Chile’s New Constitutional Process Shifts to the Right

Hollowed-out political parties and the legacy of dictatorship once again leave Chile’s constitutional process hindered by a crisis of representation.

February 15, 2023

"No more savage neoliberal economic dictatorship. Chile woke up." A protestor in Santiago's Plaza de la Dignidad in October, 2021 (Paulo Slachevsky / Flickr / CC BY-NC-SA 2.0)

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At the end of January 2023, Chile’s Congress selected the final members of a Council of Experts, tasked with writing the first draft of the country’s new constitution. Hernán Larraín, whose extended family became one of the wealthiest clans in Chile largely due to its close relationship to former dictator Augusto Pinochet, will preside over the Council. How did Chile’s attempt to replace the dictator’s 1980 Constitution with a democratic one end up headed by a Senator with deep ties to the country’s tyrannical past?

In a plebiscite on September 4, 2022, 62 percent of Chileans rejected a draft new constitution. The document was the result of massive mobilizations in 2019 against historical and structural inequities, a 2020 referendum in which 78 percent of Chileans approved of rewriting the constitution, and a year-long process by a popularly elected constitutional assembly, initially led by a Mapuche professor. Most strikingly, rejection of the draft was highest in the poorest areas, with the country's 10 poorest districts voting 77 percent against the constitution. In a post-plebiscite poll, 40 percent said that they voted against the constitution because they didn’t trust the assembly members who led the process.

Despite this rejection, popular support for a new constitution remained high, at 67 percent, in December polls. On January 11, after four months of fierce negotiations, Congress approved a new, two-stage expedited process that will conclude with another plebiscite on December 17, 2023. During the first stage, the Council of Experts—selected by Congress, not the electorate—will draft a new constitution, drawing from right- and left-wing blocs. In the second stage, a popularly elected assembly will revise the initial draft.

After the Council of Experts was announced, however, approval for a new constitution dropped to 49 percent. The pendulum has swung from left to right in Chile’s constitutional process, without addressing the deeper issue of representation. Right-wing party leaders argued that the September rejection resulted from the political Right's lack of representation in the process; however, the issue of representation goes beyond ideology. Now, the new process underrepresents the Left and includes figures with deep ties to the dictatorship, while lacking a mechanism to include the voices of the Chilean people in the process.

Representation in the First Constitutional Process

The 1980 Constitution was designed to eradicate the Chilean Left. It included overt authoritarian measures, such as an article authorizing military oversight of the civilian government should Pinochet lose the 1988 plebiscite on his continued rule. It outlawed Marxist parties, and moved Chile from a system of proportional representation that encouraged the mobilization of working class voters to a binomial electoral system that allowed the Right, with only 30 percent of the vote, to control 50 percent of congressional seats. It also reserved nine designated senate seats for the military and made Pinochet senator for life. Over time, most of these extreme authoritarian measures were removed. But the reforms did not counter the 1980 Constitution’s hollowing of political parties, nor the severe limits on the government’s ability to regulate the private sector or confront the massive privatizations of basic services such as pensions, tuition, and health care. A population that once felt profoundly attached to their political parties grew to see them as an obstacle to social change.

The first assembly elected to write a new constitution consisted of popular members of Chilean neighborhoods. The party affiliation requirement was jettisoned; indeed, it was discouraged. Because the individuals running did not belong to programmatic bodies, voters were forced to evaluate unfamiliar names. Of the 155 elected assembly members, 103 lacked party affiliation.

The center-right coalition comprised less than a third of the assembly’s total seats, preventing them from exerting veto power. The center-left, representing the traditional parties of the ex-Concertación, which maintained neoliberal policies during the country's return to democracy, won an even smaller proportion of seats in the assembly. However, left-wing blocs, including those comprising the Frente Amplio (Broad Front) and the Lista del Pueblo (List of the People), were heavily represented. These two blocs alone composed nearly 35 percent of the assembly, together creating a powerful plurality.

Widespread antipathy toward political elites meant that, for the first time, nontraditional candidates were represented in national politics, directly compensating for a lack of historical representation for various groups. However, there were no mechanisms to ensure that such individuals represented a broader collective. Candidates with little political experience, such as Giovanna Grandón, a Santiago-based teacher and activist who became known as Tía Pikachu after she dressed up in an inflatable Pokémon costume during the 2019 social uprising, sparked whispers of rising populism among Chilean voters. The reputation of the Lista Del Pueblo was severely tarnished by a number of scandals, such as that of assembly member Rodrigo Rojas Vade, who lied about a cancer diagnosis to garner public support.

Representation in the Second Constitutional Process

The second constitutional process will consist of two assemblies that will participate in the drafting process: the Council of Experts and the Constitutional Council. A December Cadem poll found that 59 percent of Chileans supported a mixed convention made up of experts and elected representatives. Unlike the first process, in which a single assembly of 155 popularly elected representatives were responsible for drafting the document, this time only the Council will be popularly elected on May 7. With a reduced 50 members, the council will discuss and approve the proposed text prior to the national referendum. While gender parity is still a requirement for both assemblies, only the Constitutional Council will be required to reserve seats for Indigenous groups.

A Technical Committee for Admissibility, which was also elected by Congress, will oversee both the Council of Experts and the Constitutional Council. This body will ensure that the articles incorporated by both assemblies comply with the 12 base articles for the new document, as agreed upon by Congress in December. These articles took a more centrist position than the first attempt, notably removing the article which designated Chile as a plurinational state.

The Senate and the Chamber of Deputies elected the Assembly of Experts on January 25. Each cast votes for 12 members, respectively, for a total of 24. Among the Experts, 22 have a background in law, and one each in economics, journalism, and sociology. Of the lawyers, only two participated in the previous Constitutional process, and only a few have a concrete background in constitutional law, bringing into question what designates an “expert” on the assembly.

The representatives on the Council of Experts were expected to be largely representative of right-wing and moderate parties, given the current composition of both the Senate and the Chamber of Deputies. The left-wing coalition was able to secure five of 12 experts, while the right-wing coalition won six. The remaining expert for both houses was delegated to the vote of the centrist Christian Democratic Party (DC). These DC representatives can give the right-wing coalition a majority without needing to appeal to the Left. In contrast, the left-wing members will need to appeal not only to the centrist DC, but to either the far right—consisting of members of parties that supported the dictatorship—or to conservative ministers of Sebastián Piñera’s government, whose neoliberal policies and corruption incited the 2019 protests.

Moreover, the right-wing experts include Independent Democratic Union (UDI) member Carlos Frontaura, an adviser at Fundación Jaime Guzmán, named after the principal author of the 1980 Constitution. Most alarming, however, is the appointment of UDI representative Hernán Larraín, who was chosen to lead the assembly as its most senior member. Larraín was a minister under Piñera and cabinet member under Pinochet. In the 1980s, he assisted his friend Paul Schäfer, the ex-Nazi leader of Colonia Dignidad, by blocking an investigation into his colony used as a site of torture and disappearance during the Pinochet dictatorship. Schäfer was eventually imprisoned for child rape. The Chilean Network of Survivors of Sexual Abuse Against Children in Institutional Environments, as well as the Association for Memory and Human Rights Colonia Dignidad, composed of victims of the Schäfer’s colony, have petitioned the government to revoke Larraín's appointent.

The decision to remove the requirement of reserved seats for Indigenous peoples on the Council of Experts disparages Indigenous communities as lacking in expertise, not to mention silencing Indigenous voices and demands in the drafting process. Only Antonia Rivas, a nominee of the Frente Amplio and a specialist in Indigenous law, although not Indigenous herself, will represent the interests of Chile’s Indigenous communities in the process.

The new constitutional process continues to secure not only the position of Chile's right-wing elite, but also the anchoring of Chilean politics in its past. It undermines the primary goal of writing a new constitution—that of ushering in a truly representative Chilean democracy.

Making Representation a Priority in Chilean Politics

Chile’s new constitutional process poses a considerable risk: this magna carta could be more authoritarian than the one reformed over a 30-year period. A two-stage process that treats “expertise” as superior to representation puts the popularly elected assembly in the unenviable position of rejecting the appearance of competence to protect democracy.

The failure to address representation is a problem for the new constitution itself. The 1980 Constitution was designed to eradicate Chile’s deeply rooted Marxist parties, yet the document voted on in September avoided mention of electoral systems or parties. The dictatorship-era constitution had succeeded in convincing Chileans that political parties were so hopelessly corrupt that they hindered the democratic process. Yet, the authors of the first draft were unable to envision another vehicle for democratic representation. For Antonio Gramsci, it was only the mass party that allowed “a continuous intrusion of elements which emerge from the depths of the masses into the solid frame of the apparatus of rule.” In other words, parties are the only mechanism capable of effectively channeling the demands of ordinary workers into governance.

Thus far, both constitutional processes have lacked mechanisms for connecting local communities to political leadership. The first championed the grassroots in opposition to political leaders, while the current one reifies current political leaders and their “experts” to enforce order on the grassroots. Neither neoliberalism nor populist revolts have provided guidelines for democratic rule. If Chileans are unable to transform the current Council of Experts, this herculean task will fall to the deliberately weakened popular assembly set to be elected on May 7.

Cathy Schneider is Professor of International Studies at American University, author of  Shantytown Protest in Pinochet’s Chile (1995) and Police Power and Race Riots: Urban Unrest in Paris and New York (2014) among other writings. She is co-editor with Ernesto Castaneda of Charles Tilly: sobre violencia colectiva, política contenciosa y cambio social: Antología selecta (2022).

Sofía Williamson-García holds a B.A. in International Studies, with a specialization in the Western Hemisphere, from American University. She has engaged in field research in Santiago de Chile on the perceptions of young leftists towards institutionalized political parties.

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