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I-CONnect Symposium on the Chilean Constitutional Referendum – New forms of representation and the failure of the Chilean Constitutional Convention

Maria Isabel Aninat Sahli, Universidad Adolfo Ibáñez, Chile.

How can we explain a constitutional process that began with 78% of voters in favor of drafting a new constitution in October 2020 and ended up two years later with 62% of the people opting for rejecting the proposal? What leads a country to flatly reject a proposal emanated from a democratically elected convention? These are the questions in Chile today. Probably, the failure of the Chilean constitutional process can be—and will be—explained by many different reasons. No single issue will be able to explain why the process failed. But let me offer one possibility, one that,  of course, is still very much an initial approximation, as much distance and reflection is still needed.

The Chilean constitutional process was the institutional option to channel a social outburst. Because of the context from which it had emerged, it quickly became an exercise that was seen as process that would be therapeutic in itself. Going through it would enable us to regain consensus and heal in a wide range of issues, problems and distrust. And for that, it had to distance itself from the political system. Since the outburst was read as a moment to fully restart the institutional system; this process had to be seen as an alternative to political parties, the Government and Congress.

Thus, its composition became fundamental. For that, the Convention had three special rules: 17 seats reserved for indigenous peoples, gender parity in the final composition, and special incentives for independent candidates to compete and even be grouped in independent electoral lists. Of the 155 conventional elected, 105 were independent, either on lists or within pacts. This quickly reinforced the idea of ​​an assembly that conceived of itself on its distance from the rest of the system. Since its inception, the rhetoric of the constituent power, about which so much has been written, was established—in order to distance itself from any decision that came from the current institutions.

But behind this rhetoric of constituent power, there was also a much deeper idea that permeated the entire deliberation of the Convention: a proposal for a different political representation. The Convention was the place that mirrored the diversity of its population. It was much more diverse in professions, in ages, in territorial origins, in sexual orientations and in groups of origin than Congress, and all of this diversity was symbolically and visually present. People had less political experience, and that was not seen as problematic. On the contrary, there was a generalized perception that this diversity brought forth a representation that would be immediate, direct, and linked to the different groups that compose the Chilean society.

The use of social media undoubtedly contributed to this kind of representation without mediation. We could witness what was happening through 154 twitter accounts, Instagram, Facebook, YouTube videos. The representatives themselves transformed their speeches and interventions in the plenary sessions into live broadcasts . And with such a number of independents who had been elected to propose or defend two, three or five causes, that spirit of direct and original representation was kept alive during the deliberation. Never before had we experienced a constituent process with such use of immediate transmission tools.

Was a different model of political representation then formed? Did it succeed? This, I believe, is where the process encountered one of its main failures. Faced with the celebration of distinctiveness, directness and the representation of causes, the Convention became an assembly plagued by fragmentation.

The fragmentation first reflected in its internal organization, accentuated by problematic rules of procedures,but then also permeated into the constitutional proposal. The Convention`s composition made each negotiation a task that was carried out in separate steps, particularly at the beginning by seeking to unite independent representatives (which ended up organizing into “colectivos” or groups). In the same way, each thematic commission focused on its own issues, initially almost blind to the interactions that the issues to be discussed had with each other. Self-contained in their own dynamics, fragmentation made it difficult to take a systemic look at institutional designs. The ultimate goal was to get the 103 votes required to reach the 2/3 quorum for each plenary vote, gradually adding each small group of until the threshold was reached.

But the main problem came through the combination of a fragmented Convention with the possibilities of a text that started with a blank slate. The very idea of ​​a different representation made it necessary for all new causes to be part of the constitutional debate. As expressed in many interventions, the general political system had not given them space or taken them into account and, thus, this was the very moment to address them. The constituent process was, therefore, extended first towards a space of catharsis and then, more problematically, into a text where a long list of issues needed to be addressed. Since the agreement of November 15, 2019 based the constitutional replacement on the idea of ​​a “blank page”, in which nothing was pre-written, this conception of a different representation then extended the edges of that page. Constitutional law extended its reach.

The tension between identity and universalism had a wide space of expression here, one that tilted the balance towards identities and causes. Interestingly, the fragmentation of the text itself was not seen as a problem, rather, it was a source of value that seemed to respond to a conception of quasi-experiential, immediate and specular representation. The constitutional text was seen as a space for addressing a wide range of unsolved problems, both in its legal dimension, and, particularly, in its symbolic scope.

When the proposal emerged from the Convention, this combination of fragmentation and the conception of an extensive constitutionalism became patent. The text ended up having 388 articles with 100 constitutional rights. Many specific groups became subject of rights: children and teenagers; girls and women, sexual and gender diversity, people with disabilities, indigenous peoples, nature, etc. It was a document in which everything and everyone could be reflected. Just as the social outburst was a kaleidoscope of issues, the document itself became a recognition of causes, issues, demands and wishes. And just as topics were added to the text, the idea was that voters would be added in the exit plebiscite. Because the representatives reflected their groups from origin and they had translated those into the constitutional text, the voters would recognize themselves in the final proposal and agree with it.

And, here lies the paradox: the proposal, instead of adding, generated distance. The plurinational Constitution was rejected by far in the communes of southern Chile with the largest indigenous population. The constitution that regulated water and the water crisis was rejected in the communes with the greatest drought in the central area. A text that sought to deal with inequality lost in the lowest income quintiles and in the most popular districts. The rejection was cross-cutting in geographic zones and in cities and rural areas. Instead of seeing themselves in the text, people saw their life projects at risk.

Thus, a possible explanation of what happened can be found in the failure of this conception of ​​representation. The specular representation, oriented by a wide range of specific causes, was met by the complexity of society. Yes, people are concerned about water or climate change, but they are also worried about traditions, animals, work, the pensions of their older parents, education of their children and the economy. Probably, the re-emergence of complexity came with such force because of the comeback of compulsory voting. Since people who voted were not only those more politicized and committed, a text that had wished to speaks to specific groups lost its advantage. With 86% of the electoral roll voting—one of the highest numbers for Chile since the late 80s—complex visions of life came back in full force.

How to move forward? With the possibility of a new process to be initiated in the near future, many questions remain. The challenge now is to put together a proposal that a large majority can agree on. And therein lie two fundamental questions. First, how do we design rules for more effective representation that can address the complexities of a pluralistic society. There is no easy answer, but revaluing the role of political parties (even though, unpopular) must be in place. The second question is how much can we ask—or should we expect—of a constitutional text. I believe, probably, less than many. Leaving issues and grievances out of a proposal and left to the regular institutional system will allow us to reach us the cross-cutting consensus we have been looking for.

Suggested citation: Maria Isabel Aninat Sahli, New forms of representation and the failure of the Chilean Constitutional Convention, Int’l J. Const. L. Blog, Oct. 8, 2022, at: http://www.iconnectblog.com/2022/10/i-connect-symposium-on-the-chilean-constitutional-referendum–new-forms-of-representation-and-the-failure-of-the-chilean-constitutional-convention/

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Published on October 8, 2022
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