Chile’s Constitutional Moment?

–Oya Yegen

Chile is going through a “constitutional moment”. Demand for replacing the 1980 Constitution, inherited from the Pinochet regime, has not been so clearly expressed or been so central to presidential elections until the last couple of years. Now, with a presidential election due to take place this Sunday, the issue has come to the fore.

During Chile’s long democratization process, the 1980 Constitution has been replaced gradually through amendments, which were presented as crucial for, among other things, eliminating the “authoritarian enclaves” and helping to subordinate the military. Major overhauls of the system took place during 1989 and 2005 constitutional reforms. However, both of these constitutional reform processes have come to fruition as a result of bargaining among political elites without significant social mobilization calling for reforms. Considering that the 1980 Constitution has gone through major reforms without social pressure for change, how can we explain the current mobilization for a new constitution?

Growing from the limited reforms pushed by the Concertación and expressed through the dynamic of student protests, a debate on the desire and/or need to write a new constitution has been one of the primary issues of the upcoming presidential elections in Chile. Rallies are organized that call for a constituent assembly, a campaign “marcatuvoto” has taken over social media with calls for people marking “AC” in their ballots to indicate their desire for constituent assembly, conferences are organized in the major universities, political debates on television consider the merits of amendment vs. replacement and almost each candidate has something to say about it in their campaigns.

According to the prestigious Chilean think tank Centro Estudios Publicos (CEP), 45% agree with the proposal to have a constituent assembly. Chile’s “constitutional moment” intensified in the midst of presidential elections indicates that the constitution debate is here to stay. The opportunity was missed in 2009-2010 elections because the only candidate who was not in favor of constitutional change was elected to office: Sebastián Piñera. However, in the 2013 elections, every one of the nine candidates is in favor of some type of constitutional reform. The difference is whether they are in favor of constitutional amendment or replacement, and if the latter, through ordinary legislation or constituent assembly.

Chile’s politics are organized into two large coalitions. So even though most candidates are in favor of constitutional reform, most of these are small challengers to the “coalition candidates” and do not have much electoral strength. However they help set the tone of what is at stake in Chile’s politics now.

The most recent CEP survey (September-October 2013) indicates that Michelle Bachelet of the Concertación will likely get elected in the upcoming elections for a second term in office. The questions remains whether she will get elected in the first round on November 17, 2013 or in the run-off on December 15. 2013. It is fair to conclude that new constitution will be part of her administration’s agenda. Until she disclosed her presidential program on October 28, 2013, it was uncertain whether the mode of writing a new constitution would take place in ordinary legislation or in a constituent assembly. Bachelet has now ruled out the constituent assembly and hopes to proceed by working with the Congress to change the constitution partially or totally through the institutional mechanism. However, her ability to do so depends on whether she will get a Nueva Mayoría majority in both chambers to reach the necessary quorum (2/3 quorum). Chile’s binomial electoral system, which is one of the institutional constraints that the civilians inherited from the military regime that aims to ensure that the endurance of established political system, is the number one obstacle to constitutional change. Therefore for Michelle Bachelet to get her majority to totally change the constitution she needs to double the votes of Alianza coalition in 20 districts for the chamber of deputies and in 7 districts for the upper chamber. As Bachelet recognizes, much depends on the strength of Nueva Mayoría in legislative elections. Therefore, despite the “constitutional moment”, Chile’s chances of a new constitution are still quite uncertain.