Chile's constitutional choice: lessons from SA

Constitution must be forward-looking, unlike SA's backward-looking charter that has, in many ways, frozen our constitutional development in time

In an October 2020 referendum the voting public of the Republic of Chile overwhelmingly approved the idea of drafting a new constitution. The new constitution is expected to be ratified by about August 2022.

The SA constitution has regularly been lauded, both locally and internationally, as one of the best in the world, so it would be unsurprising if Chileans look to SA’s example for guidance. Beforehand, though, Chile should be mindful of, and learn from, the mistakes of our constitutional experiment.

Chile’s history is remarkable. On the back of free market policies the country was propelled to being South America’s wealthiest. That it was an often-violent dictator who enacted these policies is deeply unfortunate, but that does not in any way detract from the fact that it was the market-friendly policy environment that created the prosperity Chileans experience today. The new Chilean constitution must retain the good aspects of the present constitution that made this possible, and jettison the bad.

The constitution must be forward-looking. SA's constitution is regrettably backward-looking, and in many ways has frozen our constitutional development in time. Whether apartheid ended yesterday, 26 years ago or 260 years ago (if our constitution lasts as long as America's), the constitution will still refer to the injustices of the past — and, crucially, that only government must remedy these. This has given rent-seeking politicians who wish only to line their own pockets and increase their own power and prestige the ability to scapegoat the past on the strength of the constitutional obligation to always look back at it.

This does not mean injustices of the past ought not be rectified — they absolutely must. But this is better achieved through general constitutional principles. For example, where our constitution makes reference to specific racial interventions by the apartheid regime as concerns property rights, it should rather have provided that property that was dispossessed for political or ideological purposes must be restituted to the owners from whom it was seized, of course observing due process. The new Chilean constitution must not be preoccupied with the particularities of any past regime, but should rather contain forward-looking principles.

The inclusion of welfare entitlements as "rights" in the SA constitution sowed the seeds of much discord and tension. Material benefit is not generated out of thin air. It comes on the back of economic growth and market-generated development. This is a lesson Chile learnt. Yet many South Africans demand that houses, schools and clinics be built for them, and water be provided to them. These are reasonable expectations for any person today, but the fiscal reality in SA cannot be ignored. The taxes the government uses to provide these services and goods are quickly leaving the country because of increasingly socialist economic policy.

Chile is a significantly wealthier country than SA. However, it would do well to not include welfare entitlements as "rights" in its new constitution. Instead, such entitlements can take the form of policy obligations on the government to realise — as and when it has the capacity to do so — not necessarily through a direct check, but also indirectly by creating an economic environment in which the people and enterprises can provide these goods and services for themselves.

Chile must also be careful when structuring its court system. The Judicial Service Commission (JSC) in SA is one of our greatest constitutional mistakes. The JSC has made a spectacle of the important task of selecting SA's judges — who, in many ways, wield more power than parliament or the president. In doing so it has allowed race merchants and other hooligan parliamentarians to humiliate and offend jurists simply because they do not subscribe to the same Cold War-era communist fantasies as the politicians do.

This has meant that the brightest judicial minds in SA often do not enter into the nomination process to sit on our superior court benches, as they wish to avoid the nonsensical questions (invariably laden with racial narratives) that will be posed to them in full public light, thus endangering their careers.

Chile should avoid following the same path. Either judges must be selected by the independent legal profession from among its own ranks, or a process closed off from public sensationalism should be created, and the new constitution must oblige parliamentarians to engage only on matters of judicial propriety and philosophy.

A lesson SA can take from Chile is article 1 of the current Chilean constitution, which places the state at the service of the people — not the reverse, as we have in SA, where our president now lectures citizens every two weeks about how we’re misbehaving and not listening to his parental guidance. Article 1 specifically protects the autonomy of "intermediate groups", such as the family and civil society, from unwarranted state interference. This is severely lacking in SA, where the government is increasingly stepping into this parental role and interfering in private affairs. Chile's article 1 must be kept and entrenched.

There are, no doubt, many more lessons Chile can learn from SA's constitutional experiment. The most important, though, is that Chileans do not undo the prosperity they have achieved through a policy environment friendly to entrepreneurship and enterprise. It is imperative that they avoid going down the populist route of socialism and rent-seeking.

South Africans know what happens when the government considers itself responsible for "caring" for citizens, rather than its proper role of protecting their rights: poverty, corruption, and ever-decreasing room for individual initiative. In a world of increasing, and potentially destructive, populism, Chile must hold fast as the leading light of liberty in South America.

This article was first published on BusinessDay on 7 December 2020
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