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Q&A With Federico Díaz Chacón: Constitution-Making in Chile

On September 4, 2022, Chile will hold a landmark national referendum on whether to pass a new constitution to replace the Pinochet Constitution of 1980. CCS summer student Hassan Ahmed talked to Federico Díaz Chacón (LL.M. Candidate, McGill University) about how the Chilean constitution-making process has unfolded thus far, and about the key elements of the draft constitution.

Q: In 2020, Chile held a national plebiscite asking the Chilean people if they would like a new constitution, and if they would like it to be drafted by a “constitutional convention.” What were the social, political, and economic factors that led to this plebiscite?

A: The Chilean National Plebiscite of 2020 was the outcome of a massive social uprising that occurred in October 2019. This uprising was caused, in part, by the significant levels of economic inequality in the country. In this regard, although Chile has been internationally recognized for its economic growth, this growth has not been equitable. Indeed, according to the OECD, Chile is one of the three most unequal Latin American countries in terms of income.

In addition, the uprising was also rooted in the lack of progress on the promotion of social rights in Chile, a problem that has been defined by poor public education, environmental degradation, weak protection of women’s rights, low pensions, and non-recognition of Indigenous people’s rights. Consequently, the 2019 uprising brought together thousands of neglected people and groups of different kinds: high school students, people with large university debts, environmental movements, feminist groups, pensioners, and Indigenous peoples, among others.

The uprising accordingly demonstrated the existence of a structural problem in the country, and the need for a new social pact that would incorporate all the excluded people, and reframe the state’s political and economic model to better accommodate Chile’s heterogeneous civil society. Indeed, many of the problems that gave rise to the uprising were related to Chile’s current “neoliberal” Constitution, which was imposed in 1980 by the military dictatorship of Augusto Pinochet. In this context, in order to soften the protests and social discontent, the political parties of both the government and the opposition signed the “Agreement for Social Peace and New Constitution” in November 2019. Through this agreement, they committed to organizing a national plebiscite to see if Chilean people would like a new constitution. The result of the national plebiscite was overwhelming: almost 80% voted in favor of drafting a new constitution.

Q: For an unfamiliar reader, how would you explain the concept of a “constitutional convention”? How were members of the constitutional convention selected, and how did the architects of the process ensure that all relevant voices were represented at the table?

A: Simply put, the constitutional convention was the public body in charge of drafting the new Constitution. The Chilean National Plebiscite of 2020, in addition to asking whether Chilean people wanted a new constitution, asked which type of body should draft it: 1) a mixed constitutional commission, composed equally of popularly elected members and parliamentarians, or 2) a constitutional convention, composed exclusively of popularly elected members. Again, almost 80% voted for the second option, and the creation and structure of this body was then promptly established by Law No. 21,200, which amended the Constitution to incorporate the new constitution-making process. Thus, the constitutional convention was a sui generis public body created by law exclusively for this purpose (the purpose of drafting a new constitution).

The convention was composed of 155 members, elected by popular vote in elections held in May 2021. To ensure that all relevant voices were represented, Law No. 21,216 established gender parity, requiring an equal representation of men and women on the convention. Likewise, to ensure the effective participation of Indigenous peoples, Law No. 21,298 reserved seats for representatives of the Indigenous peoples that inhabit Chile.

In addition, the convention involved several mechanisms to enhance public participation. For example, public hearings were scheduled so that individuals and institutions could make presentations to the convention. More than two thousand public hearings were requested, where NGO’s, IPO’s, scholars, and young people, among others, presented their thoughts, opinions, and proposals.

The convention also created a mechanism through which a person or group of persons could submit proposals to the convention for the establishment of new constitutional norms. These proposals were published on the convention’s website and, if they exceeded 15,000 signatures, they were discussed by the convention. Approximately one million people participated and 78 proposals reached this threshold.

Q: One aspect of the draft constitution that has attracted a lot of international interest is its emphasis  on socio-economic rights. Why was this viewed as important in Chile? And what might be some of the key challenges involved in the implementation of these rights?

A: The current Chilean Constitution has a narrow list of socioeconomic rights that does not fully reflect the more extensive list recognized in international instruments, such as the International Covenant on Economic, Social and Cultural Rights (CESCR). The Chilean Constitution does not recognize the right to adequate housing and food, for example, and under the “subsidiarity” principle, it is private companies that are called upon first to satisfy socioeconomic rights — not the state. This has generated important restrictions and difficulties in the realization of relevant social rights, such as the rights to healthcare and education.

The draft constitution addresses both of these issues. It incorporates rights already recognized in international instruments, such as the right to adequate housing; strengthens other rights, like the right to work and to live in a healthy environment; and affirms “emerging” rights, such as the collective right to the city and territory, the right to sports, and sexual and reproductive rights. Moreover, the constitutional draft changes the subsidiary role of the state, defining it instead as a social and solidarity state that has a primary duty to provide conditions and services to effectively guarantee socioeconomic rights.

In my opinion, if the draft constitution is approved in the upcoming referendum, one of the great challenges will be to reach the necessary agreements in Congress to pass the laws that would implement the new constitution. A great number of constitutional provisions, especially those consecrating socio-economic rights, entrust their development and implementation to Congress. Thus, it will be the responsibility of the Congress to determine the scope and form of these new constitutional provisions, in a timely manner, to prevent them from becoming a hollow promise. At present, though, there is no large political majority in Congress to enable these kinds of agreements, and the implementation of socioeconomic rights will therefore not be an easy task.

Q: The final version of the constitution has to be approved in an upcoming referendum. What criticisms are being leveled at the constitution, and what happens if it is not approved by the Chilean public?

A: It is difficult for a constitutional project to be perfect and, certainly, every constitution can always be improved. This case is no different. One criticism is that the draft constitution modifies the system for the selection and appointment of judges, creating a “Council of Justice” for this purpose, of which only 8 of the 17 members are judges. In this sense, there is concern that the composition of the Council could affect the due independence and impartiality of the courts; considering that judges are not in a majority on the Council, there are some fears that the courts could become politicized.

In addition, while the consecration of Chile as a plurinational state ─ this is, the constitutional recognition of the Indigenous peoples that inhabit Chile as nations and the consecration of the rights that emanate from this status ─ has been understood as great progress, there are doubts about the scope of certain rights, especially the rights of consultation and of free, prior, and informed consent (FPIC). The draft constitution recognizes both rights, which is important, but their extent and application is unclear. Due to this ambiguity, there are concerns as to how these rights will ultimately materialize and operate.

If the draft Constitution is not approved in the upcoming referendum of September 4, naturally, the current Constitution will remain in force. However, there is a widespread consensus at the political and citizen levels that the Constitution must undoubtedly be modified. The current Constitution does not enjoy any real legitimacy, given that almost 80% voted to draft a new constitution in the National Plebiscite. For now, there is no clear and concrete path for changing the Constitution if the referendum fails. Nonetheless, the idea that currently has the most political strength is that the Congress has to pass a law for the creation of a new constitutional convention, thereby restarting the amendment process.

Q: Finally, could you comment on the broader social and political implications of Chile’s method of constitution-making? In particular, what are some things that Canada can learn from the process, especially in light of previously failed attempts at constitutional amendment such as the Meech Lake and Charlottetown Accords?

A: It is impossible to find a perfect recipe for situations of high social, political, and legal complexity such as the constitution-making process in Chile. It is also important to consider that each country is different and has its own history, cultural identity, and political organization. Just as an example, it is worth noting that Chile is organized politically as a unitary state, not as a federal state like Canada. These differences make it difficult to know for sure which features of the constitutional process will fit successfully in the Canadian context.

Having said this, I strongly believe that a fundamental element for the success of the constitution-making process is to ensure full and effective public participation in each of stage of the process. In the case of Chile, referendums at each phase have endowed the constitutional process with legitimacy. A first referendum was held to decide whether to initiate a process for making a new constitution and, if so, how to shape the body in charge of the drafting the new constitution. A national plebiscite was also held for the election of the members of this body.

These referendums gave credibility to the origin and development of this constitutional process. Likewise, in the particular case of Chile, the constitutional convention created various mechanisms for public participation, and Chileans will now have another referendum (on September 4, 2022) to approve or reject the constitutional draft.

Whatever the outcome of the upcoming referendum, this constitution-making process will have been successful because of its undoubtedly participatory and democratic nature. In my opinion, this is something that other countries entering into this type of constitutional process can learn from Chile.

Q&A With Dr Dave Guénette: Quebec’s Bill 96

In this Q&A session, CCS Summer Student Zachary Fischer talked to Postdoctoral Fellow Dave Guenette (McGill Faculty of Law) about the amendments that Quebec recently made, through the passage of its Bill 96, to Canada’s Constitution Act, 1867. Zach also asked Dave about some of the other issues surrounding Bill 96, including the controversy over the Quebec government’s use of the notwithstanding clause, and the new law’s impact on Indigenous peoples in Quebec.

Part 1: Constitutional Amendment

Q: One of the overlooked aspects of Bill 96 is that it purports to unilaterally alter the Constitution Act, 1867 by adding two clauses under section 90. What are these clauses and what impact might they have on the Canadian Constitution?

A: That is correct, section 166 of Bill 96 amends the Constitution Act, 1867 to include two new provisions. The first one, section 90Q.1, states that “Quebecers form a nation,” while the second one, section 90Q.2, provides that “French shall be the only official language of Quebec … [and is] the common language of the Quebec nation.” When Bill 96 became a law, in June 2022, the Constitution Act, 1867 was consequently amended.

The Quebec National Assembly takes the power to adopt these new clauses from the constitutional amendment formula of the Constitution Act, 1982, and more specifically from its section 45. The latter provides that “the legislature of each province may exclusively make laws amending the constitution of the province.” In other words, each province has the power to unilaterally amend its own internal constitution. While this power is to be found in the Constitution Act of 1982, it is worth remembering that provinces have had this power since Confederation. Indeed, before patriation in 1982, section 92(1) of the Constitution Act, 1867 allowed provinces to do the exact same thing.

From a technical perspective — but this is important — the two new clauses (90Q.1 and 90Q.2) of the Constitution Act, 1867 are included in a new subsection entitled “Fundamental Characteristics of Quebec.” Bill 96 added this new subsection to Part V of the Constitution Act, 1867, which pertains to “Provincial Constitutions.” Otherwise put, Bill 96 added two new clauses to the “Provincial Constitutions” part of the Constitution Act, 1867.

Obviously, the specific impact of this constitutional amendment is yet to be known. The courts may eventually rule on the constitutionality of Quebec’s initiative, as well as on the scope of the new provisions. That said, it is likely that the main impact will be of a symbolic nature. Recognition of Quebec’s distinctiveness in the Canadian Constitution has been a long-standing demand of the province.

Q: There have been differing opinions on whether this amendment is valid under the amending formula contained in the Constitution Act, 1982. What is the Quebec government’s rationale for its ability to do this? What is the argument against this amendment’s validity?

A: To fully understand this constitutional amendment, I think you have to put it in the context of Canadian constitutional law. The “Canadian Constitution” is a complex object, made up of British and Canadian statutes, conventions, underlying principles, case law, customs, etc. The same can be said of provincial constitutions in Canada, including, of course, the “constitution” of Quebec. Quebec does not have a formal written constitution consolidated into a single document. Parts of the provincial constitution of Quebec are to be found in Canada’s constitutional laws, others in provincial statutes, case law, etc. Section 45 of the Constitution Act, 1982 thus allows Quebec (or any other province for that matter) to amend its internal constitution, regardless of where that constitution’s various parts are located. Of course, provinces that do so must still comply with the other procedures of Canada’s constitutional amending formula: the 7/50, unanimity, and special arrangements procedures. And this is where it gets complicated (and interesting)!

Indeed, it can be difficult to accurately distinguish what is part of the constitution of a province and what directly affects a province’s interests without being part of its internal constitution. Otherwise put, for some issues, it may be difficult to determine whether they fall within the scope of section 45 (the provinces’ capacity to unilaterally amend their constitution), or whether they are more appropriately dealt with under the special arrangements (section 43), 7/50 (section 38), or unanimity (section 41) procedures.

To date, the limits of section 45 of the Constitution Act, 1982 have been little tested by political authorities. But what is known for sure is that, in 1968, the Quebec Legislature used its power to unilaterally amend its internal constitution in order to abolish its second chamber, the Legislative Council, even though the existence of the latter was provided for in the Constitution Act, 1867 (again, in Part V on provincial constitutions).

Amongst the arguments provided for by those who oppose Quebec’s Bill 96 is that, in order to directly amend constitutional laws (such as the 1867 Act), it is necessary to use one of the three multilateral amending procedures (7/50, unanimity, or special arrangements). This argument is rather weak, though, as it goes against the 1968 precedent.

Another argument is that the entrenchment of the two new clauses would require a multilateral amendment because they fall within the scope of either the special arrangements formula (which is required for an amendment to any provision that relates to the use of the English or the French language within a province) or the “general” and “residual” 7/50 formula. This is a stronger argument than the previous one, but we will have to wait and see what judges think of its value.

Q: If the validity of this amendment is upheld or if it is not challenged in court, what impact may this have on other provinces seeking greater provincial autonomy? Is the recognition of Quebec’s nationhood a unique case, or would all provinces be able to make similar amendments?

 A: I think this is first and foremost a procedural question. The amending formula provides the rules of the game, the procedures to be followed, independently of the political motivations that may accompany a constitutional amendment. This initiative from Quebec will certainly contribute to testing the scope of the provinces’ power to unilaterally amend their own internal constitutions, but its impact will greatly depend on how politicians in Quebec and in other provinces decide to use it afterwards. Of course, the possibilities that section 45 of the Constitution Act, 1982 grants to Quebec are exactly the same for the other provinces.

However, we must keep in mind that this is no magic formula: for instance, a province cannot use this procedure to force another partner to do something or to obtain more autonomy at the expense of another order of government. Section 45 has major limits that are defined by the other amending procedures. And again, within these limits, the provinces obviously enjoy the same prerogatives.

In comparative constitutional law, this power of provinces to unilaterally and directly amend constitutional provisions is a rarity. It is also a reminder of Canadian constitutional history, of the process by which partially self-governing colonies joined to form a new political entity, without wanting to leave behind or give up some of the powers they already possessed.

One thing I find very interesting about this Quebec initiative is that it puts constitutional issues and constitutional amendments back on the agenda. To some extent, the same could be said of the Alberta referendum on equalization. There are many things that are broken in the Canadian Constitution and that deserve to be addressed through attempts at constitutional amendments. Quebec’s traditional demands are certainly amongst them, but there is also reconciliation with Indigenous peoples, reform of federal institutions, etc. Hopefully, this constitutional amendment from Quebec can lead to new and constructive constitutional talks.

Part 2: Other Bill 96 Issues

The Notwithstanding Clause

Q: The Quebec government has pre-emptively invoked the notwithstanding clause to shield Bill 96, in its entirety, from certain Charter claims (those anchored in section 2 or section 7-15 of the Charter). Is this type of pre-emptive, blanket use of the notwithstanding clause valid?

A: With regards to the constitutional validity of such pre-emptive use of the notwithstanding clause, I can hardly see how this could be challenged in any serious way. Whether we like it or not, the notwithstanding clause is part of the Canadian Charter of Rights and Freedoms, and its use by public policy-makers is always an option. To suggest otherwise would be to ignore the Supreme Court’s jurisprudence, most notably the Ford case.

The Canadian Charter celebrated its 40th anniversary this year. There are now four decades of case law and precedents relating to it, with the result that public policy-makers are relatively aware of the limits of what is and is not permitted. Among other things, it is widely known that the notwithstanding clause can be used pre-emptively and that doing so does not require any form of justification. Moreover, it is important to recall that the notwithstanding clause, in its current form, was part of the compromise that made possible the constitutional agreement of November 1981.

Obviously, governments that use the notwithstanding clause (pre-emptively or not) can be criticized in public debates. In turn, they may pay a certain political price for using it. Overriding fundamental rights and freedoms is a major political decision and should be done only when it is an absolute necessity. Nevertheless, it remains the case that there is no serious legal basis for preventing or restricting uses of the notwithstanding clause that are otherwise consistent with the Constitution and constitutional precedents.

Aboriginal Rights

Q: Bill 96 has an impact on many Quebecers, but Indigenous groups have been particularly outspoken in their opposition to the Bill. What are some of the reasons for this opposition, and what legal arguments might Indigenous groups use to challenge Bill 96?

 A: One of the main measures proposed by Bill 96 to protect the use of the French language in Quebec relates to the language of instruction in CEGEPs (the academic level in Quebec between high school and university). There are French-language and English-language CEGEPs in Quebec, and Bill 96 provides that now, in English-language CEGEPs, students will have to take and successfully pass three courses of their training (other than second language courses) in French.

My understanding is that this is the main reason for the opposition from Indigenous peoples. They would have wanted to be exempted from this new obligation. Their fear is that this will pose an additional burden on Indigenous students who do not speak French, delaying their graduation or even preventing them from being able to study at university. This obligation to take three courses in French could even — according to some leaders who have gone so far as to speak of “cultural genocide” — force Indigenous students to study outside Quebec.

As for the legal arguments that Indigenous groups could use to challenge Bill 96 and this new obligation, it could be possible for them to argue that Bill 96 violates their Aboriginal rights under section 35 of the Constitution Act, 1982 — in particular the right to speak their own languages. Furthermore, since Indigenous peoples were not involved in the decision-making process, it could be argued that the duty to consult and accommodate — a duty derived from section 35 of the 1982 Act — has not been met (however, the Supreme Court's Mikisew Cree decision probably complicates this claim). Several groups have already indicated their intention to test the validity of these aspects of Bill 96 in court.