Chile has come a long way, involving two constitutional processes in four years, to return to the same point. Because after the popular vote this Sunday the 17th, the option against the proposed new constitution was supported in the elections by more than 55% of citizens, compared to 44% who were in favor and 96% were examined. This result implies that the Basic Charter, in force since 1980 and promoted by Augusto Pinochet's dictatorship (1973-1990), is still in force, but has made 70 reforms since 1989, most of them in the field of democracy.
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Since 2005, this Magna Carta with 168 articles in 15 chapters has borne the signature of the former socialist president Ricardo Lagos (2000-2006). “This is a very big day for Chile. We have a reason to celebrate. Today we finally have a democratic constitution that corresponds to the spirit of Chile,” said the former president when the 58 reforms were published in the Official Gazette in August of that year. The package eliminated several of the key authoritarian enclaves that sustained much of the soul of the dictatorship, including the designated and life senators like Pinochet himself and the role of guarantors of the armed forces' institutionality. . The president's term of office without immediate re-election was also shortened from six to four years and the Chamber of Deputies was given greater control powers.
However, the subsidiary state model of social benefits such as health insurance and pensions anchored in the constitution was retained, with public organizations involved and private organizations having a special status. In fact, this is a text which, moreover, does not integrate the right to work (it refers to freedom of work) or the right to housing and which refers to women in a norm included in a reform in 1999. , which states: “Men and women are equal before the law.”
In addition, the Constitutional Court (TC) in the current text has the power to preventively control laws, that is, to examine them before they are promulgated. This role has been particularly questioned by the Left, which has classified it as a third legislative chamber. For example, in 2017, judges declared unconstitutional some of the regulations reforming the National Consumer Service (Sernac), including the ability to investigate, sanction and impose fines on suppliers who violate the law.
Despite all the reformulations over the last 30 years and the fact that Pinochet's name has been removed, it is a constitution that the left accuses of being created as an original sin in a dictatorship. But in this second trial they voted to keep it.
This 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 this sector presented a proposal that was rejected in a referendum in 2022. at 62 %. However, the main motivation was to strengthen social rights.
After this fiasco, the political class launched this second process in 2023. This time, an elected Constitutional Council, in which the right achieved a majority, put forward a proposal that the left-wing ruling party rejected. That is why they fought to maintain the same basic charter that they had criticized for decades, arguing that the new project voted on this Sunday was worse. According to an opposition spokeswoman, Peñalolén Mayor 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 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. This was not a process with conventions or councils like the last two, but rather the sending of a reform project to the Congress, which had no political say from either the left or the right.
From set in stone to reformable
The constitution that will remain in force in Chile was promulgated on October 21, 1980. Three legal commissions appointed by the military junta, consisting of four generals and headed by Pinochet, had been working on its drafting since 1976. It took place as part of a referendum in which there was no electoral court or electoral register, so mayors appointed by the authoritarian regime fulfilled this role in the process. Then the Yes option won with 65.71% of the vote, a result that was questioned by the opposition to the dictatorship from day one.
The current Magna Carta includes three key reforms. “The three most important are those of 1989, which enabled the transition to democracy; the one from 2005 [del Gobierno de Lagos] and those who initiated the constituent processes of that period,” constitutionalist Gonzalo García, who coordinated the reformulations promoted by Lagos, told El PAÍS.
Despite all the changes, it was a constitution that was originally and for many years set in stone because it was very difficult to change: its reform required a high quorum of 2/3.
But that changed in August 2022, a month before the referendum on the withdrawal of the first constituent process on September 4th. When the polls already made it clear that the Constitutional Convention's proposal would be rejected, a group of senators, including Ximena Rincón, a former Christian Democrat and now a member of the Democrats, advocated as Plan B a reform that would pass the proposal by 2/3 to 4/7 The quorum for Magna Carta reforms was approved.
After that, constitutionalist Gonzalo García points out to EL PAÍS, the current Chilean Basic Charter has become a flexible text. Even, says the political scientist at 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 the Congress,” while “in the majority it 2/3″.