Print Friendly, PDF & Email

EDITORIAL ANALYSIS: Chile marks a notch in global constitutionalism

Source: The Hindu

  • Prelims: Democracy, Pinochet’s constitution, Parliament-Structure, organization and functioning etc
  • Mains GS Paper II: Features of democracy, India-Chile relations etc

 

ARTICLE HIGHLIGHTS

  • In 2019, a wave of protests engulfed the country of Chile.
  • The protests were triggered by familiar themes: social inequality, the cost of living, and probity in governance.
  • As per protesters, Chile’s Constitution was no longer fit for purpose.
  • One of the demands of the Chilean protesters was to replace Pinochet’s Constitution with a democratic Constitution, written by the People of Chile, for themselves.

 

Current Affairs

 

INSIGHTS ON THE ISSUE

Context

Pinochet’s Constitution:

  • Drafted in 1980, under the military regime of General Augusto Pinochet, the Chilean Constitution embodied what is popularly known as Chicago School economics.
  • Market deregulation was not just a policy choice, but encoded into the Constitution, with one of its most notorious elements being the privatization of water as a constitutional imperative.
  • Over the years, this led to Chile becoming one of the most unequal countries in the world.

 

Genesis:

       Current Affairs 

 Evolution of Rights:

In the latter half of the 20th century, it came to be understood that this vision of constitutionalism was necessary, but inadequate, to address the many problems faced by countries across the world.

  • Constitutions tended to ignore the “social question”, and issues around equitable access to material resources:
    • In response, starting in the 1980s, Constitutions began to include “socio-economic rights” — such as the rights to housing, to education, and to health, among others within their bills of rights.
    • Famous example of this is South Africa’s post-apartheid Constitution of 1996.
    • While recognising that it is not always possible for Constitutions to mandate how national resources will be allocated, socio-economic rights provisions have been useful in requiring governments to justify how resources are used, and to hold them to account where resource distribution was discriminatory, or insufficiently attentive to the needs of the most vulnerable.
  • The complexities of governance require a set of institutions: The institutions should be independent of the legislature and the executive, and can hold them to account.
    • Some familiar examples include information commissions, human rights commissions, and electoral commissions.
    • In constitutional parlance, these are sometimes referred to as “integrity institutions”, as their task is to ensure integrity in the functioning of state agencies.
    • For example, Chapter Fifteen of the 2010 Constitution of Kenya lists out 10 commissions, and guarantees their independence from the government.

 

Features of the draft:

 

Current Affairs 

Is the Chilean constitution Document with vision?

The Chilean draft Constitution not only draws upon past wisdom, it is a future-facing document as well.

  • Role of technology in our lives: The Constitution grapples with the pervasive role of technology in our lives by stipulating the existence of a National Data Protection Authority, as well as guaranteeing a right to digital connectivity.
  • Independent data protection body:The need for an independent data protection body is being felt in countries across the world, and the draft Constitution’s move to enshrine it within the constitutional text is, therefore, important.
  • Climate crisis and international environmental laws: The draft Constitution acknowledges the gravity of the climate crisis, and constitutionalism important principles of international environmental law, such as inter-generational equity.
  • Right to nature: It guarantees a right to nature, which is something that courts in different countries, from India to New Zealand, have recently explored.

 

Criticism to the draft Constitution:

  • Woke document: The Economist, notorious for justifying the 1973 Chilean coup called it a “woke document”(alert to racial prejudice and discrimination)
  • Can lead to economic irresponsibilities: The focus of the criticism appears to be that the document “goes too far” and can lead to economic irresponsibility. This criticism, however, proceeds on a range of incorrect assumptions.

 

Arguments in Favour:

  • Constitutions are not enforced: Constitutions do not enforce themselves, but are interpreted, and interpretation always takes place in the real world.
    • For example, the constitutional rights to housing, health, and education have not bankrupted the South African economy.
    • Rather, they have been interpreted by the Constitutional Court of South Africa to protect vulnerable people against evictions, and in the fight against the AIDS crisis.
  • Models of constitution: Within Latin America, the Constitutional Court of Colombia has been similarly disciplined in its interpretation of the Colombian Constitution, and is often hailed as the model of how a constitutional court ought to function.

 

Chile:

●    Chile is officially known as the Republic of Chile. Its capital is Santiago.

●    It is a South American country occupying a narrow strip of land between the Andes to the east and the Pacific Ocean to the west.

●    It borders Peru to the north, Bolivia to the northeast, Argentina to the east, and the Drake Passage in the south.

●    The Atacama desert is one of the driest places in the world and touches Chile in its northern side and is a source of sodium nitrate fertilizer.

●    It owes its aridity due to a constant temperature inversion of cool north-flowing Humboldt ocean current.

●    Chuquicamata is the World’s largest copper town of Chile.

 

India- Chile Relations

●    Chile is India’s window to Latin America and to the Pacific Alliance.

●    Chile is the fifth largest trading partner of India in the Latin American region.

●    India- Chile signed the Preferential Trade Agreement in 2017 to enhance the trade.

●    The bilateral trade is growing and stood at USD 2.8 billion in 2017-18.

●    India and Chile are partners in the International Solar Alliance.

●    Both countries cooperate extensively in multilateral fora and share similar views on climate change/renewable energy issues and on expansion and reforms of the UNSC (United Nations Security Council).

●    India- Chile has signed three Memorandum of Understandings (MoUs) in the fields of -mining, culture, disability.

 

Way Forward

  • Inclusive document: The draft Chilean Constitution in its historical and present context, a remarkable picture emerges: this is a document, drafted through an intensely inclusive, participatory, and egalitarian process, which in its substantive content both draws upon the wisdom of the past, and looks to the future.
  • Model for modern world: It is, in many ways, a model for how Constitutions in the modern world ought to be drafted, and a lesson to the rest of the world; and if it is approved in the referendum of September 4, it will rightly be hailed as a historic triumph in the annals of global constitutionalism.

 

QUESTION FOR PRACTICE

  1. Constitutional Morality’ is rooted in the Constitution itself and is founded on its essential facets. Explain the doctrine of ‘Constitutional Morality’ with the help of relevant judicial decisions.(UPSC 2021)

 

(200 WORDS, 10 MARKS)