Ten years after of failed constitutional change in Chile: can we still imagine a new regulation for the right to education?

• In Event: Educational Reform and Policy in Latin America

Proposal

Chile has experienced three constituent processes in the last decade. None of them has led to adopting a new political constitution that replaces the one that came into force during the military dictatorship and that governs even now, 30 years after having returned to democracy and despite the numerous constitutional reforms that have been introduced.

The constituent processes have different genesis. The first one was promoted directly by the government of the socialist President Michele Bachelet (2014-2018). The second (2020-2022) arose due to the largest social demonstrations after the return to democracy at the end of 2019. The third (2023) attempted to resolve alleged errors in the design of the second that would have influenced the rejection of the constitutional context.

The discussion about constitutional change in Chile has its origins in the very moment the Constitution was adopted and is directly linked to the student movements that began in 2006. According to some authors, these movements, which are believed to have continued until 2019 (Atria, 2021), highlighted the negative consequences of the (authoritarian) neoliberal political economy imposed during the military dictatorship on the Chilean education system (Bellei, 2014). Since 2006, there has been a growing call for adopting a new constitutional text to establish a social and democratic state of law to protect the right to education.

Two central slogans were sustained by the student movements between 2006 and 2011: "Education is not a commodity, but a social right" and "Chile needs a public, free, and quality education" (Avalos, 2012). These slogans resonated in the public debate. In 2014, President Bachelet's government introduced significant reforms to public education, which have been the subject of considerable public discourse. (Salazar, 2021). Years later, these same slogans were repeated during the protests that initiated the constitutional process of 2020-2022. However, in the 2023 constituent process, these slogans lost priority.

The first constitutional process led to a proposed constitutional text presented to the National Congress, but this branch did not discuss the draft. The second process began in November 2019 amidst the most intense social mobilisations in recent years. On that day, at the National Congress, a "Peace and New Constitution Agreement" was celebrated, in which representatives of political parties of different tendencies committed to enabling a constitutional process. Thus, in December of the same year, a constitutional reform was approved that enabled a referendum, set for October 25, 2020, where citizens decided, on the one hand, to replace the 1980 Constitution and, on the other hand, to do so through the mechanism of a Constitutional Convention, a body composed of members directly elected by the citizens following rules of parity and percentages of representation of indigenous people.

The Constitutional Convention was mainly made up of left-wing, center-left, and independent parties who were critical of the institutional model inherited from the 1980 Constitution. The members of the Constitutional Convention worked from June 2021 to July 2022. Two months later, on September 4th, citizens rejected the proposed text. In this scenario, political parties once again agreed on a new formula, initiating a constituent process that would present some distinctive features.

Then, in 2023, a new constituent process began, involving an Expert Commission, a Constitutional Council, and a Technical Committee for Admissibility. The first of these bodies was made up of 24 people, appointed by the National Congress, and was tasked with drafting a preliminary Constitutional text between March 6 and June 2023. The Constitutional Council, on the other hand, consisted of 50 people, elected by popular vote, with the sole mandate of discussing, and potentially approving the draft proposed by the Expert Commission.

Despite the draft was approved by the Constitutional Council, a new referendum was held in December 2023, where citizens rejected the new constitutional text. It is worth noting that, unlike the previous process, this council was mostly represented by the center-right and right-wing members in Chile.

In this context, the present work aims to analyze and compare the proposed constitutional drafts of 2018, 2022, and 2023, specifically regarding the regulation of the right to education. To achieve a broader analysis, these projects will also be considered in terms of their stance on social and democratic state of law, the freedom of education, and mechanisms for protecting fundamental rights.

Four criteria will be considered to analyze and compare the constitutional drafts: i. to what extent they meet international standards related to the regulation of the right to education; ii. to what extent they are consistent with the Chilean constitutional tradition; iii. to what extent the drafts represent progress compared to the current constitution promulgated during the dictatorship; and iv. to what extent they allow for countering the influence of neoliberalism in the Chilean education system.

Following this comparison, we will propose a model for the constitutional regulation of the right to education in Chile that meets the following aspects: i. complies with the most important international standards of the right to education; ii. incorporates the main elements of the Chilean constitutional tradition; iii. represents progress in the right to education and freedom of education compared to the Constitution created during the dictatorship; iv. counters the impact of neoliberalism in the Chilean education system, and v. helps to consolidate education as a social right.

Authors

• Sebastián Salazar Pizarro, Universidad Alberto Hurtado

• Carlos Navia, University of Cambridge - Faculty of Education