After a year-long, turbulent drafting process, Chile’s proposed new constitution was submitted to President Gabriel Boric on Monday, bringing the country one step closer to abandoning the legacy of Augusto Pinochet’s 17-year dictatorship. The move puts Chile on a path towards having one of the most democratic and progressive constitutions in the world.
If approved by voters in a Sept. 4 referendum, the new text will replace the constitution designed by Pinochet in 1980. Many Chileans blame the constitution—which follows a neoliberal model—for causing Chile to become one of the most unequal countries in the world. The stakes are high: the constitutional rewrite was approved by the government after mass protests in 2019 brought the country to a standstill. Whether the new constitution goes ahead will be a key test for the presidency of the leftist 36-year-old Boric, who has poured considerable political capital into the project.
“The rewrite process has become a vessel for the hopes and aspirations for a better Chilean society,” says Christopher Sabatini, senior Latin American research fellow at Chatham House. It “demonstrates an admirable flexibility and recognition of social and political discontent to an extent that no other country in the region has attempted. Irrespective of the potential downsides, the mere act itself is powerful.”
Here, what the new constitution means for Chile:
Why is Chile rewriting its constitution?
The final draft is the latest milestone in a long, turbulent journey towards constitutional reform. The 2019 protests—which began in response to a subway fare hike but escalated into a widespread Estallido Social (“social explosion”)—signaled public rejection of Chile’s decades-long neoliberalism. “If Chile was the cradle of neoliberalism, it will also be its grave,” the leftist Boric said in July 2021. At the time of the 2019 protests, half of all Chilean workers earned less than $550 per month.
Chile’s constitution, which favors privatization and has hindered reform efforts, has become a major target of popular unrest. Pinochet dramatically minimized the state’s role during his 17-year-rule, cutting budgets for public housing, education and social security, and selling off state-owned companies. Although the dictatorship ended in 1990, the so-called neoliberal legacy lives on in large part because of the constitution, despite major amendments to the document over the years.
To diffuse the protestors, in November 2019 then-President Sebastián Piñera’s conservative government agreed to hold a referendum on the contentious constitution. In October 2020, 78% of voters backed a rewrite, to be carried out by an elected assembly of delegates.
Boric, who assumed office in March this year, has called the current constitution an “obstacle” to long-lasting social change. The millennial won a historic victory in the country’s November 2021 presidential elections after campaigning to ramp up public spending, scrap the private pension system, and increase taxes on major industries.
In May 2021, Chileans elected a diverse constitutional assembly to write the new document. In a sign that voters were seeking new alternatives, 87% percent of the 154 chosen delegates had never held elected office before. Two-thirds of them also held center-left views and many represented parties formed within the past six years. The traditional right-wing parties—the Independent Democratic Union (UDI) and National Renewal—which held the presidency at the time, won just 21% of the assembly with 32 seats.
In line with quotas to ensure equitable representation, half of the assembly’s seats were reserved for women, and 17 for members of Indigenous groups, who make up about 13% of Chile’s population. Mapuche leader, activist, and linguist Elisa Loncón Antileo served as the assembly’s first president.
What is in the new constitution?
At 388 articles long, the new constitution is one of the longest in the world. Compared to the Pinochet-era document, it is wide-ranging and enshrines a host of social rights in law, including the right to free speech, abortion, clean air and water, and a publicly-funded national health service.
In an attempt to address historical inequalities and protect minority groups, the document emphasizes the “plurinational, intercultural and ecological” values and makeup of Chile. It establishes equal participation quotas for women in public institutions and hiring regulations that aim to close the nation’s 20 percentage-point gender employment gap, and guarantees LGBTQ+ inclusion in political spaces. The constitution also recognizes the Indigenous population as autonomous communities governing their territories, and enshrines protections for Indigenous cultures, knowledge, and identities.
In terms of the environment, the text breaks corporate monopolies of natural resources. Chile is the only nation in the world with a fully privatized water market. Citizens pay the highest prices in Latin America for water, while mismanagement and deregulation has led to a decade-long “mega-drought” that is being exacerbated by climate change.
Proposed articles to the new constitution had to be agreed on by two thirds of the constitutional assembly to be included in the text, necessitating a process of debate and compromise.
A common criticism of the draft constitution is the extent of institutional reform, including the elimination of the Senate from the country’s current bicameral Congress. The justification for that, explains Kenneth Bunker, a political analyst and editor of polling site Tres Quintos, was that the Senate has the power to veto the Chamber of Deputies. Bunker disagrees with this view, arguing that the bicameral system makes the process of policy-making more “responsible,” as lawmakers’ proposals are subject to scrutiny.
The analyst says that the underlying motivation for the reform is likely “short-term strategic political thinking”—with the mostly left-leaning assembly seeing the Senate, half of which consists of right-leaning lawmakers, as a roadblock. Critics on the right have complained that the dominance of mostly independent and left-leaning members of the constitutional assembly has prejudiced many articles in the new document.
Political orientation aside, another concern for observers is that the sprawling document is incoherent and unworkable in practical terms. A new constitution, Bunker explains, must be adapted to the cultural and legal infrastructures of the country it applies to. “Usually when you rewrite a constitution, you look for what is going wrong and change that element,” Bunker says. “But the assembly threw everything out, and started from scratch. It’s not an evidence-based constitution.“
Patricio Navia, a Chilean political scientist at New York University, believes that the untested nature of the document poses great risks for a country with one of Latin America’s highest GDPs. “Latin America is a continent full of constitutional experiments,” he says, pointing to rewriting processes in Venezuela, Ecuador, and Bolivia, “none of which stands out as a beacon of democracy in the world.” The draft constitution’s proposed changes to legislative infrastructure, including the over 200-year-old Senate and judiciary system, could produce “institutions that people do not respect or consider legitimate.”
What happens next?
Although nearly 80% of voters in the 2020 referendum called for a new constitution, support for the proposed document stands at 46%, according to national pollster Cadem. At times, the process has appeared disorganized to voters—the constitutional assembly had only one year to redraft the historic document and few resources, after former president Piñera withheld funding for policy advisors and support staff.
Polls show that 51% of voters oppose the new constitution, compared to 56% in January who said they would back a new text. Bunker attributes this dip in part to a change of governance half-way through the process from Indigenous leader Loncón to less experienced independent delegates who “improvised a lot.” Other issues have tarnished the process, including the conduct of some of the delegates, misinformation, and deliberate attempts by right-leaning delegates to delay proceedings.
The length and level of detail in the text also makes it “easier to reject,” Bunker says. “You only need to find one thing that’s a deal-breaker. For example, if you believe that the Senate is the bastion of stability in the country, you will reject the whole text. But to approve, you actually have to approve of all of it.”
The referendum will come amid economic turmoil for Chile, which is struggling with record-inflation and surging oil prices. This could have a knock-on effect on voters’ attitude to the draft constitution, Bunker says: “People don’t want more democracy if they can’t get to the end of the month with a decent salary.”
Moreover, the uncertainty inherent to the redrafting process has slowed investment flows in the country. “And if there’s less growth in future, there will be less money to fulfill the social rights that the new Constitution establishes,” Navia says.
Either way, the Sept. 4 referendum is expected to be a nail-biter. Rejecting the new constitution would be a major blow to Boric. But it could also give Chile’s leader a “window of opportunity,” Bunker says, to design a document that enshrines social rights but also irons out administrative issues in the current redraft. “Boric could do something powerful and achieve what he hasn’t been able to so far,” he says.
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