A new constitution for Chile: Let’s try again?

One year later, Chileans made a strong start to the constitutional overhaul process, with nearly 80% of citizens voting in favor of electing a Constitutional Convention to draft a new constitution to replace the one imposed by the Pinochet dictatorship in 1980. And yet, after a year of passionate debate, last September 62% of the population rejected the ambitious, progressive text proposed by the Convention in a referendum with a record level of voter turnout.

The Reject victory was a strong blow to the leftist government led by Gabriel Boric, which had identified closely with the Approve option. Even so, during the campaign leading up to the referendum, the Reject campaign recognized that the current Constitution had lost legitimacy and committed, should it win, to supporting constitutional reforms. In search of a second — and perhaps final — opportunity to escape this constitutional crisis, last month the Chilean Congress approved, with a large majority, a new constitutional process that will lead to a new proposal and a referendum to approve this proposal by the end of 2023.

Our organization, Espacio Público, played an active role during the first constitutional process. We followed the entire process with surveys and focus groups, participated in a fact-checking platform, and made policy proposals in specific areas, including the electoral rules and anticorruption provisions of the proposed text.

The lessons learned during this work may help us understand why the proposal was rejected. Understanding these reasons may be useful in the new constitutional process, as well as provide insights that help approve much-needed social reforms. And as countries around the world are increasingly facing institutional crises — including the rise of authoritarianism in the United States and Europe, the total collapse of Haiti’s government, and political revolt and attempted coups in Peru and Brazil — this discussion offers an urgent lesson for needed constitutional revisions in other countries.

The Constitutional Convention: From hope to mistrust

The election of the members of the Constitutional Convention in May 2021 was strongly influenced by the narratives framed during the social outburst of 2019: protests against economic inequality, insufficient social protection, political corruption, and corporate abuses. As a result, and in contrast to the election of other bodies, the Convention election rules allowed lists of independent candidates, reserved seats for Indigenous people, and ensured strict gender parity — which produced an elected Convention that differed from Congress in more ways than expected.

Parties from the right-wing and left-wing coalitions that had ruled the country since the return to democracy in 1990 did poorly in this election, while two lists of independent candidates fared very well. One was composed of left-of-center members, the other included a significant proportion of radical, grassroots activists. According to an early Espacio Público-Ipsos survey, hope and happiness were the feelings most often associated with the Convention during the first six months of its work, partly driven by its non-elitist composition that represented Chilean society much better than other elected bodies.

However, the diversity of the body also posed challenges to its work that were not properly addressed. With some internal committees consisting of a majority of members with radical views and little technical knowledge, some extravagant and far-reaching proposals we approved during the process, such as the recognition of a right to civil disobedience and the establishment of a mandatory prior approval by local and Indigenous communities of every economic activity close to where they live that could potentially harm nature. Although most of these rules were voted down in the general assembly, they created a perception of incompetence and disconnect with citizens’ concerns. In addition, personal scandals, unethical behaviors, and a deep mistrust of authority among most Convention members hindered its work. This might explain why topics that were likely to be a deal-breaker for many voters, such as abortion rights, were included in the constitutional proposal even though in most countries they are not addressed at the Constitutional level but through legislation.

All these factors created an image of the Convention as a self-centered group, more concerned with their own obsessions and small parcels of power than with the Chilean people’s problems. As reflected by Espacio Público-Ipsos surveys, at the beginning of March 2022, halfway through the Convention’s work, the positive feelings toward the Convention gave way to negative feelings, such as fear and mistrust.

A few additional factors may have contributed to the rejection of the Constitution. First, little effort was made by the majority in the Convention to work with the more moderate members of right-wing parties, creating a confrontational climate that alienated conservative voters, both within and outside the Convention. Second, the economy deteriorated substantially by the time of the referendum, with rising inflation and a major reduction in disposable income. Third, voting had been voluntary for over a decade but was compulsory in the referendum. This led to an unforeseen increase of 60% in voter turnout, with most new voters favoring the reject option.

Reflecting on the Convention’s experience offers some lessons for future constitutional processes. Even if the inclusiveness of the drafting body contributes to the legitimacy of the process, long-lasting constitutional change in democratic settings requires building a broad consensus that includes traditional political actors and different social and interest groups. Moreover, the initial popularity of the drafting body does not exempt it from keeping close contact with citizens who will have the final word in a referendum. In plural and complex democracies, with volatile preferences among the electorate, popular endorsement can never be taken for granted.

Finding a new consensus: One last shot?

Despite the wide margin of the population that rejected the proposed Constitution, it is important to note that the current Constitution is widely unpopular as well—80% of voters approved of overhauling this document, which is often associated with the neoliberal model implemented during the Pinochet dictatorship. Political, academic, and judicial interpretations of the text have favored the private sector provision of social rights, particularly health, education, and social security. And even though the authoritarian elements of the original constitutional text were eliminated in subsequent amendments, until very recently the political system maintained stringent supermajority rules that gave right-wing parties veto power over fundamental political reform.

Meanwhile, the Constitutional Convention’s proposal included five significant, innovative topics: A welfare state, decentralization of power (both political and economic) from national to regional and local institutions, environmental protection, rights and recognition for Indigenous peoples, and parity between women and men.

Despite the popularity of these topics among most Chileans, the long, overly inclusive, and radically extravagant rules in the final proposal concerned many voters and alarmed the business sector. This was compounded by the fact that the proposal’s political system was viewed as failing to address the many systemic factors that have led to political gridlock, which has hindered the last three Chilean Presidents’ ability to pass much-needed legislative reforms for pensions, health care, taxation, and more.

These factors combine to make this new effort to overhaul Chile’s Constitution both critically important and a last chance to create a new economic and political paradigm in the country. The new process will be conducted under the strict control of the current Congress, which has appointed a Committee of Experts in charge of preparing an initial draft. The Council responsible for drafting the document will be elected under Senate rules, though with a requirement for strict gender parity and a small number of reserved seats for Indigenous people. Like the U.S. Senate, the Chilean Senate underrepresents densely populated regions, which favors right-wing parties.

The agreement also includes twelve constitutional foundations that must guide the new text. While some are progressive in nature — the creation of a welfare state, a duty to protect nature and biodiversity, and recognizing Indigenous people as part of the Chilean nation — others are not. And the structure ensures that both the political right and the current establishment across the political spectrum will be overrepresented in the process, which makes it unlikely that any overhaul of the political system will be possible.

Even if the new constitutional proposal is unlikely to contain drastic transformations to the political and economic model, it can still serve as a shared basic consensus that allows ordinary politics to start channeling long-ignored citizens’ demands. That is the current goal of the Boric administration, to pass much-needed reforms through Congress. These include a tax reform leading to a more progressive tax system and a higher tax burden, and a reform of the pensions system that incorporates social protection and social security components financed with employer contributions.

Following the Reject victory, President Boric changed some key posts in his cabinet, incorporating experienced politicians from the social democratic parties. This move demonstrated a healthy dose of realism aimed at building a broader political base in the hope of approving much-needed reforms. Even though the members of Congress backing the government doubled, the new government coalition still does not have a majority in Congress. The challenges ahead are large, and the emergence of populist options with a real chance of winning the presidency in 2025 is high if Congress cannot demonstrate an ability to address the people’s urgent needs.

While considerably less ambitious than the proposal that was rejected last September, the new constitutional text may still hold the promise for the construction of a new economic and political contract that gradually leads to a welfare state in Chile.