Chile: the battle for a transformative new constitution

16 December 2021
Article

 Chile is currently undergoing a process of transformational change that is not only profound but also contradictory. The explosion of social unrest was a crisis that forced us as a society to fundamentally question the model under which we have lived for the past thirty years and which has caused widespread discontent in Chilean society. Today, that creative process takes shape primarily in the Constitutional Convention and in the fulfillment of its mandate: writing a new national constitution for Chile.

The last couple of years in Chile have been intense. The social unrest that began in 2019 not only evidenced the deep-seated inequality felt by the vast majority of the people of Chile, it also questioned an economic and social model that had been imposed on us during the brutal dictatorship of Augusto Pinochet. However, social protests are not new in our recent history. The “Penguins’ Revolution” (2006), in which high school students occupied a large number of public education facilities throughout Chile, was only the first of several waves of protests. That “March of the Penguins,” as it was also known, would be followed by the great student movement of 2011, with university students now taking center stage. A number of new political actors, such as Camila Vallejo, Giorgio Jackson, and the current presidential candidate Gabriel Boric, emerged from this movement and would go on to breathe new life into national politics. In the last few years alone, Chile has seen multiple demonstrations over a range of issues, including environmental concerns, the pension system, and, in 2018, feminist demands, with women taking over university campuses across the country to protest against gender violence and sexual harassment and abuse in their educational establishments.

This surge in protests lifted the veil that had cloaked Chile, projecting the country as an “oasis” in Latin America, a term president Sebastián Piñera was fond of using to blow his own horn. An institutional solution to the crisis took form on November 25, 2019, when several political parties signed an agreement stipulating that a referendum would be held to give Chileans the opportunity to approve or reject the drafting of a new constitution and the mechanism through which it was to be drafted. The pandemic, which would come just a few months later, would delay the democratic process and would throw into even more stark relief the country’s deep-seated inequality. Finally, the option to “Approve” won by 78 percent of the votes, thus enabling the process for the election of a Constitutional Convention formed by 155 people. The makeup of the Convention is also historic for several reasons. In the first place, 17 seats were reserved for members of indigenous peoples. Second, the body was elected with gender parity, that is, the voting system was changed so that no gender could have more than 55 percent of the seats in the Convention. A high percentage of the delegates who were elected identify as feminist, and there is a significant number who identify as environmentalists.

The Constitutional Convention began operating in July 2021 with a clear mandate: drafting the first democratic constitution with gender parity and indigenous representation in the history of our country. It has until July 5, 2022 to fulfill that mandate. Three months after delivering the text of the constitution, Chilean’s will be called to a referendum in which they will vote to either reject the proposed text (thus reverting to the 1980 constitution) or approve the new constitution. Drafting a text that reflects the expectations of the Chilean people and succeeding in having the new constitution approved is a challenge.

The state of the art

The work of the convention delegates has not been easy. To begin with, the time they have is limited. The agreement that enabled the constitutional reform established a term of nine to twelve months for the drafting of the constitution. The first great task it faced was, therefore, setting up. The election of its steering committee, headed by the current president of the Convention, Elisa Loncón marked the first major precedent: the process would be led by a feminist indigenous Mapuche woman. This is important not only for Chile, but also for the entire region, where the struggles for self-determination and autonomy of indigenous peoples or first nations have met with oppression and discrimination from the state for hundreds of years. It should be highlighted that the Convention was inaugurated under a hostile climate characterized by negligence on the part of the government of Sebastián Piñera.

The second great task that the Convention had was establishing its rules of procedure. It is not easy to draw up new rules when the process of constitutional reform arose from a radical questioning not only of the country’s economic and social model but also of its way of doing politics. We must bear in mind that the constitutional assembly is not regulated by any institution so that what happened in practice was that the 155 delegates elected met and had to sit down together to decide the order in which they would draft the constitution,  what themes the discussions would be divided into, how progress would be reported outside the assembly, and what mechanisms would enable people to participate in the process. The general rules of procedure were finally adopted in October of this year, only four months into the Convention’s work. This evidences that it is making very good progress, in comparison to other constitutional processes around the world.

Regarding the rules themselves, there are two important aspects to be highlighted. The first noteworthy aspect has to do with the mechanisms for participation that they establish. This is significant because we have to understand the political process of the Convention as an act of political imagination in which certain major features of the democracy we seek to build are preconfigured. In addition to more traditional mechanisms, such as public hearings and town halls, the rules establish the possibility of holding an interim referendum for provisions that are backed by more than three-fifths of the Convention delegates but fail to obtain the two-thirds required for approval. Another innovation has to do with the popular initiative , as this mechanism allows any citizen to propose a constitutional provision on any issue. If proponents of a provision are able to gather more than 15,000 virtual signatures on the Convention platform in support of their proposal, the proposed provision will be considered by the corresponding thematic committee. They set a major precedent for the very contents of the new constitution toward guaranteeing that the model that is defined will take the country from a representative democracy to a participatory democracy that includes direct democracy mechanisms, such as popular legislative initiatives and referendums at the local and national level.

With respect to the discussion of contents, the rules established seven thematic committees, which will draft the provisions that will be put to the vote in the plenary. The seven committees are:

  1. Political System, Government, Legislative Branch, and Electoral System
  2. Constitutional Principles, Democracy, Nationality, and Citizenship
  3. Form of State, Decentralization, Equity, Land Justice, Local Governments, and Tax Structure
  4. Fundamental Rights
  5. Environment, Rights of Nature, Natural Commons, and Economic Model
  6. Justice Systems, Autonomous Oversight Bodies, and Constitutional Reform
  7. Knowledge Systems, Science and Technology, Culture, Art, and Heritage

These committees are now discussing key transformations for Chile’s future, including establishing that water is a human right and, as such, this natural commons must be removed from a regime that has de facto privatized it. It is also proposed that water and establishes that “all persons, without discrimination, have a right to sufficient, safe, acceptable, drinkable, pollution-free and physically accessible water.” Other important changes are the declaration of Chile as a plurinational state, the declaration of nature as a subject of rights, and the change in the state’s governing principle, from a principle of subsidiarity to a social or solidarity principle. From a feminist perspective, there is a proposal to eliminate all gender-based asymmetry in public and political participation, thus enabling a state with equal representation in its three branches. Also raised was the need to establish social co-responsibility in care at the constitutional level. It is hoped that care work, which has historically been shouldered by women without any kind of social or economic recognition, can be transferred onto the state, achieving a constitution that enables a national care system. While a care-related provision has yet to be presented, it is highly likely that a right to care and be cared for will be included in the list of fundamental rights.

The historical demand of Chilean women for our sexual and reproductive rights (and the possible adoption of law that enables abortion) is, without a doubt, also at the center of this proposal.

Chile, a country imagined

The country that is imagined from these perspectives is fundamentally different from the economic and social model imposed by the dictatorship, in which the state was shrunk to its minimum expression, to the point of basically relinquishing to the market the provision of rights, leaving the state to provide such rights only for those who cannot pay. This turned Chile into a country with  housing, health, and education for the rich , a pension system in which social security is left at the mercy of erratic investment profitability, a plundered nature,  whole communities without access to drinking water as a result of the pillaging of deregulated agribusinesses, and a tax system that does nothing to reduce inequality. All of this is crowned by Chile’s profound socioeconomic inequality. According to a study led by the Paris School of Economics’ World Inequality Lab, the richest 1 percent of the population owns half of the country’s wealth, while the poorest 50 percent has an approximate combined wealth tending to nearly 0 percent of the total.

Once all the provisions of the new constitution are approved, a harmonization committee will be formed to consolidate the new constitutional text, which must be finalized by July 5, 2022.

The new constitution and the future president of Chile

On Sunday, December 19, Chile will be electing its next president in a runoff election between Gabriel Boric, the candidate of the Frente Amplio (a coalition that emerged primarily from the 2011 student movement), and José Antonio Kast, the candidate of the Republican Party. The election is, thus, between the leftwing forces that championed the constitutional change and a far-right that expressed its rejection to it in the 2021 referendum. The future government will not only have to implement the constitutional changes along with the legislative branch (where the left and the right are currently tied in the number of seats), it will also have to organize the referendum that concludes the constituent process, where voters will approve or reject the new constitution. Chile’s progressive forces are now facing a presidential election against a leadership that has not only systematically denied the climate crisis, vindicated the Augusto Pinochet dictatorship, and shown a high degree of misogyny, but which was also against guaranteeing gender parity and reserving seats for indigenous peoples in the Convention.

At the end of the day, Chile faces an election in which many of us will be looking to defend the democratic gains secured, the rights achieved, and the culmination of a constituent process that we hope will pave the way for a cycle of profound transformations that will bring us closer to that country we dream of.