The Moment of Truth for Chile’s New Constitution

Although an overwhelming majority of Chileans supported the need for a Constitutional Convention, the results of the September 4 vote on the new charter remain unpredictable.

July 13, 2022

On July 4, President Boric received the draft of Chile's new constitution (Gobierno de Chile / CC BY 3.0 CL)

This article was originally published in Spanish by Nueva Sociedad.

What began a year ago as a new beginning, with an institutional solution to Chile’s social and political crisis, now looks like nothing more than a jolt. You might almost think that Chileans suddenly became spooked by their own courage. On September 4, a plebiscite will determine the fate of the new magna carta, this time with an uncertain result. But let's begin a little further back.

In October 2019, Chile experienced an estallido social or social explosion. People took to the streets to protest the political and economic elite, expressing their anger at the social inequality in one of the richest countries in Latin America. For months, the country was paralyzed, and people’s rage, probably repressed for years, was unleashed on the streets of various cities. One of the protests’ central demands was for a new constitution that would replace once and for all the neoliberal magna carta inherited from Augusto Pinochet’s dictatorship. The conservative government of Sebastián Piñera eventually gave in to the pressure and cleared the way for a broad agreement in the parliament that enabled the development of a new constitutional process.

In a referendum on October 25, 2020, 78 percent of voters decided to start the process of drafting a new constitution. They also voted for a democratically elected Constitutional Convention as the mechanism for drafting the new document, tossing out the political elite’s pretensions to control the process.

Constitutional Convention elections in May 2021 defeated the traditional political parties, especially those of the Right, which did not reach the one-third of seats that would have allowed them to block the most important changes to the current model. Candidates ideologically aligned with the Left, but specifically independent candidates outside party structures, obtained around 60 percent of the seats. Most representatives came from social movements with specific and narrowly defined agendas. The Convention also had unprecedented gender parity, and 17 of the 155 seats were reserved for Indigenous representatives.

Over a year later, in a solemn and subdued ceremony on July 4, the members of the Constitutional Convention handed over the draft of the new constitution to President Gabriel Boric. With its work complete—after much hard work and more than a few controversies—the Convention was dissolved. The Convention’s division, together with a fierce campaign by a right-wing that fears losing its privileges, now casts doubt on whether the text will be approved in the September 4 plebiscite, when Chile’s 14 million voters must decide between "approval" and "rejection." Currently the polls show a growing trend of "rejection," although the number of undecided voters also remains very high.

It is clear that the process and the constituent representatives themselves generated mistrust. For example, some representatives raised very radical or maximalist demands, such as the abolition of existing state institutions. The fact that these proposals did not garner support from a majority of the Convention and therefore have not been included in the draft constitution seems like only a footnote: discontent, confusion, and misrepresentations already shaped public opinion. At the same time, the Right has deployed a massive and well-resourced campaign that has stirred up fear of social and economic decline by appealing to the worn-out but effective image of "Chilezuela," referring to an unlikely, if not impossible, Bolivarianization of Chile in the model of Venezuela.

Between now and September 4, we will have to see if the “approval" camp manages to sway voters in a plebiscite where, unlike in elections, voting will be compulsory. The official campaign period will be key. The draft constitution does not confirm any of the fears the Right has invoked and is not revolutionary, but it does contain many innovations and unique features that would allow for progress towards greater social justice and environmental sustainability. In short, the new constitution responds to what many have been demanding for decades through endless mobilizations across sectors including high school and university students, environmentalists, pensioners, unions, feminists, consumer associations, Indigenous peoples, and others.

Democracy with Parity

Without a doubt, the greatest political novelty of the Chilean constituent process is its parity. After Congress reached an initial agreement to hold a plebiscite on whether to convene a Constitutional Convention, criticism arose over the fact that the agreement left out key issues emerging in the social uprising: the participation of independents on equal terms with members of the disgraced political parties, the equal participation of women and men, and a reserved-seat quota for representatives of Indigenous nations. Congress quickly secured an agreement for independent participation. The agreement for parity took a few more months, but it finally garnered widespread support. This resulted in the election of Chile’s first body with gender parity, an important advance vis-à-vis parliamentary elections, which only require a quota for candidates. The reserved seats agreement took longer and was achieved a year later ahead of the final deadline. Once the Constitutional Convention was installed, the "parity of results" began to demonstrate its significance in practice.

The presidency of the Convention was always held by a woman, accompanied by a man as vice-president. And the coordination of the commission working groups was always headed by mixed pairs of two women, thus broadening the understanding of parity not as a ceiling but as a floor. This notion even permeated institutional politics, as evident in January 2022 when Boric appointed a cabinet with women occupying 14 of 24 ministerial posts.

The contents of the draft constitution show that parity made a difference. The anticipated change in issues that the Convention dealt with is reflected, for example, in the inclusion of the right to care, the right to a life free of gender-based violence, and the inclusion of a gender-sensitive approach in justice and fiscal and tax policy. But the most resounding result is the establishment of what has been called "parity democracy," which establishes the conditions to achieve substantive gender equality. This translates into the principle of parity for positions of popular representation at the national, regional, and municipal levels, which will also apply to autonomous bodies and public companies, and will be encouraged for individual positions and in the private sphere.

Plurinationalism and the Environment

Joining the tradition of Latin American constitutionalism in recent decades, the proposal for a new Chilean Constitution includes the definition of plurinationality, assuming responsibility for the historical debt of recognition of Indigenous peoples. The use of the Mapuche flag during the social uprising and the presence of banners that alluded to the repression that was being experienced—as a mirror of what Indigenous people have lived through for decades—were the final triggers that made the Indigenous presence necessary in the Convention. An expected outcome of having 17 seats reserved for the 10 Indigenous Peoples recognized by Chile was the inclusion of the concept of plurinationality in the constitutional text.

However, this decision has been tremendously controversial. Various sectors claim that plurinationalism grants "privileges" to a minority group (12.9 percent of the population self-identified as Indigenous in the 2017 census) over the rest of the population, in a country with a smaller Indigenous population than other countries in the region. It is curious to observe that the greatest resistance comes precisely from groups representing the social, political, and economic elite.

Mapuche representative Elisa Loncón (second from the right) watching the ceremony presenting the constitution draft to President Botic (Gobierno de Chile / CC BY 3.0 CL)

The first president of the Convention was a Mapuche woman, Elisa Loncón. This was a highly significant symbolic milestone because it marked the first time that an Indigenous person, man or woman, headed one of the country’s highest institutional bodies of political representation.

Chile also joins a new constitutional current with the inclusion of environmental issues. Again, the backdrop of the uprising and the election of constituent representatives help to understand the presence of these issues in the new constitution. The privatization of water rights and their prioritization for industrial use over human use have unleashed significant waves of protests in different locations in recent decades. The existence of so-called "environmental sacrifice zones" also generated powerful social movements that for years denounced not only environmental deterioration, but also its impact on the people who live in those places.

Independent local leaders emerged from many of these movements. Once elected to the Convention, they worked together on these issues in what became one of the most controversial commissions due to the radical nature of its proposals. The articles ultimately approved by the Convention plenary include the most essential points, recognizing the climate and ecological crisis as well as the need to address it. The document contains a catalog of environmental human rights, enshrines the rights of nature and the state's special duty of stewardship over natural common goods—such as the protection of glaciers and wetlands—and guarantees the universal right to water and healthy and accessible sanitation, declaring water a good that cannot be privatized in any of its states.

Social Rights and the Distribution of Power

It is not obvious for many people that the institutional response to the 2019 crisis has been to authorize a process to change the constitution—a path that, at least in the first days of the uprising, did not appear as a clear demand. However, after a month of intense mobilizations and general instability, the entire political class understood that this was the only way to open the door to making concrete and very long-awaited changes.

The current constitution has a marked neoliberal ideological bias that left very little room for reforms in key areas. One essential issue is social rights. Social rights are barely protected in the current constitution, and—in what’s known as the “commodification” of social rights—private entities are always the providers of these rights, with an emphasis on the “freedom to choose” without considering that choice is limited by the depth of one’s pockets. The draft constitution takes on this issue from the outset, defining in the first article that "Chile is a social democratic state based on the rule of law." It goes on to catalog a long list of rights, including the classic rights to health, education, social security, and housing (housing was completely absent in the 1980 Constitution), as well as a new generation of rights such as environmental rights to water and the right to live in safe environments. Some further rights are included for groups in special need of protection, such as children and adolescents, older adults, and people with disabilities. Of course, the right to property was also duly protected, but in a less detailed way than in the current constitution, in which its treatment is unusually lengthy.

Another long-debated problem that has seen very slow progress is the issue of centralism and the concentration of power. Historically, decision-making has happened in the capital, Santiago, and symbolic gestures, such as the transfer of Congress to nearby Valparaíso, have not brought about major changes. The creation of a new elected position of regional governor during President Michelle Bachelet’s second term has been perhaps the most decisive step, but its effects are only beginning to be felt nearly a year after the first regional governor elections.

The draft constitution transforms the current situation much more decisively, maintaining the unitary and indivisible nature of the Chilean state. If approved, the proposed constitution will create new institutions and clearly transfer power to the regions, including at the level of the comunes. It will create what has been called a "regional state” with regional and communal autonomy. In addition to the regional governor who will head the regional government, there will also be Regional Assemblies, which together will make decisions on public policy, investment, and development policies. These changes mark a major advance in decentralizing and distributing political power and respond to a growing demand from the regions to be able to make their own decisions with insight from their direct, daily knowledge of their own realities.

In terms of power distribution, the inclusion of various participation mechanisms also stands out. These mechanisms connect with a growing demand in Chilean society, manifested during the 2019 mobilizations and especially from different social movements. If approved, the new constitution will add Chile to the list of countries that have mechanisms for direct participation, including via popular initiatives to revoke a law or to reform the constitution, and mechanisms for plebiscites, referendums, and consultations at the regional and municipal levels.

The draft constitution also amends the blockade against changes enshrined in the 1980 Constitution by reducing the threshold for general reforms from two thirds to four sevenths. For some specific matters considered essential, a plebiscite is required, provided that a two-thirds threshold is not reached in parliament. The draft constitution thus returns the key to future changes to the citizens, which highlights the deeply democratic approach that has characterized this constituent process. The draft also contains a procedure for preparing a new constitution (absent the one currently still in force), which replicates the democratic, participatory, and inclusive principles, including parity, of the current process.

A demand that cuts across Chilean society is the call to end abuses in the broadest sense. A 2017 United Nations Development Program study titled “Desiguales” highlighted the unequal treatment perceived by a large part of the Chilean population. This feeling manifests, for example, in response to the low penalties some important business and political leaders face for their involvement in illegal campaign financing versus the full weight of the law that falls upon ordinary people who commit minor crimes. This feeling is also seen in the treatment received by those who use the public health system compared to those who can access the private system. Similarly, scandals of corporate collusion to artificially raise prices, abusive interest rates charged by some companies, the collection of the so-called "ghost fees" by the private pension system (AFPs), and endless other cases constitute the backdrop for this growing unease over abuses of power that was clearly expressed in the streets in October 2019.

The proposed constitution takes up the gauntlet of this discomfort, calling for sanctions against any conduct contrary to the social interest, such as collusion and abuses that affect the efficient, fair, and loyal functioning of the market. And it gives the state the duty to promote integrity and eradicate corruption, with measures to prevent, investigate, prosecute, and punish such crimes. It also stipulates transparency as a constitutional principle and broadens the definition of public information.

A Weak Point: The Political System

The design of the new political system has generated the greatest doubts with respect to the results of the plebiscite. In the course of its work, the commission responsible for drafting this part of the constitution saw deep disparities between the different collectives' proposals. These differences were also apparent between the representatives of political parties, which meant that they did not manage as a whole to maintain some basic premises for strengthening Chile's debilitated political system.

Perhaps most significantly, the draft new constitution does not include the concept of “political parties,” which is replaced by “political organizations.” This is, undoubtedly, one of the clearest concessions to the massive presence of independent constituent representatives. It remains to be seen if this will translate into something concrete in the yet-to-be-enacted electoral law, but it seems rather unlikely, at least with the current composition of the Congress. For example, the Convention did not agree upon a minimum threshold for assigning parliamentary seats, a fact that, on the one hand, enabled minority groups to have representation, but on the other, could further fragment the political system.

If approved, the new constitution will replace the existing bicameral Congress with an asymmetric one that strengthens the lower house and replaces the current Senate with a Chamber of Regions with more defined responsibilities. Traditional political parties, which have greatest representation in the Senate, have strongly rejected this important change. The new charter grants the lower house the ability to propose reforms like public spending, but that will require presidential support, which could be a point of significant tension between the two powers.

Despite earlier discussions about the need to change to a semi-presidential system, the draft constitution maintains executive power with only a few changes, primarily around a greater distribution of powers for introducing bills and control of emergency parliamentary debates. The mix of an asymmetrical bicameral Congress with presidentialism has no international precedents. It will be interesting to see how it plays out.

In sum, the new design creates the potential for problems without taking charge of those from the current system: a highly fragmented expanding multi-party system with few, weak incentives for cooperation. This has hindered recent governments, blocking them from carrying forward their programs and generating frustration with politics that ultimately does not resolve citizens’ problems.

Outcomes and Impacts for Progressivism

The constituent path for Chile after the 2019 social uprising will come to its electoral conclusion with the plebiscite on September 4. This is the first time in Chile that a political and social crisis has led to constitutional change as a democratic outcome rather than by force. In a world where democracy is increasingly challenged, the idea that the solution to democratic problems is to strengthen democracy may be key for the future.

Another outcome this path of social transformation may offer is making the dream of a democracy with parity seem achievable. The feminist movement has erupted throughout most of the western world, calling into question with greater and greater success the patriarchal elements that define society. Advancing the development of a political and social system that has gender parity and establishes equality at all political and administrative levels could offer the potential for unexpected future transformation. If the new constitution is successfully approved, we will also have created an order, through the revalorization of the state, that takes care of its citizens’ social rights. This aspect, although common in European and U.S. magna cartas, represents an entirely new development in Chilean history. Implementing the constitution—if it is approved by voters—will be a far-reaching task for Chilean society that involves restructuring many political and administrative institutions, creating new legal bodies to uphold its principles, and designing a new development model that will allow a transition of this magnitude.

If the draft constitution is rejected, the outcome looks very different. This would represent a truly historic defeat for progressive social and political forces and would leave the new government in a very weak position. If this occurs, Chilean institutions would be faced with the paradox of having 78 percent of the population throw out the dictatorship-era constitution only for a new constitution—proposed by the most democratic and diverse body in the country’s history—to be rejected. And this is all happening during a global economic crisis and pandemic.

In that case, the 2019 uprising, which crystallized a crisis that had been building for decades, would remain without a democratic solution, taking us back to the beginning, but now without any clear path forward. The Right, the economic elite, and society’s most conservative groups are calling for people to “reject it to reform it,” claiming that they are now willing to make the changes that the country demands. They talk about a “third option,” but those options—allowing the new Congress to draft the new constitution, convening a group of experts, or selecting a new Constitutional Convention without the “electoral distortions” of the first (independent representatives, reserved seats for Indigenous leaders, and parity)—clearly do not have majority support. That is to say, those options are dead ends.

Both approval and rejection require a progressive field that makes a strengthened democracy political viable. Even if the present seems better compared with past years, since the traditional Left has been able to consolidate a government led by the new Left of the Frente Amplio, it is clear that there is still no common culture and direction. Will they be successful? As always in politics, it is by creating responses that we find solutions.

Arlette Gay is project director at the Fundación Friedrich Ebert in Chile.

Christian Sánchez is project director at the Fundación Friedrich Ebert in Chile.

Cäcilie Schildberg has a doctorate in political science from Dortmund University and is office director at the Fundación Friedrich Ebert in Chile.

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