WHO WILL (REALLY) WRITE THE NEW CONSTITUTION? | Opinion column of the lawyer Eryk Cisternas

Eryk Cisternas, lawyer.

What a doubt. We are at a unique moment in our political and institutional history. The political inability of the ruling class to be able to distinguish a small candle flame in front of a burning meadow, product of the disaffection of the citizens with their political, economic and cultural institutions, led us here. The causes, as in any historical process, can be multiple and of diverse origin, and even incompressible in their true scope in the immediate.

The fact is that the solution to the political crisis of October 2019 was the political agreement to which various sectors concurred, in order to avoid episodes such as those that occurred in other countries, in which presidents have been seen leaving the government palace. in helicopters. We do not know how long we were of that, but we do know that it was one of the most complex moments that the country has experienced in recent decades.

More than a year has passed. The pandemic has also impacted on the social effervescence that was expressed in individual mobilizations during 2019, but not in the spirit expressed by the public for participating in the institutional transformation process, as observed in the plebiscite process that took place in October of the year. 2020. And today, ahead of the election of constituents in April, new challenges and questions arise about the process that will lead us to have a new draft constitution that must be sanctioned by the citizens in an exit plebiscite.

For now, once established who will finally be the Constituents after the election; The question arises, who will write the new Constitution? For some the answer will be obvious: those who were elected for such purposes. However, the answer is not entirely obvious.

Indeed, an issue of great relevance in Law is precisely the way in which laws are born and cause their effects. This point involves an interpretive aspect of great relevance when determining the scope and meaning of a legislation that is born to the life of law. In other words, it leads us to wonder about the real meaning that the legislator wanted to give to a particular norm, or in another way, it leads us to wonder about the will of the legislator. In this sense, legislators come to perform this function once they have offered citizens a particular look at social institutions and how they should function for the benefit of citizens.

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This is manifested in the offer to legislate on certain issues that are relevant to public debate. In practice, a parliamentarian does not arrive with a portfolio of rules written in good legal technique, although the Fisheries Law offered us another perspective on this point.

In practice, the process of creating a norm begins in the so-called pre-legislative works, which are carried out as a consequence of the appearance of a social problem whose solution – total or partial – is thought to be the adoption of a legislative measure.

An example of this are the discussions on the decriminalization or not (and in which cases yes or no) of abortion, euthanasia or drug trafficking, or on the regulation of so-called influence peddling. It is basically a discussion that is installed in the public debate.

Later, in the legislative phase itself, technical-legal issues arise, which come to the fore. Here the social or moral meaning of a norm takes shape in a concrete way in a set of articles that configures the norm in question.

We do not doubt that many parliamentarians who fulfill the legislative function have experience and training to face this situation. But even so, the activity of advisers, study centers, opinion leaders whose contributions in practice are expressed in the drafting of the law is essential. So, what is described as the will of the legislator at the time a law is born to the life of law, is relative, and in many cases even contrary to the original idea. Hence, it is normal to consult the history of the law expressed in the minutes of discussion of the parliamentarians, to know how to interpret a certain legal norm.

We are not saying that this process is naturally irregular, but that it is part of the dynamic of political consensus that must be achieved, in order to settle a legislative point that is later expressed in a legal norm. However, we cannot ignore the fact that, in the parliamentary discussion, there is a strong formal and informal lobby of the different interest groups in a certain legislative debate, which will affect the seal that a particular regulation has once it is approved.

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This dynamic is the one that future constituents will very likely have to face, but with a greater difficulty: this time the work is about, neither more nor less, to endow our country with a new political, economic and social institutional framework. Then, it is relevant to ask how the lobbying of the various interest groups in the constitutional debate will be carried out and effectively regulated, beyond the provisions that currently govern in this regard.

At the moment, and in accordance with the constitutional reform that regulates the matter, we know that the Constitutional Convention must have a regulation that will regulate the voting procedure of its agreements. We also know that the Convention must constitute a technical secretariat, which will be made up of people of proven academic or professional suitability. It has also been provided in the reform that the Constituent Constituents will be subject to the norms of Law No. 20,880, on probity in the public function and prevention of conflicts of interest, and to Law No. 20,730, which regulates lobbying and management that represent particular interests before the authorities and officials.

Finally, we know that the convention will have financing: $ 6,700 million pesos assigned in the budget law of 2021, of which the remuneration of constituents, salaries of members of technical and support secretariats, and remuneration of experts amounts to $ 3,753 millions. Returning to our original question, it is important to know who will exercise the role of Constituents, but it is even more important to know who will accompany these citizens in said company.

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Who will constitute the technical teams that will support the constitutional discussion? What origins do they have? What are their trajectories? What are their academic backgrounds? What ethical and moral convictions sustain them? It is not minor to ask yourself these questions, if the norms and principles that make up the new constitution will also depend to a great extent on the intervention of these advisers.

It is not negative that interest groups, such as agricultural entrepreneurs or ancestral communities, for example, express their interest in the discussion on the use of natural resources and their constitutional consecration, in connection with the discussion on the ownership of water.

However, the way in which certain principles and norms are reflected in the constitution will determine not only the scope and effectiveness of the constitutional protection of a certain right, but also the modification of other related laws, which must be modified if the Constitution that currently governs. And it is there that the way in which a constitutional norm is legally expressed, as well as the discussions that the acts are expressed to affect, will have a relevant value at the time a certain legal conflict is discussed or resolved in the future.

So, when we ask ourselves “Who will write the new Constitution?” It will not only be relevant what the Constituents think and act, but also their technical support teams, the centers of opinion that are involved in the process and the various interest groups that will undoubtedly participate formally and informally in the most important political event of the country. our institutional history.


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