New Constitution or Nothing! The Promise and Pitfalls of Chile’s Constitutional Moment

—Lisa Hilbink, Department of Political Science, University of Minnesota[1]

In the wee hours of Friday, November 15^th, Chile reached a historic milestone: Congressional representatives from nearly all political parties, across the political spectrum, signed an agreement to open the path to a new constitution. After four dramatic weeks of mass protests, and following two long days of intense negotiations, the national political leaders thus responded to one of the principal demands of the mobilized citizenry. In an uprising driven by pent-up rage over inequality, exclusion, and perceived systemic injustice, citizens have insisted on the replacement of Chile’s current constitution. That charter, inherited from the military dictatorship, was designed to entrench a neoliberal socio-economic model, and during the thirty years since the transition back to democracy, it has effectively served to prevent reforms that would strengthen the public sector and more equitably distribute wealth and power. Citizens thus view the revamping of that illegitimate document as a necessary part of the transition to a more just and democratic social order.

The congressional Agreement for Social Peace and a New Constitution answered the public’s call for a binding, national plebiscite to decide whether and how to write a new constitution. The plebiscite, to be held in April of 2020, will ask voters (1) if they want a new constitution (yes or no) and (2) which of two forms a constituent body should take: a mixed convention, half of whose members would come from the sitting Congress and half who would be elected uniquely for the convention,[2] or a fully separate constituent convention, whose members could not be sitting members of Congress and whose mandate would be limited to writing the new constitution.[3] The Agreement also laid out a calendar and some basic ground rules for the constituent process, including a two-thirds threshold for passage of all articles in the new constitution. Upon announcing the agreement, the congressional leaders made clear that the new constitution would be elaborated on a “blank page,” such that nothing in the existing constitution could bind the drafting body and only items achieving two-thirds support would become part of the new supreme law of the land. What was unthinkable just a few weeks ago, then, has thus become a reality. The Agreement formally marks the beginning of the end of the control that the authoritarian forces sought to extend over Chile’s political and economic development, and starts the country down the path to its first ever democratically-crafted constitution.[4] Yet the most challenging part is yet to come. What lies ahead is a long, demanding, and, no doubt, trying process, and there are no guarantees that it will not go off the rails. What are the factors that favor or threaten a successful constitutional transition in Chile?

The Promise: Some Supportive Conditions

There are a number of elements of the current Chilean context that give cause for optimism. First, there is overwhelming support for constitutional replacement in society. Surveys in recent weeks have consistently shown that upwards of 80% of respondents favor a new constitution. And the support is not just passive. Since the start of the uprising, organizations and individual citizens around the country have spontaneously convoked hundreds of town hall-type meetings (cabildos), following the model diffused by Unidad Social, a coalition of leftwing unions and other social organizations. Cabildos have focused on different themes: e..g, inequality, environment, housing and land, gender issues, and, increasingly, constitutional change.[5] Such meetings multiplied after the National Association of Municipalities announced, on November 7, that it would hold a local consultation all over the country (non-binding plebiscite) on the questions that were subsequently taken up by congressional leaders in the November 15 Agreement.[6] And in the wake of the Agreement, universities and civil society organizations have gone into high gear to design civic education modules to meet the demand for information relevant to the constituent process. In sum, there is broad, cross-cutting consensus around and mobilization for constitutional transformation.

Importantly, political party leaders recognized and translated this consensus into the transversal Agreement, signed not only by legislators from the Center-Left and Left, who had supported Bachelet’s constitutional rewrite efforts, but also by all the parties in the rightwing governing coalition, including the hardline UDI (Unión Demócrata Independiente), whose founder, Jaime Guzmán, was the primary author of the 1980 Constitution. Indeed, it was President Piñera’s own Renovación Nacional party that wound up playing a pivotal role in the process leading up to the Agreement, issuing a declaration on November 13^th in favor of “profound social reforms” and a new constitution via the mixed convention model that Bachelet had proposed.[7] The only major party that opted not to participate in the negotiations or sign the November 15 agreement was the Communist Party, though later that day, they agreed to support the plebiscite and the constituent process. There is thus a written commitment, whether sincere or strategic, deep or shallow, from elected officials from across the political spectrum to see the process through.[8]

Another important favorable condition is the behavior of key historical spoilers,–the military and the judiciary–, who, through restraint or through active declarations, respectively, have supported an institutional way out of the crisis. At crucial moments when the military could have pushed for or initiated a repressive response, the generals stepped back. While they went into the streets upon the government’s declaration of a state of emergency the first week of the uprising, the high command directly contradicted President Piñera’s statement that “we are at war with a powerful enemy,” declaring, “We are not at war with anyone.” In the weeks since the state of emergency was lifted, there have been a couple of times when it was clear that the President was considering calling in the military again to address the spiraling violence,–a meeting of the National Security Council on November 7 and an emergency meeting of security ministers on November 12, following the general strike. On both occasions, democratic voices prevailed and the military respected the decisions of the civilian leaders. Meanwhile, the Supreme Court, through its president and its spokesperson, declared its support for a new constitution on several different occasions, and on November 12, in the context of the nation-wide mobilization, the National Association of Judges issued a statement, read publicly by judges who emerged from the criminal court building in Santiago (where, it should be noted, they were not on strike), urging the political authorities to move swiftly toward a process of constitutional change, “allowing the country to advance to a new, inclusive and socially equitable order, legitimated by all.”

In sum, in contrast to the past in Chile and to similar crisis moments in many other countries, where political polarization has run deep and/or state institutions like the military and the judiciary have favored order over democracy, Chile’s constitutional moment has a number of key conditions in its favor.

The Pitfalls: Some Causes for Concern

At the same time, however, there are also some serious challenges facing the constituent process.

The greatest, perhaps, is the gulf that separates the populace and the political class. The extreme concentration of wealth and power in the hands of a tiny elite, contrasted with the daily struggles and precariousness of middle- and lower-income people, has led to the widespread perception that the system is rigged in favor of a privileged few, who are out-of-touch with and insensitive to the reality of most of the population.[9] The uprising has thus been characterized by a strong antipathy toward the political class , and not just toward the sitting (rightwing) government/administration.[10] Wary that politicians might coopt the movement, demonstrators have insisted that constitutional change be carried out by a “constituent assembly,” composed of average citizens, who have been excluded from decision making for so long.

The fact that the congressional Agreement did not include the term “constituent assembly” thus made many suspicious. More generally, that discredited elected officials reached such a transcendent accord among themselves, without entering into direct dialog with any organizations that had been involved in the protests, struck many as just another example of “la cocina,” that is, policy cooked up behind closed doors. On these grounds, some social organizations and unions rejected the agreement. Meanwhile, civil society is extremely fragmented and there are no obvious interlocutors for the different mobilized sectors. This complicates the building of bridges between political party leaders and the citizenry.[11] 

Two additional factors, not unique to Chile but heightened by the context there, could also imperil the constituent process. The first is the matter of unrealistic expectations. Not only is democratic constitution writing a relatively long and complex process, but even if it is wildly successful, the constitution itself can’t solve the structural problems that drove the uprising; it can only provide a framework that makes desired policies possible. If politicians do not recognize and, in short order, act to address the concerns of the population regarding pensions, health, education, transportation, etc., the unrest is likely to continue and patience with the constituent process may wear thin. The second is the “devil in the details” issue. The societal consensus on a new constitution is broad but very general, and most people have not yet begun to learn about and consider the implications of different constitutional choices. Even if the April plebiscite produces a clear outcome, specific electoral rules for the convention have to be set, and frictions will certainly arise around those. Moreover, if and when the constituent body is convened (late 2020, per the agreement), discord around content will inevitably emerge. It remains to be seen if there will be enough trust between participants and stakeholders to resolve conflicts on procedural and substantive issues, in good faith and in a constructive manner.

How to Realize the Promise

The Chilean people, through their persistent mobilization over the past month, opened up a path that seemed impossible a few weeks ago. They now have the opportunity to move definitively beyond the dictatorship and to escape the bounds of a constitution that has made it impossible for elected majorities of the past thirty years to pursue social policies at odds with the neoliberal socio-economic model imposed during the Pinochet era. Chileans have shown that they want to participate in the creation of a more just and democratic society, and the November 15^th Agreement establishes a basic framework to allow this to happen. To see it through, political leaders will have to make a great effort to reach out, listen, and respond to citizens as they emerge from their political slumber,[12] and everyone will have to “negotiate until it hurts.”[13] Those who have fought, in the streets and through different institutional channels, for a new constitution via a broadly representative constituent assembly must find ways to communicate better and work together to make sure they don’t lose this historic opportunity.

Suggested citation: Lisa Hilbink, New Constitution or Nothing! The Promise and Pitfalls of Chile’s Constitutional Moment, Int’l J. Const. L. Blog, Nov. 24, 2019, at: http://www.iconnectblog.com/2019/11/new-constitution-or-nothing-the-promise-and-pitfalls-of-chiles-constitutional-moment/

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[1] The author thanks Valentina Salas for her valuable feedback on earlier drafts of this article.

[2] It should be noted that this first option revives the proposal of President, Michele Bachelet, in a bill sent to Congress five days before the end of her mandate in 2017, after her government led an effort to rewrite the constitution. That bill sought to authorize Congress to decide the mechanism to write a new constitution. Among the four alternatives proposed, the bill included a mixed convention. Due to opposition from the rightwing parties now in government, the bill never received a floor vote.

[3] The agreement does not call this second option a “constituent assembly,” which is the specific term that has been used by protesters, apparently because it is unpalatable to the far-Right party, the UDI, for whom it conjures up the radically anti-liberal Venezuelan, Ecuadorean, and Bolivian examples. However, Left party leaders made it clear in the press conference on the agreement that they understood the term “constitutional convention” in the agreement to be the equivalent of “constituent assembly.”

[4] Chile’s three major constitutions, of 1833, 1925, and 1980, were all written by small committees of experts with no democratic political pedigree. See Lisa Hilbink, Judges beyond Politics in Democracy and Dictatorship: Lessons from Chile (CUP 2007), ch. 2.

[5] The government of the previous President, Michele Bachelet, had convoked cabildos to discuss a constitutional rewrite in the 2015-17 period, and some 220,000 citizens participated. However, these mostly involved wealthier and/or more educated people. The striking thing this time is that the effort is coming from below, and people from all sectors, including in lower-income and often stigmatized neighborhoods, are organizing them.

[6] An indicator of the surge in public interest was that, on Monday,November 11, the current (1980) constitution, sold in bookstores and kiosks on city streets around the country, became the second best-selling book in Chile.

[7] RN leaders were also major protagonists in the push from the municipalities for a national consultation on a new constitution.

[8] For an argument attributing the failure of Bachelet’s constitutional rewrite effort to the lack of effort to build an elite consensus, see Sergio Verdugo & Jorge Contesse, The Rise and Fall of a Constitutional Moment: Lessons from the Chilean Experiment and the Failure of Bachelet’s Project, Int’l J. Const. L. Blog (2018), http://www.iconnectblog.com/2018/03/the-rise-and-fall-of-a-constitutional-moment-lessons-from-the-chilean-experiment-and-the-failure-of-bachelets-project.

[9] This has been apparent in stagnating levels of confidence in all government institutions in recent years, independent of their performance.

[10] This is evident in chants and posters of “They all need to go! (¡Que se vayan todos!)”

[11] One bright note in this regard is the protagonism of the country’s municipal leaders, who are closer to and more in touch with the everyday struggles and concerns of average Chileans than are national leaders, and may prove able to serve as intermediaries between the people and the political class in the constituent process.

[12] A major slogan of the uprising is “Chile Woke Up!”

[13] Daniel Matamala, “Ocaso del Idiota,” La Tercera, 16 November, 2019.