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Constituents and democracy: Brazil and Chile | International

Elisa Loncón, president of the Constitutional Convention, during the beginning of the debate to draft the new Constitution of Chile, on October 18.
Elisa Loncón, president of the Constitutional Convention, during the beginning of the debate to draft the new Constitution of Chile, on October 18.Alberto Valdés (EFE)

The constituent assemblies represent the sovereign power to enact a new legal order, causing ruptures. These are inaugural processes, which establish normative frameworks for the relationship between State institutions and citizens. In 1987, the National Constituent Assembly was installed in Brazil with 559 congressmen, of whom only 26 were women. In 2021, the Constitutional Convention with 155 members, 77 of whom are women, is installed in Chile, the first joint constituent process in the world, chaired by an indigenous woman and with representation of native peoples, until now invisible in the institutional configuration of power in the country. It represents the encounter of Chile with its diversity.

The Brazilian Constituent Assembly was elected as a result of the country’s re-democratization process after 21 years of military dictatorship and emerged as a response to the play of political, economic and social forces that compete for presence and power in the configuration of this new legal order. . It is about the re-founding of democracy itself and its qualification through the adaptation of its legal systems to the pluralism of Brazilian society, to the recognition of equality and social justice as founding elements of this new order.

The Chilean Convention takes place three decades after the end of the military regime, established by the 1973 coup against the democratically elected government of the socialist Salvador Allende, a period in which the country experienced a gradual institutional process of democratic recovery, of resistance to the dictatorship to the emblematic plebiscite of “No” of October 1988, which defeated the dictator at the polls and the election, in 1989, of the first democratic transition government, still without promulgating a new Constitution.

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They are different political histories, because while in Brazil the constituent process is concomitant and creator of redemocratization, in Chile the process occurs in a country with formal democratic institutions in operation. The successive reforms of the Constitution inherited from the military regime (1980) gradually eliminated some authoritarian obstacles such as the abolition of the bionic senators, the reduction of the powers of the National Security Council and the constitutional recognition of human rights treaties. However, it was never possible to achieve the high quorum necessary to promote the structural changes necessary to make Chile a fairer and truly democratic country.

The growing discontent led to the 2019 demonstrations and the agreement between various political forces on the convening of a plebiscite, held in October 2020, with an expressive electoral participation of the population (50.9% in a country where the vote is not mandatory) despite the restrictions of the health crisis of covid-19. The result was a massive victory (78.27% of the votes) of approval for the elaboration of a new Constitution. In this plebiscite the convocation of a Constitutional Convention is also approved (78.99%). The constituent plebiscite reached unprecedented levels of approval in the different electoral processes throughout the democratic reconstruction.

Today Chile begins a new stage in the construction of a participatory and pluralist democracy, in which the Constituent Assembly faces the challenge of reaching transversal agreements in the formulation of central issues such as the new political regime, decentralization with identity and territorial power, pluralism cultural and ethnicity, multinationality, gender equality as a transversal norm, guarantee of social rights, respect for human rights, and a development strategy in the face of climate change, respecting biodiversity. While Chile is experiencing an inaugural historical moment, the result of which, we hope, is the development of a truly citizen Constitution, Brazil is experiencing the closure of the virtuous cycle of affirmation of rights, of which the 1988 Constitution was the main architect, although written in an environment political marked by the presence of military power, with democratic institutions still destabilized and a mostly white and male Constituent Congress.

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However, the Brazilian Magna Carta, promulgated in October 1988 – the same year as the “No” Plebiscite in Chile – bears the mark of the diversity of Brazilian society that, in a historical process of popular participation, denounces racism , patriarchy, vindicates the rights of indigenous peoples, women’s rights, demands the preservation of the environment and biodiversity, demands labor rights and social benefits, broadens the scope of human rights, including the right to health and a family life without violence. In the Constitution of Brazil of 1988, the axis of the constitutional provisions shifts from the power of the State to human rights, affirming the duty of the State to guarantee these rights.

Among the various groups, unions and movements that came together to influence this inaugural moment, women’s movements and feminist ideas played a fundamental role in both countries. In Chile, the feminist movement had already advanced in the recognition of civil union, the right to abortion in three circumstances, and anti-discrimination legislation. The joint Constituent Assembly is a path towards full equality for women.

In Brazil, women acted in coordination with the National Council for Women’s Rights, which developed the campaign “Constituent to assert must have women’s rights” and has outlined its actions in the Brazilian Women’s Charter to Constituents in alliance with a reduced female bench that, in front of a male and macho Congress, has managed to unite beyond partisan differences, in the fight for gender equality.

Brazilian women achieved important victories that elevated them to the level of citizens with full rights. These victories are numerous from the specific mention of the word woman in article 5, paragraph I: “Men and women are equal in rights and obligations, in the terms of this Constitution”, to proposals that extended maternity leave to 120 days, created paternity leave, recognized the right of imprisoned women to breastfeed their children, the right of rural women to land ownership, extended labor rights and social benefits to domestic workers, the right to the nursery for urban and rural workers, the right of women to freely decide about having children and equal rights in the conjugal society, as well as the affirmed responsibility of the State to contain domestic violence and to provide information and contraceptives .

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In both countries the current moment is one of resistance and struggle. Here for the defense of the rights achieved, there for the victory of a citizen constitution.

Jacqueline Pitanguy She is a sociologist, Executive Coordinator of CEPIA and former President of the National Council for Women’s Rights in Brazil.

Marta Mauras She is a sociologist, international analyst and diplomat.

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