In a consultation carried out by DW, non-Chilean specialists examined the content of the constitutional proposal. In general, they consider that the text is a new opportunity for the country, although they admit certain reservations.
Chileans will vote on September 4 whether or not they want a new Constitution. The “Rejection” option exceeds the “I Approve” option in the latest surveys. However, and regardless of the result, both sectors of the left and of the right committed themselves to continue the constitutional processwith political agreements and reforms.
International observers have highlighted the progress of the constitutional proposal on gender, social rights and ecology. But, what does the text say that divides Chileans so much?
The proposal “satisfies the needs” of Chileans
According to an interview conducted by DW, three experts weighed in on the main points of contention.
Gautam Bhatia, an Indian constitutional scholar and comparative law expert at Oxford University in the United Kingdom, stresses that “although opinions are very divided on this proposal, there is a clear majority that says that, even if it is rejected, we must move towards a new Constitution”.
For Rubén Martínez Dalmau, professor of Constitutional Law at the University of Valencia, in Spain, the proposal “more than satisfies the needs of the Chilean population to look forward.” The text, he adds, is at the level of other fundamental European charters, such as the Spanish, Italian or French, because it “consolidates a social state.”
Meanwhile, Stefan Rinke, professor of Latin American History at the Free University of Berlin, highlights the “advances of plurinationality and the rights of indigenous communities, gender parity, the paragraphs on reproductive rights and against sexual violence, as well as the protection of children and people with disabilities”.
The most discussed topics
The new political order in the country, the replacement of the Senate by a regional chamber and, above all, plurinationality and the creation of a justice system for indigenous peoples, are some of the issues of greatest discord in Chile.
Although the interviewees agree with the elimination of the Senate, since they consider that this has been “a veto body”, the German historian and Latin Americanist, Rinke, expresses doubts about the configuration of the political system: “In my opinion, it is not clear . And as it is, I think it would enter a phase of uncertainty, and the text would have to be corrected”. He also has reservations about the creation of indigenous justice: “It makes no sense to put them outside the legal system and establish a special one for them. I don’t think it can work,” he adds.
Bhatia, on the other hand, differs: “The idea that indigenous groups can have their own justice system in certain defined areas is not something new; it is something that many other constitutions have and it has not created major problems. It is not something radical”, insists, from Oxford, the Indian constitutionalist.
His Spanish counterpart, Martínez Dalmau, agreed with this defense of plurinationality and assured that the indigenous justice system is “one of the most important constitutional advances in the world” and that “what is now being proposed is something that exists in advanced countries such as USA, Canada or New Zealand”.
The viability of the process if the “rejection” wins
Be that as it may, the best course is to “approve this Constitution with all its weaknesses and errors, and then reform it as quickly as possible,” suggests Rinke. However, it should not be seen as something negative that the “Rejection” wins, since it is normal that these processes can be prolonged due to lack of consensus, both Bhatia and Martínez Dalmau recall.
“All constituent processes have contradictions. These are times when all interests are on the table. And the more democratic this process is, the more interests there are”, reflects the Spanish constitutionalist. So “we shouldn’t see it as disastrous if a majority of people finally said ‘no’ to this proposal. It would be necessary to move towards another text, which will incorporate another type of consensus”. (rml)