Chile opens the door for an ‘ecological’ constitution

Francisco Parra Galaz 

Chile will have a new constitution that could address long-standing concerns, from water management to a complete territorial reorganisation

Freirina is a town of only 7,000 inhabitants located in the north of Chile where the imposing Atacama Desert begins, or ends, depending on where you’re coming from. In 2012, half a million live pigs were abandoned here after a factory closed down, leading to a remarkable environmental conflict that resulted in the first standard for odour pollution. 

On 25 October, Freirina was the site of another piece of history. Residents were at the forefront of Chile’s historic plebiscite in which the country decided to bury, forever, the constitution that dictator Augusto Pinochet installed four decades ago. A whopping 91.3% of the people of Freirina approved the move. 78%
of Chileans voted to replace the country’s Pinochet-era constitution on October 25

Although nationwide 78% of Chileans said yes to a new constitution, the results in the “sacrifice zones”, the name given to localities like Freirina, marked by socio-environmental conflicts, were striking. 

Nine of the ten communes where the option for constitutional change exceeded 89% have conflicts ongoing. From the coal-fired power plants in Tocopilla, Huasco and Mejillones, and the water problems caused by mining activity in María Elena and Diego de Almagro, to the “mega-drought” that pits local communities against the avocado industry in Petorca. 

Only five of Chile’s communes rejected constitutional change, with a particularly high rejection rate in the eastern parts of Santiago, where the country’s highest earners are concentrated.

According to the World Inequality Database, Chile is one of the most unequal countries in the world. The top 10% of income comprises 60% of the country’s total. 

The referendum on Chile’s constitution follows October 2019 protests by a group of high school students who started a protest against a 30 peso (around US$0.04) rise in metro fares, which escalated into the so-called “social explosion” that grabbed the world’s attention. 

Demonstrators chanted slogans such as “It’s not 30 pesos, it’s 30 years”, in reference to the Pinochet-era constitution they felt was responsible for worsening inequality, and “Until dignity becomes a habit”. 

In light of the unrest, President Sebastián Piñera, a centre-right businessman who is governing for the second time, decided to suspend the APEC and COP25 summits that were scheduled to take place in Santiago.

Chile’s political parties agreed on a constitutional referendum to overcome the crisis that had smacked them in the face. In April 2021, 155 “constituents” (50% men and 50% women) will be elected and will have one year to draw up the new constitution, which must be ratified in an “exit plebiscite” by the population in 2022.

“This process opens an unprecedented door that happens every 40-50 years. It is a question of restructuring and rethinking the social contract between us human beings and how we imagine and view our territory. The principles and rights enshrined in the constitution will be key for the coming decades,” says Violeta Rabi, a sociologist at the University of Chile.

Rabi agrees with other experts consulted by Diálogo Chino: the constituent process is a historic opportunity in the context of the climate crisis – and in the midst of a pandemic – to rethink relations with nature.

An ecological constitution for Chile

“That could be a problem in times of drought,” General Augusto Pinochet said when the group of men he commissioned to draft Chile’s 1980 constitution presented him with their proposals on water. The dialogue is recorded in the book The Business of Water, by journalists Tania Tamayo and Alejandra Carmona, who describe how the dictator himself had to be convinced of the wisdom of constitutional guarantees for private water rights, designed to encourage investment in the country.

Water is at the heart of almost every socio-environmental conflict in Chile. From the glaciers in the mountains threatened by mining activity, the avocado trees in the central zone, the pine and eucalyptus monocultures in Mapuche territory, to the rivers that feed hydroelectric plants.

Ezio Costa, executive director of the NGO FIMA, says that the current Chilean constitution is a global rarity for giving maximum legal protection to the right to negotiate water. He argues the new constitution should enshrine the human right to water and recognise it as a common good. But how it should be managed is a matter for further discussion. 

for us, environmental protection certainly has to come first

“The constitution does not solve everything and that’s OK. It has general principles that are then worked out into laws. For example, if the common goods are recognised in the constitution, then the fisheries law, the water code, the forest law will have to take up that idea and be reformed, and that will take time,” he says.

For Costa, who has been working on the idea of an ecological constitution, it is important to understand that every constitution has clashes between rights and principles. What the 1980 constitution did is resolve them in favour of the private sector, he argues.

“In a new constitution, when there is a dispute between economic freedom and environmental protection, we hope the two will have the same relevance in theory, and then it will be a practical application of how one or the other is more important…for us, environmental protection certainly has to come first,” Costa adds. 

The human right to water, inter-generational justice, the rights of nature and access to information, participation and justice, along with a commitment to adapt to climate change, are some of the “unrelenting” demands of Chile’s environmental movement. Costa believes the crux of the debate will be in addressing “environmental limits to property” and the distribution of political power in the territories, a key point in ensuring that the new rights enshrined are not “dead letters.”

Manuela Royo, a lawyer and candidate for the constituent assembly for the Movement in Defence of Water, Land and the Environment (Modatima), believes that there must be effective mechanisms for protecting rights. For example, the existence of specialised bodies such as an Environmental Ombudsman’s Office should be set up to allow individuals and communities to exercise these rights, she argues. 

Royo compares Chile’s next steps with constitutional reforms in Ecuador and Bolivia. “They focused on the declarative of the rights of nature, not on the organic, how the participation of communities is structured in decision-making and in the distribution of power”. She maintains that precautionary principles should be included at the constitutional level to protect nature in the face of investment projects. 

The search for constituents

In 2013, Michelle Bachelet, the UN’s High Commissioner for Human Rights, was elected president of Chile promising a new constitution. More than 9,000 self-organised local meetings, provincial and regional councils, and more than 90,000 individual consultations were held. According to the minutes of the process, “respect for nature and the environment” was one of the five rights participants prioritised for a new constitution, along with the right to health, education, decent housing and equality before the law. 

In November 2019, at the height of the social explosion, the Alberto Hurtado University conducted a survey of Chileans’ attitudes towards climate change. The survey showed 71.8% in favour of banning polluting industries and large majorities that felt neither the government (73.4%), nor business (74%) nor Congress (81%) are taking enough action to solve the climate crisis.

For Ricardo Greene, a sociologist and urban planner in charge of the study, the public’s position on the exploitation of natural resources and extractive industries is clear. Providing the constituent assembly reflects this sentiment, it will be worked into the constitution, he says.

The Chilean Congress, which will continue to function in parallel with the constituent assembly throughout the drafting period, is processing two laws that may be key to the composition of the assembly. 155 members will make up Chile’s new constituent assembly

One relates to requirements for independent candidates to compete and whether they can form electoral pacts among themselves, to increase their chances of being elected. The other is about seats reserved for indigenous peoples and whether they will be among the 155 constituents, or given extra seats. Both laws, if passed, could give greater plurality to the assembly. 

Manuela Royo, for example, will be an independent candidate for Modatima in the assembly. Although she has a seat from the left-wing Frente Amplio coalition, they are waiting for opposition parties to decide whether and how many lists they will run together in the election.

Any principle or right to be guaranteed by the new constitution requires the approval of 104 of the 155 members, or a two-thirds majority. This was a measure that the national government and right-wing parties defended in extensive political negotiations, which led to the current process. 

In Violeta Rabi’s opinion, all the possible issues that could arise in the constitutional discussion depend on the body’s make up after April’s vote by constituents.

“The composition of the assembly will reproduce the powers that are in Congress today or generate a true unity between the candidates. There are factual powers that today benefit from the legal system we have and they are going to try to maintain those privileges, and the two-thirds rule implies seeking broad consensus,” he said.