Chile marks a notch in global constitutionalism

Source: This post is based on the article “Chile marks a notch in global constitutionalism” published in The Hindu on 20th July 2022.

Syllabus: GS 2 – Comparison of the Indian constitutional scheme with that of other countries.

Relevance: About the draft Chilean constitution.

News: In 2019, Chilean protests revolve around themes such as social inequality, the cost of living, and probity in governance. One of the demands of the Chilean protesters was to replace Pinochet’s Constitution with a democratic Constitution, written by the People of Chile

What are the issues with Chile’s constitution?

Chile’s constitution was drafted in 1980, under the military regime. The Constitution embodied what is popularly known as Chicago School economics. These include a) Market deregulation was encoded into the Constitution, b) Privatisation of water as a constitutional imperative. Over the years, this led to Chile becoming one of the most unequal countries in the world.

What are the various models of the Constitution?

United States model

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. Constitutions set out enforceable bills of rights, and divided power between the three wings of State — the legislature, the executive, and the judiciary.

But the US Model tends to ignore the “social question”, and issues around equitable access to material resources.

Later models

Firstly, after 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. For example, South Africa’s post-apartheid Constitution of 1996.

Secondly, the constitution recognises the complexities of governance and establishes a set of institutions that are independent of the legislature and the executive. These are sometimes referred to as “integrity institutions”.

These include information commissions, human rights commissions, and electoral commissions. For example, Chapter Fifteen of the 2010 Constitution of Kenya lists out 10 commissions and guarantees their independence from the government.

Thirdly, the constitution also recognises active public participation. For instance, the 2010 Constitution of Kenya mandates public participation in the process of law-making, and also envisions popular initiatives as one way of bringing about constitutional change.

What are the salient features of the draft Chilean constitution?

The Chilean government eventually conceded to protesters’ demand. This led to the formation of a directly-elected Constituent Assembly. The constitutional draft was finalised at the beginning of July and will be put to a nationwide referendum in September.

The Chilean government include all three post 80’s constitutional features. Apart from that, the constitution is also a future-facing document. For example, the Constitution recognises the role of technology and guaranteed the right to digital connectivity.

The draft Constitution acknowledges the gravity of the climate crisis, and constitutionalises important principles of international environmental law, such as inter-generational equity.

If approved through the referendum, then it will be hailed as a historic triumph in the annals of global constitutionalism.