Chile: From a Devious Constitution to a Democratic One

The draft constitution submitted for public referendum to be held on September 4th.

By Andres Kogan Valderrama

HAVANA TIMES – July 4th was undoubtedly a historic date for Chile. For the first time in its history as a republic, a constitutional proposal for the country was completed, drafted by a group of people who were democratically elected in an equitable manner, with seats reserved for the original peoples and the presence of lists of independents.

It’s difficult to express the full dimensions of what Chile is currently living through with this unprecedented Constitutional process in the country. If we were to go back to the period before October 2019 -30 years from the time that a bland political culture was created by the great powers of the day and sealed into the 1980 Constitution – a scenario like the present would be utterly unthinkable and improbable.

In other words, the political class was subordinated to what the lawyer and former Constitutional drafter Fernando Atria termed the deceptive Constitution,[1] in reference to the Constitution of Augusto Pinochet, ratified in 2005 by former Chilean president [2000 – 2006] Ricardo Lagos, who signed it during his term in office.

The 1980 Constitution has been marked by traps, not only because it was written by a small group of conservative male legal experts within the framework of a dictatorship, but also because it established an extreme neoliberal economic model that generated so great a concentration of economic power that even when the country returned to democracy, the institutional policies remained relegated to the role of merely administering what already existed.

For that reason, despite the reforms to the political system that were enacted in 2005 (including an end to appointed senators and the power to remove the commanders of the armed forces) and in 2015 (an end to the two-party system), there’s been no great structural reform during all these years, except for the 2000 reform of the Criminal Processing Code.

In other words, any attempt to move forward transformative policies that could benefit the citizens and curb abuses has been rejected by the Constitutional Court. This has happened repeatedly with the attempts to reform the health system, the water system, the educational system and even the national consumer service.

Hence, it shouldn’t be seen as surprising that Chile’s great economic powers (the health department, the pension system, retail, mining, forestry, banks, large educational consortiums and large media groups) have abused the system with impunity, since the Constitution has allowed them to and has sheltered them for thirty years.

Given this, it’s quite ridiculous on the part of those who claim to see similarities between Pinochet’s Constitution and the current Constitutional proposal that was recently presented, since both would require a large majority in order to reform them. Such parallels, however, ignore everything mentioned above.

In addition to foolish, the supposed parallels drawn from the quorum rules are false and ill-intentioned. While a 2/3 vote of the sitting senators and deputies was required to enact major reforms to the 1980 Constitution, the new Constitution establishes a quorum of 4/7 of the legislators, followed by a citizens’ plebiscite ratifying it, if it’s a significant reform.

In other words, if the new Constitution is approved in the vote that will be held on September 4, there can’t be a small group that is constantly vetoing the vote, as has happened with the right in Chile over the last decades, resulting in the fact that in the end reforms were made only when the most conservative sectors wanted them.

It mustn’t be forgotten that the November 15, 2019, Agreement for the Peace and the New Constitution was triggered by a gigantic social upheaval, without precedent in the history of Chile, where the constituted power, in particular the right, was left with no other option than to open itself up to a change of Constitution.

For the same reason, the new Constitution won’t be deceptive this time, but democratic, since it’s been constructed from the beginning by a plebiscite and was drafted by a Constitutional Committee elected in the ballot box. Further, the Constitutional norms were approved by the great majority, including by over a 2/3 vote, which makes evident its legitimate and strongly participative character.

Finally, the new proposal for a democratic Constitution, in contrast with the underhanded Constitution of 1980, proposes that if there’s a desire in the future to once again change the Constitution, it can only be done through a Constitutional assembly, and through a referendum, thus returning power to the people of Chile, where it always should have been.[2]



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