Una trampa “especial” para las demandas sociales: la Ley de Reforma Constitucional
Lucía Sepúlveda
La inmensa mayoría de las y los chilenos, queremos una nueva Constitución surgida de una asamblea constituyente. En las asambleas territoriales y los movimientos sociales, queremos además una constituyente Soberana, Plurinacional y Feminista que nos dé garantías sobre la forma de elección de sus delegados y su funcionamiento.
Por eso, la ley de Reforma a la Constitución, que posibilita el próximo Plebiscito de Abril nos deja en shock. Incluye cuestiones ampliamente criticadas, como los 2/3 de quorum fijados para el funcionamiento de la constituyente, y la desigualdad de condiciones de elección para independientes. Como si eso fuera poco, además raya la cancha de la Constituyente sobre qué puede o no decidir. No hay debate público al respecto. Sólo lo ha denunciado Chile Mejor sin TLC, quizás porque la mayoría supone que la ley es igual al llamado “Acuerdo de Paz”.
Las Disposiciones Especiales
El artículo 135 de esta ley, llamado “Disposiciones Especiales”, notifica a los delegados constituyentes que deberán respetar “las sentencias judiciales firmes y ejecutoriadas y los tratados internacionales ratificados por Chile y que se encuentren vigentes”. O sea, los constituyentes no podrán alterar las bases del modelo pinochetista mantenido por los gobiernos de la Concertación. Mercantilizando todo, nos despojaron de la salud, previsión, agua, semillas y educación, consagrando la desigualdad entre quienes habitamos y trabajamos en Chile. Las garantías ilimitadas entregadas a las corporaciones transnacionales a través de los tratados internacionales de libre comercio, permitieron controlar áreas claves de la economía a las mineras como BHP; a Bayer/Monsanto o Agrosuper, de los sectores de agronegocios y farmacéutico, y fortalecer otras corporaciones como el grupo Luksic y las forestales. El Sistema de Resolución de Controversias (ISDS por su sigla en inglés), incluido en los tratados, habilita a esas corporaciones para demandar al Estado de Chile en paneles internacionales especiales. Allí el Estado debe enfrentarse a abogados corporativos sin un debido proceso y con fallos inapelables que mayoritariamente son contra los Estados, y significan costos de miles de millones de dólares, asociados al retiro (previo o posterior) de la política pública cuestionada por las transnacionales.
El artículo 135, de forma tramposa condiciona las demandas sociales al exigir el respeto a los tratados de libre comercio. En la nueva constitución necesitamos plantear en primer término lo que esa ley nos está vetando: la moratoria a los tratados de libre comercio y la realización de auditorías integrales a los ya vigentes, por desindustrializar el país y fomentar el saqueo de los territorios, la desigualdad, y el consumo desenfrenado.
A partir de ahí es que podemos por ejemplo, incorporar el concepto de la Naturaleza como sujeto de derechos, y garantizar en consecuencia como prioritario el uso del agua tanto para los seres humanos como para la mantención de los ecosistemas, y priorizar los otros usos. Podemos, con la moratoria a los TLCs, afirmar el derecho a la previsión y terminar con el sistema de AFPs; recuperar la semilla y sentar las bases para la transición hacia la agroecología como modelo de producción de nuestros alimentos dejando progresivamente atrás la contaminación derivada de la agricultura convencional con impactos que dañan principalmente la salud de las mujeres y la biodiversidad. Estos son hitos básicos que “tocan” a quienes usufructuaron del modelo extractivista, para avanzar en igualdad de derechos en un país atravesado por la inequidad y los privilegios del 1% que concentra el poder y la riqueza, así como por el desmedido lucro de las empresas transnacionales. Y el artículo 135 apunta precisamente a evitar que hagamos esta parada de carro al modelo extractivista.
Congreso omnipotente
Hay más aún. El Artículo 135 dice asimismo que mientras no haya nueva constitución, la Convención no podrá “negarle autoridad (a la antigua constitución del 80) ni intervenir ni ejercer ninguna otra función o atribución de otros órganos o autoridades establecidas en esta Constitución o las leyes.” Como el Congreso seguirá funcionando paralelamente, la Constituyente no podrá impedir que, tal como lo hace ahora, el parlamento siga aprobando rápidamente leyes dictadas precisamente en contra del espíritu de cambios que anima a las y los despiertos tras el 18 de octubre, ignorando a nuestros muertos y muertas, a las violadas, los desaparecidos y desaparecidas, las y los mutilados y presos políticos por luchar.
Es decir, el Senado podrá también comprometer más gravemente el futuro de Chile, aprobando el TPP-11 (Tratado Transpacífico) al que solo le falta en su tramitación, la votación en plenario. Igualmente podrá seguir legislando sobre cualquiera de los temas ya mencionados, y poniendo de antemano baches a lo que vaya resolviendo la constituyente pues actuará en paralelo. Una ley ilegítima no puede sostenerse en el tiempo. En tiempos de movilización social y despertar de los pueblos, el futuro sigue abierto.
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