Will Chileans Agree on a New Constitution?

Today, It still seems possible that Chileans, after a four-year struggle to rewrite Chile’s Magna Carta, may be unable to agree on a new constitution to replace the one they refer to as “Pinochet’s Constitution”, in place since 1980.  The on-going process was designed to walk a very divided nation back from the brink of pubic disorder and violence in October 2019. It was supposed to end with a new constitution by the end of last year, 2022.

The first proposal for their new constitution was soundly rejected by 62% of Chileans in September 2022, a somewhat surprising but no less significant and clear decision in a plebiscite held with obligatory voting. Un-dissuaded, still committed to the process, political leaders devised an additional year-long scheme to attempt another rewrite, hoping to revert the approximately two-thirds rejection into a broad majority for approval.

This time, rather than establish another constitutional convention, the political establishment (party leadership, Senators, Deputies) quickly agreed on a tighter structure centered on a Constitutional Council supported by a committee of constitutional experts to produce a new proposal for a new constitution. (You can read a detailed description of the elements and schedule for this process in the last posting on the defunct daveschile site, now reposted here: https://daveschilelives.com/2023/05/chiles-new-constitution-last-chance/  .

The group of experts, appointed by Congress, met first and produced a draft document based on twelve constitutional principles. The draft produced by the experts was then turned over to the Council for their consideration.   The proposal reflected a serious attempt to reach a significant compromise between the conservative and progressive factions in the group on most elements of the proposed constitution. Hence, it was generally well received  by analysts and the public at large. However, the proposal of the experts left several gaps on items where they could not reach broad agreement, leaving these more controversial issues to be decided down the road by the Council.

As I write this post, the Council has finalized their mark up of that draft and is turning it back to the group of experts, for their final review and comment. In less than a week, the experts’ comments, along with suggested final revisions, will go back to the Council. On November 6, the Council will vote on the draft constitution as it stands at that point, and on November 7, this process ends and the Council will be disbanded.

While the earlier Constitutional Convention was made up of mostly independent, left-leaning members from all walks of life, this Council is much more conservative. The product of the Convention, openly and strongly supported at the time by President Boric and his coalition parties, was, as it turned out, way too progressive, very disruptive to the way Chileans were accustomed to governing and participating in the economy of their country. Hence, they turned it down.

The proposal that is coming out of the Council is much less “transformational”, and plays better to those Chileans who are resistant to change, but especially those who are allergic to expanding the size and role of government. Predictably, for many the proposal is now too reactionary. If compared to the earlier rejected proposal from the Convention, it is surely more reactionary. It ended up this way because of the ideological underpinnings of the Chilean Republican Party and its leader Jose Antonio Kast, who won enough seats in the Council to dominate the process.

One of the major struggles the writers of the new constitution have faced all along, is the need to blend the objectives of a social and democratic state under the rule of law (which in the extreme relies heavily on public sector provision of services like education, health care, housing, pensions) with a degree of subsidiarity of the state to private initiative (which in the extreme, greatly limits the role of the state in provision of these same services in favor of individual choice and the private sector).

Besides this major issue of how social services are guaranteed and provided, there are clauses in the draft constitution related to women’s rights and participation in decision making, protection of life before birth, individual versus communal ownership and taxation of property, right to strike, undocumented immigrants, and others that still beg better, more transversally acceptable language. These are the issues that the experts did not resolve in their deliberations, but left to the Council. It seems to me, and to many of the analysts I follow in Chile, that these are the main topics the Council will struggle with during the next few days, along with the experts, so as to arrive at agreements the Council members can approve on November 6.

On December 17, another plebiscite under obligatory voting rules will determine the fate of this proposal for a new constitution for the country. Between November 6 and December 17, the government of President Boric is expected to produce and distribute copies of the proposed new constitution and promote and facilitate the electoral process the citizenry must follow.  As before, the question will be “Apruebo” (I approve) or “Rechazo” (I reject).

Once the final version is in hand, everyone with an opinion, especially the leading political parties, academics and opinion influencers, will define their positions and try to convince others to see it the same way. Even before the final version is out, certain positions have been advanced. The head of the Communist party has objected to the process (“undemocratic”) and the content (“worse than the Pinochet constitution”) so will more than likely push for a “Rechazo” vote. JA Kast, the leader of the Republican Party, has stated his intent to work hard to obtain a large majority vote for “Apruebo“, aparently confident that whatever adjustments or additions are made to the document between now and November 6 will not dilute the conservative nature of the draft they have seen. These two reflect the extreme, albeit important and influential, positions.

Between JA Kast and the Communists sits the overly disarticulated political center. Each group from left to right is publicly committed to a new constitution, but most of them want the negotiations now taking place to morph the present draft into a less “reactionary” final product. They want the final document to be as similar as possible to the draft prepared earlier by the experts; most of them say they are anxious to vote “Apruebo” and end the process this year.

However, they are all measuring carefully the mood of their fellow Chileans, which so far is showing little excitement for the process and essentially a sour mood towards politics and politicians in general. Chileans are not very excited about their President and his coalition, and continue to be preoccupied with personal security issues, the growing influence of narco-trafficking violence, and illegal immigration. These are the issues which JA Kast used to gain control of the constitution-writing process several months ago, and they are still the hot issues on people’s minds.

Today, opinion polls in Chile indicate that to receive a convincing (60-70%) “Apruebo” vote in December, a sea change in public support for the proposal will be required. For that to happen, the negotiations taking place now and over the next few days in the Council will determine how much of the broad political center will move towards JA Kast’s Republican Party position in support of the proposal, and how much will instead follow the Communists in opposition.

The situation reminds me of something a very conservative but entertaining writer once wrote about Chileans. He was writing about the fact that Chilean soccer teams had not done well internationally (written before the period of La Roja excellence in 2015-16), and he blamed their mediocrity on the players’ inclination to “chutear al lado“, kick the ball to the side, rather than attack the goal with a direct shot. He continued his critcism to suggest that this same tendency to chutear al lado kept Chileans from getting on and completing important tasks, similar to “kicking the ball down the road”, so often used in US politics.

Now seems to be an opportune time for Chileans to score a direct goal and agree on a constitution that can rid the country of its entrapment by the past. Chile is facing uncommonly high unemployment, high inflation, low levels of new investment, ten years of falling growth of GDP. A constitution facilitated by a process led and supported by the Republican party on the extreme right, and supported and signed by a President from the far-left coalition at this moment in government, might be just what the country needs to begin moving forward again. 

A final thought: Even if Chileans succeed in approving a new constitution, but especially if they don’t, there is still a big elephant in the room; well, not really in the room. Whereas the first attempt to write a new constitution for Chile was heavily infused with members of the indigenous peoples who inhabit Chile, and attempted to address some of their demands for restitution of lands, rights, and participation in all levels of society, the actual process and resulting document has all but ignored them. This could be a costly overreaction to some of the excesses of the first process. Chile has a serious problem in the Macrozona Sur, where the largest group of indigenous people, the Mapuches, live. When the other problems are dealt with, this cancer-like affliction in the heart of Chile will still be untreated. It may be the nation’s most difficult, and still unmet, challenge.

Posted in Leesburg, Virginia, on October 11, 2023.

David Joslyn

David Joslyn, after a 45-year career in international development with USAID, Peace Corps, The Inter-American Institute for Cooperation on Agriculture (IICA), The Chicago Council on Global Affairs, and private sector consulting firms, divides his time between his homes in Virginia and Chile. Since 2010, David has been writing about Chile and Chileans, often based upon his experience with the Peace Corps in Chile and his many travels throughout the country with family and friends.