Social Rights and the Constitutional Moment: Learning from Chile and International Experiences (Hart 2022), edited by Koldo Casla, Magdalena Sepúlveda, Vicente Silva and Valentina Contreras

In the 1990s, Bruce Ackerman defined ‘constitutional moments’ as historic milestones of intense deliberation and change in a country’s politics, change that reflects in the country’s constitutional settlement. Since October 2019, Chile has been going through its own constitutional moment, a moment that began with popular resistance against rising public transport fees in the capital Santiago. Social Rights and the Constitutional Moment seizes the opportunity of this unique moment to unpack the context, difficulties, opportunities and merits to enhance the status of environmental and social rights (health, housing, education, and social security) in a country’s constitution. This edited volume emerged from a collaboration between the Global Initiative for Economic, Social and Cultural Rights, the Human Rights Centre of the University of Essex in the UK, and the University of Concepción in Chile.

Since the beginning of 2020, this partnership brought together practitioners and academics from Chile and other countries (including Argentina, Brazil, Colombia, France, Ireland, Mexico, South Africa, Spain, the United Kingdom and the United States) to share and learn from international and comparative practice with the goal of informing the ongoing process of constitutional reform in Chile. The chapters look at the political economy of the inequalities inherited from Pinochet’s regime, the opportunities and limits of the judicial enforceability of social rights in Latin America, South Africa and beyond, implications of the privatisation of public services, like water and health, and the importance of active participation of most vulnerable groups in a constitutional drafting process, including people with disabilities, indigenous people, and people in poverty.

Chile is a truly interesting case study from the perspective of comparative law and politics. Despite transitioning to democracy in the 1990s, Chile’s current constitution dates from 1980. Pinochet’s regime adopted it in an attempt to provide a veneer of legitimacy to the dictatorship. Still in force today, and despite multiple reforms, the constitution contains a number of difficult procedural requirements, such as preventive constitutionality control by the constitutional court, or supermajority requirements in both chambers, particularly insurmountable with the anti-proportional electoral system in place until 2018. These authoritarian enclaves made it difficult when not impossible for left-leaning governments to bring about law and policy changes, let alone progressive constitutional amendments.

The 1980 constitution is also the embodiment of the neoliberal model: It prioritizes private property and a market-driven economy, but it does not guarantee education, healthcare and social security for those in need. The constitution only recognises the freedom to choose between different providers, for example, in relation to health and social security, but it does not ensure a minimum content for these rights; the right to education and the right to a healthy environment are not justiciable, and the right to adequate housing is nowhere to be found.

This puts Chile at odds with the evolution of global comparative constitutionalism. Rosevear, Hirschl and Jung show that, in 2013, at least 160 constitutions contained at least two economic and social rights, 26 of them as aspirational rights, 75 as justiciable rights, and 59 with a mixture of both. In 2016, environmental rights were present in 68% of constitutions and were justiciable in 42%, up from 53% and 29% respectively in 2000. In 2016, the right to health was judicially enforceable in 74 countries, 20 more than in 2000. The right to housing was present in 42% of constitutions. Child protection, education, health and social security appeared in more than two thirds of the world’s constitutions, and were justiciable in at least 40% of them. The right to education was present in 81% of constitutions and was justiciable in 59%. Rosevear, Hirschl and Jung conclude that economic and social rights “are not only more present in constitutions but they are also more likely to be justiciable than ever before”.

Chile, however, has been the exception. Alongside the United States, whose constitution is completely silent about them, Chile is the country in the Americas that has so far most resisted the constitutionalisation of social rights.

Under the 1980 constitution, social rights are not a matter of public service; they are instead tradable goods only available to those who can afford them. Affordability is unevenly distributed as a result of high levels of inequality. Despite economic growth in recent decades, Chile has one of the highest rates of income inequality in the OECD both in terms of income and wealth distribution, as well as one of the lowest rates of public spending. These rates might change if recently elected and progressive President Boric manages to have his ambitious tax reform passed, inflation and a fragmented parliament permitting. The plan includes a wealth tax and a higher income tax for the wealthy, aiming to levy the equivalent of 4.1% of GDP in four years.

A referendum in October 2020, in the midst of the COVID-19 pandemic, confirmed Chileans’ determination to elect a convention in charge of writing a new constitution. Representatives were elected in May 2021, and the convention got down to work in July 2021. It has been the first constituent assembly in the world with guaranteed parity between men and women, as well as minimum guaranteed representation for indigenous people. A good number of representatives were not affiliated with traditional parties. They were also younger than the country’s political class. The constitutional convention completed its work in a race against the clock, and presented a draft new constitution in May 2022, after only ten months, a time during which they also had to agree upon their own rules of procedure. The draft constitution will be put to the people in a referendum with a mandatory vote scheduled for 4 September.

The document is extraordinarily detailed and, in my view, excessively long. It contains 388 articles and 57 transitional provisions. It is 178 pages long, not exactly a concise formulation of principles, freedoms, rights and institutions. Everybody will be required to vote in the September referendum, but it is illusory to believe that everybody will be able to read and comprehend the document. Campaigners on both sides of the argument, nevertheless, are spinning the messages to mobilise the voters.

Leaving that aside, the draft is a significant improvement for the protection of socioeconomic and environmental rights. The State would no longer play a subsidiary role. Under the new constitution, the State would have the primary responsibility to respect, protect and fulfil social rights, in line with a social model of constitutionalism and with international human rights law. It is also a noticeable step forward in terms of the recognition of the identity and cultural rights of indigenous peoples, which were simply ignored in the 1980 constitution.

The outcome of the September referendum is very much up in the air. At the time of this writing, rejection is ahead in the polls. Time will tell the fate of the first post-pandemic constitution. What would happen if the text is rejected is uncertain. Legally speaking, the 1980 constitution would remain in place. Politically, however, it is doubtful whether the status quo would satisfy the impetus for transformation and equality that inspired the popular movement of 2019 and contributed to the election of Gabriel Boric as President in 2021.

Whatever happens, the Chilean constitutional moment so far goes against the widespread and fake dichotomy between rights and the will of the people, as if human rights were an abstract liberal ideal currently spurned by most people. Chileans marched for change in October 2019, called for a new constitution a year later, and elected a new constitutional assembly in May 2021, where a majority of members stood on a social rights platform. The Chilean process shows that there is a democratic case for human rights, where rights are championed, not primarily by lawyers, NGOs or academics, but by the people themselves.

Posted by Koldo Casla (University of Essex).

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