By ESTER GAMMARDELLA RIZZI*

Since when does Chile need a new Constitution?

I started most of the more than 15 interviews I did during the time I was in Chile with two questions: “Does Chile need a new Constitution? Why?" and “Since when does Chile need a new Constitution?”. My objective with the questions was exactly to know the time frame and the historical reasons that led the interviewees to affirm that Chile needed a new constitution. Only one respondent responded by questioning the verb “to need” in the initial question. All the others affirmed the urgent need that materializes in the constituent process that the country is going through.

Among the reasons for the need, the taxi driver Nestor, who took me from the airport to the hotel the very day I arrived, summarized one of the arguments – “It's Pinochet's Constitution. And… Everything is the fault of Pinochet's Constitution”. The symbol of having, in a democracy, a Constitution elaborated in a dictatorial period is one of the ways to answer the question. Another is the fact that the 1980 Constitution crystallized the decision – carried out through the 1973 coup, contrary to Chile's previous history – to transform the country's State into a neoliberal state, which would largely withdraw from the task of guaranteeing rights. From the 1980 Constitution, and the interpretations that followed its text, since the expression is not explicit in its norms, the Chilean State became a subsidiary State and privileged the performance of the private initiative to guarantee services -rights, such as health, education and pensions.

The 1980 Constitution, therefore, is the symbol of an authoritarian and neoliberal Chile. If the political form managed to be changed – albeit moderately – in the democratic transition of 1989-90, the Constitution that remained in force has important constraints in its institutional design, the most important of which are still valid at this very moment: a two-thirds qualified majority for amendments constitutional provisions and prior review of constitutionality by the Constitutional Court. This design prevented deeper transformations in the economic system and the promotion of rights.

Returning to my question “Since when does Chile need a new Constitution?”. The responses were diverse. Sérgio Grez, professor of history, says that the 1980 Constitution was born in tension with the Chilean reality. Since its authoritarian promulgation there was already a dissatisfaction and a desire to change. Others claim that at least since 1989-90, with Chile's redemocratization, there should have been a new Constitution. After all, “what country leaves a dictatorship for a democracy without changing the constitutional order?”, asks Dan Israel.

Daniel Mondaca, professor of Constitutional Law at the University of Valparaíso, takes up the history of all Chilean constitutions to respond. He claims that the only Chilean Constitution drawn up in a reasonably democratic process had been that of 1828 and, therefore, there was a very old historical debt related to constituent processes in the country. Andrea Salazar, one of the organizers of feminist marches prior to the outbreak and March 8, 2020, remember the fiasco of the attempt at a new Constitution promoted by then President Bachelet in the years 2016-17 (click here) and also the movement that began to emerge and spread to mark the electoral ballots – on paper – with the initials “AC”, for Constituent Assembly, since 2013 (click here).

Demand since the 1980th century for a democratic constituent process; annoyance that comes from 1989 and intensifies with the democratization process of 90-2013, with maintenance of markedly neoliberal norms; impossibility of deeper changes derived from the institutional design that was blocked, which was clearly manifested during the progressive governments; “mark your vote” movement since 2006; growing political mobilization of Chilean society since 2019; finally, President Bachelet's failed attempt to draw up a new Constitution. The demand for a new Constitution, capable of making Chile a better and more supportive country, goes far beyond the turbulent October XNUMX: under different facets, it seems to be part of Chile's history, gaining clearer contours with each frustration.

Thus, when social dissatisfaction became a revolt that was difficult to control – leaving a significant part of the country's economic and political elites in fear – it was not difficult to know which institutional solution to take to appease the heightened feelings in the streets. Offering a democratic Constitutional Convention was presented as a possible and effective response. Through an agreement between the political parties – which I will talk about in the next text in this series –, the possibility of a Constituent Convention is approved on November 15, 2019. The demonstrations in the streets of Chilean cities continued after this date, is right. But soon after the announcement they already lost some of their strength and intensity.

Cesia Arredondo says that she stayed until dawn waiting for the announcement of the agreement on TV, and that she celebrated it as a great political victory for the outbreak Social. Sergio Grez, on the contrary, thought it was a masterstroke by the political system against a revolt that could take Chile further. Although smaller, the demonstrations continued both at the end of 2019 and in 2020: on March 8, 2020, for example, there was a gigantic march, with only women. Then, the pandemic: perhaps this was the most effective agent to put an end to the large Chilean public demonstrations once and for all. As of March 18, 2020, the debate would take place much more within the institutional framework.

There is, however, something that no one denies. Before the social outbreak October 2019 no one would have imagined that Chile would go through a constituent process so soon (not least because Bachelet's, a few years earlier, had failed). No one also denies that the possibility of setting up a Constitutional Convention, as provided for in the peace agreement of November 15, 2019, was an institutional response to the outbreak and somehow really managed to calm his energy. Or somehow transfer the energy that was in the streets to an institutional arena.

Daniel Mondaca points out that, unlike other Latin American processes, such as Bolivia, there was no political group in Chile with a structured project that, at some point, manages to come to power and initiate a constituent process. O social outbreak it was much more a destituent and decentralized process that, with feelings of anger and disgust, turned against the prevailing state of affairs. This specific political circumstance, of dismissal, of destruction of the previous without yet a consolidated project to put something new in its place, make the current Chilean constituent process more challenging.

*Ester Gammardella Rizzi is a professor of the Public Policy Management course at EACH-USP.

Originally published in the magazine Counsel.

To read the first part of the article click on https://dpp.cce.myftpupload.com/a-constituinte-chilena-ii/