After a proposed progressive and ambitious new constitution was rejected by more than 60% of voters last September, Chile is once more in the midst of debate over the rewriting of its 1980 document, a legacy of Augusto Pinochet’s military dictatorship.
This process was launched in 2019, after thousands of Chileans took to the streets in protest against the rising cost of living, among other demands, eventually leading to a referendum that saw an overwhelming majority support the creation of a new constitution.
A pandemic, a change of government from businessman Sebastián Piñera to young leftist Gabriel Boric, and a failed rewrite have come since. Now, 50 constitutional councillors elected by the public are overseeing the draft, with only a few months to finalise a new text before it is once more put to a plebiscite at the end of the year.
Unlike the previous rewrite, which was led by a 155-member constituent assembly, the new councillors have not started with a blank sheet of paper. Following the failure of last year’s draft, President Gabriel Boric’s government settled on a new process agreed with the opposition, in which political parties have the leading role.
In January, Chile’s congress appointed a 24-member expert commission, which created a preliminary draft of the constitution – already publicly available – that is the basis for the work of the 50 elected councillors. However, there is much uncertainty over the direction it will take, given the dominant role now played by Chile’s far-right Republican Party.
The Republicans swept the May council elections to take 23 of the 50 seats, giving them veto power over the articles that will be included in the new proposal.
So, what role is there likely to be for the environment and climate change in Chile’s new constitution?
The experts’ proposal
A recent survey on perceptions and expectations of the current process, published by Chilean think-tank Espacio Público, showed that 89% of respondents rank provisions for environmental protection in the new constitution as “very important” – across regions, socio-economic circumstances, genders and voting choices in the September plebiscite. It ranked as the second most important issue behind social rights, with 91%.
Alexis Cortés, a sociology professor at the Alberto Hurtado University in Santiago, was one of the experts appointed by congress to write the preliminary draft. He participated in a sub-commission on economic, social, cultural and environmental rights, from which the proposal’s environmental norms were drafted. In his opinion, the draft constitution manages to meet this public demand, with a chapter on environmental protection, sustainability and development.
“The debate was quite difficult, but we managed to reach an understanding that is quite valuable in terms of the result,” Cortés says. “Although the six articles [on the environment] that were included are few, in qualitative terms they represent substantive progress and put the country in an advanced position on these issues.”
Environmental protection is still seen as a threat to economic developmentPilar Moraga, the Environmental Law Centre at the University of Chile
The first article of the environmental chapter of the draft bill states that “environmental protection, sustainability and development are oriented towards the full exercise of people’s rights, as well as the care of nature and its biodiversity, considering current and future generations.”
Environmental lawyers who have followed the constitutional debate describe the text as far less ambitious than the environmental standards proposed in the rejected draft, but it does make some progress compared to the existing 1980 document.
Although the draft, in its current form, maintains a system that enables private ownership of water through exploitation rights, it also recognises a human right to water and its character as a national asset for public use at the constitutional level. Chile is currently suffering from a 13-year “mega-drought” that has stretched supplies and caused tensions in various regions.
This recognition “could help solve water problems because private interests must be aligned with the public interest and the common good, which implies protecting the ecosystems that allow the water cycle to continue functioning,” explains Ezio Costa, a lawyer and director of the NGO FIMA.
Possible advances could come from the draft’s explicit inclusion of a duty for the state, and also of individuals, on environmental protection. “This may give a wider scope for action at the judicial level,” says Pilar Moraga, director of the Environmental Law Centre at the University of Chile. “But in terms of legislation and an economic model that integrates environmental protection, there is not such an important advance. The status quo is maintained, which in the face of the climate crisis we are experiencing creates a very large gap.”
Arriving at the current text has not been an easy journey, given that among the expert commission chosen by congress, there is not one member with a background in environmental law.
“Environmental protection is still seen as a threat to economic development, and this tension can be seen in the political parties and in the experts they appointed,” says Moraga. “At the political level, there is still a failure to visualise a correlation between the economic and the environmental, rather than the supremacy of the economic.”
Republican uncertainty
Just before the inauguration of the new constitutional council, President Boric himself gave an open endorsement of the draft: “The experts have done a very serious job, where no one has been fully satisfied. Nobody won 100%, but it is a text that is acceptable to all those who were part of its deliberation.” He added that he would vote in favour of such a text.
Following the Republican triumph, defending the small wins in the experts’ draft seems to be a priority for Boric and his allies, Moraga explains: “The expert commission’s proposal sets a very low floor for what we can consider as constitutional protection of the environment. Seeing how the Constitutional Council was formed, this minimum will have to be defended. The first challenge is not to go backwards.”
Just a few weeks ago, 31 right-wing parliamentarians – led by Republican representatives – rejected a declaration that recognised the impact of human activity on climate change.
The elected councillors have now received the draft constitution and will be able to propose amendments in various committees, which will finally be reviewed in a plenary. The Republicans have 23 votes, which allows them to exercise veto power, given that 30 votes are necessary for the approval of an article.
In other words, the Republicans have enough power to prevent any article’s passing, and should they find allies in the representatives of the traditional right-wing, the necessary support to push through those to their approval.
Unity for Chile, an alliance of parties including Gabriel Boric’s governing coalition, only has 16 seats on the council, while there is only one representative from the country’s Indigenous peoples. This has already had repercussions on the make-up of the council’s drafting commissions. The right holds the presidency and the majority of votes in all of these groups.
For Alexis Cortés, it will now be more difficult to make progress on environmental norms. The Republicans, he says, “could very well write or rewrite the constitution. Despite the receptiveness to these proposals during the expert commission, the chances of them advancing are lower. It is different if this type of proposal is suggested by expert commissioners from the world of the left than when society sets off these debates as something urgent.”
Nobody won 100%, but it is a text that is acceptable to all those who were part of its deliberationGabriel Boric, President of Chile
In any case, environmentalists remain committed to pushing for expanded and improved ecological provisions in the constitution. However, issues such as the creation of a Nature Ombudsman’s Office, principles of environmental protection – precautionary, prevention, intergenerational equity – and rights of access to environmental information all failed to make it into the draft.
Though not as broad and inclusive as the previous attempt, the constitutional process does feature participation from citizens, with 54 proposals for articles already submitted to be discussed by the constitutional council. Academic and civil society organisations are positioning themselves to influence the process and broaden environmental protection. Ezio Costa said that various organisations are coordinating “to present together the best popular bills, obtain signatures and hopefully get them included in the new constitution.”
The constitutional council will have until 7 November to negotiate amendments and submit a final draft proposal, with a plebiscite set to be held on 17 December.
