Disability in the Chilean constitutional process

Abstract

This article provides an overview of the constitution-making process currently developing in Chile from a disability perspective, focusing particularly on the process led by the so-called ‘Constitutional Convention’. First, we describe the measures taken to include persons with disabilities in the composition of the constitutional body tasked with writing the new constitution and how persons with disabilities could participate in the construction of disability as a constitutional matter. Then, we focus on several provisions of the proposal for the new constitution of Chile elaborated by the Constitutional Convention that refer to the rights of persons with disabilities. It is argued that although the proposal drafted by the Constitutional Convention was ultimately rejected, it must not be considered irrelevant to the constitutional protection of the rights of persons with disabilities in Chile. Both for substantive and procedural reasons, the constitutional process led by the Constitutional Convention offers solid ground to advance the rights of persons with disabilities as a constitutional issue.

Keywords:

• Disability rights
• constitution-making process
• Chile
• constitutional rights

Originated as a consequence of the so-called ‘social outbreak’ of October 2019, the Chilean constitutional process was marked from the beginning by a firm conviction towards the inclusion of traditionally excluded groups (Charney, Marshall, and Christodoulidis 2021). Different measures were taken for the integration of the constituent body (the ‘Constitutional Convention’) regarding women (gender parity rule), indigenous peoples (reserved seats), and persons with disabilities (electoral quotas). These measures implied that while it was guaranteed that the voice of women and indigenous peoples was represented in the constitutional debate, the representation of persons with disabilities was not guaranteed. The rules set for the election of the members of the Constitutional Convention only required that the lists presented by political parties comply with a mandatory 5% of their candidacies reserved to persons with disabilities. Under the ‘disability quota’, 41 persons with disabilities were in standing for election (total competing candidates were 1,373 nationwide). Only one was elected (Adriana Cancino, a woman with hearing impairment and reduced mobility) (see Marshall, Ponce De León, and Marchant 2022).

Therefore, not only because of the disadvantaged position of persons with disabilities in comparison with other traditionally excluded groups but because of the poor results provided by the implementation of the ‘disability quota’, it was difficult to foresee that the constitutional debate would be particularly sensitive and responsive to issues of interest to persons with disabilities. However, the treatment of disability in the draft prepared by the Constitutional Convention exceeded the poor initial expectations. Although disability was indeed a sort of ‘Cinderella’ of traditionally excluded groups at the beginning of the constitutional process, the draft presented by the Constitutional Convention established disability in a way close to a cross-cutting issue. Disability was not treated as an insular issue; it was viewed as a comprehensive matter included in a wide variety of topics and constitutional provisions. Ultimately, it is plausible to argue that disability was treated as a constitutional matter.

The constitution-making process led by the Constitutional Convention took place from November 2021 to 4 July 2022, concluding with a popular referendum with mandatory voting celebrated on 4 September 2022. In the referendum, citizens regrettably rejected the proposal drafted by the Constitutional Convention (61.86% for the rejection against 38.14% for the approval). Although ultimately rejected, the proposal drafted by the Constitutional Convention must not be considered irrelevant to the constitutional protection of the rights of persons with disabilities in Chile. Within a political context where constitutional changes appear to be on the table, the constitutional process led by the Constitutional Convention offers solid ground to advance the rights of persons with disabilities as a constitutional issue. As we will see below, this is so both for the actual content of the proposal’s provisions and for the procedural conditions in which these provisions originated, discussed and approved.

The disability provisions included in the draft elaborated by the Constitutional Convention resulted from a long process that allowed the interests and voices of persons with disabilities in Chile to be included in the new Constitution. The participation of persons with disabilities materialised through successive steps.

1. As we said before, a ‘disability quota’ was applied in the electoral process regarding the integration of the Constitutional Convention.

2. Persons with disabilities and their organisations were able to use the citizen participation mechanisms provided for in the work of the Convention. Thus, various popular initiatives (in which people and associations were able to propose constitutional initiatives to be discussed by the Convention) on disability were presented, three of which gathered the sponsorship that was necessary for them to be addressed.

3. The voices of persons with disabilities and their organisations were heard by attending public hearings and discussion sessions within the Convention.

The incorporation of provisions that refer to persons with disabilities was carried out in several subjects. The most important of these provisions was an article (28) that specifically aimed to regulate the rights of persons with disabilities contained in the initiative presented by Adriana Cancino. This provision, which was the one finally approved, was the one that attracted the most attention and generated discussion in the movement of persons with disabilities since it addressed several of their most urgent and essential demands. The provision began by recognising and reaffirming the status of persons with disabilities as full subjects, with rights that are equal to those of other persons, with a special reference to international treaties on human rights. In addition, a specific reference was made to the protection of the legal capacity of persons with disabilities, expressly adopting the model of support and safeguards enshrined in the United Nations Convention on the Rights of Persons with Disabilities, which was the basis of the discussion (article 28.2). The right to legal capacity was also mentioned regarding the rights of older persons (article 33.2) and the recognition of neurodiversity (article 29). The second paragraph established the right to universal accessibility and a set of rights that aims to include persons with disabilities in all spheres of life, expressly mentioning ‘access to jobs’, as well as ‘political, economic, social, and cultural participation’ (article 28.2). The third paragraph established the constitutional basis for the subsequent legal regulation of a national system that unifies and concentrates the preparation, coordination, and execution of policies and programs on disability in ‘work, education, housing, health and care’ (article 28.3). The fourth paragraph described the ‘physical, social, cultural, attitudinal, communication and other’ barriers to the exercise of rights raised by the community of persons with disabilities, entrusting the legislator with the task of identifying and removing them (article 28.4). Finally, in its last paragraph, the article recognised and guaranteed persons with disabilities linguistic rights and the protection of their cultural identity (article 28.5). The protection of deaf people’s linguistic rights was also reinforced in the provision that declared Chile to be a multilingual state (article 12).

In addition to this special article, persons with disabilities were considered in another series of matters. In the norms related to political participation and democracy, an article was approved that established a mandate for the legislator to determine affirmative measures that guarantee the participation and political representation of persons with disabilities (article 153.4). This provision was adopted in place of another proposal, which was rejected, that sought to reserve seats for persons with disabilities in popular representative bodies. Furthermore, it was established that the state would promote the active and progressive exercise, through different mechanisms of participation, of the citizenship rights of certain groups, including persons with disabilities (article 117.3).

Regarding the specific regulation of fundamental rights, persons with disabilities were mentioned in the right to care (article 50), the right to social security (article 45), the right to education (article 36.2), the right to non-discrimination (article 25.4), and the right to due process (article 109.8). Regarding education, it was established that the state must provide additional opportunities and support to those with disabilities. With regard to due process, a duty of assistance and necessary and adequate procedural adjustments for persons with disabilities was established. In addition to establishing a general measure of non-discrimination, the proposal included reasonable accommodation measures. This tool offers persons with disabilities significant support in exercising their rights (article 25.5).

Accessibility, a key concept for persons with disabilities, was also recognised in the constitutional text. Accessibility was mentioned regarding the principle of the transparency of public information (article 167.1), citizens’ participation (article 152.3), and housing (article 51.2). Furthermore, accessibility to physical, social, economic, cultural, and digital environments was established for the elderly (article 33.2). Additionally, the principle of universal accessibility was mentioned in the article regarding the rights of persons with disabilities (article 28.2). Universal accessibility was also entrenched as a principle that should guide the use and transformation of land, and the organisation of cities, according to the provision that entrenches the right to the city and land (article 52.3).

Besides describing the provisions on disability, we think that it is important, at least, to stress the ‘constitutionalisation’ of two related concepts relevant to the rights of persons with disabilities: ‘reasonable accommodation’ and ‘accessibility’. Regarding reasonable accommodation, it is interesting to note that, unlike other legal frameworks, the duty to provide reasonable accommodation was established in relation to all prohibited grounds of discrimination regarding disability. In short, reasonable accommodation was established as a general tool for equality and non-discrimination. This is important because this sort of constitutional provision sends the message that the task of creating inclusive societies (in this case, by providing reasonable accommodation) not only concerns persons with disabilities but a broader scope of different individuals, reducing the impact of the ‘ghetto effect’. Regarding accessibility, besides the various applications of the concept in the proposal, it must be noted a kind of ‘individualisation’ of the accessibility norm. As it is widely accepted, accessibility is a group-oriented concept that concerns those kinds of environmental modifications needed beyond the concrete situation of an individual with disability. However, the proposal drafted by the Constitutional Convention consecrates an individual right to universal accessibility, adopting a clear position on a matter that is still widely discussed in the academic forum: the legal status of accessibility (see Broderick 2020).

All the above shows clearly that disability was made visible and understood as a topic of constitutional relevance during the constitutional process led by the Constitutional Convention. This body proposed a draft that not only included a special provision for the rights of persons with disabilities, but it is reasonable to state that the topic of disability permeated the content of various other constitutional provisions. This proposal represented a significant improvement concerning the current constitutional text, which only refers to disability indirectly, by depriving certain people of the right to vote on the grounds that they are incapable of doing so. If the constitutional text proposed by the Constitutional Convention had been approved in the referendum of September 2022, Chile would have joined the small group of countries (Bolivia, Brazil, Ecuador, and Kenya) that provide solid constitutional protection for the rights of persons with disabilities (see Raub et al. 2016; Moreno, Stein, and Heymann 2022). Therefore, to advance the constitutional protection of this significant group of the population, any constitutional-making process conducted in the future in Chile should take a look at the process led and the material drafted by the Constitutional Convention. By doing this, the new process will find not only a robust set of provisions oriented toward protecting the rights of persons with disabilities but also a way to give voice and agency to a group marked by a history of social and political exclusion.

Disclosure statement

No potential conflict of interest was reported by the authors.

Additional information

Funding

This research was supported by the ANID Millennium Science Initiative Program (ICS2019_024).