The Chilean Constitutional Process: a Closed Chapter

♦ ♦ ♦ This article is part of a series where experts provide insights into Chile's constitution-making process. Read more. ♦ ♦ ♦

Chile’s constitutional journey, marked by two unsuccessful attempts at replacement, reveals a crucial moment when consensus was within reach. The Expert Commission produced a preliminary draft that represented diverse perspectives, achieving a balance between continuity and change. While the preliminary draft was 'nobody’s dream constitution', its key value lay in its potential to facilitate the future functioning of democratic politics. Finding new avenues for dialogue and envisioning the future of the political community becomes all the more important as Chile closes the book on this chapter – writes Verónica Undurraga

Introduction

Since the return to democracy in Chile, the demand for a new constitution to replace the dictatorship's constitution has always been present. The need was not only symbolic. The 1980 Constitution needed to be divested of its authoritarian enclaves for the establishment of a full democratic regime.

Gradually over the years, political reforms eliminated most of the authoritarian elements, and even Pinochet’s name was removed from the Constitution in 2005. However, massive support for constitutional replacement persisted, as demonstrated by the result of the 2020 plebiscite in which 78.2 per cent of citizens voted to initiate a constitutional reform process.

Perhaps people's motivations for supporting a new constitution have inadvertently changed over the years: from the need to overcome the antidemocratic enclaves of Pinochet’s constitution to a more existential search for a new social contract that would account for the dramatic changes in Chilean society over the last six decades. Maybe people saw the constitutional process as a venue for much-needed social dialogue, one that could bring a new self-understanding of the political community and a redefinition of its common values and objectives.

The earlier 2021-2022 process was received with great hope and expectation among citizens, who fully captured the significance of the moment. The diverse composition of the Constitutional Convention could have facilitated a fruitful social dialogue. However, the Convention members failed to reach cross-cutting agreements, resulting in a failed process, with damaging consequences that have yet to be measured. The 2022 proposal was rejected by 61.8 per cent of the votes, interpreted by the right wing as a loss of legitimacy for the leftist ideas that prevailed in the text. But while this was a backlash against the left, the right was not left unharmed, either. For many in the right wing, the 2021-2022 process was perceived as very threatening, reviving the old fears from the era of former president Allende, where social hierarchies and liberal rights were challenged. Instead of building conditions for trust, the process deepened political polarization.

The new rules and procedures written by Congress for the 2023 process can be read as a reaction to that failed process. The electoral rules for the elected constitution-making body were meant to ensure that traditional political parties had control over the process. Beyond this, twelve principles were agreed to define the boundaries of the new constitution’s content, and a Commission of 24 experts, appointed in equal numbers by left- and right-wing parties, was given the mandate of creating a preliminary draft. This draft would then be submitted to the elected Constitutional Council for further refinement, ultimately leading to the final proposal. Interestingly, gender parity rules, which had been introduced in the 2021-2022 process, also prevailed and were applied in the composition of both the Expert Commission and the Council. By the time this process began, however, most people had lost interest in the idea of a new constitution. Many perceived the new process as “already cooked” in advance by the political class.

The Expert Commission

The Expert Commission, of which the author was a member, delivered a preliminary draft constitution in a three-month period. Unexpectedly, they reached unanimous or near-unanimous consensus to approve the provisions of the text.

Since there was no chance of experts from one side crossing over to vote with the opponent, the only option remaining was to “share the pen" . . . 

A majority of three-fifths was needed to approve any article. That meant four out of six votes in every thematic subcommittee and 14 out of 24 votes in the plenary. From the beginning it was clear that the two groups of experts – those appointed by the left and those by the right – would negotiate in blocs. Since there was no chance of experts from one side crossing over to vote with the opponent, the only option remaining was to “share the pen”, as the expert Domingo Lovera put it, and work together to reach consensus on every single provision. The rule that no partial agreement would be considered settled until the last one had been reached, although nerve-wracking, helped to put pressure on the negotiations for the more contentious matters. This all-or-nothing scenario and the stringent schedule created a shared sense of purpose among the members of the Expert Commission.

The draft constitution has often been described by the Expert Commission’s members as 'nobody’s dream constitution, but one under which we can all live.' It represents a moderate proposal that expresses continuity and change, containing provisions that are representative of all political perspectives. The work of the Commission was praised by leaders, not only for its content, but also for the consensus-building exercise. President Boric expressed his hope that this way of working 'would not only prove to be virtuous but also contagious.' The common citizen, however, remained largely uninformed of the activities taking place in the building of the old Congress, where the constitutional process was unfolding.

The best example of “continuity and change” in the Expert Commission’s draft was the decision to keep a set of provisions contained in the 1980 Constitution known as the “economic constitution rules” that would give certainty to economic actors, striking a balance between those guarantees and a stronger recognition of social and economic rights. The preliminary draft also included an entirely new chapter on environmental protection. An example of a clause respecting different political sensitivities was the provision that outlined the principles under which the legislature must develop legislation on social rights. It combined the principle of fiscal responsibility and the inclusion of private providers of social services in addition to public ones. This was coupled with the principle of non-regression of rights and the state's obligation to remove obstacles to ensure effective access to social rights. The experts also opted for what they called "an enabling constitution". Unlike the 1980 Constitution, which explicitly aimed to hinder left-wing political programs, this constitution would serve as a common framework allowing governments of different political leanings to govern.

The Constitutional Council

Everything changed when the Constitutional Council took office. The Partido Republicano (Republican Party) swept the elections, meaning they had 22 of the 50 representatives to the Council. Together with the 11 elected from other right-wing parties, they reached the three-fifths majority necessary to approve any change to the preliminary draft of the Commission of Experts.

Because the right-wing parties had formed an electoral alliance with the Republican Party for the upcoming elections, they ultimately ended up supporting the Republican Party’s strategy . . .

The Republican Party exercised a notorious dominance over an internally divided traditional right wing. Because the right-wing parties had formed an electoral alliance with the Republican Party for the upcoming elections, they ultimately ended up supporting the Republican Party’s strategy, which consisted of transforming the constituent process into a political platform to position themselves for the upcoming elections.

This strategy had two main components: it consisted, on the one hand, in trying to capture the support of apathetic citizens by incorporating populist provisions in the constitution such as tax cuts, border police, defense of crime victims, and expulsion of undocumented immigrants. On the other hand, it sought to attract its historical voters by enshrining right-wing agenda items in matters related to health, pensions, and education, as well as conservative proposals like protecting prenatal life.

Only 22.6 per cent of the articles in the Expert Commission’s draft were kept intact, and the Council's final constitutional proposal was approved only by right-wing votes.

After a very aggressive and polarizing campaign, the proposal was ultimately rejected by 55.7 per cent of the votes in the plebiscite held on 17 December 2023.

And what now?

We are back to square one.

The right wing has already pushed the narrative that the 1980 Constitution has gained new legitimacy. The left points to the maturity of the Chilean people, who rebuked a polarizing and aggressive Trump-style campaign, and have not succumbed to the promises of the far-right. One thing is evident: women of all ages and young people were instrumental in shaping the "no" vote. The proposed provision that protected prenatal life and created the risk for current abortion laws was important in defining their vote. Further, the proposal reinforced the neo-liberal economic model of the 1980 Constitution, which has been moderated in recent decades. Returning to these past formulas may not have resonated with Chilean society, which values freedom, but also wants equality, social protection and environmental responsibility. The most disconcerting hypothesis is that any text would have been rejected by the citizens, given the prevailing distrust in the political processes and their actors. If this were true, even a moderate text such as the preliminary draft of the Expert Commission would have been rejected.

I do not believe this would have happened. It is more likely that a campaign in which both right and left parties defended a consensus-driven text would have achieved lukewarm support from the citizens, who at this point wanted the process to end, and the text would have been approved by a discreet majority. This would have opened the door to improving the political climate in Congress, which is necessary to advance the pressing social policies that citizens are clamoring for and which are currently paralyzed.

If this had happened, we would have had a reasonable agreement with the primary merit of enabling democratic politics to function. And that, in itself, is enough to ask for in a constitution.

The challenge now is to find other ways of rebuilding trust among political forces, but especially with the citizens. It is also imperative to create new space for people to express their view on how they envision the future of their political community.

For the moment, the Chilean constitutional process is a closed chapter.

Verónica Undurraga was the president of the Expert Commission in Chile’s 2023 constitution-making process.

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Suggested citation: Verónica Undurraga, ‘The Chilean Constitutional Process: a Closed Chapter’, ConstitutionNet, International IDEA, 22 December 2023, https://constitutionnet.org/news/voices/chilean-constitutional-process-closed-chapter

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