Chilean Lawyers Worry Next Constitution Will Erode Legal Certainty

More than 200 lawyers in Chile have signed an open letter in a national newspaper to express dismay about the ongoing process to rewrite the country’s constitution.

In a letter published in the daily La Tercera, the lawyers warned that the next constitution is shaping up to be a smorgasbord-style document pocked with contradictions and omissions that could stoke legal uncertainty.

Signers include members of prominent law firms such as Gabriel Zaliasnik, a name partner at Albagli Zaliasnik, a midsize Chilean firm, as well as several former ministers in prior governments.

“A deficient Constitution, with holes or interpretive problems, can lead to serious conflicts, and unfortunately our political history has demonstrated that in the past,” the letter said.

“We express our concern about initiatives that permanently seek to undermine the independence of the judiciary, create parallel ‘justice systems,’ increase bureaucratization, control and size of the state, divide the country into nations and autonomies, without considering the rich multicultural diversity of the nation, with a clear identity bias,” the letter continued.

An elected assembly called the constitutional convention, made up predominantly of leftists and independents, is drafting a new constitution for Chile to replace the one written during the 1973-1990 dictatorship of Gen. Augusto Pinochet. The draft document written by this constitutional convention is scheduled for a simple yes-or-no popular vote in September.

“The rule of law is in danger,” Zaliasnik wrote in a LinkedIn post highlighting the decision to put his name on the open letter. “We are thousands of legal professionals and millions of Chileans who see how our democracy is being eroded and the new Constitution being elaborated with its back to the law,” he added.

Zalasniak emphasized to Law.com International that he signed the letter as an individual—not for the firm. It is unclear how many of the signatories are employed by large law firms.

Other signers include Isidro Solís and Jaime Campos, both of whom served as justice ministers under former Chilean President Michelle Bachelet, a left-leaning doctor who is now the United Nations High Commissioner for Human Rights.

Social Tensions

Civil strife that rocked Chile in late-2019 put the country on course for reforms. Though small in population—Chile has only 19 million inhabitants—the country has long been lauded as one of the most stable economies in Latin America.

The protests, though, showed that many Chileans were deeply dissatisfied with their circumstances. In December 2021, Chileans elected a young former protest leader, Gabriel Boric, as president.

The open letter argued that Chile needs to preserve the legal foundations that have made the country an attractive destination for investment. The lawyers expressed concern that the new constitution could weaken property rights and other guarantees while enshrining social rights that aren’t financeable.

“With dismay, we perceive the inability within the Convention to understand the constitutional text as a space of unity, respect and adhesion of the majority of the population with the best of our past, but also with the changes that the present and the future require and demand,” the letter said.

Convention constituents have proposed embedding in the constitution a range of specific and sometimes controversial rights, such as abortion, self-governance for indigenous territories and charging the state with combating climate change.

Members of the constitution-writing convention took offense at the criticism in the open letter, with several suggesting via social media that the lawyers who signed on merely want to maintain a status quo that has benefited billionaires and corporate interests.