The overwhelming rejection of a new constitutional text by Chile’s electorate (over 60% voted against it) has made worldwide headlines. International public opinion is baffled. The Chilean constitutional process has been followed with great interest around the world. Although there were many protests in 2018 and 2019, both in Latin America and elsewhere, the only case in which these protests led to an institutionalised process to renew the country’s social contract was Chile.
A difficult phase
This meant that, after the violent, unprecedented uprising that took place on October 18, 2019, that led to the burning of churches, looting of supermarkets and the destruction of 118 subway stations, a national agreement was signed by most political parties on November 15 of that year. This included a timeline on the way forward to a new Constitution to replace the one inherited from General Augusto Pinochet, a charter which, after 40 years, continues to rule Chile.
This timeline included a plebiscite on whether to draft a new Constitution, and by whom; an elected Constitutional Convention (a first in Chilean history) that met for a year to do so; and a final plebiscite (on September 4) to ratify the new text. This period overlapped with the COVID-19 pandemic, which wrought havoc with the established schedule; a sharp recession; and a slew of additional municipal, regional, congressional and presidential elections. At the elections held in May 2021, there were 15,000 candidates on various ballots, in a country of 19 million people.
Under these circumstances, the very fact that the Constitutional Convention managed to deliver a text within the established deadline, was a bit of a miracle. The fact that its delegates were elected on the basis of gender parity, and that there was a quota of 17 delegates for Chile’s long-ignored indigenous peoples (the 1980 Constitution does not even mention them, though they form 13% of Chile’s population, and two-thirds of Chileans are of mixed European-aboriginal descent), also marked a first. Chile is a highly conservative, patriarchal society that has for long ignored its indigenous roots.
Yet, why was the new text rejected?
And Chile is very much an outlier in this. In the past two centuries, 94% of all new constitutional texts submitted to the electorate have been approved. Also, in Chile, four out of five voters in 2020 supported a new fundamental charter. With Chile´s long-standing democratic institutions and civic traditions, it would surely manage this easily, and deliver a text that rose to the occasion, right? Wrong.
And the reasons for this, and for why the country is now forced to go back to the drawing board, have as much to do with form as with substance, with processes, as with outcomes.
In the October 2020 plebiscite, voters were asked to choose between a fully elected Constitutional Convention, and one where half the members would be elected, and the other half made up of MPs. Much as the electorate on that occasion voted overwhelmingly (80%) in favour of a new Constitution, it was also endorsed by almost the same majority, having a full, newly elected body to draft it. And this is how Constitutional Assemblies are supposed to work. The era of a small group of unelected white men in smoke-filled rooms writing made-to-measure charters for the government of the day (which is how Chile’s 1980 Constitution was written over seven years) is past.
And then, a critical turning point was reached. When the time came to choose a formula to elect the delegates to the Constitutional Convention, Chile’s Congress did so along the lines of Congressional districts (thus the 155 delegates, which is the number of MPs in Chile’s Chamber of Deputies). Independents cried out, arguing that they would be at a disadvantage vis-à-vis candidates of political parties. Traditionally, independents have been accommodated in various ways, including allowing them to run as part of a political party.
This time, however, the Chilean Congress, giving in to what it took to be the esprit du temps, made a cardinal mistake. In setting the election rules for the Constitutional Convention, it allowed independent candidates to form party lists (the ultimate oxymoron), and run under their banner. A motley crowd thus gathered under lists with picturesque names such as the “People’s List” and the “Non-Neutral Independents”.
At a time when popular support for political institutions in general and political parties in particular were at an all-time low, these lists won many votes, while political parties did not do so well. Christian Democrats, who have had three Presidents in Chilean history, famously elected only one delegate.
The net result of this misguided feat of electoral engineering was that the motley crowds that formed the lists of independents, plus other Left delegates, won a two-thirds majority in the Convention. This allowed them to elect the chair, to ignore the right-wing delegates and whatever they proposed, and otherwise engage in the sort of shenanigans individuals not accountable to anybody are bound to. One of them video-taped himself, while voting remotely, from the shower; another, who was almost elected as chair of the Convention, faked a non-existent cancer, which he parlayed not only to get votes but also to raise funds. Identity politics and victimhood took centre stage, while narcissism ran amok.
The first three or four months of the convention were wasted in endless deliberations about the fate of the “political prisoners” (those in prison as a result of crimes committed during the social uprising ) and in extended exchanges on the Convention’s internal procedures. The media, never very fond of the whole exercise in the first place, had a feast. Amazingly, the Convention initially decided not to invite four of Chile’s former Presidents to the closing ceremony. Although the Convention began with high approval ratings, by the time it was done, public opinion had turned against it.
Once the seven specialised committees began their work, time was short, and the text ended up being more an exercise in hopeful wishing than anything else. The abolition of Chile’s two-centuries old Senate, the weakening of the judiciary, and the establishment of a powerful “Congress of Deputies”, seemingly designed ex profeso to clash with the Executive, are part and parcel of an odd smorgasbord of offerings that betray little understanding of how political systems work.
Yes, the 388-article, somewhat repetitive, text of the new Constitution, that would have been one of the longest in the world, left much to be desired. The shift from totally ignoring Chile’s aboriginal peoples, to proclaiming the country to be a “plurinational state” with separate judicial systems, was too much of a good thing. Ignoring the proposals of the Right, and not aiming for a charter that represents all Chileans was a cardinal sin.
But the key lesson of the Chilean constitutional fiasco is a different one. Good intentions are fine and well, but procedures and professionalism matter. In fact, it may make the difference between failure and success. In twisting rules designed for political parties in order to favour independents who are accountable to no one, the Chilean Congress opened the door for the ‘disaster in the making’ that was Chile’s Constitutional Convention. Let us hope that the second time around wiser counsel prevails.
Jorge Heine is a research professor at the Frederick S. Pardee School of Global Studies, Boston University, a Wilson Center global fellow, and a former Ambassador of Chile to India