Chilean constitutional lawyer Domingo Lovera (46 years old, San Felipe), doctor of law and co-director of the public law program at the University of Diego Portales, was part of the expert commission of Chile's constitutional process this year, representing the Democratic Revolution, one of the parties the Frente Amplio, the left-wing coalition of President Gabriel Boric. This group of specialists from all political areas drew up a preliminary draft of the constitution, which was then presented as a working basis to the 50 members of a council, where the text underwent profound changes.
Two days before the referendum for a new constitution – Chile's second attempt in four years to change its law, after the fiasco of the 2021-2022 Constitutional Convention – Lovera speaks to journalist Ascanio Cavallo about the reasons for pushing the “against” option in the referendum this Sunday the 17th. The conversation will take place at Confitería Torres, a restaurant in the Isidora Goyenechea neighborhood, in the east of Santiago de Chile.
This was the conversation that took place for EL PAÍS.
Questions. Let's try to create a framework for what will be voted on Sunday. How would you define the project ideologically?
Answer. I think it is a text that addresses the same problems as the Constitutional Convention: maximalist, detailed, programmatic and, without a doubt, right-wing. The work that we did in the Commission of Experts was already liberal-right, because we understood that it was part of the agreements that had to be made to achieve it in other areas, especially in the social and democratic state and a more conducive constitution. However, I believe that there are two plans embedded in it: a moral one and an economic one.
Q And is the Chilean constitutional tradition one of the authoritarian, conservative and pluralistic countries?
R. I believe that it is a continuation of the 1980 Constitution and that it radicalizes the 1980 neoliberal project. It's not that I say it, but that José Piñera says it. I wouldn't say it's authoritarian, but rather presidential. It has a conscientious objection valve that allows one to be exempt from complying with the law. If someone came from Mars and read this, they would have to conclude that people who pray in Chile are persecuted, imprisoned and their temples burned down. The principle of equality has two paragraphs and freedom of conscience and thought has seven or eight.
Q And politically?
R. It is similar to 2005 in the sense that the autonomous institutions remain more or less as they are. There is a somewhat increased role for the armed forces, but nothing like it was in 1980. The same applies in the framework, without the authoritarian enclaves. Except for the preventive control of constitutionality, which was decided by the expert commission and reintroduced by the Council. With a detail that is not insignificant: the supermajority quorum disappears, but at the expense of everything that is in the organic legislation and passes into the constitutional text. As a result, it is growing enormously and is on the podium of the three largest.
Q Do you think the Republican Party is right-wing extremist?
R. Yes, hard, right. They present themselves as a conservative and values-based right that is different from the right of economic power. I think they came with the intention of domesticating Chile Vamos, but in the end the proposal encompasses both worlds, that of economic power and the conservative one. It's that Chilean mix: ultra-conservative in values and ultra-liberal in economics, with a touch of the extreme right of the USA or Brazil, anti-globalist, suspicious of international organizations, the 2030 Agenda, the United Nations, all of it. I think that this makes them fit into those movements that some constitutional literature describes as illiberal.
Q Do you, as part of the expert commission, believe that this text has been significantly exceeded? Was it a better project?
R. I think so, even if the rating is close. What happened in the expert commission and could not be repeated later in the Council is that two factors determine the fate of the constituent processes: attitude and design. I think that those of us on the Commission had in mind, in terms of attitude, what not to do.
Q What had happened to the convention?
R. You had to talk, have a dialogue and take care of your forms. And as far as design goes, because we were in two blocs tied together, the rules were written in multiple hands and we had very honest conversations where we identified risks or fears. Ultimately, this project was supported by everyone from the Communist Party to the Republican Party. It fulfills what a constitution must fulfill, namely that it makes no one happy. No one is the owner, but all political projects acceptable to a democracy can coexist and develop under this roof.
Q But countless amendments were submitted to him. Was that a mistake?
R. In May, after we learned the results of the council election and we had not yet finalized many matters, the position in the expert commission was maintained. However, the proposal was ultimately redesigned in the Council due to the large number of amendments and the objectives they pursued.
Q That is, the work of the Council was influenced by the experience of the Convention…
R. I insist that the Council ultimately did more or less the same as the Convention. With reversed composition. This is very remarkable because an important part of the responses to the numerous amendments tabled to the bill could be read as replies or even as revenge – as a Commissioner once said – against what the Convention had tried to do. Of course, they often thought about the Convention instead of thinking about the extent to which the preliminary draft made it possible to put an end to the constitutional question.
Q The problem with the convention project was that the left tended to vote as a bloc, even if they didn't always agree. And the government has committed beyond the prudent.
R. I agree. I believe that the big lesson from the poor outcome of the Convention is that I do not believe that in a stable democracy like Chile's it is possible to create a new constitution if it does not take into account the most diverse political visions.
Domingo Lovera during the conversation with Ascanio Cavallo.FERNANDA REQUENA
Q The entire process ultimately arises from an interpretation of the October 2019 outbreak. Do you think it is correct to assume that the outbreak indicated a constitutional change?
R. I think it will take a little longer to return. Chile has a peculiarity that it does not share with other countries that have transitioned from dictatorships or authoritarian regimes through their own constitution, such as South Africa, Spain, Portugal or Brazil. Chile transitions to democracy with the 1980 Constitution paving the way to democracy. The problems of the 1980 Constitution were problems of practice, that is, it had achieved a certain practice that had prevented the development of some improvements in social affairs. Several were declared unconstitutional. Two non-radical examples: a labor reform that was the responsibility of the unions; and the modification of Sernac. When the outbreak broke out, many of these citizen demands found space to return to these issues. Once upon a time there were workers, students, consumers, environmentalists whose changes in the law were also declared unconstitutional. I believe that in this November 15 agreement, the parties had such a large number of demands before them, all of which were on the same level. Yes, it seems to me a mistake to believe that the only way to give a comprehensive answer to all these demands is through a constitutional process. But there was just a way to put them on the table.
Q Let's talk a little more about the text. I am impressed by its expansion, which is greater than what we knew in previous constitutions.
R. I start with the number of transitional provisions because if they are adopted we will enter a complex cycle that will mean that the government's hands will be tied and it will be forced to devote almost exclusively to dealing with more than 30 bills, to create new committees.
Q And in the central body, it's the level of detail that makes it grow, right?
R. Yes, detailed, maximalist, programmatic. I insist on the clause of freedom of conscience, thought and religion. You read it and ask yourself whether it should be regulated at the constitutional level. What I do know is the fact that temples can make agreements among themselves. It will be a very respectable claim, but I don't think it should be regulated at the constitutional level.
Q What is also noticeable is the establishment of new organizations, many of which control other government bodies. A state that polices itself.
R. I will choose the best version, namely the one that Don Hernán Larraín once proposed in the Commission. He said he would like to see councils that would allow individual boards to have someone to talk to. This is the case with the advice that is anchored in the public ministry. My main objection is that placing the national prosecutor in a council means that prosecution policy, which should be flexible, must be subject to this control, which ultimately leads to bureaucratization. Or the anti-corruption agency: Nobody knows who it depends on and how it will issue orders to the constitutionally autonomous bodies. The reason – wrong – is to believe that the separation of powers also governs intraorganic organisms, when in reality it is the framework on which the legislature controls the executive, the executive has something to say about the judiciary and the comptroller's office has been monitoring the president. Chile has no problems with the separation of powers.
Q And Congress? Again I counted a large number of items.
R. The way Congress is regulated is not as complex as its composition, which is ultimately the worst change. The reduction of seats, the redistribution and the opting for this formula instead of using the tools outlined in the Commission of Experts to try to promote greater unity between political parties. Redistribution of electoral districts significantly jeopardizes the other principle that an electoral system must respect, namely representation.
Q But do you agree that fragmentation is a problem and that disloyalty among parliamentarians is also a problem?
R. The instruments that we had developed in the expert commission to deal with these two problems were weakened in the Council. In the case of the hurdle, it will be postponed to 2030 and the trap will be created because there is a possibility that after the elections an agreement will be reached between different parties that achieve a number of votes below the hurdle. As far as discipline is concerned, the same applies, because the only rule that remains is the sanction for the candidate who chooses a party and resigns. But there were others, such as party orders, and they were abolished.
Q Does the project generally stimulate judicialization?
R. This is strange, because the right's stated goal was to avoid legalizing politics. But they only cared about social rights. Besides, they didn't pay attention. I remember telling them: Be careful, juridification occurs even when there are public policies or civil and political rights that are decided by the courts. This proposal leaves the door open for judicial consideration of issues related to social rights and regulations. I have no doubt that large law firms and large corporations will use it.
Q Is there any content that seems like progress to you?
R. We took a position in the Commission and later in the Council that aimed to limit the damage as much as possible. We were always available to look for improvements. One of these is the Comptroller General of the Republic, who is granted ruling power. And another system that comes from the Commission of Experts is the appointment system for the Constitutional Court, with the successive intervention of different bodies that determine who will be the candidate who will have access to the Court.
Q Let's get to politics: is this another referendum on the government?
R. There is no doubt that this is a referendum on the text presented by the Constitutional Council, led above all by the Republican Party and Chile Vamos, which followed suit.
Q However, a positive outcome of the project would be detrimental to the government.
R. In the sense that we've been talking about, it would burden him with a legislative agenda for the remaining years, it would practically force him to leave everything else in parentheses. There are laws that must begin to be submitted within the first six months. If the calculations are correct, the proposal would come into force on February 3 if approved. This means that when work resumes, the government must start presenting the projects.
Q But there is a political problem, namely the famous statement by former Secretary Jackson linking the constitutional amendment to the government program. This creates objective pressure on every project.
R. Yes, I think there was an approach to the proposal on this occasion, more so than from the government, I would say, from some ministers who were not present today. For many reasons. First, it is part of learning. Second, there are legal obligations to exempt that are now clear. And thirdly, the same right has enabled the government not to interfere in anything. I took part in the negotiations and there were times when it was quite uncomfortable for the government to be present and receive the message that it did not have to get involved. I remember then Minister Ana Lya Uriarte sitting in front of the former Senate and watching four hours of debates without saying anything. I see no connection between the referendum and the government.
Q Isn’t the left in a loser-lose situation? If the project is approved, he must fully devote himself to working for them. And if not, he sticks with the current thing he doesn't like.
R. It's a dilemma, but you can't rely on a cure that's worse than the disease. Or, as I have said on another occasion: I never thought that in 2023 we would be discussing a constitutional proposal that is even more regressive than the one from 1980.
Q And if he sticks with the well-known devil, will the option of attempting reform in Congress, even partially, open up?
R. Let me say three things about this. On the one hand, the parties opposing it have signed a commitment not to conduct a third constituent process. I will add one more detail: there is no country in the world that has failed in two consecutive constitutional processes. The other thing is that I hope that if rejection wins, the parties would start to think about why we went from a role model – a country that had channeled a moment of great social unrest into an institutional form – to this mess two failed processes. I think that after this period of reflection one could ask whether there is room for a constitutive process.
Q But today polarization seems to be favoring those who are in favor of it. Extreme positions demand the appearance of former President Bachelet.
R. This is a continuity to what they have done in the Council. The core of the constitution is adopted exclusively with votes from the right, without votes from the center-left and from the left. This call to the “real Chileans”, to the right people, to screw those who do not agree with the proposal confirms that they never thought of making a consensus project.
Q It also seems more or less clear that people – with the exception of some politicians – will tend to vote based on what they have previously voted for.
R. It's a factor. In the case of the Convention, I believe that, more than sexual and reproductive rights, it was plurinationality that produced a turning point in public opinion, where rejection was first enforced and then did not subside. So I have the impression that the content is somehow relevant to citizens.
Q Last question: Can you imagine President Boric signing this project?
R. If approved, it will be consistent with the constitutional obligation. I don't see any other option. Yes, I fear that with a proposal of this kind, without transversal support, the life of a new constitution will begin, which will last at least as long as constitutions last on average, i.e. 19 years…