The new Fundamental Charter of Chile, which will release its first version on Monday, considers the country a social state of law, plurinational, intercultural and ecological, and enshrines a “catalogue of social rights” absent in the Constitution inherited from the dictatorship of Augusto Pinochet.
“The motto of the 1980 Constitution is private solutions for public problems. It is hostile to state action in the economy and in the provision of social rights,” explained Javier Couso, a constitutional lawyer.
In the sometimes acrimonious discussion among the 154 constituent conventions that began work on July 4, 2021, proposals were left out such as the presidential re-election, the recall referendum, the loss of autonomy of the Central Bank or the nationalization of mining.
The writing of this text was the political solution that Chile found to appease the violent protests that broke out in October 2019 demanding greater social justice in an extremely unequal country.
Only in 2021, the wealth of the richest Chileans represented 16.1% of GDPas estimated by the Economic Commission for Latin America and the Caribbean (ECLAC).
In its first article, the draft of the new Constitution states: “Chile is a social and democratic State of law. It is multinational, intercultural and ecological. It is constituted as a solidary Republic, its democracy is parity and it recognizes dignity as intrinsic and inalienable values. , freedom, the substantive equality of human beings and their indissoluble relationship with nature”.
The Constitutional Convention will deliver a first version of the text to the Harmonization Commission on Monday, which will review each of the articles and ensure its consistency, but without changing what was approved.
On September 4, Chileans will decide in a compulsory vote referendum if they “approve” or “reject” the new Magna Carta.
Maximalistic but reasonable
Lawyers and political scientists have lamented that a Constitution has been made with points that they consider irrelevant and that exceeds 400 articles.
“It is an adequate text that contains many things, but nothing that is not in other constitutions; there are no other constitutional paradigms. Nothing that is there comes out of the international norm,” the constitutional lawyer from the Alberto Hurtado University explained to AFP. Thomas Jordan.
But Marcela Cubillos, a member of the Convention, a right-wing activist who campaigned for the rejection of the constitutional change, considers that the opportunity to have been able to draft “a Constitution for Chile that unites and does not segregate” has been lost.
In addition to the “Catalogue of Social Rights” with a State that guarantees health, education, decent housing and a pension, the text establishes a new ordering of the political and justice system, along with a new way of distributing power in regional governments.
Based on a principle of “legal pluralism”, “recognizes the legal systems of indigenous peoples”but determines that it will be the general law that will determine the jurisdiction of these courts.
It also provides for the reorganization of the Judiciary, through the Justice Council, an “autonomous, technical and multinational” body whose main task will be to strengthen the independence of magistrates.
Christian Viera, a lawyer who coordinated the Justice Commission, explained that jurisdictional unity “is a basic principle of law, which assumes that at the head of all courts of justice there is one last word that defines everything.”
Congress, abortion, water
Unlike the current Fundamental Charter, with a bicameral Legislative Power, the new proposal eliminates the Senate and replaces it with a Chamber of the Regions.
According to Jordán and other experts, the operation in two chambers prevented the reforms from being properly processed.
In the environmental area, the new text “guarantees all people the right to sufficient, healthy, acceptable, affordable water and sanitation” and prohibits their property from falling into private hands, as is currently the case.
“Chile is the only country in the world whose Constitution enshrines the right to private ownership of water,” Rodrigo Espinoza, an economic analyst at Diego Portales University, told AFP.
“The most profound change is in the way of administering common natural assets,” added Jordán.
Although it does not mention the word “abortion,” the new text proposes that the State must provide “the conditions for a voluntary interruption of pregnancy.”