Examining Chile’s constitutional process

In mid-November, political parties across the spectrum held backdoor meetings with the President of the Senate and decided on an ‘Agreement for Social Peace and New Constitution’.

chile, chilean constitution, chile president, gabriel boric
The traditional political parties across the political spectrum were not responsive and the larger political class was caught unaware of such discontent; hence it was characterised as a “sudden”, “social explosion”, or a “social outburst”. (Image: Reuters)

By Hoimi Mukherjee

The May 7 elections in Chile to elect members of a Constitutional Council marked another step in the two-year-long Constitution-making process aimed at replacing the current one. The Constituent Process was initiated under very different circumstances and the current circumstances raise questions on whether the original demands of the public will be met.

In October 2019, massive social unrest across Chilean cities occurred after subway fares were increased by thirty pesos. The confrontation between student activists and police over metro station occupation, turnstile jumping and other civil disobedience turned violent. The damage to public property and police excesses led to common people joining the protests and demanding repealing the 1980 Constitution. The slogan “It is not thirty pesos, but thirty years” of the protests centred on the socio-economic distress attributed to the 1980 Constitution’s neoliberal framework. Specifically, the subsidiarity principles between the private and public sectors are entrenched in the Constitution, where the former has a greater heft. This shaped Chile’s private individualised pension system that provides bare subsistence to a large section of Chileans, its privatised healthcare system premised on the insurance that makes it unaffordable for the working classes and the voucher system in education for affording private education. The traditional political parties across the political spectrum were not responsive and the larger political class was caught unaware of such discontent; hence it was characterised as a “sudden”, “social explosion”, or a “social outburst”. To control the movement, President Sebastián Piñera sanctioned the use of force under a state of Emergency, which resulted in police excesses which angered the public further.

In mid-November, political parties across the spectrum held backdoor meetings with the President of the Senate and decided on an ‘Agreement for Social Peace and New Constitution’. These meetings included independents and other prominent organisations, even though many civil society groups were not invited. This agreement created a Technical Committee that would draft amendments to the existing Constitution for its abolition. These amendments were included by the end of December in line with popular demand and pointed to three aspects that conditioned the end of the 1980 Charter. First, a referendum was to be conducted on whether they wanted to retain the 1980 Constitution or repeal it and whether they mandated Congress to draft the new Constitution or a fully elected Constituent Assembly/Convention. The second aspect was outlining the process to elect new members to the Constituent Assembly/Convention if supported in the referendum. Third, voting on the draft Constitution formulated by the chosen body would end the referendum and repeal the 1980 Constitution.

In October 2020, seventy-eight percent of the population voted for a new Constitution and seventy-nine per cent supported creating a Constituent Assembly. The Assembly was to have 155 members on parity rule and seventeen seats were reserved for indigenous people. Additionally, timelines for drafts, extensions and voting rules within the Assembly were enumerated. In May 2021, Chilean citizens elected the members of the Assembly, with Independents securing 103 seats, amounting to over sixty-six per cent of the total. Traditional Left parties secured only seventeen per cent of the seats and the right-wing parties secured one-third of the seats, pointing to the disenchantment with traditional politics. Professor Javier Couso commented that the assembly comprised largely of Leftists, many of whom were linked to civil society organisations leading the 2019 protests. The drafting was marked by contentions among various factions and disinformation campaigns, yet the two-thirds vote for quorum and acceptance of provisions regulated the document’s drafting process containing 388 articles.

Concomitantly, Presidential elections were conducted in a polarised environment in November 2021, where the two leading candidates had contrasting views about drafting a new Constitution. The Far-Right Presidential Candidate, Jose Antonio Kast of the Christian Social Front, advocated the retention of the 1980 Constitution, while Gabriel Boric of Apruebo Dignidad was a leader of the 2019 protests, was present at the 2019 Agreement for a New Constitution and naturally favoured drafting of the New Constitution. The overlap of the two political processes influenced the agenda of the elections and the content of the Constitution was put on the vote. Upon Boric’s victory in 2021 and his assumption of office in March 2022, Boric extended support to the draft constitution’s progressive content and aligned his governmental programme closely to it. There were speculations about the contents, extensive influencing of public opinion and disinformation campaigns over traditional and social media. The President received the draft constitution from the Assembly in July 2021 and declared September 4, 2022, as the date of the referendum for voting on the Constitution. The draft Constitution was deemed a progressive document that identified Chile as a social democratic, plurinational, intercultural and ecological state. In addition to redefining the nature of the state, it outlined an expansive state through provisions for a national public health system, a social security system and free higher education. Supporters and opponents of the draft formed the “approve” and “reject” blocs and campaigned extensively and the government aimed to educate the public on the provisions.

With voting made compulsory, the draft was rejected by around sixty-two percent of the thirteen million eligible voters. The results were attributed to poor communication, misinformation campaigns,massive funding by the “reject bloc”, a referendum on Boric’s government and a lack of addressing the original demands, among others. This halted the Constitution-making process until January, when the political parties resumed it through a new Agreement for Chile. Successive public opinion exercises by Espacio Público (November 2022), Cadem (December 2022) and Activa (January 2023) show high support for a new Constitution. The New Agreement mandates a prominent role for Congress in the Constitution making. Congress approved the constitutional reforms under the Agreement for Chile and were signed by the Presidentand published in the government bulletin on January 17, 2023. Subsequently, Congress appointed twenty-four members to an Experts’ Committee based on principles of parity and share of representation in Congress. Simultaneously, Congress formed an Admissibility Committee upon similar representational rules, having fourteen members. The Experts’ Committee is tasked with making the preliminary draft while the Admissibility Committee monitors adherence to twelve basic principles in the draft that all parties in the Agreement for Chile accepted. The Congress also codified rules of the Constitution making, including the provision of approval and rejection of draft articles requiring a three-fifths majority in the proceedings.

The Constitution Council would take the process further by working on the draft prepared by the Experts’ Committee. The fifty-member council is popularly elected with one seat reserved for the indigenous and will have five months to prepare the final draft. On May 7, elections for the seats in the Constitution Council Took place, of which twenty-three seats went to the Far-Right Republican Party and eleven seats to a coalition of centre-right Safe Chile. The Centre Left Unity for Chile secured sixteen seats which effectively allows the conservative majority to veto progressive social reforms as those included in the 2022 draft. The reasons for such diametrically opposite results include the persistence of disinformation, Chile’s economic crisis and Boric’s low approval ratings. Furthermore, the momentum behind the 2019 protests has slowed, and many termed the 2022 draft too progressive. Sociologist Camilo Godoy points out that the 2019 uprising was a catharsis against the neoliberal system, but the de-ideologised society did not alter its political consciousness significantly enough to embrace the alternative to neoliberalism.

These developments indicate that the future of this process may not be propitious: There may be an impending conflict between President Boric’s official agenda and the far-right parties’ influence in the Constitution-making process. The Far-Right parties have opposed drafting a new Constitution and endorse retention of the older one; hence their role within this Council is to be seen. In June, the Experts Committee will provide a preliminary draft which the Council will use as their base. Across June and July, citizens will be allowed to participate by submitting proposals, hearings, dialogues with the Council and online consultation. In October, the Council is scheduled to present its first draft to the Experts’ Committee and in case of disagreements, a committee of six members each from both bodies will be formed to resolve and harmonise. The final proposal of the Constitution will be delivered to the President on November 7. On December 17, 2023, this draft will be put forward for the Constitutional referendum for citizens to accept or reject, ending the second attempt at drafting a new Constitution.

The author is Doctoral Candidate, Centre for Canadian, US and Latin American Studies, Jawaharlal Nehru University.

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First published on: 17-05-2023 at 15:45 IST