Civil rights, Civil Society, Democracy, Elections, Human Rights, Politics, Women

Chile – Traps to the real Constitution Change

Chile constitutional Convention protests
Nov 15 2020

by Cecilia Capanna

Tomás Hirsch, independent Chilean parliamentarian, founder of Acción Humanista and two-times candidate for the Presidency of the Republic of Chile, explains how the Yes to the referendum on 25 October could run into traps that could affect the process of rewriting the Chilean Constitution.


C.C. on October 25th, the landslide victory of YES to dismantle Pinochet’s Constitution could revolutionize Cile’s history after 40 years. The Referendum was hard to achieve due to some constitutional constraints. Are there other obstacles to Constitution’s Change?

T.H. “Yes, unfortunately there are many difficulties and traps that popped out along Constitutional C0nvention’s way.

First of all, for 40 years we’ve been told it was impossibile to change this Constitution made during the dictatorship, and actually every time we mobilized to make some changes, we’ve been told there were difficulties. But when the whole people did mobilize, those who were in power got scared, facing the whole country’s mobilization, which showed that yes, it is possible to change the Constitution.

Political will would be needed at that point, something that was missing till then. when the agreement was signed on November 15th between some political forces, keeping out social world and civil society organizations world, women, native peoples, workers, students. When they made that agreement, they set constraints and traps that make the process toward the Constitution difficult, something that the majority of Chileans showed they really want.

The Convention has a very high quorum

A trap among others is that a very high quorum has been set: two-thirds are needed for the approval of each article that will be included in this new Constitution. In other words, one-third of the constituents is allowed to block any agreement others want to make. So one-third of the constituents, which is the share the right wing knows it will get in the Convention, a little bit more than one-third, has the right to block any deep and structural transformation. So this one is a complex trap, difficult, which could mean they will be working for a new Constitution, but real possible changes such as rights: the right to education, health, water etc… are very limited.

The Convention system is an obstacle to independent candidates election

A second trap or difficulty has to do with the electoral plan for constituents election, which is the deputies electoral system’s copy. Therefore, it keeps out or makes the possibility to elect independent people very hard, as well as it was forbidden to elect union leaders or social leaders, because it is part of the regulation. So the second difficulty is to represent country’s diversities, in addition to the dome that manages the process.

The Convention keeps out native peoples

A third difficulty is that native peoples were not included. We presented a plan so to make them have reserved shares, which is still being discussed in the Senate. We hope it will be approved, even though it’s not yet so.

International treaties cannot be touched

A fourth difficulty is that they set as a condition that international treaties cannot be modified or touched. this is an aberration to protect big economic groups capitals. Because one thing is to maintain human rights treaties, another thin is that commercial treaties cannot be touched, like the treaty with Malaysia fixing bananas rate. What does that have to do with a new Constitution? Nevertheless, their concern was to maintain that as untouchable.

These are the difficulties, meanwhile there is the other side: all the opening possibilities, the positive one. The possibility for people to engrave in the design of a new Constitution is opening up, and this means a very deep change in our country”.

On April 11th people wil vote but…

C.C. On April 11th all Chilean citizens will vote to elect Constitutional Convention. Therefore the vote belongs to the people

T.H. T”he vote belongs to the people, it is voluntary, but we already noticed that voters increased in this referendum, mostly young people that are interested in voting and participating. April 11th vote belongs to the people but electoral system makes restrictions.

First of all electoral districts are the same ones managing deputies elections, and this means a restriction to diversities expression’s possibility. Second: independent people that want to stand as candidates have to sign in front of a notary. Political parties have not. Third: the possibility to make electoral pacts is much easier for political parties than for independent candidates. So there are several restrictions preventing an effective and equal participation of everybody. these are the difficulties of this election.

Progressives are fragmented

At the same time there is a trend, not only in Chile but all over the world, to fragmentation and dispersion. Therefore it is very likely that more progressive formations will present many lists, while the right wing tends to converge easier, because it knows very well that business is business, and when you have to get together, they get united to defend their own stuff. This is a political difficulty, that has to do with the fragmentation and dispersion moment the process is living”.

C.C. Protests that for one year have filled streets and squares in Chile played a fundamental role. How much did the presence of women influence the process? It is true they obtained gender equality in Constitutional Convention’s participation?

T.H. “Gender equality wasn’t contemplated in November 15th agreement. This is one of the reasons why we as Acción Humanista, and many other organizations, did not sign the agreement.

The first Constitution written with gender equality

They didn’t consider women, nor social organizations, nor native peoples. We later presented a bill in order to include all of them and to achieve the current mechanism which will be equal. And it will be the first Constitutionin the world written with gender equality. This is a very interesting thing. I believe that women movement has been fundamental in this process. Women protests have also started very forcefully last year’s so called “estallido”, in October 2019.

Three or four fundamental sectors took part to the process:

• Women, with their mobilizations, requests, fights, theses;

• Native peoples with their requests, fight and organizations;

• Students that in 2006 and in 2011 started processes called students revolutions, penguin revolutions;

• Environmental movements that raised issued that did not exist earlier.

I believe that in all this process women, feminist movement and women in general, had a role which was precursor of the mobilization that leaded to the possibility to write a new Constitution”.

C.C. Did women create a Women Party in Chile?

T.H. “No, the truth is that there was only the intention to create parties. Last year there was an explosion of intentions to create new parties. one of them was the Women Party, but none of them, they were 14, was able to complete the steps required by law. Therefore no, there isn’t any new party”.

All that needs to be changed

C.C. Will it be possible after Constitution’s Changes or the constraint will keep existing?

T.H. “Many things must be changed in a new Constitution: all State’s organizations must be audited. The hyper-presidentialist state we have today should be turned into a semi-presidential one; our very unitary and centralized system into a more federated one; the bicameral into unicameral; Central Bank’s and Constitutional Court’s role should be changed; direct democracy, popular initiative of law; the revocation of the mandate, the plebiscite, there are many issues. And among others, everything that concerns citizens participation, therefore participation mechanism should be facilitated as well as the procedures for political parties creation. Also, we should obtain that union and social leaders are allowed to stand as candidates. But business executives yes, they can stand as candidates. Also political parties system should be modified in order to make parties much more accessible and less restrictive”.

Continue non-violent mobilizations

T.H. “There is a point which is very important to me. Now an institutional step is coming up, where a Constitutional Convention will write a new Constitution, after it will be elected. This is an institutional process. But here the fundamental thing was the process of social organization an of non-violent massive mobilization. It is fundamental that this process keeps going on. If we want the institution to be the one solving problems in Chile, and if we want to deactivate the social movement we would make a very big strategic mistake. It is fundamental that citizens organization will be maintained and that non-violent mobilization will continue. This is as true in Chile as in the entire world. Big human transformations have always been the result of social organization and mobilization, not of the institutions that come later in transformation’s dynamic. It has always been like that and it is very important this will be maintained, and will accompany and make pressure on the constituents.

I believe that this is the central element of the coming phase. Otherwise we will have a group of constituents disconnected from social reality. Luckily, participation to referendum increased. People are demonstrating in territorial councils and assemblies . There’s a big participation dynamic regardless the pandemic, and this sounds a very good wish to me. It is a very good signal that has to continue, We as Acción Humanista, together with other organizations, are putting much emphasis in the process of participation of the people, of the citizens. We believe that this is the key for the future process”.

C.C. What’s your position about violence on the streets?

T.H. “We as humanists reject violence, but all forms of violence. Violence is not only the physical on, when you hit somebody with a stick. Violence is above all economic violence, cultural violence, racial violence, generational violence, sexual violence, ethnic violence. It is expressed in different ways.

We live in a violent system

Here we’re talking about physical violence by some individuals taking violent actions which we reject. But we must understand that we are living in a profoundly violent system that has sold itself as a system for success but that generated brutal inequalities, an absolutely unacceptable level of abuses and mistreatments that sometimes clearly ends up generating estallidos, that we reject, but it is good to understand and comprehend where it comes from.

This system is very violent toward Chilean families. Let’s just see what’s going on with the pandemic. One thing is the pandemic and health, but here there’s a social pandemic, millions of homeless families that are abandoned and the government doesn’t give any real answer in order to help families get out from this situation. This is violence”.

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