Tides of Change: Analyzing the Power Shift in Chile’s Constitutional Process

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In a significant political upset in Chile, right and far-right parties triumphed in the recent elections for a Constitutional Council. Now wielding the power to shape the draft constitution to their will, the critical question is whether the far-right Partido Republicano, along with their possible traditional right-wing partners, will adopt a non-partisan approach. Reaching an agreement with the left appears to be the most viable solution for addressing Chile's constitutional challenges and would also acknowledge that nearly 40 per cent of the population supported a previous constitutional proposal vastly different from the current charter – writes Javier Couso

Introduction

On Sunday 7 May 2023, Chileans went to the polls for the sixth time in 30 months, this time to elect the members of the Constitutional Council. This entity is charged with the task of drafting a new constitution based on a preliminary draft prepared by the “Commission of Experts” consisting of 24 members elected by the two chambers of Congress.

In an astonishing reversal of fortune after the first constituent process dominated by leftist parties and political movements, the “Partido Republicano”, a far-right party founded in 2019 and one of only two political parties that did not support this second attempt to draft a new constitution, won a staggering 35 per cent of the vote, thus gaining 23 out of the 51 seats of the Council. This result provides them with the power to veto any decision (which requires three-fifths, or 31 seats, to approve each clause of the constitutional draft).

Considering that the coalition of traditional right-wing parties (“Chile Seguro”) secured 11 seats, the representation of the right in the Constitutional Council totals 34 seats, equivalent to more than two-thirds of the Council. This majority not only allows them to draft the new charter according to their will, but also to disregard any amendments proposed by the Expert Commission in the final stages of the process later this year.

On the other side of the political spectrum, the leftist coalition of Socialists, the “Frente Amplio” alliance, and the Communist Party secured 16 seats (or about 31 per cent of the total), which leaves them without the power to veto decisions of the right-wing parties in the Council. The final seat was won by a member of Chile’s Indigenous population, who was elected in a parallel process.

In summarizing the electoral results, it is worth highlighting that the left-of-center list “Todo por Chile”, which included all but one of the coalition parties that ruled the country for the first two decades post the military regime until 2010, performed very poorly. They gained 8.95 per cent of the vote and failed to secure a single seat. Similarly, the populist “Partido de la Gente” received 5.48 per cent of the votes, and no seats in the Council. Finally, it is noteworthy that despite a high turnout, at 83 per cent, there was an unusually large number of null and blank votes (around 21.5 per cent).

Constitutional council election or government referendum?

These results are nothing short of a political earthquake, not only due to their likely impact on Chile’s third constitution-drafting attempt, but also because they indicate the rise of a far-right party as a dominant force in the near future.

There is growing consensus that the extraordinary electoral performance of the Republicanos was their ability to capitalize on widespread dissatisfaction.

The factors explaining the extraordinary electoral performance of the Republicanos in this crucial election are complex and still a matter of debate, but there is growing consensus among observers that a key element was the party’s ability to capitalize on the widespread dissatisfaction with a politically weak leftist government grappling with a combination of high crime rates, an immigration crisis, and a period of unusually high inflation. Of these issues, the key one appears to have been the deep sense of insecurity related to organized crime, particularly connected with drug trafficking, in the months preceding the Council elections. Indeed, in something of a “perfect storm”, gang members assassinated one policeman each week for three consecutive weeks only a few weeks before the election – a rare occurrence in Chile. In at least one of these killings, immigrants were involved, which lent credibility to the Republicanos' long-standing attack on immigration, especially in a population already tired of crime. The sentiment was further fueled by the government’s controversial decision to pardon a group of individuals who had been convicted for crimes perpetrated in the 2019 social uprising, but who were later found to have criminal records. This decision, which was made only a few months before the election, led to the resignation of a cabinet member.

While, in the weeks before the election, the context just outlined was expected to give the right-wing opposition the upper hand vis-à-vis the leftist coalition supporting President Boric, the fact that the former won in a landslide came as a surprise, especially considering that the President had been in office for less than 14 months. Even more surprising was the overwhelming defeat of the traditional right-wing parties by the Republicanos.

Even though the 7 May election was held for the very specific goal of electing a body that will draft a new constitution, it is clear that in the end it was “captured” by the prevailing social, economic and political issues. This was already apparent in the television and radio campaigns that preceded the election, which rarely addressed actual constitutional debates, but focused on the law and order and immigration crises facing Chile. Such was the emphasis on these issues that one important opposition leader stated that the election was effectively a referendum on the government’s performance.  

The road ahead: implications of the Republicanos’ dominance in the constituent process

After discussing both the results and possible explanations of the composition of Chile’s Constitutional Council, we turn to the implications for the country’s ongoing constituent process.

The first, critical element to consider is that, due to the electoral results, the most pivotal body of the process – the Constitutional Council – will be dominated by a party which not only opposed the whole initiative for a new constitution, but also includes a sizable number of leaders who have openly defended the economic and constitutional legacy of the military regime that imposed the very charter that the current process aims to replace. Indeed, the Republicanos did not sign the 12 December 2022 political agreement that led to the current constituent process, and later voted against the constitutional amendment that implemented said agreement. Despite their claim that Chileans were not interested in a new constitution, they eventually presented candidates for the Council but maintained their position and claimed that they would defend the basic orientation of the current charter. Given this party’s stance and its veto power over the entire process, it is fair to question the prospects that Chile will have a new constitution at the end of this year.

A second implication of the 7 May election results is that an eventual coalition of Republicanos and traditional right-wing parties could impose a constitution of their liking since they will hold two-thirds of the Council. This would allow them not only to unilaterally draft a new charter, but also to override any amendment by the Commission of Experts. The only check they might have is the “Technical Admissibility Committee”, a body created to ensure compliance with the twelve constitutional principles that frame the constituent process. However, since this Committee is equally divided between experts of the right and the left, it is unlikely to be an effective check on the will of the Council.

The only real constraint that an eventual right-wing coalition in the Council may face is the prospect that their proposal for a new constitution is rejected in the exit referendum scheduled for 17 December 2023.

In light of the above, the only real constraint that an eventual right-wing coalition in the Council may face is the prospect that their proposal for a new constitution is rejected in the exit referendum scheduled for 17 December 2023. Yet, since all of the Republicanos (and a sizable segment of the traditional right-wing parties) actually like the existing constitution, they find themselves in a “win-win” scenario: even if their proposal for a partisan constitution is rejected, they will retain a charter they are comfortable with.

One alternative scenario is that, in a surprising display of constitutional responsibility, Republicanos and their possible traditional right-wing partners adopt a non-partisan approach and reach an agreement with the left for a charter we all can live with, thereby addressing Chile’s constitutional plight. Such a statesmanlike attitude would recognize that just last year almost 40 per cent of the population supported a constitutional proposal significantly different from the current charter and any partisan version drafted by the right in the upcoming months. While in the few days following the Council’s election there has been some optimism that this virtuous scenario might take place, the right-wing parties’ previous exclusion in the last constituent process by the (then dominant) left makes this outcome unlikely. Having said this, given the country’s surprising shifts in recent years, analysts should be cautious with their predictions.

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.

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Suggested citation: Javier Couso, ‘Tides of Change: Analyzing the Power Shift in Chile’s Constitutional Process’, ConstitutionNet, International IDEA, 14 May 2023, https://constitutionnet.org/news/tides-change-analyzing-power-shift-chiles-constitutional-process

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