Chile Elects its Constitution-Making Body: The Potential and Risks of a Fragmented Convention

♦ ♦ ♦ This article is part of a series where experts analyse issues related to the process and substance of Chile's Constitutional Convention. Read more. ♦ ♦ ♦

Chile has elected the 155 delegates who will write a new constitution for the new Chile after the 2019 social uprising. Voters have by and large rejected establishment parties, electing a majority left and left-leaning Constitutional Convention. But this apparent victory for the left, for women, for independents, and for indigenous peoples belies widespread fragmentation, which may have significant implications for the success of the Convention - writes Javier Couso.

On 15 and 16 May, 2021, Chileans took a major step in the direction of providing the country with a new, democratically enacted Constitution, aimed at replacing the charter imposed in 1980 by the military regime. That weekend, in the unprecedented two-day election (forced by a second ‘wave’ of Covid-19) citizens elected the 155-member Constitutional Convention. The election of constituent members was not the only one that took place (since there were concurrent elections of local and regional authorities), but the country was focused on the former, which also generated the more surprising results.

New faces for the Constitutional Convention

The most important outcome of the election for the Constitutional Convention is the impressive number of independent candidates who were elected (103, or 66% of the total). While an important fraction of these (40) were independent candidates sponsored by political parties, they are still expected to have an important degree of autonomy. It is hard to overemphasise the impact of this outcome since, for over a century, Chile has had a strong political-party system, which has defined the relationship between state and society. When choosing their representatives to write a new constitution, citizens opted largely for independent candidates, but simultaneously voted for members of political parties in the local and regional elections: while sounding paradoxical, this suggests that voters wanted to have new faces deciding the way in which political authority is to be structured in the coming decades. This first feature of the electoral results might have significant effects on the constituent process, some promising, some troubling, as we shall see below.

The second most significant feature of the election is that Chileans voted overwhelmingly for left and left-leaning candidates. Even though just three years ago they voted for a right-wing president, this time they made a significant left turn. The intervening variable is, of course, the October 2019 social uprising, so this outcome should have been expected. But most political analysts were shocked by the unprecedented fall in the support for both the right and the center. Given that the Constitutional Convention has the same number of seats, and was elected with the same proportional representation electoral system of the lower house of Congress, the comparison between the outcome of the 2017 Congressional elections and the 2021 elections to the Convention is easy. The latter reveals nothing short of a political ‘earthquake’ in Chilean politics. Indeed, while right-wing representation fell from 72 to 37 seats, the centrist Christian Democrats experienced an electoral collapse, dropping from 14 to two seats. The electoral disaster of the right and centrist parties contrasted sharply with the impressive surge by the left, which rose from 67 to 99 seats (with the total equalling 138 because there are 17 reserved seats for indigenous peoples in the Convention). Within the left, the most surprising development was the irruption of a coalition of independent candidates (“The List of the People”) which secured 27 seats and is profoundly hostile to the very concept of political parties (including those on the left).

This will be the first time in Chile’s history that a popularly elected body has gender parity.

A third outcome of the election worth mentioning is that female candidates won 77 seats (or 49.5% of the total), up from the 35 seats (or 23% of the total) they won in the 2017 congressional elections: this is an extraordinary gain and a direct effect of the gender parity rule adopted for the constituent process. While this rule ended up helping male candidates, its existence changed the dynamics of Chilean politics and elections, so credit should be given to it for the fact that this will be the first time in Chile’s history that a popularly elected body has gender parity. Lastly, it is important to highlight the unprecedented fact that the Convention will have 17 members representing Chile’s first nations, something that is expected to put their rights and aspirations at the center of the agenda of the Convention.

The aforementioned results happened amidst reduced voter turnout, compared to the October 2020 plebiscite (from 50.9 % to 43.4%). While it is still early to assess the causes of this decrease, analysts speculate that that the concurrent elections of constituent members, governors, mayors and municipal council members brought confusion to some voters, who, in the midst of a spike of Covid-19 cases, opted to skip this election. Furthermore, observers discard that those who did not vote were disproportionally from one segment of Chile’s social or political spectrum. In other words, they think there is no reason to believe that, had more people voted, the outcome would have been significantly different. Due to this, the low voter turnout has not put into question the legitimacy of the Convention (or the proposal it will produce).

As can be appreciated from the above description, the election of the members of the Constitutional Convention reveals a rejection by the bulk of the population of the political elites (and the radical neoliberal model most of them have favored or tolerated) which dominated Chilean politics since the end of the military regime (in 1990). In contrast with the latter, Chile’s radical left (the Frente Amplio and the Communist Party) were the only political parties that experienced a surge in this election.

To sum up this section, it can be said that the event we have been describing represents the electoral expression of the social uprising that took place in October and November 2019, where millions demonstrated their profound dissatisfaction with the social, economic and institutional post-authoritarian order. Furthermore, it marks an unprecedented presence of voices — of women and indigenous peoples — that were marginalized since Chile became an independent state.

Potential implications of the elections for the Constitutional Convention

At this point it is important to ask: what are the implications of the results of this election for the future of the constituent process? As anticipated, some potential results are encouraging, some troubling. Starting with the former, the surprisingly good electoral outcome of independents ensures that the process — and the Convention — will have a high degree of legitimacy in the eyes of the general population. Over the last decade, the public has consistently disapproved of right and center-left parties, due to a series of financial campaign scandals, and the perception that they are too often captured by special interests (in particular, by business associations). Given this background, before this election one of the concerns was that if political parties had won the bulk of the seats of the Convention, the process could have been seen by many Chileans as ‘captured’ by what most consider a bankrupted political-party system.

No single party coalition has a two-thirds majority: this is critical since the rules governing the process require a two-thirds majority to pass each new clause of the draft constitution.

Another key implication of the election outcome is that no single party coalition (or independent movement) will have more than 24% of the seats of the Convention. This is crucial, since the rules governing the process require a two-thirds majority to pass each new clause. The right-wing parties (which largely support the Constitution of 1980) had therefore hoped to get at least a third of the Convention seats, which would have allowed them to block any clause of the new Constitution they did not want. While it is good news that no group would have a veto power over the elaboration of the new charter, this electoral outcome has left the economically and culturally powerful right-wing of the country in a state of shock (Chile’s stock exchange dropped almost 10% the day after the election), because they fear that the combination of forces at the Convention will leave them at the mercy of the left factions which will dominate it. This may, in turn, lead to a constitutional charter that is seen as illegitimate by almost a quarter of the population.

However, there is agreement among analysts that — if successful — the left factions will deliver a more progressive charter than previously thought, particularly regarding the expansion of social rights, the rights of women and indigenous peoples, and the protection of the environment.

The majority, but fragmented, left

Aside from the fears generated in right-wing circles, the fact that left and center-left constituent members are anything but united means that Chile starts the demanding process of agreeing to a new Constitution by a two-thirds majority with a highly fragmented Convention. Indeed, while (theoretically) the left and center-left are close to the quorum needed to approve each new constitutional clause, their large numbers hide their significant ideological differences (the left and center-left includes everything from middle-of-the-road social-democrats, with around 40 members, or 26% of the Convention,  to the aforementioned “List of the People”, with 27 members, or 17.5% of the total, while Communists and Frente Amplio members have a combined 28 members, or 18.7% of the Convention).

The ideological differences exhibited by the various left-wing groups represented at the Convention will translate into crucial aspects of the process.

The ideological differences exhibited by the various left-wing groups represented at the Convention will translate into crucial aspects of the process, such as the approach towards the rules governing it, or the willingness to engage in a productive dialogue with others. For example, the “List of the People” has stated that, since the whole constituent process started as a result of a negotiation among political parties, they are not bound by the rules governing it, including the two-thirds majority required to adopt each clause of the new Constitution (the Communist Party has also stated that they oppose this quorum, on the grounds that they were not part of the political parties that agreed to it). Furthermore, both the “List of the People” and the Communists have demanded that the Convention frees ‘political prisoners’ (referring to all those convicted or prosecuted for arson and pillage in the midst of the social uprising of 2019), but the Convention does not have the power to grant amnesties. Finally, some “List of the People” constituents have stated that they will not even talk to their right-wing peers, nor to members of any political party. This radical stand is in stark contrast with that of the social democratic left, which, although strongly opposed to what they regard as an immoral neoliberal order, want to engage with right-wing constituent members, and are willing to accept the rules regulating the process. While some among this group think that there are cases in which violent demonstrators were too harshly punished, they opposed a blanket amnesty to all those convicted for violent behaviour during the riots that surrounded the 2019 crisis.

While the important degree of fragmentation of Chile’s Constitutional Convention ensures that no party coalition or movement can exercise veto power over the decisions taken by the majority, that very fragmentation — combined with the two-thirds requirement that are part of the rules governing the constituent body — represents the single most important hurdle to agree on a text to be submitted to the Chilean people for ratification. Indeed, while an opportunistic ‘coalition’ between the right and the extreme left to veto the approval of the draft seems unlikely, the coordination costs of getting two-thirds of the members of the Convention to pass each clause of the new charter will be significant.

A final impact of the overwhelming majority achieved by the left and the center-left (if they manage to overcome their differences and act cohesively), is the temptation of substituting the neoliberal Constitution of 1980 with a charter that tries to enshrine another socio-economic model, thus risking introducing a partisan charter and something which could undermine the goal of having a Constitution recognized by most Chileans as an acceptable common framework where political differences are institutionally channelled.

As can be seen from above, much happened in the historical election of constituent members in Chile, but much more remains to be solved before this country’s attempt to introduce a democratically enacted new charter meets success.

Javier Couso is a Chilean lawyer, professor at and director of the Doctoral Program of Universidad Diego Portales’ Law School in Santiago (Chile) and Chair of Global Trends in Constitutionalism at Utrecht University.