Chile's has been a long return, which has involved two constitutional processes in four years, to return to the same point. Because, after the plebiscite of this Sunday the 17th, the option against The proposal for a new Constitution has been supported at the polls by more than 55% of the citizens compared to 44.84% who were in favor of the in favor, with 76.5% counted. It is a result that implies that the Fundamental Charter that has been in force since 1980, promoted by the dictatorship of Augusto Pinochet (1973-1990), is still in force, but that has had 70 reforms since 1989, most of them in democracy.
Even since 2005, this Magna Carta, with 168 articles in 15 chapters, bears the signature of former socialist president Ricardo Lagos (2000-2006). “This is a very big day for Chile. We have reasons to celebrate. Today we finally have a democratic Constitution, in line with the spirit of Chile,” said the former president when the 58 reforms were published in the Official Gazette in August of that year. In the package, several of the main authoritarian enclaves that kept much of the soul of the dictatorship alive were eliminated, among them the designated and life senators, such as Pinochet himself, and the function of guarantors of the institutionality that the Armed Forces had. . The presidential term without immediate reelection was also reduced from six to four years and greater oversight powers were given to the Chamber of Deputies.
However, the subsidiary State model, implicit in the Constitution, of social benefits, such as health and pensions, was maintained, with the participation of public organizations and special prominence of private ones. In fact, this is a text that, furthermore, does not have integrated either the right to work (it refers to freedom of work) or the right to housing, and that refers to women in a norm, included in a reform in 1999. , which states that “men and women are equal before the law.”
Also, in the current text, the Constitutional Court (TC) has the power to carry out preventive control of laws, that is, to examine them before they are promulgated. It is a role that has been questioned, especially by the left, who have classified it as a third legislative chamber. For example, in 2017 the judges declared unconstitutional some of the regulations that reformed the National Consumer Service (Sernac), including being able to investigate, sanction and apply fines to suppliers who violate the law.
Despite all its reformulations in the last 30 years and the fact that Pinochet's name has been removed, this is a Constitution to which the left has charged that it was born in a dictatorship as a sin of origin. But in this second process they have voted to maintain it.
That sin of origin was one of the reasons why in November 2019, after the social outbreak, the first constitutional process was promoted, which turned out to be a failure when a convention dominated by that sector presented a proposal that was rejected in a plebiscite in 2022. by 62%. But, the main motivation was to strengthen social rights.
After that fiasco, in 2023, the political class raised this second process. This time an elected Constitutional Council, in which the right achieved the majority, delivered a proposal that the left-wing ruling party rejected. Therefore, they campaigned to maintain the same Fundamental Charter that they have criticized for decades, arguing that the new project that was voted on this Sunday was worse. According to one of the spokespersons for the against, The mayor of Peñalolén Carolina Leitao, a Christian Democrat, was “a Constitution 2.0 from the 1980s.”
But the desire to change this Magna Carta, which will continue to illuminate Chile, comes from much earlier. In 2018, at the end of her second government, former socialist president Michelle Bachelet (2006-2010, 2014-2018) also tried to replace this Constitution. It was not with a process with conventions or councils, like the last two, but with the sending of a reform project to Congress that had no political floor from either the left or the right.
From written in stone to reformable
The Constitution that will remain in force in Chile was promulgated on October 21, 1980. Three commissions of lawyers appointed by the Military Junta, composed of four generals, and led by Pinochet, worked on its drafting since 1976. It was held in a referendum in which there was no Election Qualifying Tribunal or Electoral Registry, so the mayors appointed by the authoritarian regime fulfilled that role in the process. Then the option won Yeah with 65.71% of the votes, a result that was questioned from the first day by the opposition to the dictatorship.
The current Magna Carta has had three main reforms. “The three most important are those of 1989, which enabled the transition to democracy; those of 2005 [del Gobierno de Lagos] and those that inaugurated the constituent processes of this period,” constitutionalist Gonzalo García, who was the coordinator of the reformulations promoted by Lagos, told El PAÍS.
Despite all the changes, it is a Constitution that was originally, and for many years, written in stone because it was very difficult to modify: to reform it required a high quorum, 2/3.
But that changed in August 2022, a month before the September 4 exit plebiscite of the first constituent process. When it was already clear from the polls that the proposal of the Constitutional Convention would be rejected, a group of senators, including Ximena Rincón, a former Christian Democrat and now a Democrat, promoted as plan B a reform that reduced the quorum to make reforms to the Magna Carta from 2/3 to 4/7, which was approved.
After this, constitutionalist Gonzalo García points out to EL PAÍS, the current Chilean Fundamental Charter became a flexible text. Even, says the political scientist from the Catholic University David Altam, today it is a text that, to change it, has one of the lowest quorums in Latin America: “You only need 4/7 of Congress”, while, “in the majority it is 2/3″.
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