Commission of Experts and the Environment: 2023 Constitutional Process

About a year ago, environmental organizations watched with joy and hope the discussions held in the commissions of the Constitutional Convention, whose rules refer to empowered territories, nature as a subject of law, and glaciers with a high and detailed level of protection. The story is known by all, the desire to have a constitution with an ecological approach for the country was destroyed on Sunday, September 4th, 2022.

However, as it has already been widely reported in the press, a new process called Proceso Constitucional 2023 [2023 Constitutional Process] has begun and is expected to end this 2023.

The 2023 Constitutional Process consists of two big stages:

The first one is the creation of a draft written by a committee of experts selected by Congress, who will end their work on June 6th and deliver the Constitution’s draft to the new constitutional convention members called Constitutional Counselors in this opportunity. They will be elected by citizens on May 7th. It’s at that moment when the second and final stage begins.

The second stage of the 2023 Constitutional Process begins once the counselors receive the text written by the committee of experts. The counselors will define the new constitution’s proposal, which will have to be approved or rejected by the citizens in a new plebiscite on December 17th of this year.

During the first stage of the new Constitutional Process, there was a series of articles to lay the foundations for an environmental discussion proposed by the committee of experts, specifically from the subcommittees “Derechos Económicos, Sociales, Culturales y Ambientales” [Economic, Social, Cultural and Environmental Rights] and “Principios, Derechos Civiles y Políticos” [Principles, Civil and Political Rights]. The purpose of this is that these regulations can eventually also be part of the proposal of the 2023 New Constitution, percepts that are described below:

 

In Chapter II named “Derechos y Libertades Fundamentales, Garantías y Deberes Constitucionales” [Rights and Fundamental Freedoms, Guarantees, and Constitutional Duties], Article 1 number 15 states that the Constitution guarantees to every individual: 

• “The right to live in an environment free of pollution that allows the existence and development of life in many ways.
• The State must ensure that this right is not affected and protect the preservation of nature and its biodiversity.
• In accordance with the law, specific restrictions may be established on the exercise of certain rights and liberties to protect the environment.”

 

Regarding water and its right to use, in number 22, the following rule is proposed:

• “The right to water and sanitation, in accordance with the law. It’s the duty of the State to ensure this right to the present and future generations. The use for human consumption and domestic use will prevail.”

In this regard and within the protection of the right to property in general, the committee of experts proposes the following, in number 27:

• “The right to property in its different species over any type of tangible and intangible assets.”
• “… Water, in any of its states, is a national good of public use. The rights of privates over water, which are recognized or constituted by law, will grant their holders the ownership over them.”

 

In Chapter XIII named “Protección del medio ambiente, sostenibilidad y desarrollo” [Environmental protection, sustainability and development], the committee proposed the following three articles:

• “Article 1. Every individual must contribute to the environmental protection and will be responsible for the environmental damage they cause, in accordance with the law.”
• “Article 2. The State must direct its actions towards the conciliation of nature protection and the improvement of the environment with the economic development and social progress.”
• “Article 3. The State must promote a sustainable, harmonious, and supportive development of the national territory that urges private collaboration to this.”

Subsequently, these regulations were approved by the Plenary Session of Experts and returned to their respective subcommittee, where their authors started to receive hearings from experts about environmental matters, especially in the academic and political fields. It should be noted that this process is currently under development and, thus, is not yet complete. The content of the legal precepts can and must be modified because, as described earlier, they will be sent to the Constitutional Council for its conclusion.

Notwithstanding the foregoing and in special consideration that this stage is or had to be composed by experts on constitutional and social matters, the result presented by the commission is insufficient and unsatisfactory not only for the world of socio-environmental organizations but also for the academic world. On this matter, it’s possible to criticize the presented precepts, such as the lack of basic environmental principles of modern environmental rights, the right to live in a healthy and balanced environment, the missed opportunity to establish an institution for environmental advocacy, and finally, the disconnection with the current and/or future environmental institution. The obstinate proposal to incorporate and maintain the constitutional protection of property over water use rights deserves special mention as it’s completely insulting to the country’s actual and future necessities and requirements, considering the current climate crisis, added to the megadrought events and the trends of increasing average temperatures over the past few decades, according to scientific background.

It’s expected that the hearings of experts and academics added to the upcoming citizen participation will inspire and support substitute indications and, consequently, improve the currently known constitutional text. However, all this effort to improve the Magna Carta project shall have no effect if citizens disconnect from the constituent power or the faculty they have to write and choose a constitution written in democracy because even if it might not perfect, it’s absolutely better than living in society agreed and delimited by rules imposed during a dictatorship.

 

• Constitutional Process Link

• Source: © BBC News.