreover, proponents of a new constitution have attacked the Constitutional Tribunal, a judicial body that is generally more conservative than the Congress and that has the power to veto legislation, prior to its enactment, that otherwise has the support of the President and Congress. Other developed democracies, such as the Netherlands, operate under the principle of parliamentary sovereignty and do not grant an effective veto over legislation to their high courts. The necessity of a Constitutional Tribunal, and the role of constitutionality review more broadly, is part of the constitution debate in Chile. The “blank slate” and two-thirds support requirement mean that the Chilean left can prevent these or other similar straitjacket provisions from entering the new constitution.

To those who voted “no” (rechazo) in the referendum, the constitutional process marks the first step of Chile’s descent into greater violence, social disorder, and economic depression. Though a much-mocked cliché, the voters of rechazo genuinely fear the coming of “Chilezuela.” For the most conspiratorial, the constitutional assembly could arrogate for itself full sovereign powers and displace existing democratic institutions, as happened in Venezuela in 1999 under Hugo Chávez. This would put at risk the exceptional progress Chile has made in growing its economy in the last thirty years.

THE MIDDLING PATH

The more likely outcome, however, is neither Nordic social democracy nor the Bolivarian Republic of Chile. Instead, Chile will experience two years of continued political uncertainty and attendant economic stagnation as foreign and domestic capital awaits the eventual results of the constitutional process before making any major investments. Any increase in social spending already faces strong fiscal headwinds owing to the dual blows of the 2019 social explosion and the 2020 Covid-19 pandemic.

Absent a self-defeating right-wing boycott of the Constitutional Convention elections, the two-thirds requirement will prevent the feared “radical takeover” of public institutions by the “hard left.” Chilean democracy has its problems, but this constitutional process is very distinct from that of Venezuela’s in 1999, which had a method of electing the constitutional assembly that gave an outsized supermajority to the Chavistas.

Nor will the new constitution assure universal public health, education and pensions. At most, the constitution may include aspirational promises. Perhaps a newly reformed constitutional court could take on an activist role in advancing social and economic rights, as happened in Colombia after the adoption of its 1991 constitution. But without implementing legislation, which requires majority support in Congress, newly promised social rights will likely not be worth more than the paper they are written on, just as in Venezuela. The Chilean left has overpromised its supporters and generated unrealistic expectations of material progress for the masses under a new constitution. The previous constitution undeniably made some reforms more difficult, but these issues operated at the margin.

The biggest obstacle to the establishment of a European-style welfare state in Chile is more straightforward: there has never been enough popular or electoral support. The historically influential center-left, as represented by the Christian Democratic Party, has not demonstrated a commitment to the same ambition. The Frente Amplio and Communist party, on the other hand, have never been anything more than a minority in Congress and have yet to have their presidential candidate advance to the runoff election.

As the Constitutional Convention begins its deliberations, the question remains whether Chile will continue to experience high levels of social mobilizations that at times challenged the ability of the state to maintain the rule of law. Will protesters be figuratively, or even literally, banging on the doors and walls while the Convention holds its sessions? The Covid-19 pandemic has so far kept a lid on mass protests, at least when compared to October 2019.

But Daniel Jadue, a communist mayor and the leading left-wing candidate in presidential polling, has urged continued mobilizations to serve as an oversight mechanism over the Convention. If social disorder continues to be a major issue, popular support could increase for the law-and-order right. And there is no chance the Chilean right will implement a social-welfare model given the necessary major increase in the tax burden.   

A popularly written constitution marks a new founding for Chilean democracy after the Pinochet dictatorship and the subsequent decades-long transition. A new constitution will certainly broaden the range of possible political projects in the long term. But it will not assure the success of any one project in particular. Chile will still face the same grand dilemma that inspired the 2019 social explosion: how to improve the social distribution of the spoils from thirty years of astounding economic success without “killing the goose that lays the golden eggs.”

William Skewes-Cox is a third-year law student at Georgetown University specializing in human rights law and a former consultant with the Dialogue’s Peter D. Bell Rule of Law Program. He holds a master’s in Global Politics from the London School of Economics. He studied and worked in Chile for five years as a teacher and journalist. He maintains permanent residency in the country and voted in the 2020 referendum.

RELATED LINKS: 

The Context of the Constitutional Reform in Chile: The Comparative International ExperienceEconomic Recovery and the Potential for Expanding Production in the Americas

The Unthinkable Crisis: Chile 2019

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