Constitutional Process

What’s Wrong with the Current Constitution?

SANTIAGO – After a month of protests and riots, the government and political parties of Chile are now pursuing a process that could lead to a new Constitution. Many see this as a fundamental and long-awaited overhaul; others intend to fight it tooth and nail. This all begs the question: What’s wrong with the current Constitution of 1980?

After political parties signed the Accord for Social Peace and a New Constitution on November 15, the possibility of a new Magna Carta suddenly became real for many Chileans. To better understand why a new Constitution has been added to the urgent list of demands that have fueled the recent protests, it is important to identify what so many dislike about the current Constitution.

A Dictator’s Legacy

When the military, backed by certain political sectors, overthrew Salvador Allende’s government  in 1973, Chile stepped into a 17-year dictatorship that brought several changes in the economy and social sectors – a dark time of violence, political impunity, and fear for most of the Chilean population. One legacy of this period is a Constitution, created by Pinochet in 1980, and which remains in place today.

In 1989 and 2005 the Constitution underwent certain reforms, though. 

A fundamental criticism, therefore, is that the Constitution is illegitimate because it was imposed by a dictator, who sought to legitimize it with a plebiscite many denounced as manipulative, and because many of its principles are a result of mechanisms established by the dictator to sustain his regime.

An article in Foundation for Law, Justice and Society describes this problem: “For some people, the fact that the Constitution was drawn up by a dictatorship is enough reason to justify its abolition…Others believe that the problem lies in a set of unfair rules for constitutional amendment. According to these rules, constitutional reforms are only possible with the support of very high quorums within Congress, which offers Pinochet’s regime a kind of veto power over the political process.”

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A Non-Democratic Base

Such illegitimacy results in another problem for the current Constitution: the exclusion of the people from the political conversation. As an article from religious magazine Mensaje underscores, “one of the many problems of the Constitution is that a too high quorum is required from parliamentarians to introduce any Constitutional change.” The key word is “parliamentarians,” as civil society is left out of Constitutional decisions. In fact, the Constitution of 1980 itself was made behind closed doors, between Pinochet and his most trusted men. 

Mensaje also cites “the people’s irrationality” as a symptom of such exclusion: “it is present in the limited forms and opportunities for political participation, which are subscribed to the mere election of representatives and exceptional plebiscites,…and in the difficulties to change the very Constitutional text.” 

Constitutional law expert Eduardo Aldunate Lizana points out another key problem with the Constitution that stands in the way of a democratic mechanism: the excess of power given to the president. In a summary posted to legal blog Mediación Chile, he writes, “we need a responsible government system where responsibility is not only made effective every four years in elections, and where we have the mechanisms to discharge this hypertrophied presidentialism that comes from the Constitution of 1925 and that was strengthened through the Constitution of 1980.”

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The Political Bias

As Chileans are excluded from political discussion, their say in political decisions becomes irrelevant compared to those who hold power. This issue triggers another problem, which is the constant overlooking of the people’s problems, and the subsequent question: Who benefits from the mechanisms of the Constitution of 1980?

Before the crisis shook the country and a massive social movement started, Chile was referred to by President Sebastián Piñera as the “oasis of Latin America”:  a place of economic growth and safety that owed its flourishing stability to the neoliberal path established by Pinochet during the dictatorship. The Constitution of 1980, created to support this structure, has cleared the path for years with political mechanisms that have dismissed social needs and demands in favor of private property.

This problem was also analyzed by Reuters; Constitutional Lawyer Jaime Bassa said that the current Constitution fails to deal with central problems of people’s fundamental rights: “The entire system of protection of social rights, specifically social security, health, education, work and trade union cover is marked by a preference for private property and freedom of entrepreneurship.”

In Mediación Chile, Citizen Initiative spokesman Genaro Cuadros also commented on this issue: “This is a revengeful Constitution that is still [talking about] last century’s conflicts over property…, especially after the Agrarian Reform. What it seeks is to somehow strengthen the role of private property and private economic activity over common wellbeing and state economic activity for the citizens.”

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