Chile’s New Constitution; Last Chance?

Early this year, January 2023, as Chileans began their summer vacations and closed down most political activities, the main issue at hand was the writing of a new constitution for the country. For the past two years, Chile had been captured by this issue; a quick review of the recent history of this process to produce a new constitution for Chile might be helpful.

In a plebiscite on October 25, 2020, following a year of political uncertainty and civil protest including a degree of criminality and destruction (commonly referred to as the “estallido“), 80% of Chileans voted to write a new constitution, a proposal encouraged by the left and other self-identified progressives over the past several decades. In May 2021, voters elected a constitutional convention in which 80% of its members were publicly committed to radical change. Analysts at the time suggested that this represented part of a “red wave” sweeping through Latin American politics. In December 2021 this apparent wave swept the young leftist Gabriel Boric into the presidency by a comfortable margin over the extreme right candidate Jose Antonio Kast.

However, this wave either was never a wave, or more pink than red, but it crested with a crash. President Boric’s popularity did not start especially high, but it went down during his first months in power and so did public opinion regarding the actions and proposals of the on-going constitutional convention, and on September 4, 2022, in a plebiscite, 62% of Chileans turned down the proposed new constitution, which the President and his coalition had strongly supported. Was this an inevitable counter movement or was it overreach by Boric and the “reformers”? Political scientists will decide what to call it, but it did seem to deflate the reformist wave that had been aggressively pushing for a new, transformational constitution for Chile.

As we wrote here at that time, we joined many others in the belief that, having failed to produce an acceptable proposal for the new constitution, any further attempt to produce a new constitution would depend heavily on the ability of leaders of the highly fragmented and unpopular collection of political parties to join together to design a different, but workable, constitution-writing process. If they were unable to reach a broad agreement, the whole endeavor to replace the 1980 Constitution with a new one might not be realized, at least not now.

However, it seemed, mostly to the optimists, that if they were successful and produced a new constitution with strong public appeal, the process might be the catalyst for the much needed consolidation of a stronger set of fewer, more powerful political parties going forward. It was a tall order, to be sure, but by strengthening the party system in Chile, while delivering a new constitution, the rebuilding of public trust in political parties and the democratic process might actually take place.

So again we watched as the Chilean political process moved forward, undeterred, like the “Energizer Bunny”, on a seemingly more solid track. The Congress approved the constitutional amendments and legal rulings required to go forward. They created an Experts Commission (EC) to produce a draft constitution based on Twelve Principles* (see at end) previously agreed upon by the separate forces in Congress, a Technical Admissibility Committee (TAC), and the mechanism to establish through popular election a Constitutional Council (CC) . The Council was designed to review a draft constitution produced by the EC and turn it into the final document, to be considered in a national plebiscite. Again, the hope is that it would be approved by a large majority of Chileans, and by so doing, they would be producing the constitutional footing for a much needed new national narrative of economic growth with social equity.

The new guiding legislation for this process set in place the following calendar for action throughout 2023: February 6, inscription of candidates for the 50-member Constitutional Council; March 6, installation of the 24-member Experts Commission with a mandate to present the draft constitution in three months, and installation of the 14-member Technical Admissibility Committee; March 14, start of the campaign of CC candidates; May 7, election of 50 CC members; June 7, CC convenes with a mandate to produce the proposal in five months; November 19, final proposal published; December 17, plebiscite to approve or reject the proposal for a new constitution.

The enormity of the rejection (62%) of the prior proposed constitution, just a few months earlier in the September 4, 2022, plebiscite, had a sobering, moderating effect on newly elected President Boric and members of his government. They had to recognize that the rejected constitutional proposal was far too “progressive”, so Boric’s pragmatic side led him to support the new process, even though he probably knew it was crafted in a way that would not lead to the greatly “transformed” Chile he surely still believes is necessary.

To move ahead with this more modest approach, President Boric had to coerce the disparate forces within his left wing coalition to work within the bounds of the new agreement. At the same time, this was the moment for the parties in the center left and center right, many of which had worked to defeat the earlier proposal on September 4, to reaffirm their stated commitment to a new constitution and participate in the healthy debate and negotiations that lay ahead. And the far right, claiming ownership of the defeat of the proposed constitution, eventually joined the process, although only half-heartedly since many of them were fine with simply curtailing the process at that point and staying with the existing constitution.

Both chambers of the Chilean Congress approved a politically and gender balanced, highly credentialed group of constitutional specialists to make up the Experts Commission, which began its organizational and deliberational tasks as scheduled in March. This Commission is a very serious group of professionals, held in high esteem by most observers of the process throughout Chilean society. Their first weeks of deliberation produced a very complete presentation of the key elements, the backbone considered essential for a national constitution. Guided by the twelve principles already agreed upon, this boded well for the initial steps of the process. As this group worked, there was a general feeling that the process would move forward as designed and the draft of the proposal for a new constitution would most likely be delivered as charged by June 7. We could perceive a general sigh of relief on the issue throughout Chile.

The Congress created the Technical Admissibility Committee as well, also a group of distinguished constitutional gurus, who would engage in the process further down the line, after the CC begins its work .

The next step was to choose the members of the Constitutional Council. Lists of candidates for the Council were registered by each party or coalition of parties, and campaigning began following traditionally modest Chilean norms. Each list of candidates had a very limited amount of money to prepare campaign materials, so visually the candidates were introduced in the streets via simple banners and posters with generous pictures but very little content. Candidates participated in national television programs to present their arguments for selection. The campaigning went on for quite awhile at a very low level of intensity; we followed much of it to try to get an idea of what these candidates thought would get them elected to the Council. Judging from the tenor and intensity of the campaigns leading up to the actual voting for the candidates on May 7, it seemed that, across the board, Chileans had become uncharacteristically indifferent to the whole process, maybe even bored by it, many in fact voicing irritation with the time and resources being spent on the process, questioning why they were even bothering to go through all this at all.

Television talk shows sponsored discussions and debates of opposing candidates, but as we watched these interchanges, and as we talked with the folks we usually consult on all things Chilean, it was clear that a growing concern, greater than the new constitution per se, was taking over the discussion: the growing level of violence and crime, blatant presence of drug cartels, and uncontrolled immigration. Personal security was becoming the prime focus of public opinion and the media, hence it dominated the public presentations of the candidates for the CC.

As security became a big issue, the discussion over a new constitution inevitably focused on how President Boric and his cohort had treated the issue of crime and security in the past, and how his administration was dealing with the issue presently. The CC candidates who support the government tend to put the blame on past administrations for doing little to control crime. In defense of Boric, they argue that after becoming President he adopted a more strident anti-crime message, has made more resources available for the police, and is preparing a battery of legislation to strengthen anti-crime institutions and programs.

Still, fairly or not, the CC candidates from the opposition parties were highly critical of the President’s and his supporters’ stance on public safety and security, reminding everyone of his antagonistic positions to the institutions charged with public safety, especially the police, when he was a student leader and then blocking anti-crime legislation as a Deputy in Congress. He continues to be criticized by the opposition for the late December 2022 pardons he signed for a dozen members of the civil uprising of 2019 who were convicted of crimes related to that event.

In parallel to the politics around the election of members of the CC, The Boric government, once they returned from their summer vacations, got busy preparing legislation for their priority tax and pension reforms, to be put before the Congress, and began struggling to deal with emergencies created by an intense wildfire season in the central agricultural and forested part of the country, violence and timber theft in the Araucania and BioBio regions, chaotic immigration situations on the border with Peru and in northern Chilean cities of Arica, Iquique and Antofagasta, the overload of issues related to the reentry of students to school and university (normal for the first time in three years), and the start of the legislative year in Congress.

This second year of President Boric’s term (2022-26) has not started smoothly. Projections of negative economic growth and increased inflation for 2023 are dogging him and his administration. Due to incompetence, ideological over exuberance and some avoidable missteps, Boric has been forced to change several of his key Ministers, including some of his best political and personal friends. As a result he is relying more on members of the center left parties which, although they support him, were not in the original coalition that elected him. Boric and everyone else knew at the outset that to succeed he would have to broaden his governing coalition; he is now doing just that, but he has suffered legislative setbacks to his initial proposals for tax and pension reform, and his public opinion rating continues low.

The Boric administration has had some victories to trumpet. His broadly popular proposal to reduce the official work week over the next few years from 45 to 40 hours, after five years of discussion, finally passed the Congress, while his equally popular proposal to increase the minimum monthly wage to 500,000 Chilean Pesos (US$ 625) was approved in the first step in the legislative process. And, as mentioned before, he is still promising a series of anti-crime measures to congress that may begin to improve his standing on the security issues. If approved, these measures could eventually improve the security situation in the country, but most likely not before the next election cycle in late 2025.

The Congress also recently passed a bill that applies a royalty regime on minerals mined in Chile, which will continue to provide significant financial resources to the country’s budget, especially from copper and lithium mining in the northern part of the country. Boric has promised that much of the proceeds from royalties and taxes on the mining sector in the future is to be directed to the budgets of the regions and communities where much of the mining takes place, also the poorer parts of the country. This is part of the President’s program to decentralize resource allocation and decision-making, which, if even partially successful, could energize more local development outside of the Metropolitan Region of Santiago and lead to more equitable distribution of the returns from mining.

Boric recently revealed, with much fanfare, a national plan for the “Production of Lithium and Protection of Salt Flats” in the Atacama desert. Over four decades ago, Lithium, which Chile has a lot of, was declared a “national strategic material” by the Pinochet government, and therefore its exploitation is very much controlled by the State. Lithium and it’s potential for Chile is an entire story by itself, so we will not go further into the subject here except to point out that the ideological differences between the left and the right in Chile will clash on the issue of lithium production in the discussions of public versus private sector involvement, limits on resource extraction in indigenous territories, and effects of mining on water supply and local communities, important issues that the new constitution will address one way or another.

So now, in this “good news/bad news” environment, Chileans were once again obliged to go to the polls on May 7, 2023, to vote for the Constitutional Council members. And lo and behold, the voters put candidates supported by the far-right Partido Republicano (party of JA Kast) in 23 of the 50 seats on the Council. On top of this extraordinary result, they voted in 11 members of the center right coalition, leaving only 16 seats for center- and far-left parties most of whom are supporters of the Boric government and tend to be quite reform minded when it comes to the constitution. One additional seat was chosen for a Mapuche representative, raising the total for the Convention to 51 members. With this, the conservative right opposition clearly holds enough seats, if voting together, to control the outcome of the Council (2/3 of the members is required for inclusion of any and all elements in the draft constitution).

Close followers of the Expert Commission deliberations are reporting that the Commission has faithfully stayed within the bounds of the twelve principles* agreed upon at the outset of this process. The proposal so far appears to be a balanced set of intensely negotiated preamble, articles, and transition guidelines, though it may not satisfy the most extreme positions on the left nor the right. It will not impose a unique economic model for the country, as did both the 1980 Pinochet constitution and the one voted down in 2022.

Instead, this draft constitution, when finished, will establish Chile as a social and democratic State, based in law, that respects fundamental rights and freedoms and promotes the progressive development of social rights throughout society, progressively aiming to ensure public services such as health, education, housing, social security (pensions), and personal security (including that of private property). At this point, it is explicit in setting in place constitutional recognition of mixed public and private delivery systems for these services. The 1980 constitution favored heavily subsidiarity of the public institutions of the State to private sector delivery mechanisms while, on the other hand, the proposal turned down in 2022 favored public system delivery of social goods and services.

The Experts’ proposal has attempted to propose a more moderate, traditional framework for government than the prior rejected proposal, essentially leaving in place Chile’s presidential system of government with a two chamber legislature providing checks and balances while sharing more of the responsibility for initiating legislation than has been the case under the existing constitution. It will continue reliance on an independent Central Bank and judiciary. It avoids the more extreme expressions proposed in the defeated proposal for indigenous peoples’ autonomy, while recognizing their rights to usurped ancestral lands, practices of their unique cultures, participation in the national decision-making process, and support for the teaching and learning of their languages. Better recognition of Chile’s indigenous nations may well be helped through the language of the new constitution, but the socio, economic, and political problems inherent in indigenous communities will require much more attention, direct action and investment than the simple words of a new constitution can provide.

But at this point, detailed decisions on how to construct the social security system, such as how it will be administered by the public sector, the overall role of the State, and the degree of solidarity to be built into the system, will be left somewhat undefined. That means that if in the next step, were the Council to leave the draft as is, the new constitution would be rather minimalist in some areas, inevitably leaving this greater level of detail to be taken up in the future via the legislative process. A strong argument can be made that the legislative process is where these details of the administration of social goods and services probably should be defined.

The Commission has reportedly also not reached consensus on certain inevitably thorny issues, like abortion, parental and personal choice of schooling and health care, mechanisms to force or incentivize the consolidation of political parties for participation in Congress, strengthening of the presently weak labor unions, and State ownership of natural resources. These issues energize the ideological extremes, so they will surely create the most noise as the Council takes up its work. Any one of these issues could, in the atmosphere of the Constitutional Council, become divisive and contentious, and possibly lead to movements inside and outside of the Council to reject the new constitution in the plebiscite. These are the key societal issues that, by themselves, even singularly, could motivate Chileans to reject the totality of the proposed new constitution.

An interesting factor in the design of this constitution writing process is that the members of the Experts Commission, once they have turned the draft over to the Council, will join the deliberations of the Council (with voice, not vote). They will be there to coax the process along, explaining, maybe even defending, their reasons for their decisions. So much of the final draft coming from the Experts Commission is the product of negotiation, tradeoffs between one element and another, that modifications and additions to the text by the Council could very well upset agreements obtained up to this point. So, input from the Experts should be helpful to avoid detouring towards the extremes, which would inhibit reaching the sought-after broad consensus. And, to facilitate the work of the Council, the Technical Advisory Committee is also available to referee questions of conformance with the agreements the parties have joined, especially adherence to the twelve principles set at the beginning.

The Experts Commission now has a week to finalize its work and deliver the draft constitution to the Council. Given the political breadth of the Commission, and statements made recently by the members themselves including the president of the Commission, Veronica Undurraga (Constitutional lawyer and academic), the document they will deliver, while balanced, will leave many issues to be decided by the Council. And of course, the Council does not really have to accept what the Experts wrote, but the fact that at this point it is a consensus document should carry much weight, especially if the Council keeps front and center in their thinking the all-or-nothing plebiscite their proposal has to pass through in a few short months.

So now, you might ask, is this process finally going to produce this much announced new constitution for Chile with broad support in the plebiscite scheduled for December 17, 2023? It seems to boil down to how the forces that will be in charge of the Council (the center- and far-right, under the leadership of the Chilean Republicano party) deal with their newly found political “majority”. Assuming that the essential leader of this group, JA Kast, desires to become President of Chile in the next election (a broadly shared assumption), he and his supporters must decide if staying entrenched in their extreme ideological foxhole is the best way to get there. If they decide it is, they will use their majority power over the rest to turn the constitutional proposal into a conservative framework more like that which Pinochet devised in 1980, or even further to the right. They have the numbers in the Council to do it, but this would surely lead to either another civil uprising like that of 2019, a solid rejection in the plebiscite or both. This may look attractive to those conservatives who are comfortable with, in fact desire, retaining the existing constitution.

But it is possible that Kast and his followers, in the Council and more broadly, could generally go along with the balanced draft of the Experts, while making changes in those areas they are most driven by. But, if they go too far in that direction, they may win the battle but lose the war. Their dilemma is that while some of the more reasonable members of the right coalition recognize the need for a new constitution, so are willing to play along for the moment, many of them, deep down, really don’t want a new constitution. It will probably work out that the leadership on the right will recognize that to position themselves for a future run at the presidency of the country, they are best served by getting through this constitutional process as smoothly and quickly as possible, trying not to lose too many of their intransigent base supporters in the process.

It is hard to tell at this time just how much public support there might be for the draft prepared by the Experts Commission. If Boric and his supporters, as they internalize the entire proposal, feel it is too modest for the level of change they desire for Chile, and if the rightist members of the council begin to make changes to the draft making the proposal increasingly more conservative, then this process could very well fail. It could fail in the streets, or it could fail in the plebiscite, and then in the streets.

Between now and December, the quest for a new constitution for Chile will be played out. We certainly hope that when we next travel to Chile, in early 2024, Chile has a new constitution, signed by the Chilean authorities of the Twenty First century who will have made this possible, that the country is mending the wounds of years of internal strife, that the economy is beginning to grow again, that immigration is more under control, that programs are in place to grow the cultures and economies of indigenous communities, that there are renewed commitments to safe water supplies, high quality education for all young Chileans, basic health care accessible for all, decent housing and livable pensions,…….you know, we want it all. Maybe a new constitution will help make it happen.

We’ll be watching.

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The Twelve Principles set by prior agreement which provide the boundaries for the new constitution:

• 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.

Posted on May 29, 2023, in Leesburg, Virginia.