Chile passes historic referendum: why the Constitution is so controversial that 78% of Chileans decided to change | World

The current Chilean Constitution dates from 1980 and, although amended several times, It is criticized for being a legacy of the military regime of Augusto Pinochet and for giving the State a residual role in the provision of basic services, which is precisely one of the reasons for the protests that began on October 18, 2019 and lasted until March 2020, in a movement that came to be known as a social outbreak (or social overflow, in literal translation).

According to the results of the polls, 78% of the voters voted to change the current Charter and 22% rejected the proposal.

The Constituent Assembly will be formed in a new election in April 2021, with gender parity (50% women and 50% men). In Sunday’s vote, voters also decided that the Constituent Assembly will not be mixed, with half of the seats going to MPs in office, but rather Fully made up of newly elected members, no need for party affiliation.

Therefore, representatives of Congress will not participate in the new Constituent Assembly and there will be a quota of seats reserved for indigenous peoplesAlthough the Chilean Congress has not yet defined how many and how they will be elected.

Only the rules approved by two thirds of the future constituents will be incorporated into the new Chilean Charter.

“Until now, the Constitution has divided us. Starting today, we must all collaborate so that the New Constitution is an important milestone for unity, stability and the future,” said Chilean President Sebastián Piñera.

In the text below, BBC News Mundo (the BBC’s Spanish service) analyzes why the Constitution has been the subject of a wave of protests for months and what are the reasons of those who advocate modifying it.

One of the main reasons why protesters demand a change in the constitution has to do with its origin.

“One of the most criticized issues is his illegitimacy of origin: It is precisely the fact that it was drawn up during a military dictatorship, ”Miriam Henríquez Viñas, professor of Constitutional Law and Dean of the Law School of the Alberto Hurtado University of Santiago, told BBC News Mundo.

“The 1980 Constitution was the work of the military regime and, for a very relevant sector of Chilean society, it has an illegitimate origin,” agrees Gilberto Aranda, professor at the Institute of International Studies at the University of Chile.

But, as the two experts point out, the text was substantially modified in 1989 and 2005.

For example, in 1989 the part establishing limited political pluralism was repealed, which assumed that certain political ideologies, such as Marxism, were prohibited.

Later, in 2005, under the government of Ricardo Lagos, an important constitutional reform was carried out that The figure of nominated senators, elected by institutions such as the Armed Forces or the Supreme Court, has ended.

“I would say that in 2005 (the Constitution) had already been purged of authoritarian enclaves,” says Aranda.

“However, it is still the Constitution that the military regime drew up and, therefore, in this context, a very important part of Chilean society says that it would have a lack of legitimacy in origin.”

In the statements of the protesters this thought is evident.

“I will not stop protesting until a new constitution is created and Pinochet’s heritage is gone,” Nohlan Manquez, a photographer who participated in the mass protests that began in 2019, told the BBC.

But in addition to its origin, there is also a question about its content.

Rigidity and ‘authoritarian enclaves’

According to Henríquez, the Constitution “was originally designed to reflect a democracy protected from the irrationality of the people.”

“There is a distrust present in the Constitution about the possibility that the people make reasonable decisions for themselves” and, according to the constitutionalist, this distrust is expressed through a series of mechanisms, for example, the fact that the role of political parties is minimal in it.

Regarding the content, another issue is that it is a “very rigid” constitution: changing it requires majorities of two-thirds or three-fifths of the current deputies and senators.

Therefore, despite the 1989 and 2005 reforms, the expert disagrees with Aranda and considers that the Constitution “still has so-called authoritarian enclaves, that is, there are certain norms that make it practically impossible, if not very difficult, to reform certain provisions. “.

“Then it generated a kind of freeze on issues such as the right to social security and freedom of education, which are precisely the social rights that are demanded today.”

Citizens took to the streets to protest against inequality and demand the implementation of profound social reforms.

The other questioning of the Constitution has to do with social rights, since the constitutional text establishes a “subsidiary state” that does not directly offer benefits related to health, education or social security, delegating this to the private sector.

“This filial state is a minimal state that is limited only to monitoring or supervising how individuals grant these rights,” Henríquez explains.

Privatization was one of the pillars of Pinochet’s model: in its Constitution, basic services such as electricity and drinking water were taken over by private hands.

There has also been strong privatization in areas such as education and health.

Now, the demand of the Chilean protesters is that the State has greater participation and involvement in the provision of basic services.

Aranda agrees that the social function is “underrepresented” in the Constitution, which attributes to the State only “functions in matters of protection of public order, security, defense, guarantee of justice, etc.”

“There is a significant number of people who demand structural and profound changes in Chile in terms of the declaration and guarantee of the exercise of certain social rights, that is, incorporating elements of a social state in the Constitution,” explains the expert.

Analysts agree that a new constitution would not solve all problems, but it would be a very important first step.

* This text was originally published in November 2019 and updated with the result of the plebiscite approved in October 2020.