¿HOJA EN BLANCO EN LA NUEVA CONSTITUCIÓN?, por Emilio Garrote
DR. EMILIO GARROTE CAMPILLAY,
ACADÉMICO DERECHO PÚBLICO,
DEPARTAMENTO DE CIENCIAS JURÍDICAS,
FACULTAD DE CIENCIAS JURÍDICAS Y SOCIALES,
UNIVERSIDAD DE ATACAMA.-
El próximo 25 de octubre viviremos un hecho histórico sin precedentes en la historia constitucional chilena. Por primera vez en nuestra historia republicana a través de un plebiscito nacional se nos consultará a los ciudadanos si queremos o no, un cambio constitucional? y qué órgano debería redactar la nueva Constitución? Pero también, por primera vez las mujeres podrían participar en la redacción del nuevo pacto social. Todos nuestros textos constitucionales incluyendo los reglamentos que han regido la vida republicana, han sido redactadas por una elite, ya sea política, económica o intelectual, pero jamás se ha consultado a los ciudadanos por dicho cambio, y así tampoco se ha considerado su participación.
Si bien es cierto, una nueva Constitución no nos va a cambiar la vida, tampoco va a solucionar todos los problemas que tenemos como sociedad, y de eso la ciudadanía debe estar muy consiente, ya que mientras más altas sean las expectativas, mayor será el grado de frustración. Esto porque la finalidad de las Constituciones es limitar el ejercicio del poder por medio del Derecho, reconociendo los derechos humanos y estableciendo los mecanismos de tutela o protección para éstos, no hacer políticas públicas. Pero si se podrían realizar cambios al modelo con miras a una mayor justicia y paz social, a la redistribución de la riqueza con igualdad de oportunidades para todos los integrantes de la comunidad nacional.
En el evento que gane la opción apruebo, las materias que serán objeto del nuevo texto constitucional, deberán ser discutidos en la Convención Constitucional o en la Convención Mixta constitucional (en adelante Convención), dependiendo de lo que elijan los ciudadanos. Pero ello en ningún caso significa partir desde cero, ningún sistema democrático parte de la nada.
La hoja en blanco no significa partir desde cero, lo más probable que en materia de derechos civiles y políticos no tengamos grandes novedades, lo mismo puede decirse en lo referente al Banco Central y su autonomía, por nombrar algunas materias. Pero sin duda, los cambios más profundos deberían darse en materia de derechos sociales, en el modelo económico, en materia de descentralización, en el régimen presidencialista, entre otros.
La misma conclusión se puede extraer de la reforma al capítulo XV de la Constitución en su artículo 135. La hoja en blanco no es partir de la nada, hay un contenido previo que debe ser observado y respetado por la Convención. Al respecto el referido artículo señala en su último inciso que “El texto de Nueva Constitución que se someta a plebiscito deberá respetar el carácter de República del Estado de Chile, su régimen democrático, las sentencias judiciales firmes y ejecutoriadas y los tratados internacionales ratificados por Chile y que se encuentren vigentes”.
En otras palabras, el artículo 135 señala de manera expresa los ámbitos o materias que no podrán ser alterados o modificados por la Convención. Así por ejemplo, los Derechos Humanos siguen siendo un límite al ejercicio del poder soberano tal como lo señala hoy el artículo 5 inciso segundo. No hay ningún órgano o autoridad en un sistema democrático que tenga un poder ilimitado. Luego, los Derechos Humanos consagrados en tratados internacionales ratificados por chile y que se encuentren vigentes deberán ser observados y respetados por los Convencionales Constituyentes.
Uno de esos tratados es la Convención Americana sobre Derechos Humanos, que al respecto consagra la obligación de los Estados de respetar los Derechos, de adoptar las disposiciones de Derecho Interno para ello, y entre otros derechos reconoce la vida, la integridad personal, libertad personal, libertad de conciencia, de expresión, de religión, protección de la familia, los derechos del niño, y el derecho a la propiedad privada. Todos ellos deberán formar parte del catálogo de Derechos Fundamentales del nuevo texto constitucional. Luego, tenemos un contenido previo que deberá ser observado, respetado y reconocido por el órgano que cree la nueva Constitución y son los nuevos contenidos, los que para ser parte de la Ley Suprema, deberán ser discutidos y aprobados en la Convención.
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