A new constitution amid Chile’s social crisis: the role of pro bono lawyers in mainstreaming public participation

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Stephanie Cruz Eng
Albagli Zaliasnik, Santiago
scruz@az.cl

Florencia Fuentealba
Albagli Zaliasnik, Santiago
ffuentealba@az.cl

Introduction

On 18 October 2019, Chile witnessed a turning point in its history and politics. A subway fare increase of CLP30 (approx. US$0.035) triggered a series of protests demanding social and economic change through legal reform. The main demands included improvements to the healthcare system, state education, tax reform, retirement funds and transport. Due to the social crisis, on 15 November 2019, political actors from different sectors signed the Agreement for Social Peace and New Constitution as an institutional eventual exit from the social and political crisis. In this document, they compromised to initiate a constitutional process which would replace Chile’s 1980s political constitution.

Social crisis and constitutional consequences

Why was a new constitution a possible resolution to the crisis? As indicated, the protests began with social demands requesting a change to Chile’s model which is based on its 1980s Constitution. According to some academics such radical changes are only achievable by completely reforming Chile’s Magna Carta. This is a controversial matter when trying to legitimate the bases of the Chilean State, considering our current Constitution was designed by a committee of experts chosen during the Pinochet dictatorship, as none of those experts were chosen through democratic means and an important section of Chile’s population did not validate that political regime. This is a matter of never-ending discussion in Chile.

The content of the Agreement for Social Peace and New Constitution initiated an unprecedented constitutional procedure in Chile’s history. The process includes active participation of the Chilean people, establishing that there will be a referendum on 26 April 2020 asking whether or not the electorate wants a new constitution and what mechanism should be used in drafting it.

These seemingly simple questions are of great relevance in the crisis context as they open up the first opportunity in Chile’s history to have a constitution written with, and by, the people by creating two mechanisms for creating this new fundamental charter:

• a Constitutional Convention consisting entirely of elected members; and

• a ‘mixed’ Constitutional Convention comprising 50 per cent Congress representatives and 50 per cent elected members.

People will also be able to accept or reject the new text once the Convention has completed its proposal through a second referendum planned for November 2021.

However, public participation by voting in the election of representatives and the referendum was not enough. Demands of a Convention formed not only by elected members but that the said members be representative of the diversity of Chilean society were made. This gave rise to the demands of a body with parity composition which assured the participation of women and independents (people unaffiliated to political parties) as well as a quota for indigenous people. The aim was to make the Convention as democratic and representative as possible.

Many of the details have yet to be determined. To date, the process is in continual development, resulting in many unanswered questions as a consequence of the uncertainty on how everything will unfold. In this sense, the urge of having lawyers willing to explain and distribute details of this procedure soon arose.

The role of pro bono lawyers in the process and Pro Bono Chile Foundation’s project

The role of lawyers in this context became relevant due to their specialised knowledge and the legal implications of the crisis resulting from demands for a new constitution. The challenges were how to:

• present legal concepts in simple terms so that they are understandable to everyone;

• provide objective and non-political information; and

• emphasise the importance of participation by reinforcing civic responsibility.

In this context, Albagli Zaliasnik was invited to collaborate in a pro bono initiative organised by Chile’s Pro Bono Foundation.^[1] The initiative consists in explaining basic constitutional concepts and the different stages of this process to diverse social organisations and members of civil society. Two members of our firm decided to participate and began a training held by the Foundation to learn communication skills and strategies to give informative talks.

After undergoing training we were automatically enrolled as potential speakers for workshops in these topics. The main plan of action consisted in being available for, ideally, giving multiple presentations and, at the same time, in being able to adapt key and core content to the specific needs of groups which requested this service.

Albagli Zaliasnik’s experience: challenges, obstacles and results

The firm Albagli Zaliasnik’s experience started with the opportunity to develop a constitutional law workshop for a National Chilean Programme that works for women’s empowerment. Besides explaining core constitutional contents, we were requested to explain the process and its implications from a gender perspective. New challenges soon emerged, as the process was under constant development, this demanded full dedication to keep our team up to date with the parliamentary discussion in order to provide the latest information.

The first presentation required us to rethink the original design and structure we had come up with and create a new proposal, adapting the presentation to this female group. We studied Chile’s constitutional history, focusing on women’s participation and their inclusion in our Carta Magna since the 19th century. We also included international treaties in the topic, focusing on potential gender-related inclusions in a new constitution based on the duties of the Chilean state regarding women according to the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (the Convention of Belem Do Para) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Finally, we included the parity mechanism that was under discussion up until to this date.^[2]

The presentation included an interactive session consisting of a live simulation explaining the election system for representatives in an eventual Convention (D’Hondt system) including a simulation of the parity mechanisms. There were between 80–100 assistants. Nine people chosen randomly from the audience formed three political projects and presented their ideas for a new constitution proposal. People then voted online for the different candidates and we were able to explain which members were elected and why.

Last but not least, we gave emphasis to women’s empowerment and the importance of their participation in building a democratic process. We have invited both men and women to take part in every discussion until April’s referendum and to vote in each election as a way of exercising their civic responsibilities and rights.

This presentation led us to engage in a sub-project of Chile’s Pro Bono Foundation in alliance with around 600 civil organisations to distribute information regarding the constitutional process throughout Chile. The focus changed to emphasise the importance of participation during the process aimed at the empowerment of civil society. During this stage we developed two further presentations for citizens in Santiago.

Besides the support we gave to the Foundation’s project, this brought us to develop a presentation plan to all the members of our firm (lawyers and non-lawyers) as a part of our social engagement in providing people with information to help them participate in the process.

Both projects are still under development until the referendum on 26 April and will probably evolve to other challenges, should Chile’s people decide they want a new constitution.

Conclusion

The exercise of preparing presentations to diverse groups throughout Chile gave us the opportunity to connect and better understand social demands in different dimensions. We were able to resolve common doubts and provide neutral legal information regarding the process to people who wouldn’t normally have had access to it, therefore allowing us to assume our professional responsibility and social even-handedness with Chilean society.

In the context of social crisis, it is fundamental to empower people to take part in civic and institutional processes. These are institutional opportunities for change and institutional ways out of violence.

Constitutional power for writing a new Carta Magna, theoretically belonged to the people as an abstract concept until 2019 in Chile. As of 2020, the country will have its first unprecedented opportunity in history to decide its political future through democratic means and gender equality.

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