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

Voters celebrate the outcome of the plebiscite that decided to change the Magna Carta Image: Reuters

On Sunday (10/25), Chileans gave massive support to a new constitution, one of the main demands of protesters who have occupied the country’s streets for months.

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

According to the result of the ballot box, 78% of 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 the vote on Sunday, voters also decided that the Constituent Assembly will not be mixed, with half of the seats destined for acting parliamentarians, but entirely formed by new elected members, without the need for party affiliation.

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

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

“So far, the Constitution has divided us. As of today, we must all collaborate so that the New Constitution is a major milestone for unity, stability and future,” said Chilean President Sebastián Piñera.

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

Pinochet heritage

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

“One of the most criticized issues is its illegitimacy of origin: it is precisely the fact that it was elaborated during a military dictatorship,” Miriam Henríquez Viñas, professor of Constitutional Law and Dean of the Faculty of Law at the Alberto Hurtado University, told BBC News Mundo, from Santiago.

“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 that established limited political pluralism, which assumed that certain political ideologies, such as Marxism, were prohibited was revoked.

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

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

“However, it is still the Constitution that was prepared by the military regime 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 noted.

“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 massive 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 mistrust present in the Constitution as to the possibility of the people making reasonable decisions ‘for themselves’ and, according to the constitutionalist, this mistrust is expressed through a series of mechanisms, for example, the fact that the role of political parties is minimal in it.

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

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

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

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

Social status

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

“This subsidiary state is a minimum state that is limited only to monitoring or supervising how individuals provide these rights,” explains Henríquez.

Privatization was one of the pillars of the Pinochet model: in its Constitution, basic services such as electricity and drinking water passed to private hands.

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

Now, the demand of Chilean protesters is for the state to have 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 with regard to the 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 with regard to the declaration and guarantee of the exercise of certain social rights, that is, incorporating elements of a social state into the Constitution”, explains the expert.

Analysts agree that a new constitution would not solve all the 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.

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