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The Constituent Power of Student Protests in Chile

–Fernando Muñoz León, Assistant Professor, Universidad Austral de Chile

2011 was an important year for social movements and popular protest in liberal democracies. For instance, the United States had the Occupy movement and Spain the Indignados.

Chile had its own share in the form of massive student protests that put the government on the ropes (two Ministers of Education resigned, and a third one was impeached by the opposition under student pressure) as well as many universities (for example, mine was on the brink of insolvency after five months of a student strike).

But while other movements have remained in the margins of the political process, the Chilean student protests seem to have managed to take control of country’s political agenda.

In this short post, I will discuss the Chilean student protests and situate their significance.

The Chilean student protest movement has gone from the fringes to the mainstream. Not only has the government sent to Congress several bills proposing educational reforms (most of them, as it happens, opposed by the students), but various protest leaders are running for office (including the much-celebrated Camila Vallejo), either on Michelle Bachelet’s congressional list or as independents. In addition, the enactment of a new Constitution through a constitutional assembly—which was a key demand of the student protests—has become an important focus of the presidential campaign and the current political debate.

To understand the importance of constitutional change for the student movement, one has to remember that the Constitution currently in place in Chile is a product of its Military Regime (1973-1990). It was drafted in secrecy by a group of conservative lawyers appointed by the Military Junta, and was enacted in 1980 through a fraudulent referendum. As many will recall from the film NO, the Constitution established a further plebiscite in 1988 that, as the Junta hoped, would ratify its rule for 8 more years.

Things didn’t go the way Pinochet had planned because of popular protests, party organization, and international opposition, including visits from none other than Christopher Reeve—Superman!, as he was greeted by rally attendants–and Ted Kennedy.

The problem, as Linz and Stepan (1996, 211) pointed out in their classic on transitions to democracy, was that Chilean democracy “began under more constrained constitutional circumstances” than in any other Latin American or southern European country undergoing similar processes at the same time. The united, militarily undefeated, politically strong, outgoing Military Junta had enough leverage to impose its conditions, the most important of which was acceptance of the 1980 Constitution.

And so, once the new civilian government came to office, constitutional change was confronted as a step-by-step process, one where what was programmatically desirable had to be filtered through what was politically feasible. Abolishing non-elected military senators, for example, took 15 years.

Many other things were simply left undiscussed.

Among the things that the center-left Concertación governments never really challenged was the ample freedom of teaching guaranteed by the Constitution and by the supermajoritarian laws enacted, also, by the Junta. This freedom of teaching, consisting in “the right to open, organize, and maintain educational establishments,” is better characterized as an economic freedom for educational entrepreneurs, rather than as an academic freedom for teachers and professors or as a right to education for youths. Any individual can open a high school or a university.

And while profits are prohibited in the case of universities—not so in the case of technical schools—the Ministry of Education does not have adequate resources to enforce this prohibition nor adequate powers to punish the violators.

Furthermore, accreditation of higher education is voluntary, and there are no regulations or self-regulations on the academic resources universities must have, such as full-time faculty or libraries.

As a result, and given that there is a great demand for university degrees due to the hardships of a de-unionized workplace (again, the Labor Code was enacted by the Military Junta), there are too many universities: currently, 59 universities, of which 32 operate in the capital. People with a more prosperous background attend the most selective ones; and the least selective ones, as it happens, are not necessarily the least expensive ones. State universities, and private universities that existed before 1981, are only partially funded. For this reason, they charge students between $4000 and $10,000 per year. Universities created after 1981 simply do not receive direct state funding, and public prosecutors are currently investigating many of them for making profits despite the legal prohibition.

What do students demand? One thing: educación pública y de calidad (good, public education). This means, at the school level, the devolution of the public education from local governments to the central state, and the end of profits in subsidized schools; at the higher education level, education free of charge, and an effective end to profits.

Generally speaking, it means to convert education from a market good into a social right. The key thing is that students assert that these changes require abolishing the Constitution and drafting a new one though a constituent assembly.

The reason for this is that students have a fresh memory about the obstacles that the Constitution poses to changes in education. The generation that protested as university students in 2011 did the same in 2006 as high school students.

Back then, and after also ousting a Minister of Education through months of marches and school lockouts, they managed to get Bachelet’s government to sponsor a bill amending the Junta’s education law, the infamous LOCE (Ley Orgánica Constitucional de Enseñanza). The problem was that this statute required a supermajoritarian quorum in order to be amended, as many other matters do according to the 1980 Constitution.

This supermajoritarian requirement transformed the Right, which supports the neo-liberal policies put in place by the Junta, into a powerful veto player in the lawmaking process. When a new statute, the LGE (Ley General de Educación) was enacted in 2009 after two years of legislative dealings, students realized that they had been fooled: the new law changed nothing. The result was that one of the targets of the 2011 protests was the LGE.

Today, substantive and structural features of the existing Constitution prevent transforming education into a social right in Chile. For this reason, student protests have targeted the document itself.

The protestors request that the neo-liberal understanding of education enshrined in the Constitution and its complementary laws be replaced by a new vision, one that puts social needs and not markets at its center.

We should pay attention to their struggle. Just like Chile under Pinochet provided a blueprint for other neo-liberal governments around the globe, constitutional insurgents in liberal democracies elsewhere might learn a thing or two from this part of the world.

Suggested Citation: Fernando Muñoz León, The Constituent Power of Student Protests in Chile, Int’l J. Const. L. Blog, Aug. 26, 2013, available at: http://www.iconnectblog.com/2013/08/the-constituent-power-of-student-protests-in-chile

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Published on August 26, 2013
Author:          Filed under: Developments, New Voices
 

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