Chile Finalizes New Constitution, but Passage Is Uncertain

fter a year-long, turbulent drafting process, Chile’s proposed new constitution was submitted to President Gabriel Boric on Monday, bringing the country one step closer to abandoning the legacy of Augusto Pinochet’s 17-year dictatorship. Chile is now on the right track to have one of the world’s most democratic and progressive constitutions.

The new constitution will be replaced by the Pinochet-designed 1980 constitution if it is approved by the voters at a September 4 referendum. Many Chileans blame the constitution—which follows a neoliberal model—for causing Chile to become one of the most unequal countries in the world. After mass protests that erupted in 2019, the government approved the constitution rewrite. The new constitution’s fate will determine the future of Boric (a leftist 36 year-old who has invested a lot of political capital in the project).

“The rewrite process has become a vessel for the hopes and aspirations for a better Chilean society,” says Christopher Sabatini, senior Latin American research fellow at Chatham House. It “demonstrates an admirable flexibility and recognition of social and political discontent to an extent that no other country in the region has attempted. Irrespective of the potential downsides, the mere act itself is powerful.”

This is what Chile’s new Constitution means to us:

Chile is rewriting its constitution.

Final draft represents the final milestone of a difficult journey to constitutional reform. The 2019 protests—which began in response to a subway fare hike but escalated into a widespread Estallido Social (“social explosion”)—signaled public rejection of Chile’s decades-long neoliberalism. “If Chile was the cradle of neoliberalism, it will also be its grave,” the leftist Boric said in July 2021. Half of Chile’s workers had less than $550 a month at the time of 2019 protests.

Chile’s constitution, which favors privatization and has hindered reform efforts, has become a major target of popular unrest. Pinochet dramatically minimized the state’s role during his 17-year-rule, cutting budgets for public housing, education and social security, and selling off state-owned companies. Even though the dictatorship ended with the end of 1990, the so called neoliberal legacy is still alive and well, in large part due to the constitution.

To diffuse the protestors, in November 2019 then-President Sebastián Piñera’s conservative government agreed to hold a referendum on the contentious constitution. 78% supported a revision, which would be done by an elected body of delegates, in October 2020.

Boric, who assumed office in March this year, has called the current constitution an “obstacle” to long-lasting social change. The millennial won a historic victory in the country’s November 2021 presidential elections after campaigning to ramp up public spending, scrap the private pension system, and increase taxes on major industries.

Learn more Chileans will soon vote to rewrite their whole constitution. Will It Turn a ‘Social Explosion’ Into a New Plan for the Country?

Chileans elected an eclectic constitutional assembly in May 2021 to create the new document. 87% percent (154) of the selected delegates hadn’t held office in their previous life. This was a sign that Chileans were looking for new options. They were also two-thirds center-left and represented many parties that had been formed in the last six years. The traditional right-wing parties—the Independent Democratic Union (UDI) and National Renewal—which held the presidency at the time, won just 21% of the assembly with 32 seats.

In line with quotas to ensure equitable representation, half of the assembly’s seats were reserved for women, and 17 for members of Indigenous groups, who make up about 13% of Chile’s population. Mapuche leader, activist, and linguist Elisa Loncón Antileo served as the assembly’s first president.

The new constitution: What’s it all about?

It is 388 pages long and one of the longest constitutions in the world. It is much longer than the Pinochet-era document and includes a wide range of social rights, such as the right to freedom speech, abortion and clean air and water.

In an attempt to address historical inequalities and protect minority groups, the document emphasizes the “plurinational, intercultural and ecological” values and makeup of Chile. It establishes equal participation quotas for women in public institutions and hiring regulations that aim to close the nation’s 20 percentage-point gender employment gap, and guarantees LGBTQ+ inclusion in political spaces. It recognizes Indigenous communities as self-governing autonomous groups, and provides protections for Indigenous culture, knowledge and identities.

The text also breaks down corporate monopolies on natural resources. Chile is unique in that it has a water market completely privatized. Citizens pay the highest prices in Latin America for water, while mismanagement and deregulation has led to a decade-long “mega-drought” that is being exacerbated by climate change.

To be included in the text of the proposed articles, two-thirds of the constitution assembly had to agree on them. This required a debate and compromise process.

A common criticism of the draft constitution is the extent of institutional reform, including the elimination of the Senate from the country’s current bicameral Congress. Kenneth Bunker (political analyst, editor of Tres Quintos), explains that the Senate is able to veto any member of the Chamber of Deputies. Bunker disagrees with this view, arguing that the bicameral system makes the process of policy-making more “responsible,” as lawmakers’ proposals are subject to scrutiny.

The analyst says that the underlying motivation for the reform is likely “short-term strategic political thinking”—with the mostly left-leaning assembly seeing the Senate, half of which consists of right-leaning lawmakers, as a roadblock. The right-leaning Critics have complained about the prejudiced nature of many articles in this new document due to the dominant presence of left-leaning, independent members of the constitution assembly.

The document’s incoherence and inability to be implemented in practice is another issue. Bunker explained that a new constitution must be tailored to fit the legal and cultural infrastructures in the country where it is being applied. “Usually when you rewrite a constitution, you look for what is going wrong and change that element,” Bunker says. “But the assembly threw everything out, and started from scratch. It’s not an evidence-based constitution.“

Patricio Navia, a Chilean political scientist at New York University, believes that the untested nature of the document poses great risks for a country with one of Latin America’s highest GDPs. “Latin America is a continent full of constitutional experiments,” he says, pointing to rewriting processes in Venezuela, Ecuador, and Bolivia, “none of which stands out as a beacon of democracy in the world.” The draft constitution’s proposed changes to legislative infrastructure, including the over 200-year-old Senate and judiciary system, could produce “institutions that people do not respect or consider legitimate.”

The next steps?

According to Cadem, 46% of those polled support the new document, even though nearly 80% of 2020 voters voted for it. At times, the process has appeared disorganized to voters—the constitutional assembly had only one year to redraft the historic document and few resources, after former president Piñera withheld funding for policy advisors and support staff.

Surveys indicate that 51% voters are against the new constitution. compared to 56% in JanuaryAccording to Bunker, these delegates said that they will support a revised text. Bunker attributes this dip in part to a change of governance half-way through the process from Indigenous leader Loncón to less experienced independent delegates who “improvised a lot.” Other issues have tarnished the process, including the conduct of some of the delegates, misinformation, and deliberate attempts by right-leaning delegates to delay proceedings.

The length and level of detail in the text also makes it “easier to reject,” Bunker says. “You only need to find one thing that’s a deal-breaker. If you think that the Senate is the only source of stability, then you’ll reject the entire text. But to approve, you actually have to approve of all of it.”

Learn more The Leftist Millennial Who Could Lead One of Latin America’s Wealthiest and Most Unequal Countries

Chile’s economic woes are causing the referendum to be held amid record-inflation in Chile and rising oil prices. This could have a knock-on effect on voters’ attitude to the draft constitution, Bunker says: “People don’t want more democracy if they can’t get to the end of the month with a decent salary.”

The uncertainty created by the process of redrafting has also slowed down investment flows to the country. “And if there’s less growth in future, there will be less money to fulfill the social rights that the new Constitution establishes,” Navia says.

The referendum on Sept. 4, however, is likely to prove to be very close. Boric would suffer a serious blow if he rejects the constitution. But it could also give Chile’s leader a “window of opportunity,” Bunker says, to design a document that enshrines social rights but also irons out administrative issues in the current redraft. “Boric could do something powerful and achieve what he hasn’t been able to so far,” he says.

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