Overcoming the Pinochet Factor in the Chilean Constitution-Making Process
Chile has embarked on its third major push for constitutional replacement since 2013. The paradox of constitutional reform in Chile lies in the broad consensus on the need for a new constitution, without a clear agreement on what needs to be changed. Nevertheless, the involvement of a committee of constitutional experts in the current iteration offers hope that the resulting draft will address the real constitutional challenges of Chilean democracy, overcoming the preoccupation with the Pinochet era – writes Professor Rodrigo P. Correa G.
For more than a decade, Chile has been committed to replacing its Constitution. As it now stands, it is an often-amended document which in its original form dates back to 1980, in the dark years of Pinochet’s dictatorship. Not many provisions of that original document survive today. And yet, the idea that Pinochet’s spirit still lingers in the current Constitution, no matter how much truth is in it, has been an important driver in the Chilean constitutional reform process.
This process has had three incarnations. In the first one in 2015, then-President Bachelet launched small local meetings where citizens were invited to share their expectations for a new constitution. The government wrote a draft constitution purportedly considering the expectations of the people and President Bachelet submitted this draft to Congress, in the last days of her government. Incoming President Piñera showed no interest in debating the draft in Congress, and the constitutional process seemed to be over.
Starting in October 2019, however, serious riots threatened both the state capacity to maintain public order and the President’s ability to complete his constitutional term in office. In his efforts to control the situation, President Piñera invited all political forces to agree on institutional reforms aimed at the relegitimization of the political system. The invitation resulted in the Agreement for Social Peace and a New Constitution, which created a roadmap for the replacement of the Constitution. It began with a referendum. Close to 80% of those who voted favored drafting a whole new constitution written by an entirely elected Constitutional Convention. The Constitutional Convention’s proposed constitution was put to popular vote for approval in 2022, but the people rejected it by a large margin. Though the rejection had the formal effect of ending the constitutional process, there was a general expectation in its immediate renewal, since most of the political forces that led the rejection had publicly committed themselves to work for a new constitution, though different than the one proposed to the people.
So it came as no surprise that an agreement to launch a new effort to replace the Constitution was reached. As analyzed on ConstitutionNet, the third constitution-making procedure was inaugurated through a bill passed in Congress in January 2023. At this moment, February 2023, the first steps of this process have begun: Congress has appointed a group of 24 constitutional experts to propose constitutional provisions to a Constitutional Council that will be popularly elected in May. If all goes well, the new proposal will be put to popular vote on 17 December 2023.
These three processes are very different from each other, which is not accidental. In particular, the current process guarantees tight control by political parties. Elite control was totally renounced in the previous Constitutional Convention, which is thought to have been one of the main causes of its failure. It is tempting to consider the differences between these processes and speculate on the impacts to their outcomes. And yet, though very important, there are some constants in the Chilean constitutional process that may be of even larger significance.
The paradox of constitutional reform in Chile
The process of constitutional reform in Chile is paradoxical in that currently the relatively broad consensus on the need to replace the Constitution is not matched by a similar consensus on what is wrong with it, other than its dark origin in Pinochet’s dictatorship. This is in sharp contrast with the prevailing views in the first 15 years following Chile’s dictatorship. Then, the dissatisfaction with the inherited Constitution was indistinguishable from a desire to modify specific provisions. In significant constitutional reforms in 2005, most of those provisions were indeed amended. Four problematic issues remained.
After significant constitutional reforms in 2005, four ‘authoritarian enclaves’ remained . . .
The first remaining ‘authoritarian enclave’ was the rule that certain legislative subject matters needed approval by four-sevenths of members in both houses of Congress. These ‘organic constitutional laws’ were similar to Hungarian ‘cardinal laws’, in that they excluded too much from ordinary democratic politics (see Venice Commission opinion on the New Constitution of Hungary). They had two important effects: first, a coalition could win the presidency and a majority in both houses of Congress and still need opposition agreement to pass statutes in the reserved subject matters. Secondly, absent such an agreement, the statutory status quo prevailed. This statutory status quo had been carefully engineered by Pinochet’s government. In this way, the constitutional requirement of legislation passed by supermajority contributed to the preservation of Pinochet’s legislation in sensitive areas, such as education.
The second remaining ‘authoritarian enclave’ was the Constitutional Court, whose powers, paradoxically, were broadened in 2005. It declared a number of progressive bills unconstitutional and in general favored a libertarian interpretation of the Constitution, thus contributing to the idea that the Constitution itself was an obstacle to welfarist legislation.
The third remaining ‘authoritarian enclave’ was the high quorum needed to amend the Constitution – either three-fifths or two-thirds depending on the subject matter – which made it impossible to address the two previous enclaves without at least some support from rightwing parties, which they were not willing to provide.
Finally, there was the electoral system for both houses of Congress. Technically, it was a form of proportional representation, with proportionality reduced to a minimum by circumscribing the number of senators or deputies elected by each electoral district to two. All of these factors combined meant that carrying out significant legal reform in many areas could only be achieved by a relatively broad consensus, which became very difficult to achieve the more it disturbed entrenched interests that favored the status quo.
All these enclaves have now disappeared. First, the electoral law was amended in 2015, significantly increasing proportionality in the election of senators and deputies. Second, last year the quorum to amend the Constitution was reduced to fourth-sevenths in both houses of Congress. Third, a few weeks ago the four-sevenths voting threshold for constitutional organic laws was reduced to an absolute majority. Finally, center-left forces took control of the majority in the Constitutional Court. With the fading of these last legal remnants from the Pinochet era, the campaign for a new constitution has been deprived of a clear objective. This has not been acknowledged, but it means that even those political parties committed to the replacement of the Constitution have not articulated constitutional proposals. This is notwithstanding the fact that, contrary to expectations, the removal of the enclaves has not smoothed Chilean politics. Quite the contrary, the political fragmentation brought by proportional representation has revealed deep weaknesses in the political system.
Prognosis for the new process
Drafting a new constitution without clear constitutional proposals potentially creates space for proposals from outside the political establishment. The previous Constitutional Convention opened that space, mainly to Indigenous groups and to other special interests. But this resulted in a constitutional proposal unattractive both to political parties and to the general public. The current procedure closes that space. On the one hand, the Committee of Experts appointed by Congress will provide the basic material for the new draft; on the other, that material will be processed by a Constitutional Council elected under the same electoral system used for the Senate, thus securing strong control of the process by political parties. Absent a commitment by these parties to significant constitutional reform, the most likely outcome is a new constitution rather similar to the current one.
This would be unfortunate because there are constitutional problems in Chile that need to be addressed. In this regard, the Pinochet fixation has become a serious constitutional liability for it aims at nothing, and it distracts attention from the real constitutional issues. Many of these issues are not specifically Chilean, but rather echo constitutional problems common to many Western democracies: fragmentation of the political system; a tension between responsive and responsible political parties; mismatch between the timelines of democratic processes and those of citizens’ expectations; prevalence of special interests and erosion of appeals to the common good; and tension between the need for global solutions and demands for local control.
At this point, it seems to be in the interest of all parties to have new constitutional bottles in which to pour old constitutional wine . . .
The involvement of a committee of constitutional experts brings some hope that the process could overcome the Pinochet obsession and address the real constitutional challenges of Chilean democracy. On the other hand, the experts were appointed by Congress and are essentially professionals trusted by the political parties. They will, therefore, most likely respond to the interests of those parties. At this point, it seems to be in the interest of all parties to have new constitutional bottles in which to pour old constitutional wine. This is already reflected in twelve foundational principles that the new constitution will have to endorse.
In conclusion, it is likely that this time the process will result in a new constitution that will leave behind the symbolic association to Pinochet that burdens the current Constitution. It is less likely that this new constitution will provide a framework for a stable relegitimization of Chilean democratic politics. It remains to be seen how much legitimacy, and durability, will be provided by the mere removal of the symbolism of Pinochet.
Rodrigo P. Correa G is law professor at Universidad Adolfo Ibáñez, in Chile, where he teaches constitutional law and public international law. He holds law degrees from Universidad de Chile (Lic. Cs. Jur. y Soc.) and Yale Law School (Ll.M. and J.S.D.). He was a subrogate judge at the Chilean Supreme Court from March 2015 to February 2018. He is an arbitrator in civil, commercial and public works cases.
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Suggested citation: Rodrigo P. Correa G, ‘Overcoming the Pinochet Factor in the Chilean Constitution-Making Process’, ConstitutionNet, International IDEA, 28 February 2023, https://constitutionnet.org/news/overcoming-pinochet-factor-chilean-constitution-making-process
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