A new constitution for Chile; One step back, two steps forward

When you last heard from DavesChile, in late August 2022, we were meekly predicting the defeat of the much awaited proposal for a new Chilean constitution. That prediction proved to be right, so since the September 4th plebiscite, in which they rejected the proposal by over 60%, Chileans have struggled to decide whether, and how, to proceed. Having failed to produce an acceptable magna carta from the deliberations of the previous 155-member constitutional convention which met during 2021 and 2022, Chileans are persistent in their desire for a constitution to replace the one birthed in 1980 in the Pinochet dictatorship.

Chile’s political leaders now seem to have come up with a new approach they believe will keep the new constitution process going forward. To this end, a new agreement entitled “Acuerdo por Chile” (An agreement for Chile) was endorsed on the evening of December 12, 2022, by most official political parties and a couple of important new parties being formed. This proposal must now be debated in Congress, and turned into an amendment to the present constitution, requiring a 4/7 vote of approval by both houses, before it can be implemented. Supposedly, the end game of the process will again be a draft of a new constitution Chileans must vote on in another plebiscite, probably in late 2023 or early 2024.

The agreement, if approved, establishes three entities to develop the constitutional proposal: a 50 member Consejo Constitucional (CC), a 24 member Comisión Experta (CE), and a 14 member Comité Técnico de Admisibilidad (CTA).

The CE will be chosen first, by both houses of Congress; it will include primarily acknowledged experts in constitutional law, economics, and other social sciences, drawn from academia, think tanks, or relevant national institutions. This group will be chosen “quickly”, and as early as January 2023 should begin to prepare the draft which the CC will use to write the norms of the new constitution. Once the CE has produced the draft constitution, the CC will have six months to prepare the constitution. During the process, serious conflicts or questions regarding content will be deferred to the CTA for review. The details of this entity, and the process of give and take between all three entities during the process, remain somewhat obscure at the moment. The details will surely be the stuff of the debate in Congress.

Besides these three entities, the agreement is based upon a set of twelve principles the parties agreed the new constitution must contain:

• Chile is a democratic republic; sovereignty rests with the people.
• The State of Chile is unitary and decentralized.
• Sovereignty is limited by human dignity and the human rights recognized in international agreements ratified by the Chilean State; terrorism in whatever form, is essentially contrary to human rights.
• Indigenous people are recognized as part of the Chilean nation, which is one and indivisible.; the State will respect and promote their rights and cultures.
• Chile is a social and democratic State, based on the rule of law; its purpose is to promote the common welfare, recognizing rights and fundamental liberties, and promote the progressive development of social rights, limited by the principle of fiscal responsibility, through both private and public institutions.
• The national emblems of Chile are the flag, the escudo and the national anthem (supposedly as they now stand).
• Chile has three separate and independent branches of government: Executive, with exclusive power to initiate public expenditures; Judicial, with unitary jurisdiction; and Legislative, bicameral with a Senate and a Chamber of deputies.
• Chile has constitutionally protected autonomous organizations: Central Bank, Electoral Service, public prosecutor, comptroller general, et al.
• Protection is guaranteed of fundamental liberties such as right to life, equality before the law, private property rights, religion, choice in education, et al.
• Armed forces and national police (Carabineros de Chile) operating under civil authority.
• Four states of constitutional exception allowed for situations of national emergency.
• Care and conservation of nature and biodiversity.

Some of these principles seem obvious, but each of the twelve were challenged, and some totally disfigured or ignored, in the prior now-defeated proposal. From where we sit, however, we can appreciate, along with supporters of this new agreement, the importance of several of these principles in that they do, if included seriously in the new constitution, portend a changed Chile, one prepared to face the challenges of the 21st century while moving away from constraints and demons of the past.

The inclusion of indigenous people and explicit respect and support for their cultures should help address injustices of the past. The idea of indigenous nations within the nation has been shelved for the moment.

Recognition that Chile must be not just unitary but also decentralized, if it leads to more resources and decision making at the regional and municipality level, could finally lead to better and broader participation in the benefits of the country’s economic development.

Possibly the most significant change implicit in these principles is what has been for years now the underlying objective of numerous protests which have wracked Chile: A change in Chile’s socioeconomic model. The key here is the principle that defines Chile as a social and democratic State of laws, whose purpose is to promote the common welfare, that recognizes rights and fundamental liberties, and that promotes the progressive development of social rights, limited by the principle of fiscal responsibility, through both private and public institutions. This is broadly seen by supporters and detractors alike, to be the recipe for moving significantly away from what most call the “neoliberal” model of the existing constitution, closer to a welfare state model in which public sector institutions and resources are used more aggressively to address Chile’s social needs; what some interpret, and praise, as a move to be more like European social democracies.

Some observers and analysts we listen to and read see the agreement as tightly knit and reasonable; this time “no room for crazies” (“crazies”, of note, being some of the more outlandish members of the original constitutional convention and their ideas). But there are others, those who were seriously committed to the prior process for its extremely progressive proposal and high level of “popular” participation, who are predictably anxious that their desire to do a remake of Chile is being derailed by the same old politicians with their “cocina” (kitchen) form of deal making.

What is clear, is that the traditional institutions of the presidency, the legislature, and established political parties are finally trying to control the development of the new constitution. The first test will be if the Congress can corral the necessary support to approve the constitutional amendment required to create the three entities that will produce the new constitution ( CE, CC, CTA). Next, the 14 political parties which make up the Congress, as well as several emerging political forces, must organize to agree on the experts for the CE, and prepare lists of candidates from which the voters must choose the members of the CC.

The success of this process relies in part on the highly fragmented group of political parties joining together in some way to make decisions. If unsuccessful, the whole process may never get very far off the ground. If successful, however, it could be the catalyst for a stronger set of fewer, more powerful political parties to emerge. This would, hopefully, strengthen the party system in Chile and begin to rebuild public trust in political parties.

The clarity of the results of the September 4 plebiscite seems to have had a sobering, moderating effect on newly elected President Boric and some of his supporters. Recognizing that the plebiscite rejected the far too “progressive” constitutional proposal, Boric’s pragmatic side will push him to be supportive of this new process, even though it will not lead to the “transformed” Chile he ultimately still desires. But to move ahead with this more modest approach, he will have to coerce the disparate forces within his coalition to work within the bounds of the new agreement; that is more easier said than done.

At the same time, this is the moment for the democratic center parties, both left and right, to prove their stated commitment to a new constitution and participate in the healthy debate that is now ahead.

So again, we wait to see if the Chilean political process, possibly on a more solid track than over the past two years, will finally produce a broadly accepted constitutional footing for a new national narrative of economic growth with social equity.

We are again cautiously optimistic, our normal skepticism on hold, and we will continue to follow this crucial moment in Chile’s development.

Posted on December 20, 2022, in Leesburg, Virginia.