Chile: A Constitutional Laboratory

English closed captions available.

Pierre Gilles Bélanger, I am a part-time professor. For ten years now, I have been teaching this course at the university, which is called “The Political Legal System of Latin America and its Relations with Canada”.

So there are very, very big demonstrations that started in October and November 2019. In October 2019 the price of a subway ticket is increased by 20 cents, and that 25 or 20 cents of increase of the fees for the subway is one final slap, the last drop, it is the drop that makes the glass overflow through all the social and economic difficulties. I specify social and economic. Not only economic. A violence brought by young people, naturally, but also joined by a very large portion of the population.

Then the government reacts by declaring that it is a state of war. One million people on October 25, 2019 are in the streets in Santiago. It is as if on Wellington street in front of the parliament we saw, as a similar percentage, 3.4 million Canadians protesting the situation. The government reacts and accepts the proposal of a new constitution.

On October 25, 2020 there is an important referendum in Chile. Do you accept or refuse, was more or less the question, a new constitution? Second question in the same referendum, do you want an assembly that will write this constitution but with members that are half elected by the population with those already elected? Or do you want 155 new people, people who will only be elected for this exercise? And on October 25 a very high percentage accepts the idea of a new constitution and of course to have 155 new, fresh representatives. With the idea the optics behind it is not to allow politics to penetrate, or to influence too much, the idea of this new constitution.

They are producing an international manual. This is a team with a German foundation, with the help of some experts. We at the University of Ottawa were very honoured to be consulted and to be the Canadian representatives at this level.

A practice or an exercise to be more precise of one year for people who are elected who are not necessarily academics, it is regular people who will be elected. They must also have the humility, I think, to consult and to open up. To bring in experts.

Where we can and have already started to really help is from the level of an institution to an individual. What we have done by forming a small team here in Canada is to be able to say, in a very humble way, this is what our rule of law is, this is what our constitution is. I think that the Canadian jurist must make more and more comparisons and get to know more and more regional systems. We talk about inter-American prosperity and we are not part of a system that exchanges concepts and ideas in human rights. So our analysis, what we can bring, is really an analysis respecting their path; even if we are not there yet, we have already reached a different place.

Today we are together in an inter-American or international democracy and I think that we have a lot, a lot to contribute and to learn from them and as a jurist we have to be open. Can’t they also influence us with their questions? “Do you have a participative democracy?” They ask us this question. So, this is where I realize that our democracy, we put our democracy in the hands of our parliamentarians, and in a certain way in the hands of our judicial power. Because when it doesn’t work, we go to court. Not everyone, but many people if there is any violation. And it works quite well, but it makes me wonder if it doesn’t create a certain complacency? And we circle back to the demonstration of the million people.

I don’t know if it’s the Canadian constitution that can necessarily contribute something or positively influence the new Chilean constitution. I think it is rather our system of public administration. The independence of our institutions. We have all the independences: the independence of the judiciary, the division of the executive and the legislative. It challenges them on the presence of politics and political influence in their public service. Their biggest challenge is to be able to have a state that will be functional but impartial, independent, and for all.

I believe that they must break – and I say this in all humility, loving Chile. I say it with love – break this deep distinction between those who have less resources and those who have more. This danger is also present in Canada, we must not hide it, there is a trend. But again I say, it is universal and the lawyer has a role to play in this. By working, by having this awareness, they can work the laws and the regulations according to that. It is your generation that will be able, because it will soon be two, three, four, five years maximum, to compare and to see what can be done on the themes in which we still have a lot of work to do.

In response to the mass protests in Chile in October 2019 and the major socio-economic implications of the neo-liberal-inspired constitution established during the Pinochet era, Chile and its citizens have taken on the social project of initiating the process of a profound constitutional reform. Today, the country is a real constitutional laboratory whose experience is of interest to many jurists around the world.

In this video, law students bring to light the involvement of Canadian legal scholars in the constitutional discussions currently taking place in Chile. A new constitution is expected to be adopted in 2022. Professor Pierre-Gilles Bélanger had the unique opportunity to contribute to the Chilean constitutional reform process with scholars from the University of Ottawa, the Université du Québec à Montréal and the Universidad de Chile. They collaborated for a study of various constitutional frameworks around the world intended to inspire the work of members of the Chilean Constituent Assembly for the drafting of a new constitution. As Professor Bélanger points out, this kind of exercise in comparative law can actively contribute to change in Chile while also inspiring a reflection on the strengths and shortcomings of the Canadian constitutional framework.

This visual advocacy video was produced by law students Rodolfo Valdes Arias, Yoann Axel Emian and Max Dayan as a term project for the Visual Advocacy / Law and Film course at the Faculty of Law, Civil Law Section, University of Ottawa.

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