—Javier Couso, Universidad Diego Portales (Chile) and Utrecht University (The Netherlands)
I. Last month, Chile’s second attempt to get a new Constitution in the last few years failed again. As opposed to the first constituent initiative (led by former President Bachelet, in 2014-2018, which can be better described as having been aborted), this time the failure came after a fully developed –and highly promising— process, which only a few months ago seemed destined to succeed. Since the surprising results of the referendum a flurry of articles, opinion pieces and interviews of key actors have tried to make sense of the paradoxical final outcome of a process which started with almost 80 % of support, but ended in the solid rejection (by almost 62 % of the voters) of the text that the Constitutional Convention elaborated. In this brief piece, I provide a preliminary analysis of what went wrong with Chile’s second attempt to adopt a new Constitution, taking a perspective that, while acknowledging that there were various factors at play, singles out what I take to be the root cause behind this failed process.
II. Although a thorough understanding of the causes of Chile’s failure to get a new Constitution will take more time and data (for example, surveys exploring what led citizens of different ages and socio-economic outlook to reject the text submitted to them), it is possible to advance some hypotheses that account for what happened.
The key factor that I think explains the failure of the process is the fact that the Convention elected in May 2021 included an absolute majority of independents among its members. This feature of the constituent body (which was celebrated in Chile at the time) contrasts with most cases of democratic constitution building that have been successful in recent decades, where political parties were in control of constituent bodies. The predominance of independents in Chile’s Constitutional Convention generated two crucial problems, one at the time of the election of its members, the other during the process of adopting a new constitutional text. Regarding the first one, the presence of a significant portion of independent candidates prevented voters from knowing in advance their ideological orientation, something which, in turn, led to a Convention with a more leftist outlook than that of the median Chilean voter. In other words, the rules allowing independent candidates to run on national lists led to the election of candidates with attractive personal characteristics, but with more radical positions than what most voters assumed. At this point, it is important to highlight that the ideological dis-alignment between the Convention and the median voter had a very tangible –and eventually devastating— impact on the failure of the whole process. That is, it resulted in the adoption of constitutional proposals that were just too radical for most Chileans, such as the recognition of Nature as holder of fundamental rights; the recognition of a constitutional right to abortion (in a country that only a few years earlier had managed to decriminalize three indications of abortion); or the adoption of a form of plurinationalism and indigenous justice that many saw as a menace to the integrity of the State and equality before the law. Thus, even though the core of the proposed constitution was largely aligned with the main tenets of a liberal democratic republic (in no small measure due to the moderating effect that the required quorum of two thirds of the members of the Convention to adopt each constitutional clause had), the existence of some norms that were either too radical for the bulk of the population, or perceived as alien to Chile’s constitutional tradition, generated enough opposition to the project to be rejected.
The dominance of independents within the Convention generated a second serious problem, that is, the almost nil political and legislative experience of most of its members. This was especially marked in the group of radical independents, which led to their refusal to negotiate with right-wing convention members (in fact, the very notion of ‘negotiating’ was associated in the imagination of the independent left with lack of integrity). Furthermore, the legislative and political inexperience exhibited by the radical and moderate left translated into the inability to reconsider previously adopted decisions in light of relevant changes in circumstances. Thus, for example, the hegemonic groups within the Convention failed to decisively change their course of action when, in the last week of March, opinion polls showed for the first time that the “Reject” option was outperforming the “Approve” one. Betting that opinion surveys were wrong or that, for some reason, citizen’s attitudes would shift back in the direction of supporting the Convention’s decisions, they decided to maintain the course of action, in what can be described as utter denial of political reality. While this is obviously a counterfactual, it can be speculated that a politically-experienced leadership would have taken drastic measures in light of the new scenario, such as changing the Rules of Procedure in order to open negotiations with the moderate right regarding the revision of norms already adopted by the Plenary (but considered unacceptable by the latter), with the aim of securing at least a few moderate members of the right who would call for approval. Instead, the bulk of the left remained in denial regarding the crude fact that the “Reject” was steadily ahead in the opinion polls.
Related to this last point, the sense – held by most leftist convention members — that the exit referendum could not be lost, led the moderate left to focus their efforts in securing the agreement of the radical left in order to get the two thirds quorum required to adopt each clause of the new constitution, which prevented the former from engaging in a productive dialogue with the moderate right, because of the perception that entering into deals with the latter could endanger the agreements secured with the radical left. Given that the latter could decisively contribute to get the two thirds quorum, the decision was made by the moderate left to “sacrifice” engaging the moderate right if that put in danger their alliance with the radical left. As one influential left-wing convention member has recently acknowledged (Atria 2022), this strategy proved useful to produce a constitutional text, but it cost the Convention the exit referendum.
Another, different, factor that contributed to the failure of Chile’s constituent process refers to the excessively rigid Rules of Procedure adopted by the Convention, which prevented last-minute negotiations with moderate right-wing sectors when the alarms regarding the likely outcome of the exit referendum went off (in late March). The fact that the Rules of Procedure contemplated the approval, article by article, of the constitutional text by the Plenary, made it impossible to reconsider what had been already approved by the latter, thus precluding negotiations at the final stages of the process, when it became clear that some clauses approved by the Plenary were simply unacceptable to both right-wing conventioneers and, more critically, to relevant segments of the Chilean society. To illustrate the point, let’s imagine that the Rules of Procedure would have allowed the reversal of decisions already adopted by the Plenary. In such a scenario, it would perhaps been possible to invite those sectors of the moderate right that wanted a new Constitution to state which of decisions of the Plenary prevented them from calling for the approval of the final text.
Finally, it is worth mentioning a factor that also played a role in the defeat of the “Approve” option, that is, fake news. As is known, Chile’s exit referendum is one of the first to take place after Donald Trump massively deployed the use of fake news in the 2016 presidential election. In the case of the September 4th referendum, the difficulty of understanding a complex and extensive constitutional text offered 388 opportunities to distort the meaning of what was being proposed, which was effectively exploited by activists of the “Reject” option, as happened with the supposed infringement of property rights over the people’s homes and pension funds (to mention just a couple of examples). The strategy deployed by some right-wing conventioneers of submitting superfluous draft norms (for example, enshrining the right of ownership over goods already protected by the approved general rule ensuring ownership “over all kinds of property”) with the purpose of then campaigning by denouncing that such initiatives were rejected, also contributed to the defeat of the “Approve” option. That said, it would be a mistake to grant a central role to the fake news as the decisive factor in what was a result generated by various causes, such as those mentioned above, and others that, with more time and more background, will be identified later.
III. Over the last few weeks since the dramatic rejection of a proposed new Constitution in a process that was remarkable in so many ways, there has been many explanations trying to account for the result. Some have mistakenly placed the blame almost exclusively in the distortive impact of the fake news campaign that Chile’s conservative biased press and social media generated. Others, on the scandals that plagued the Constitutional Convention, including its chaotic inauguration; the national scandal produced by the disclosure that an emblematic member of the Convention had deceived its voter by faking a cancer condition he did not have (in order to run as a candidate who would advocate cancer patient’s rights); as well as many other scandals that dramatically undermined the people’s trust in the Convention. Finally, there are a few that argue that the defeat was because the Convention did not go far enough in its proposal. In this piece, after acknowledging that the result was due to a varieties of elements, I argue that the root cause was the predominance of independents in a body that required an important degree of political and legislative experience, since what it was engaged in was the most important kind of ‘legislative’ work that there is: elaborating the highest law of the land.
Suggested citation: Javier Couso, Making Sense of Chile’s Failed Constituent Process, Int’l J. Const. L. Blog, Oct. 4, 2022, at: http://www.iconnectblog.com/2022/10/making-sense-of-chiles-failed-constituent-process/