Plebiscite in Chile: What are the criticisms of the 1980 Constitution imposed by the Pinochet dictatorship?

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If the formation of a Constituent Assembly is approved, the new Magna Carta would be the first with the active participation of citizens. Not only in its approval, but also in the body that would draft it. What the changes point to.

More than 14 million Chileans have the option to attend to vote, voluntarily, in the constituent plebiscite that can start a process of elaboration of a new Constitution during the next year. But, What are the points of contention about the current Constitution, the one that was imposed in 1980 under the dictatorship of Augusto Pinochet?

If a constituent power is invoked, the new Magna Carta would be the first with active citizen participation. Not only in its approval, but also in the body that would draft it, which will be for citizen participation in elections to be held on April 11, 2021. The current Constitution was drawn up by a commission of experts, chaired by the lawyer Enrique Ortúzar, for which she was baptized with the surname of her leader.

The last touches to said text were given by the constitutionalist Jaime Guzmán, later assassinated as a senator in 1991, known for being one of the ideologues of the Chilean right. Although the dictatorship called for a plebiscite, it did not have an electoral roll or an autonomous electoral body, so its results are unknown to this day.

However, for 30 years the different center-left and center-right governments made multiple modifications, which allowed it to adapt to the needs of the country. Even so, it is a text that has always generated division in Chileans and is aimed at as a straitjacket to produce more profound changes in society.

The current Constitution establishes a strong presidential system, with a series of matters where there is an exclusive legal initiative of the president. Power, at the regional government level, is held to this day by mayors appointed by the president. One of the greatest criticisms of the system lies in the limited parliamentary initiative of the bicameral Congress to force changes in conduct or public policies of the executive branch.

Both Renovación Nacional, the party of President Sebastián Piñera, and the opposition Christian Democracy, have raised as a proposal the possibility of having a semi-presidential system, like the French, with a figure of Prime Minister, in order to encourage the construction of parliamentary majorities and deliver greater powers to the legislative power.

There are also proposals to imitate a parliamentary system, like that of Spain, which existed in Chile between 1891 and 1925 with regrettable results, and another alternative is to move to a federal system.

Part of the country’s greatest challenges are in give answers to social demands. The diagnosis that has been installed is that the growing and thriving Middle Class has high expectations of progress and feels vulnerable regarding their situation, where an illness or the loss of employment can make them fall back into poverty.

Although article 19 of the current Constitution guarantees access to a series of rights such as education, health and social security, the criticism of the opposition is that its wording is ambiguous and it allows for a number of deficiencies in the way the state guarantees those rights.

Bachelet’s constitutional project in 2017, led by the Constitutionalist Patricio Zapata, contemplated a more robust wording of these rights and a higher threshold of demands on the State to guarantee them. From the ruling party they have recognized the need to move towards a more active role of the executive branch in social benefits, but without renouncing coexistence with private systems, be they education, health or retirement.

This implies moving from a subsidiary State – which only intervenes in those aspects where the private sector is not capable of responding – to a State of solidarity court that actively intervenes in the minimums of the different social benefits.

The Chilean Constitutional Court dates from the government of former socialist president Salvador Allende. However, the 1980 text grants it a series of powers to control that the legislative work is framed in the legal guiding principles of the country.

However, these powers have made this body operate as a true legislative “third chamber”, where the sector that loses a vote resorts to looking for all possible legal devices, in order to reverse its enactment. The mechanism, as it is defined, “twists, cunningly, the political will expressed in Congress,” in the opinion of the constitutionalist Fernando Atria, who spoke earlier this year with Clarion.

What is clearer is that the right and more liberal sectors of the center-left take for granted that Chile maintain an open economy and an autonomous Central Bank, which conserves good reserves and has proven to be efficient as the governing body of the country’s monetary policy. In addition, the guarantee of property rights, private entrepreneurship and freedom of the press, among others, are not questioned, so changes with a greater social focus are envisioned, but moderate with respect to the global system that governs Chilean society.



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