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I-CONnect Symposium on the Chilean Constitutional Referendum – Dignity and Identity in the Chilean Constitutional Referendum

Verónica Undurraga, Universidad Adolfo Ibáñez

The Chilean constituent process has attracted great international interest among constitutional scholars, politicians and advocates for social justice.  In 2019, the violent social outbreak had Chilean democracy on a tightrope. However, with remarkable political responsibility, the troubled party system managed to open a political way out of the crisis, by signing, in the dawn of November 15, 2019, the Agreement for Peace and the New Constitution that would initiate the constituent process.[1]  

The significance of the Agreement should not be underestimated.  It has been 32 years since the return to democracy and all this time it has been impossible to replace the 1980 Constitution.  This constitution was imposed by the dictatorship and, designed together with the binominal electoral system, to neutralize the agency of political majorities.   The Agreement opened a fragile and unprecedented opportunity for the people to express themselves on whether they wanted a new constitution.

Chileans know about fragile and unprecedented opportunities. They have lived through precarious and poignant moments that have caught the world’s attention and inspired many to dream of horizons of greater social justice and better democracy.  In 1970, in the midst of the Cold War, Chile was the first country to elect a socialist government through popular elections, providing the opportunity to prove – beyond the tragic end of that government by the military coup – that if a people come to power through the ballot box, a peaceful path to democratic socialism is conceivable.[2]   After seventeen years of a barbaric dictatorship, in an extraordinary political achievement, Chileans, overcoming fear and skepticism, managed to secure a peaceful transition to democracy, defeating Pinochet using the very electoral rules imposed by the regime.[3]   In a way, the Agreement for Peace and the New Constitution represented a new bet of the Chilean society to face its conflicts by reaffirming its faith in the institutional ways. 

Thanks to the mobilization of civil society, the Agreement was amended to ensure a parity convention, indigenous representation, and the participation of independents not sponsored by political parties.[4]   In the plebiscite, Chileans voted by 78,27% for the option to change the constitution and chose by 78,99 % that the constitutional convention be fully elected.   The constitutional convention mirrored better than any other representative body in Chile’s history the composition of Chilean society.[5]

The beginning of the process raised much hope.  Expectations were that this Convention, inclusive of groups and causes typically dismissed by the political elites, could lead a deep and honest dialogue that could bring consensus on basic constitutional definitions. Among these, it was expected an agreement to move towards a welfare state, a stronger commitment to equality, the recognition of indigenous peoples, the consolidation of parity, a commitment to care for nature, as well as an agreement to overcome the deficiencies of the political system and effective measures of territorial decentralization.   The 2/3 approval quorum would make it possible to anticipate difficult debates, and yet cross-cutting agreements.  

But also, since the chaotic and tense installation of the Convention, there were alarm signals.  The risk of failure was maintained throughout the process, and the focus of concern was that the Convention would not reach the necessary agreements within the time set to deliver the constitutional proposal. The Convention began in an atmosphere of great distrust among its members and with many coordination difficulties due to the large presence of independents with no previous political experience. The press was permanently a resonance box for the multiple blunders and irresponsible proposals (most of which were not approved, but their subsequent rejection did not reach the news).   Even under these conditions, after strenuous journeys, the convention members were able to agree on a text within the deadline. But concentrating all energies on delivering the project was a double-edged sword, because they took for granted that the citizens would approve the constituent project in the exit plebiscite.   Since the right unexpectedly obtained a very low representation in the Convention, the political center of the Convention, represented by the socialists and the Frente Amplio, was more left-wing than it had ever been in Chilean electoral institutions.  The socialists and the Frente Amplio were compelled, in order to constitute the 2/3 necessary to approve the constitutional norms, to negotiate exclusively with independent parties and groups of the most left wing. As a result, the representatives of the right and center parties were left with very little influence. [6]   Previous entries to this symposium have advanced other reasons that added up to the failure of the proposal: rigidity in the design of the voting procedures, the use of the plebiscite to express discontent against the government, the role of the media, the disinformation campaigns, among others.[7] I will refer here to another factor that has been overlooked.   

But before doing so I want to point out that, together with these alarm signals, there were also several moments of great political significance in the Convention that, in my opinion, have not been adequately assessed by commentators.  This constituent process was a unique, fragile and unprecedented opportunity to face the greatest challenge facing Chilean society: to go from being a rigidly stratified society based on naturalized hierarchies (beyond the conspicuous class divisions), with weakened social bonds and high levels of distrust, to being a more egalitarian society with healthier interpersonal interactions.   Speaking in personal terms, my enthusiasm for the process came with the belief that the Convention could be a platform that offered the procedural conditions to initiate a dialogue among equals, one that would take decades, but which urgently needed to begin.  Such dialogue would critically review the modes of interaction that throughout history have prevailed among Chileans, which are profoundly authoritarian, and that had their origin in the relationships formed in the context of the rural estate.  A culture of the hacienda, that have persisted past the time of haciendas, based on an assumption of “asymmetrical reciprocity” between the owner of the land and the peasant.  In this mode of interaction, in exchange for a “care not exempt from customary abuse” those who are in charge expect loyalty from those who are expected to obey, despite the fact that the economic and social changes of recent decades no longer withstand those modes of coexistence typical of traditional societies.[8]

As I said before, at the beginning of the constituent process there were moments of great political significance, as they could have been the first signals of this dialogue among equals.  The representatives of the more moderate right wing made an unprecedented declaration demonstrating their openness to advance in the recognition of indigenous peoples. The Commission on Human Rights, having among its members a prominent defender of the victims of the dictatorship and an army commander who had been Pinochet’s assistant, received hundreds of testimonies from victims of human rights violations and historically discriminated groups, in sessions were respect and empathy prevailed and that were often fraught with emotion.  Some indigenous representatives gave us all history lessons, forcing us to learn about the treaties and agreements unfulfilled by the Chilean authorities; they spoke in their native language (something unheard of in Chilean politics) and many young people in Chile began to integrate these newly learned words into their everyday language.

The very idea of what should be considered part of the constitution was redefined. It became clear that politics and businesses could only operate to the extent that they relied on the devalued work of those who perform care work. Therefore, the guarantee of the right to care and to be cared for, and the co-responsibility for domestic work became matters of constitutional status.   The Convention’s bylaws were written to ensure that previously marginalized voices were heard, that gender-based violence was denounced, and that all views had an equal opportunity to be debated.  Political discourse as we knew it changed, as it incorporated concepts that challenged the traditional limits of constitutionalism.  For example, we were forced to ask ourselves if Constitutions should take into account the ecological emergency in which we live; and if we could rethink constitutional rules and rights so as to foster the conditions necessary for a good life on a human scale; and how to preserve the guarantee of equality before the law at the same time as we deal with structural inequalities that disproportionately affect certain groups.   These and many other questions were on the table.  And for the first time in our history, people of all social classes, ethnic groups and ways of life, were invited to sit at the table. And they did, acutely conscious of being participants endowed with equal dignity and with procedural rules that endorsed it.

With its lights and its shadows, the rejected constitutional proposal attempted to answer these and other difficult questions.  The ambiguity and openness of many of the approved rules are not only a reflection of the difficulty of reaching the 2/3 quorum for any concrete agreements.  More deeply, it reflects the fact that the new constitution could only be the beginning of a decades-long dialogue.  Congress was called upon to carry it on.  

That is what was happening at the Convention.  Outside, the situation was even more complex.  And it is within this complexity that we are call to search for other explanations to understand the rejection of the constitutional project.[9]  The first thing to remember is that the enthusiasm and commitment to the idea of a new constitution shown at the Convention was not shared by all Chileans.  Members of the convention were elected by voluntary vote, and the turn-out for that election was a discreet 43,35%.

Chilean society has changed radically in the last 50 years.   The abrupt installation of the neoliberal economic model had a profound impact on the lives of people, who were forced to adapt to a logic of self-sufficiency, and fierce competition, without the support of institutions or collective containment.  This led to enormous levels of anxiety, exhaustion, and disaffection to any common ideal.  This accelerated process of individual affirmation, the discourse of meritocracy, and the increased opportunities that the new generations had due to the economic growth, expanded the expectations of social mobility.  The return to democracy also increased the demands for greater freedoms and conditions of equality and generated an acute sensitivity to inequalities and to disrespect in social interactions.    

As the traditional patterns of the old forms of exercising power are put into question, and in the context of a profound distrust in political institutions, which have lost their capacity to mediate conflicts, it is in the daily encounters of individuals that the new terms of social relationships are being defined.  It is here that fair and respectful treatment acquires an unprecedented political relevance.  As Araujo points out, “horizontality in treatment has thus become an index of equality in relation to other members of society.  What is important here is not to be conceived abstractly as equal but to be treated as equal … the concrete and ordinary form of treatment received in daily interactions … becomes the privileged measure of the respect …”[10]

The problem is that actual interactions are marked by increasing levels of irritation, in the face of which the authoritarian exercise of power reappears.  Ironically, this resource is validated and used by all those who feel they must assert positions of authority (in the family, at work, in social interaction), even by those who resent this authoritarianism when it is applied against them.  These people, withdrawn and overwhelmed, do not vote except when they are forced to, as in the exit plebiscite. And if they had hopes at the beginning of the constituent process, they lost their confidence along the way.  For many of them the Convention was too far from their daily experiences and they had no reason to trust in the potential political dialogue that the approval of the New Constitution promised. 

The possibility of initiating a new constituent process now depends on the capacity of the more moderate right to fulfill the promise made by its sector when it called to reject in order to have a new constitution “written this time out of love and not out of rage”.[11]  In an abstract analysis, this could be understood as a reasonable criticism of the idea that constituent processes carried out in relatively functioning democracies use the paradigm of the original constituent power.[12] In practice, however, the discussion about the so-called “boundaries” for the new constituent process looks too much like a reaction of the political establishment, relieved to be able to regain control of power.  The right wing interprets the 62% rejection as an endorsement of its political ideas and demands a pre-constitutional commitment to have them included in the eventual new text.  An important part of the left points out that the mistake of the Convention was to fall into identity politics. Both interpretations seem too facile. The plebiscite vote was not settled by ideological preferences towards right-wing or left-wing agendas.  And the criticism of identity politics (although legitimate in itself), in this context looks more like a pretext for political elites to return to their comfort zone and not confront citizens’ demands for equality and respect.

To dismiss so lightly the experiences of dignification that took place in the Convention, labeling them as mere excesses of identity politics, seems to me to be an accommodating reading to justify a return to the familiar grounds of the exercise of authority as we know it.  With this response, the risk is to resume the same authoritarian ways of exercising power based on naturalized hierarchies that have historically been used to respond to the demands of subordinate groups when these seem to go beyond certain limits.[13]  

The “boundaries” of the constituent process, now renamed as “constituent foundations” excluded from the outset the possibility of using the term plurinationality (meaning a unified state made up of different nations). The parity conformation of the constituent body is being questioned again and the veto to abortion decriminalization is being used as a bargaining chip to gain ground in the negotiation. Independents will only be admitted if they are invited to the party lists and technical expertise will have a preeminent role in controlling the eventual excesses of the representatives in the new constituent body.  
 
My fear is that the new constitution, if there finally is one, will satisfy only the political elites and that the process will be irrelevant for most of the population.  It is difficult, on the other hand, to turn one’s hopes to the capacity of the political system to channel citizens’ concerns, because all attempts to reform that system have so far been unsuccessful.   Everything indicates that, with or without a new constitution, the wound of inequality will remain open in Chile and the long dialogue we owe ourselves to face it will continue to be a pending task. 

Suggested citation: Verónica Undurraga, Dignity and Identity in the Chilean Constitutional Referendum, Int’l J. Const. L. Blog, Oct. 12, 2022, at: http://www.iconnectblog.com/2022/10/i-connect-symposium-on-the-chilean-constitutional-referendum–dignity-and-identity-in-the-chilean-constitutional-referendum/


[1] Acuerdo por la Paz y la Nueva Constitución. Available at: https://obtienearchivo.bcn.cl/obtienearchivo?id=documentos/10221.1/76280/1/Acuerdo_por_la_Paz.pdf

[2] President Salvador Allende’s inaugural speech at Estadio Nacional on November 5, 1970, available at:

https://www.socialismo-chileno.org/PS/APSA/Discursos%20de%20Salvador%20Allende%201970%20.pdf

[3] Matías Tagle (ed.), El Plebiscito del 5 de Octubre de 1988 (Corporación Justicia y Democracia, 1995). Available at: http://www.memoriachilena.gob.cl/archivos2/pdfs/MC0053706.pdf

[4] Verónica Undurraga, Engendering a constitutional moment: The quest for parity in the Chilean Constitutional Convention, International Journal of Constitutional Law, Volume 18, Issue 2, July 2020, Pages 466–470, https://doi.org/10.1093/icon/moaa049

[5] Carmen Le Foulon and Valeria Palanza, “Elecciones a La Convención Constituyente: Innovación y Renovación,” Puntos de Referencia – Centro de Estudios Públicos 580 (2021).

[6] Fernando Atria, El Proceso Constituyente y su Futuro Después del Plebiscito (Fundación la Casa Común, 2022). Available at: https://www.lacasacomun.cl/post/el-proceso-constituyente-y-su-futuro-despu%C3%A9s-del-plebiscito

[7] David Landau, Introduction: Symposium on the Chilean Constitutional Referendum, Int’l J. Const. L. Blog, Sept. 23, 2022, at: http://www.iconnectblog.com/2022/09/introduction-symposium-on-the-chilean-constitutional-referendum/

[8] Kathya Araujo, El Miedo a los Subordinados: Una Teoría de la Autoridad (LOM, 2016), chapters 2 and 3.

[9] For these explanations I rely on the work of Kathya Araujo, a researcher at the Instituto de Estudios Avanzados (IDEA) at Universidad de Santiago de Chile, whose analysis, based on extensive empirical work, has been key for understanding the social outbreak and the attitudes of Chileans regarding the exercise of authority. Note 8.

[10] Kathya Araujo, note 8, at 73.

[11] This was the motto of the reject campaign. See  https://www.youtube.com/results?search_query=franja+del+rechazo+2022

[12] Sergio Verdugo, The Paradox of Constitution-Making in Democratic Settings. A Tradeoff between Party Renewal and Political Representation?, Int’l J. Const. L. Blog, Sept. 24, 2022, at: http://www.iconnectblog.com/2022/09/the-paradox-of-constitution-making-in-democratic-settings-a-tradeoff-between-party-renewal-and-political-representation/

[13] The temptation to resort to authoritarian forms of interaction is present across the political spectrum, including many of those who have a progressive discourse. This was evidenced by the derogatory comments that many supporters of the approval vote made with respect to those who, being poor or indigenous, voted rejection.

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Published on October 12, 2022
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