The Chilean Expert Commission will present the draft text to the Constitutional Council on 6 June.ELVIS GONZALEZ (EFE)
Next Sunday, May 7th, Chile will elect 50 members of the Constitutional Council – 25 men and 25 women – who will draft a new Magna Carta proposal that would replace the 1980 proposal created under the dictatorship. You will not start from scratch. When they take office on June 7, they will receive a draft that a 24-strong commission of experts has been working on since March. Although this group, also equal, has not yet completed its work, it has already reached some general agreements, including the strengthening of political parties, an important reform given the high fragmentation that exists in Congress today. However, the experts have not yet been able to agree on the architecture of the social and democratic constitutional state. Particularly difficult has been the role of the private sector in healthcare, an ideological debate that has raged between the Chilean left and right for years.
This second attempt at a Magna Carta began after, in September 2022, 62% of citizens rejected the proposal of the Constitutional Convention, which had 154 members mostly drawn from left-wing social movements. This time, on the other hand, the political parties played a major role. On the one hand, the expert commission, consisting mostly of lawyers, was set up by Congress at the suggestion of the parties. On the other hand, conventional candidates compete on five lists associated with virtually all political groups.
Another major difference from the previous process is that this time 12 constitutional bases were created that cannot be broken. Including that Chile is a unitary state, the constitutional recognition of the indigenous peoples and that Chile is a democratic constitutional state.
The strengthening of the parties
On March 31, the expert commission approved a basic framework of 192 articles, which is currently being changed according to information from both the right-wing and left-wing governing parties. These are proposals that are voted on first in each of the four thematic sub-committees and then in plenary. The final text will be delivered to the 50 conventionals on June 7th.
Among the most important arrangements in the political system that could reach the final proposal that will be presented to the constitutional advisers, the presidential system has been retained. However, the agreement contains innovations for the figure of the President. The term of office is still four years, but for the first time re-election was limited to one-time, but not immediate re-election.
It was in the political parties where major operations were proposed, through regulations encouraged in a complex scenario that has shaped Chile due to the severe fragmentation experienced by the current Congress. For example, the Chamber of Deputies has 21 factions and a similar number of independents, which has made governability difficult in both the current government of Gabriel Boric and previous governments.
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In addition, the text proposes that from now on only those parties that achieve five percent of the votes in the election of the members of the respective chamber of deputies and deputies “have the right to participate in the distribution of seats in each branch of the National Congress. It also creates an anti-unruly rule, since the MP or Senator who “resigns from the party that declared his candidacy” simply loses his seat in Parliament. There are currently another twenty independents, but with the exception of MP Carlos Bianchi, all were elected on party lists.
Internal elections will for the first time be carried out by the Electoral Service (Servel), the state organ, a task which is now in the hands of the municipalities themselves.
Private and public health care
The social and democratic constitutional state has been a wish of the left since the beginning of the first constituent process in 2021. It is not foreseen in the current Constitution, born in 1980 during the dictatorship of Augusto Pinochet (1973-1990), but it is in the Convention proposal that was rejected last September.
In this new attempt at Magna Carta, this principle was incorporated into the 12 constitutional foundations agreed in 2022, which are the pillars of this second process, meaning it will be enshrined in the new text anyway. However, it is in the content design where there is still no consensus between the left and right of the expert commission. In particular, the differences focus on the norm relating to the role of the private sector in healthcare.
There are two contributory healthcare systems in Chile, one public and one private. The public covers 80% of the population through the National Health Fund (Fonasa) in which there are more than 15 million contributors. In the private sector, which is going through a serious crisis today, there are the pension and health institutions (isapres), which are insurers and house 17% of the population with the highest incomes (about three million Chileans).
The new constitutional proposal states: “The law can stipulate compulsory contributions. Each person can choose the healthcare system they wish to subscribe to, be it state or private. Although this paragraph was generally and unanimously approved at the end of March, members of the expert commission of the left-wing governing party have today submitted suggestions for a change. Some argue that the Constitution should not ordain a health care system, but that it should be left to the law. In particular, they question the inclusion of the word “regime” as they believe that this implies leaving a bound system in the constitution.
Lawyer Flavio Quezada, a member of the Socialist Party’s Expert Commission, was one of their main critics of the way the proposed settlement came about. “The question is whether he is constitutionalizing a model that I believe is incompatible with the welfare state. There is no constitution in the world that provides for such a thing,” he told EL PAIS. He adds that he does not deny the existence of private providers in Chile: “I am against the prohibition of solidarity policies in order to implement them,” explains Quezada.
On the other hand, constitutional lawyer Teodoro Ribera, an expert at the centre-right National Renovation party, says that the current discussion “is not focused on a healthcare system that provides the minimum for the entire population, but is mainly limited to the freedom of choice that is protected in the Constitution today and which we want to continue to protect”. This, he explains, “so that people can continue to choose between the public or private healthcare system and who can choose who provides their healthcare.”
Ribera, former Chancellor of Sebastián Piñera’s government, admits that “it was a difficult problem to tackle”. But that “there has been significant progress in other, also relevant matters”.
The indications for changing the expert commission’s proposal will be voted on after the election of the Constitutional Council after May 7th.