On the Protests and Riots in Chile: Why Chile Should Modify its Presidential System

—Sergio Verdugo, Centro de Justicia Constitucional, Universidad de Desarrollo (Chile)[1]

There are many ways to approach the demands behind the protests in Chile, and I do not aim to replace or disprove those perspectives. Instead, this essay shows that part of the problem relates to the existence of an unresponsive government and that the explanation for that unresponsiveness can be partly understood by the political dynamics that resulted from a set of institutional arrangements passed by recent political reforms. I claim that the accumulative effect of those political reforms, even though valuable in many ways (e.g., eliminating authoritarian enclaves), have pushed towards a polarized party system that tends to produce legislative deadlock.

The good news is that there is a way to solve the problem. The protests have created the need for bipartisan agreements finding a way out of the crisis, and politicians are now discussing a new agenda focusing on social issues. That agenda should not only consider responding to key social demands, but also to make sure that political institutions will become more responsive in normal times. Modifying critical aspects of the presidential system might be helpful in that task.

First, I offer some brief remarks on the demands of the protests. Second, I explain how the government has been unable to respond to key aspects of those demands in the past. Third, I explain how the set of institutional reforms have promoted a gridlocked legislative process. Finally, I briefly comment on the way the State has responded to the protesters.

1. What is happening in Chile?

The recent protests and riots in Chile are a surprise for many, but theories abound. For some, the protests are the result of frustration against a political system that has not been able to distribute the benefits of economic growth in an egalitarian way. Some add that a new, younger generation of Chileans, is more inclined to protest because of its different psychological profile compared with other generations. The current young generation did not live during the dictatorship years; it grew up during Chile’s most stable period, and experienced the massive 2006 and 2011 protests demanding an expansion of the right to education and the “me-too” protests of 2018.

Others explain the protests by acknowledging a demand for a new social pact–a sort of Jeffersonian argument triggered by the fact that the main pillars of the economic and political model were built during the dictatorship, and its modifications were agreed by an elected ruling elite that was constrained by the dynamics of the democratization process. Some scholars interpret the social pact demand as a call for a constituent assembly or another way to trigger a total constitutional replacement.

The governments have been unresponsive to these sorts of claims. Former President Bachelet tried to replace the Constitution without a constituent assembly but failed to achieve the necessary support from the political parties,[2] and President Piñera did not include a constitutional substitution proposal in his platform, but instead a moderate approach to constitutional reform. Elsewhere I have claimed that behind the demand for a new constitution there is an expectation for rights expansions,[3] and securing those rights does not necessarily involve a total constitutional replacement.

President Piñera, a market-friendly politician that represents a sort of “new right” that has tried to detach itself from Pinochet supporters, obtained 54.57% of the votes in the runoff election of December 2017, with the promise of bringing “better times” (tiempos mejores) to the country. Since his election, Piñera has tried to interpret the demands of the new post-authoritarian generation by pushing for an environmental agenda and trying to have a friendly narrative with a gender equality agenda. Piñera’s focus on these issues has partly attempted to hide the legislative gridlock that most of the key projects included in his presidential platform are experiencing in Congress.

The 2019 protests are not really about “new” cultural issues such as the debates on global warming and gender equality. They are about more “classic” themes that the Piñera administration has not been able to address. This is the case of the reform to the social security system, one of President Piñera’s most important promises. Also, this is the case of pending reforms that Piñera’s administration has ignored, such as the high costs of basic goods like electricity and transportation and the low incomes of a significant part of the population. The government’s technocratic answers to these sorts of demands have shown little empathy with the social problems behind them.

The demands connected to the protests seem to be miscellaneous, but most of them have to do with the costs of living, and a frustration against a privileged political class that does not seem to experience the problems of the mid and lower classes. The common thread running through demands such as lowering legislators’ salaries and increasing retirement pensions is that they all represent a demand for the redistribution of the benefits of a country that presents itself as prosperous, stable, and economically strong, but that has maintained high levels of inequality. As a commentator has claimed, the Chilean population has seen the “promised land,” but they feel frustrated by the fact that they cannot get through the gates.[4]

It would be a mistake to assume that the protests only target Piñera and his administration. Despite some calls for President Piñera to resign and threats of impeachment by the far left, the majority of the demands target the social problems that the ruling elite has not been able to address. Many are skeptical of Piñera’s promises, and the protests did not yield when Piñera asked the people to forgive him while offering a set of measures to deal with related issues. Some claimed that those measures are insufficient, and others question Piñera’s credibility, as he is part of that privileged elite. The same elite that, in the past, has not paid full taxes, does not need to send their children to deteriorated public schools or use the public healthcare system, and do not need to depend on the weaknesses of the social security system.

Of course, some read these problems using some sort of radical leftwing approach that aims to abandon Chile’s neoliberal economic model. But it is unclear why Chileans would need to leave the broader capitalist system to respond to the protests’ demands. Most Chileans value the benefits of capitalism, cherish their freedoms and property rights and are proud to see how the country has significantly reduced poverty while distinguishing themselves from the weaknesses of the economies of neighboring countries.

But capitalism without enough social mobility and sufficient access to social goods might be fertile ground for a crisis. Whatever the solution to the crisis is, it should come with a way to remove the obstacles that have prevented the political institutions to be more responsive to social demands.

2. The unresponsive institutions and legislative gridlock

A government lacking legislative majorities is unable to advance the agenda on critical social issues because they frequently beget divisions, coalitions are undisciplined, and the fragmentation of the multiparty system is high. When Piñera initiated his presidency, he knew these obstacles and offered the opposition to endorse bipartisan agreements on specific issues. But many of those agreements were not possible or did not respond to urgent demands. Three months after the Piñera administration started in 2018, a Socialist legislator said that Congress was having a sort of “legislative drought” (sequía legislativa). President Piñera’s answer? “Go back to work!” This is only an (early) illustration of how the polarization and legislative deadlock that the legislative procedure is experiencing.

An important example of how the legislative decision-making process is unable to respond to urgent social demands is the inability to solve the crisis in the Chilean social security system. That system is not only an institutional model intended to pay pensions, but a financial device that aims to boost the economy by investing the savings of each employee and providing capital to Chilean companies. Some believe that the Chilean system should abandon its nature as a financial device and promote more intergenerational fairness. Others, such as President Piñera, propose maintaining the system’s nature as a financial device and offer to increase the pensions by raising the mandatory amount each employer should deposit into individual’s investment accounts and elevating the minimum pension a person should receive through subsidies.

Everyone in Chile agrees that the social security system needs a critical reform to elevate the low pensions that most retired people are receiving, but there are deep disagreements as to which changes are the best, and it has been impossible to form a majority to provide a solution. The reform was an important part of each presidential candidate’s platform in 2017 but, two years later, there is no agreement on how to proceed. Piñera’s proposed bill is paralyzed. The result of these kinds of disagreements is the inability to make the government responsive on topics Chileans care. Consequently, many feel frustrated to see how some retired people need to go back to work to be able to afford the elevating prices of rent while paying for a subway ticket that can cost more than 15% of the total income of the least well off individuals. Technical answers explaining the costs of the subway are not enough. Blaming the opposition is also insufficient.

The country has been experiencing legislative gridlock on other key issues. For example, Piñera has postponed the reforms to the Constitution, he has failed to achieve political agreement for improving the healthcare system, his tax reform proposal lacks support, legislators from the opposition have tried to push for a labor reform the Piñera administration disagrees with, and a substantive reform to the immigration regulation is unfeasible. For a government that only lasts four years (a rule that comes from the 2005 reform), without the possibility of reelection, the incentive is for Piñera to focus on other issues. His international agenda showing concern for the Venezuelan dictatorship and his environmental agenda—e.g., forbidding plastic bags and organizing the COP25—have been more attractive for him because he can show easier short-term results. The price? Unresponsiveness on the social demands, including paralyzing essential proposals of his electoral presidential platform and frustrating the voters’ expectations.

The recent massive manifestations have finally pushed politicians to find common ground to respond to key social demands. For example, it seems that Piñera will finally be able to approve a social security reform, revise the way the prices of the subway and electricity are established, and target critical problems of the healthcare system, such as the elevated prices of medicines. But it would be a mistake for political institutions to only wait until crises detonate to make critical reforms. The ruling elite should also use this moment to negotiate a reform that can make those political institutions more responsive in normal times.

3. Why should Chileans also discuss a modification to their presidential system?

The political system’s high levels of fragmentation and polarization, which make the government less likely to become responsive to urgent social needs, is not spontaneous. A combination of institutional arrangements implemented during the reforms that have tried to democratize the Constitution have stimulated these problems. Although those reforms are valuable in many ways, reformers have not always considered the cumulative effect of the different ingredients.

Those ingredients include: (1) A presidential regime (as planned by the 1980 Constitution following the post-1925 constitutional tradition) that can make a minority President coexist with broad opposition. (2) Strong presidential legislative powers (mainly from 1970) that make the President responsible for pushing the legislative agenda despite lacking legislative support, while reducing the power of individual legislators to push for critical reforms. (3) Legislative supermajority requirements to approve organic laws (1980, 1989), making it even harder to achieve bipartisan agreements. (4) Non-simultaneous parliamentary elections with runoff presidential elections, making it likely that the president’s election will be disconnected from the final allocation of seats in parliament (2005). (5) Short four-year non-renewable presidential terms, incentivizing each administration to focus on short-term projects (2005). (6) Non-mandatory vote, allowing a significant number of citizens—mainly young voters—to forgo a say in elections, and creating an incentive for politicians not to seek those votes (2009). (7) A proportional electoral system for electing legislators, ending the two-coalition party system that previously existed in Chile and empowering small parties (2015).

The cumulative effect of these institutional arrangements has changed the party system and the dynamics of the legislative decision-making process. From a relatively disciplined two-coalition system, Chile shifted to a multiparty system with undisciplined parties, making the President less likely to be able to build a majority coalition, polarizing legislative debates, and over-representing the influence of small parties in voting legislative bills. Piñera’s administration is currently dealing with the most polarized and fragmented scenario since the pre-dictatorship years.

The President still controls the legislative agenda, and new statutes need his or her approval. But when the President lacks congressional majorities, gridlock is expected, and an unresponsive government is possible. In these conditions, the President has incentives to focus on short-term measures that do not require any effort to achieve bipartisan agreements or that do not require congressional approval.

Political scientists have theorized in the past that the combination of Presidentialism and a proportional system of elections (approved in 2015) can produce a polarized scenario and boost conflict, and the institutional arrangements do not provide tools to overcome crises easily. Other Latin American countries have experienced the dysfunctionality of such a system. Chilean scholars could re-read the landmark works of scholars like Juan Linz and Arturo Valenzuela,[5] followed by the work of other prominent scholars like Bruce Ackerman,[6] to get useful ideas on how to solve the problem of an unresponsive government that can be paralyzed by legislative gridlock in a Presidential system. Advancing a semi-presidential (or parliamentary) model or correcting the presidential system by discussing the electoral rules or other arrangements described above, are ideas that Chilean politicians should seriously consider.

Unfortunately, discussing reforms to Chile’s presidential regime, or to parts of its key rules, is not part of the agenda today. This is understandable, as the protests’ demands have pushed to prioritize social reforms. But the government should also care about building more responsive institutions, or Chile may be postponing this problem for the future. In other words, Chile can respond and solve the social issues of today, but also need to take care of how the institutions will prevent a new crisis from detonating in the future.

4. A comment on the State response: How to start calming the waters

Scholars that have made accusations of human rights violations should be taken seriously.[7] The government should collaborate with human rights organizations overseeing the behavior of police and military during this period and recognize that there has been a significant numbers of illegal detentions and other human rights violations. The need to keep public order should be reconciled with the rights of the protesters more intelligently. The police should target the specific individuals that are burning and sacking supermarkets, subway stations, stores, hotels and local markets, and not protesters. The government has a duty to act against those who burn or sack those places, but it needs to be respectful of human rights. Sometimes this is not an easy task, but it is an essential one. There can be no healthy democratic dialogue if a significant part of the population is living in fear, as it did during the first few days of the state of emergency.

It seems that the Piñera administration is finally focusing on the social demands and announcing symbolically important changes after a series of unfortunate errors. The government also needs to show that it is listening and continue inviting relevant political actors to work together to design the reforms that are needed. Perhaps the government will soon activate the agenda for constitutional replacement. That agenda can be an opportunity for building the groundwork for preventing a future crisis.

Suggested citation: Sergio Verdugo, On the Protests and Riots in Chile: Why Chile Should Modify its Presidential System, Int’l J. Const. L. Blog, Oct. 29, 2019, at: http://www.iconnectblog.com/2019/10/on-the-protests-and-riots-in-chile-why-chile-should-modify-its-presidential-system/

---

[1] I thank the comments of Pablo Castillo, José Manuel Díaz de Valdés, José Francisco García, Felipe Jiménez, David Landau, Andrea Maurieres, and José Riquelme, to a previous version of this essay.

[2] 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.

[3] Patricio Navia & Sergio Verdugo, From Institutional Design to Expanding Rights: The Growing Support for a New Constitution in Chile, 1990-2018, unpublished manuscript.

[4] Patricio Navia, Chile’s Riots: Frustration at the Gate of the Promised Land, Americas Quarterly, October 21, 2019, https://www.americasquarterly.org/content/chiles-riots-frustration-gate-promised-land. (“But the real reasons behind the rage lie in the frustration of a population that was promised access to the promised land of middle-class status, but that has been denied such access at the gate due to an unlevel playing field characterized by an abusive elite, an unresponsive government and an unkept promise of meritocracy and equal opportunity.”)

[5] See, for example, Juan Linz, Presidential or Parliamentary Democracy: Does it Make a Difference?, 2 in The Failure of Presidential Democracy. The Case of Latin America 3–87 (Juan Linz & Arturo Valenzuela eds., 1994); Juan Linz, The Perils of Presidentialism, 1 J. Democr. 51–69 (1990); Arturo Valenzuela, The Breakdown of Democratic Regimes. Chile (Juan Linz & Alfred Stepan eds., 1978); Arturo Valenzuela, Party Politics and the Crisis of Presidentialism in Chile: A Proposal for a Parliamentary Form of Government, 2 in The Failure of Presidential Democracy. The Case of Latin America 91–150 (Juan Linz ed., 1994); Scott Mainwaring & Matthew S. Shugart, Juan Linz, Presidentialism, and Democracy: A Critical Appraisal, 29 Comp. Polit. 449–471 (1997).

[6] Bruce Ackerman, The New Separation of Powers, 113 Harv. Law Rev. 633 (2000).

[7] La Tercera, La carta de 206 profesores de Derecho: “Nos comprometemos a que ninguna violación de DD.HH. quedará impune,” October 22, 2019, https://www.latercera.com/nacional/noticia/la-carta-206-profesores-derecho-nos-comprometemos-ninguna-violacion-dd-hh-quedara-impune/873138/.