Constitutional change is possible, but it will take time, Chilean experts say.
Impeding these rights in every direction, critics say, is Chile’s political system. Shrouded within the very fabric of this system, lies the remains of Gen. Augusto Pinochet’s most infamous legacy: Chile’s 1980 Constitution.
Silently but effectively, critics say the Constitution places a legislative gag over the mouths of Chile’s people.
Recently, however, above the noise created by the social and student movements, two words have begun to sound: constitutional reform. For many it appears to be the one-size-fits-all solution to the many different issues Chileans have been protesting about for decades.
Last week Senate Vice President Juan Pablo Letelier and a handful of Chile’s top lawyers played host to Patricio Pazmiño Freire, the head of the Constitutional Court in Ecuador, for a conference entitled “The Constituent Assembly and a new Constitution: The experience of Ecuador and the possibilities in Chile.”
“In our country the Constitution privileges the rights of some people above those of others. In addition, social rights are subordinate to economic rights,” said Letelier. “In Ecuador, they changed the focus of debate, leveling rights and returning them to what inspired the Universal Declaration of Human Rights after the Second World War. It is this that Chile must learn from.”
While some of Chile’s law professors and policy makers believe that their country could learn from the example of Ecuadorian President Rafael Correa’s referendum-led constitutional reform, the real question is whether this country is ready to put such lessons into practice.
A Constitution Stuck in the Past
Even people who know only the basics about Chile’s Constitution are aware that the Constitution that currently governs the country remains the same document created by Pinochet.
The Constitution, written largely by Jaime Guzmán, a lawyer (and later a senator) who was a close advisor to Pinochet during the dictatorship, was designed in such a way as to perpetuate the military’s hold on political power even after the eventual return of elected governments.
For many, the Constitution’s origin in the military dictatorship immediately and symbolically invalidates it as an effective representation of its people.
“It [the Constitution] is not a product that reflects the citizens of this country and it doesn’t distribute the power to govern with the common good in mind,” Esteban Bravo Botta, a law professor at the Universidad de Chile, told The Santiago Times. “It reflects an elite, an elite which created a coup, destroyed democracy, and introduced terror as a form of government.”
Despite center-left President Ricardo Lagos making several small changes in 2005 — including removing the Senate seat-for-life for former presidents, prohibition of non-elected senators, and allowing elected presidents’ the right to dismiss military commanders and chief-of-police — the Constitution’s fundamental aspects remain. One such aspect is the need for majorities of two-thirds in Congress to reform the Constitution.
“The way we make laws and the way we decide things in Chile are a part of a political system that is always in a stalemate,” said Carlos Figueroa, student leader and founder of the political party Revolución Democrática (RD).
Guzmán himself is reported to have said before writing the 1980 Constitution: “We will create a Constitution so foolproof that not even our enemies, if they ever get into power, will be able to do anything differently to what we would have done.”
Lawyer Daniela Hirsch recognizes this boast in the Constitution that governs the Chilean people today.
“Chile’s is a Constitution that, to a great measure, was created to maintain the economic and political regimen created by Pinochet,” Hirsch told The Santiago Times. “For example, with the binominal election system, there is hardly any chance at all of new political groups to enter congress, or any party that is not in the Concertación or the Alianza.”
Living the Constitution
The maintenance of a ‘dictator’-like Constitution is not just a legal reality, but one that Chileans feel affects them everyday.
“While we could not say that a new constitution would be able to bring about the end of neo-liberalism in Chile – that would be too much – our current constitution definitely reinforces it,” Figueroa said. “When people go to try and find fuel in Aysén and there is none, it is because of the politics of centralization, and this is a direct result of the political system we have in place, of our constitution.”
The Constitution recognizes a number of different rights of its people all outlined in Article 19 of the document. For example, right to life, health, integrity, freedom, and education, among many others. However, in the next article the document says that only some rights will have judicial protection.
In the case of education in Chile, the Constitution guarantees the right to education but ensures no controls on the quality of such education. In terms of access to health care, the right to choose between public or private health systems is mentioned but the access to health itself is not protected.
“It’s absurd,” said Hirsch.
There are many other more specific problems with the Constitution, Hirsch said. For example, she added, state workers cannot go on strike, union leaders are not allowed to be candidates for Congress, and there is no public initiative for laws which mean that independent groups of people cannot present law projects. This can only be done by presidents, deputies or senators.
Other problems that Hirsch mentioned include an age limit on members of congress and presidents – they have to be over 35 years of age; no limit to the number of terms senators are re-elected, which means that the power can be kept in the same hands, and a law that allows Congress people to be replaced by candidates chosen by the party even if they didn’t participate in elections, as was the case recently with Sen. Ena von Baer, a member of the Unión Demócrata Independiente (UDI) party.
“The current Constitution does not represent the interests of the majority of the people,” Leandro Viveros Barrios, a law graduate from Universidad Central, told The Santiago Times. “It only protects the interests of an elite that has ruled the country for a long time.”
The Example of Ecuador
Ecuador may seem a surprising comparison to Chile. Chile has had a stable democracy for 20 years while Ecuador has enjoyed democracy for only five years and made its constitutional reforms all under one presidency. But legal experts in Chile are quick to praise both the changes made to the constitution in Ecuador and the way in which those changes were brought about.
“The most important thing is that the Ecuadorian movement shows that it is possible to progress to a new Constitution in a context of relative calm, in a context of a democracy of participation,” Dr. Eric Eduardo Palma, a law professor at the Universidad de Chile and a speaker on last week’s panel, said.
Ecuador has reformed its Constitution twice under Correa, once in 2008 and another time in 2011, both by way of public referendums.
Ecuador’s constitution has found particular praise, according to law professors in Chile, because it is the product of a Constitutional Assembly that has distributed power in a way that is tailored to its citizens’ way of life. It has not just sought to copy foreign models of governance.
“Ecuador showed great understanding of the diversity of people within the State. Both the constituent assemblies of Ecuador and Bolivia have recognized this plurality in a very explicit way, guaranteeing minority rights, “ said Federico Rojas de Galarreta, a political analyst.
Correa has always championed the rights of Ecuador’s indigenous people. Many of his economic reforms were designed to help protect the most vulnerable rural population.
Ecuador’s focus on the protection of indigenous people and their rights and Correa’s ability to involve a greater number of people in the process of reform are both aspects that experts believe Chile could learn from.
“The inclusion, in terms of political participation, of many new actors in the public arena, such as social movements, nongovernmental organizations or simple individuals must be highlighted,” said Rojas. “The perception of belonging to a ‘public’ that can generate this change is of great political significance.”
Chile has a long history of exploiting and marginalizing indigenous populations like the Mapuche, who have fought for centuries against land they believe was wrongly seized from them.
One of the greatest challenges recognized in reforming the constitution in Chile is how to find a constitution that adequately represents and protects the many different types of people that live in Chile, a large country with great environmental and cultural diversity. This would also mean more rights for women and other minority groups as well as ethnic groups.
Barrios agrees that the drafting of a new constitution should involve society and be a matter of debate, but he remains pessimistic about this possibility.
“In my opinion it is very difficult to make sure that the government chooses representatives of communities and social leaders, as well as representatives of indigenous communities,” said the law graduate.
Figueroa agreed that making a link between the consciousness of the people and the laws that represent an understanding of these people should be the aim of a constitution.
“We need a new system that takes cares of the margins,” he said.
Changing the Unchangeable
Figueroa and many academics are positive about what the RD leader is calling a developing “consciousness of participation” in Chile.
Although there have been many center-left governments since the end of the dictatorship, the call to completely overhaul the political system is relatively new and is a result of the development in Chileans’ social consciousness.
“People are now thinking about themselves and politics – how they want to participate in the decisions of their country and how they are being affected by others’ decisions,” Figueroa said.
Kirsten Sehnburch, a political science professor at the Universidad de Chile, believes that the student movement is largely to thank for this.
“The student protests brought up a lot of issues not directly related to education,” she said. “With the call for education reform came the call for tax reform and electoral reform, both of which mean constitutional reform.”
“Social movements as a whole are not effective, but they have put it [the constitution] on the agenda again,” she added.
The obstinacy of Sebastián Piñera’s right government might also have played a role in the increased clamour for a new constitution.
“In the last 20 years there have been no protests,” Sehnbruch said. The protests are a product of forcing a country that is by inclination center-left into a right-wing straitjacket, which is the Constitution.”
A New Constitution: A Possibility for Chile?
Although Chile’s population as a whole is more aware of what is wrong with their constitution and now have a desire to change it, the possibility of a new constitution for Chile is still a very distant reality.
“Chile as a country is very different from the rest of Latin American countries,” Figueroa said, adding that other South American countries have used referendums to enact constitutional reform. “You must remember Chile is a lab rat, an experiment in neo-liberalism, and it is going to take a long time to change the structures in place here.”
Daniela Hirsch was also pessimistic about the likelihood of true and deep constitutional reform in the near future, at least not one with a constitutional assembly and public approval as Ecuador has experienced.
“Firstly there is no political will to change the constitution,” she said. “And secondly, it protects economic interests (the right of property is the most protected right in the constitution) so economic groups such as mining companies are very interested in keeping it as it is.”
With the change in the electoral registration, Chile is even further from achieving a change in the constitution, Sehnbruch said.
“To get a change in the constitution we need to persuade more young and poor people to vote. The electoral registration – that makes voting voluntary – favors the right and is another obstacle in the way of constitutional change,” Sehnbruch said.
But while it appears that politics is moving Chile even further from realizing constitutional change, there is still a hope for a new form of politics to evolve.
“We are a generation that is aiming to get into politics and do things in politics to make social change,” Figueroa, one of the leaders of the new student-led political party RD along with Giorgio Jackson, said. “Politics is not going to be something distant from social things. It will be the same thing.”
“Not only do we have to look at the big things like the constitution, but we also have to work on making small changes at a council or neighbourhood level. You can’t get just go to the streets and protest, you need to be a candidate and participate,” he added.
Ultimately what Chile is looking for in its new constitution is more real participation for the people. Specifically, they are looking for one that involves participation from every group: regions, political groups, unions, students, ethnic groups, and social movements. At that point, some are calling for a national plebiscite to judge any new submission.
“Knowing that you are under a constitution that you created, that you got involved with, gives it much more strength,” said Hirsch.
While Chile has a long way to go, change is slowly entering the minds of Chileans and the result could be worth the wait.
“I think that Chile must wait a lot, but a crisis will eventually force this country to change its Constitution,” said Botta.
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