Crafting A New Constitution; A la Chilena

“We, the people of Chile, comprised of diverse nations, freely grant this constitution, agreed to in a participatory and democratic process with parity of representation.”

This is the short Preamble of the proposal for a new Magna Carta for Chile, crafted by 154 members of the Constitutional Convention (CC) elected a year ago. On July 4, 2022, the proposal was officially delivered to President Gabriel Boric in a closing ceremony markedly more civil and tightened up than the chaotic opening of the Convention a year earlier. The proposed new constitution has 388 Articles and 58 Transition Instructions.

Now this document faces an up or down (Apruebo or Rechazo) plebiscite on September 4, 2022, requiring a simple majority to pass and in which it is mandatory for Chileans to vote.

The CC took literally the charge given to them to produce a “New” constitution. So, they produced an across-the-board rewrite, not just a reworking of the existing constitution. As such, most analysts agree the proposal, if passed, means a significant reformation of the institutions that govern Chile as they have evolved since 1980, when the current constitution was enacted.

Once the proposed new constitution was finalized and distributed to the public, Chileans, individually and through their social, educational and political associations, have thoroughly analyzed the complex document. Think tanks and the national media have sponsored fora, produced documents, and facilitated seemingly endless debates on the individual elements of the proposal. A myriad of groups have formed which are now campaigning either for or against the proposal.

During the more than five decades I have known Chile, this country has been seen as a sort of special case in Latin America, at times setting them apart from the rest of the continent. There was worldwide attention in the 1960s to Christian Democrat Eduardo Frei’s Revolución en libertad (Revolution in Liberty), and in the 1970s to the democratic election of Socialist Salvador Allende and his Unidad Popular (Popular Unity) program, to General Pinochet’s coup d’ etat in 1973, and to the resultant dictatorship. The successful “NO” campaign that finally removed the dictator through a series of elections attracted global attention. Global analysts watched attentively as three decades of democratic governments and their free market oriented “neoliberal” socio-economic policies produced economic growth (albeit with serious inequities) and poverty reduction, wondering if this was a model worth following in other countries in Latin America. The 2019 “estallido social” (social upheaval) again caught worldwide attention , as it led to the agreement to write this new constitution, avoiding for the moment more civil strife and possibly a complete breakdown of democracy in Chile. The election this year of Gabriel Boric was noted across the world , since due to his young age (35), he was most likely leading significant generational change in Chilean politics representative of the notable growth of a new left in Latin America. All these events have been widely analyzed, some supported and some criticized, in global media and academia, but they are the events and movements that have drawn special attention to Chile over the years.

So, it is not surprising that the process Chileans devised to write their new constitution has also attracted much attention in the international press. For example, articles in the Wall Street Journal and The Economist have focused their concerns on the possible negative effects of the proposed changes on economic growth and investment. Other European and US opinion pieces have been more supportive as they tend to focus on the progressive elements of the approach Chile took to develop this proposal, with a CC that featured young and independent participants, gender equity and a significant number of reserved seats for indigenous people’s representatives.

From the start there were arguments for beginning the constitutional rewrite on a “blank page”. First, the origin of the existing constitution in dictatorship. Second, the belief that the existing constitution’s rules governing the legislative process (such as high quorums for approval) made change difficult and progressive legislation near impossible. And third, that it imposed on the economy a “neoliberal” economic model that features a weak subsidiary public sector and lacks firm protections and guaranties for fundamental social rights, leading to unacceptable levels of inequality and continued underdevelopment.

There were arguments against starting with a “blank Page”. The existing constitution was in fact amended in some significant ways during the democratic governments of the past 30 years, it contains political and judicial elements, while admittedly conservative, which are responsible for much of Chile’s undeniable economic and social progress, especially the growth of the middle class, a burgeoning startup culture, expanding medium and small businesses, and a reduction in extreme poverty. So, an argument can be made that the existing constitution should not be totally discarded but rather kept and strengthened; amended, but not totally rewritten.

But the CC chose a total rewrite, delivering a broad range of changes when compared to the existing constitution. Therein lies the dilemma now facing Chileans in deciding how to vote in the upcoming plebiscite, and how to move forward.

Chileans are as divided around this proposal as they have been around most issues over the past few years. A notable exception is the “kumbaya” moment in 2019 when 75% of voters agreed to begin a process to produce a new constitution. The hope of this momentarily unified Chile was that a new constitution would be crafted that would be acceptable to a large majority of Chileans, maybe as many as had expressed a desire for a new one. If they could get the support of around 75% of Chileans behind a new constitution, perhaps they could begin to ease the polarization in Chilean society that stems in large part from the breakdown in Chilean democracy four decades ago.

But now, that does not seem to be the case. Just a couple of weeks away from the plebiscite which will determine the fate of this new constitution proposal, public opinion polls show that the work of the convention did not result in a constitution that would have broad acceptance and bring Chileans together under the roof of la casa de todos (a metaphorical big house). Opinion polls suggest the “Rechazo” could prevail, unless something earthshaking (please, no earthquakes!) happens between now and September 4.

Supporters of the proposal have been relying on several factors which could still swing support towards an “Apruebo” win. First, this vote is mandatory for all Chileans so there is a significant block of new voters, many of them young, who may not have been considered in the polls, who could swing this vote their way.

Second, the Boric administration is clearly behind the “Apruebo” position and, while there are restrictions on how involved they can be in promoting their position, they are in a very good place to indirectly influence voters towards accepting this new constitution, especially the younger population that tends to support him. However, Boric’s approval rating has gone down since he began just months ago, so linking him to the approval of the new constitution may not be much help. And, as it becomes more likely that the proposal could be turned down, Boric would be unwise to link himself too closely to the outcome. After all, he will be presiding over the country, as well as the new constitution process going forward, whichever option is chosen in the plebiscite.

So what are the main issues that have made the process so contentious and worked against broad approval of the proposal for a new constitution?

First, the proposal declares Chile a Social Democratic State of laws (Estado social y democrático de derecho). This is generally seen as a significant change in Chile’s economic “model” of heavy reliance on the free market and the private sector to provide most goods and services. Much of the new constitution proposes an increased role of the State and its institutions in areas such as education, health, pensions, housing, and natural resource extraction (mining, fisheries, water).

The social upheaval of 2019 which led directly to the call for a new constitution was motivated in great part by citizen demands for significant expansion of personal rights and social services. The new constitution lists 103 social rights, more than double the rights listed in the existing constitution. If simply acknowledging these rights in the constitution could satisfy the populace clamoring for, and frankly deserving, these rights, this proposal would be a success. In fact, a group of notable international constitutionalists have recently written a letter in support of this proposal, stating that even though some of the rights included in this proposal for now are only aspirational, their inclusion and acceptance would put Chile’s constitution in the forefront of modern constitutions written to face the challenges of the future.

But it is pretty well known that for these rights to be guaranteed by the State, which the writers and supporters of this constitution imply, public resources (mostly tax revenues) will surely have to be increased, new policies need approval, and institutions need to be strengthened and new ones created.

Chile has had a good run of fiscally responsible administrations, that have worked very hard not to spend money they do not have, make promises they can not keep, and sign deals they can not deliver on. This fact rises to the top of most debates about this proposal. Conservatives are pessimistic about the possibilities for significant near term satisfaction of many of the 103 declared rights. They fear that expectations in the general public have been raised so high by this process, that the country risks widespread discontent again when these expectations can not be met. The progressive supporters of this new constitution seem convinced there is room for more equitable taxation and sharing of wealth in the Chilean economy.

When push comes to shove, most analysts can agree that the highest priority social rights that need immediate increased funding and new implementing legislation are quality pre-school, primary, and secondary education, universal access to quality health care, livable pensions, affordable housing, and greater personal security. Most also recognize the need for more public funding and involvement to deliver these social services, but many are also concerned that a stronger public sector role has to be effective and efficient, must not erode personal and family choice in their means of implementation, and for the most part would benefit from public-private partnerships.

This new constitution tries to provide, in a myriad of complicated, interrelated and overlapping Articles, the means to guarantee and deliver on these rights. It reflects the way the CC operated and why the new constitution lacks wider support. As the CC worked, many (not all) of the members chose this platform to promote single or narrow issues. To ensure they were inserted in the draft, they traded their votes on other issues for votes on their own issue. They paid more attention to each particular part, but not the whole. So at the end of the day, the new constitution is, in fact, the proverbial “Christmas Tree” of rights early opponents of this process warned against. Is that in itself a problem? Probably not, because to address each of the rights and deliver resources on their behalf, the legislative process is required, priorities will have to be set, and available but scarce resources made available. And, as the aforementioned group of international constitutionalists suggested, there is certainly some value for a society to set some social targets they believe worth aspiring to even though they recognize full satisfaction is a ways off.

However, there is a problem with the inclusion of such an array of rights, as it relates to the ratification step in the process. As Chileans review the new constitution to decide how to vote, they are of course finding specific items they like and support. But, due to the proliferation of social rights and means to address them, they are also finding items they really do not like. They are having concerns about things they are extremely jealous about, such as a parent’s right to choose the school for their children, where and how low cost housing will be provided, will the health plan I now have be eliminated, forcing me into something worse, will abortion be totally legal, etc. etc.

It is most interesting to watch how this process, which supporters touted because it was so democratic, inclusive, expansive and able to accommodate many personal concerns and causes, now turns out to instead provide the source of serious concerns in the voting public which could lead to its rejection. In other words, citizens who may have supported the idea of a new constitution, may end up voting against the whole because of strong objection to one or more of its parts.

The new constitution declares Chile a Plurinational, Regional, and Environmental State. With a full swoop, they are attempting to address three difficult and pervasive challenges to Chilean socioeconomic development: the historical absence of recognition and participation of indigenous people in decisions and benefits, the extreme centralization of decision making and resources in the capital city, and the growing impact on natural resources due to population and economic growth, globalized trade, and climate change.

The Plurinational State is a concept that begs better definition in the Chilean context than the new constitution, and its supporters, have provided. As described in the relevant articles of the proposal, there is little doubt that this concept suggests a moving away from the “unified” State Chile since her founding professes. The up front positioning of this concept, worrisome to many Chileans, is the result of heavy involvement of indigenous people in the CC and a growing recognition in some parts of Chilean society that the historical treatment of indigenous people has been neither fair, acceptable, or any longer sustainable. The political process in Chile is increasingly forced to address this long standing issue in the face of increased violence in the general area of central south Chile, home of the largest indigenous group, the Mapuche. What the CC tried, in a bold attempt to help address this issue, was to create a more satisfactory role, standing, and participation of the indigenous Nations within the confines of the State of Chile. Laudable as this may be, it is not broadly accepted. It is, though, forcing Chileans, who are majority mestizo, to come to grips with how to provide the human rights they propound, to all citizens.

Creating the Regional State is another fairly bold proposal by the CC, which would gradually address the extreme centralization in the capital metropolitan region that most agree is holding back the next wave of economic development in Chile. While moving more resources, social services, decision making, and hopefully investment into the “territories”, the CC outlines decentralization of power, essentially by establishing regional administrative, legislative and some limited judicial bodies. Supporters of this type of regionalization refer positively to the experiences of countries like Spain and Italy. Critics point out the potential for the creation of burgeoning, tax consuming regional public sectors, writing new rules and regulations to impose on the freewheeling Chilean entrepreneur, landowner, restauranteur, winemaker. They point out the long term nature of this type of change, and the negative experiences of Pinochet’s regionalization (including moving the Congress to Valparaiso), and the municipalization of public education which failed for lack of resources and is now in the process of reversal.

The CC proposed a truly enlightened argument for an Environmental State, based on a future looking vision of how Chile will respond to climate change, reverse habits of over exploitation of natural resources, manage fragile but valuable natural areas including an explicit focus on the ocean, for tourism, preservation of biological diversity, and conservation and fair distribution of water. If you have seen the recent CNN series “Patagonia”, and the Barack Obama narrated Netflix series “Our National Parks”, you will appreciate the great opportunities and challenges Chile’s natural environment offers, and why dealing with this aggressively in the new constitution makes sense.

It is probably true that the CC overreached and overwrote their proposals for how the Plurinational, Regional, and Environmental State would be accomplished. By so doing, innumerable special interests were touched and uncertainties created as business owners, landowners, and just normal working folks tried to figure out all the implications (personal benefit/cost analyses) of this bold refocusing for Chile.

I have talked with several Chileans who suggest that the members of the CC devised parts of the proposal “in anger”; anger at the past and those who presided over it. When they changed the name and restructured the Poder Judicial (Judicial Power) to become a Sistema de Justicia (Judicial System), and proposed an oversight committee to judge the judges, they were expressing their anger at old judges, many from elite Santiago families, who they felt were not in tune with contemporary Chile. When they practically eliminated the Senate, always a more conservative and slower moving legislative body than the much more populist and representative Chamber of Deputies, they tried to justify it by linking it to the regionalization process, assigning it seemingly lesser duties related to regional issues, reducing its role in balancing the power of the lower, more populist Chamber. It was, in fact, a way to disencumber the Chamber from one of the historically most important checks and balances in the Chilean legislative process. However you feel about these issues, they have created additional opposition to the new constitution.

So debate and political maneuvering have become more intense in these last couple of weeks before the plebiscite. Both sides, Apruebo and Rechazo, have recognized that the vote will be close, that the proposal may even be turned down. Hence, they are now attempting to encourage the vote their way by recognizing that the proposal is flawed and needs changes.

The supporters of the proposal, including the left Frente Amplio and parties of the left and center left participating in the Boric government, now no longer support the proposal unconditionally. With the exception of the Communist Party, these supporters have joined together and presented a list of changes to the new constitution they would be willing to make, if the proposal is approved.

Those who are supporting the Rechazo vote, the center right coalition, parts of the center left parties, and part of the Christian Democrats (characteristically sitting near the center, divided within themselves), have also produced a list of changes they will agree to even if the proposal turned down.

So, almost everyone recognizes that the proposed new constitution needs changes. But the question now is, do you approve and then modify while you implement the new constitution? Or do you turn it down, and in some way redo or restart the process to produce an acceptable proposal to be voted on in a future plebiscite?

Ex President Eduardo Frei Ruiz Tagle (1994-2000 ) has publicly stated his opposition to the proposed new constitution. Ex President Michelle Bachelet (2006-2010, 2014-2018), before heading back to her UN position in Geneva, Switzerland, announced her support. “It’s not what I dreamed, but close”, she said. Ex President Ricardo Lagos (2000-2006) split the middle, as he often does, and suggested that both the existing constitution and the proposed new one are seriously lacking and the new proposal would need to be amended before getting his approval. Immediate past president Sebastian Piñera has stayed completely out of the public view, has not declared how he will vote, but the assumption is he would find it very difficult to mark the Apruebo box on the ballot.

An interesting reflection of this situation is presented by the positions of two Ministers of the Treasury who served Michelle Bachelet when she was president. Both are respected economists, with excellent curriculums, international experience, and laudable track records.

Nicolas Eyzaguirre makes a strong argument for approving this proposal for a new constitution. At the same time he recognizes changes are needed, but believes it is better to keep the process going forward by approving this proposal. He clearly trusts the President, the legislature, and the major political parties to agree to the necessary changes.

Andres Velasco, on the other hand, predicts chaos in the legislative process required to implement this proposal, and in the economy due to the uncertainties created, if the proposal is approved. He too, believes the changes necessary to get wide approval of the new constitution are possible, but only if the proposal is turned down and a special effort made to redo the problematic parts of the proposal.

So here you have it. Who will Chileans, who for the most part will not have read and studied the entire proposal for the new constitution, agree with? Eyzaguirre or Velasco? Will they vote to let the process move forward, turning over to President Boric and the Congress the implementation of the new constitution including making the changes publicly agreed upon before the plebiscite? Or will they vote to turn down the proposal and force President Boric to engage with the Congress to devise a way to amend the proposal and then hold another plebiscite in the future, to obtain approval.

We will have to wait until the night of September 4 to find out.

What is clear, though, is that if this proposal for a new constitution is approved, President Boric and his team will face a monumental challenge to begin implementing the 58 transition instructions included in the proposal. I am sure this is exactly what he has been plotting in his mind since he moved from Punta Arenas to Santiago years ago. Surely he welcomes the challenge.

If the proposal is turned down, he will have to work with the Congress (in which he does not have majority support) to determine what mechanism to use to develop and ultimately enact a new constitution for the country. Options abound: elect a new constitutional convention, give the assignment to the legislature, appoint a group of constitutional experts to fix the new constitution, amend the existing constitution, or even go back and work with the proposal outgoing President Bachelet left in incoming President Piñera’s inbox in 2018.

Today, I think that the proposal will be turned down. Permanent Residents in Chile can vote in this plebiscite. As yet I have not decided how I will vote; the dilemma reminds me of something I heard recently as justification for an apparent augmentative disconnect: “I don’t always have to agree with what I think”. We shall see.

Viva Chile, y haciendo historia “A La Chilena”!

Posted on August 23, 2022, In Leesburg, Virginia. (And off to Chile).