From Formal Equality to Substantive Equality in Chile

The new constitution will unite Chile.

By Andrés Kogan Valderrama

HAVANA TIMES – Although it may not be to the liking of the most conservative political sectors of Chile, and disturbs them, the ongoing constitutional process in the country is being observed with great interest and enthusiasm by many internationally. Many observers have seen in the new constitutional proposal, a text that is in the forefront on various issues and that has opened important discussions.

The mere fact that it is the first constitution worldwide having parity of representation and that native people have also been incorporated in its elaboration, through reserved seats, shows us that it is a process with an enormous richness in democratic terms. Likewise, it can help to promote other processes in other countries, where inequality, discrimination, racism, sexism, homophobia, are still very present.

Hence, reviewing the proposed new constitution and the principles of the text, one moves from an idea of formal equality to an idea of substantive equality, which opens a deep transforming horizon, which seeks to be in charge of the enormous injustices that certain groups lived and suffered historically, highly discriminated and rejected for centuries.

That is, it moves forward in an idea of concrete and material equality, through certain affirmative actions from the State, going well beyond an equality in the abstract, which omits the conflict, the concentration of power and the asymmetries existing in society, which have been perpetuated by the different constitutions that Chile has had, especially the dictatorial one of 1980 still in force.

If one reviews the current antidemocratic constitution, it will seem that neither women, nor sexual dissidence, nor children and adolescents, nor the elderly, nor native peoples, nor migrants, nor people with disabilities exist, because it was written and directed by those who control the political and economic power in Chile (male, adult, white, heterosexual and upper class).

In other words, what Pinochet’s constitution seeks is to deny the existence and experience of the vast majority of people living in Chile, by means of elitist notions about the family, society, the quality of being Chilean, without the least concern in the existing diversity, since it seeks that a small group defines the fate of the country.

Because of that the current constitution lays out everything in masculine terms (the president, the deputies, ministers, mayors, judges, fathers, Chileans), and in the best of cases it speaks of people, since it was drafted by only conservative men, who never cared about building a democratic and inclusive State, but rather a subsidiary and excluding one.

On the contrary, if we review in detail the new constitution proposal that will be ratified or not next September 4, what it seeks is to make visible, include and generate minimum conditions for different groups that the current constitution rejects, in a cross-cutting manner, having parity of representation, and throughout the entire written text.

Thus, at a general level, the new constitution, from article 1 itself, sets a precedent, explicitly stating that “it recognizes as intrinsic and inalienable values the dignity, freedom, substantive equality of human beings and their indissoluble relationship with nature” (1), making it clear from the outset that the Chilean State will be responsible for all Chileans, without exception, leaving behind the idea of a merely formal equality.

Likewise, in article 25, it makes clear that the State will carry out concrete and affirmative actions in this regard, responding to those groups historically excluded, stating that “the State will adopt all necessary measures, including reasonable adjustments, to correct and overcome the disadvantage or subjugation of a person or group.”

Consequently, the new proposed constitution makes a huge about-turn about building a substantive equality free of any discrimination (article 25), and also specifically aimed at different groups, where several articles stand out in the text, such as women, sexual and gender dissidence (art. 6, 27), children and adolescents (art. 26), people with disabilities (art.28), neurodivergent people (art. 29), the elderly (art. 33), indigenous peoples and nations (art. 34).

On the other hand, regarding an intersectional approach to guarantee substantive equality, the new proposal also stands out for various articles that seek to ensure that the new institutions also take care of these historically excluded groups. These are the cases of articles on education (art. 25), health (art. 44), justice systems (art. 311), and police (art. 297) where they are required to operate from a gender and intercultural perspective and from the plurality of society.

As evidence from the above, to vote in favor this September 4, is to approve for and from the diversity of the country, which improves us and can unite us more, if we decide to take this historic step, instead of remaining with a text that denies us as society.

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