On 7 May, Chileans went to the polls to choose a Constitutional Council that will produce a new constitution to replace the one bequeathed by the Pinochet dictatorship – and handed control to a far-right party that never wanted a constitution-making process in the first place.

This is the second attempt at constitutional change in two years. The first process was the most open and inclusive in Chile’s history. The resulting constitutional text, ambitious and progressive, was widely rejected in a referendum. It’s now far from certain that this latest, far less inclusive process will result in a new constitution that’s accepted and adopted – and there’s now a possibility that any new constitution could be worse than the one it replaces.

A long and winding road

Chile’s constitution-making process was born out of mass protests that erupted in October 2019 under the neoliberal administration of Sebastián Piñera. Protests only subsided when the leaders of major parties agreed to hold a referendum to ask people whether they wanted a new constitution and, if so, how it should be drafted. Although tweaked since it was issued in 1980, with its most authoritarian traits removed, Pinochet’s constitution is yet to be replaced by one that safeguards fundamental social and economic rights and recognises the need for public participation in the making of important decisions.

In the vote held in October 2020, almost 80 per cent of voters backed constitutional change, with a new constitution to be drafted by a directly elected Constitutional Assembly. In May 2021, the Constitutional Assembly was elected, with an innovative mechanism to ensure gender parity and reserved seats for Indigenous peoples. The resulting body presented a far more accurate reflection of the diversity of Chilean society than political institutions normally offer. Amid great expectations, it started a one-year journey towards a new constitution.

Pushed by the same winds of change, in December 2021 Chile elected its youngest and most unconventional president ever: former student protester Gabriel Boric. But things soon turned sideways, and support for the Constitutional Assembly – often criticised as made up of unskilled amateurs – declined steadily along with support for the new government.

In September 2022, a referendum resulted in an overwhelming rejection of the draft constitution. Although highly progressive in its focus on gender and Indigenous rights, a common criticism was that the proposed constitution failed to offer much to advance basic social rights in a country characterised by heavy economic inequality and poor public services. Disinformation was also rife during the campaign.

The second attempt kicked off in January 2023, with Congress passing a law laying out a new process with a much more traditional format. Instead of the large number of independent representatives involved in before, this handed control back to political parties. The timeframe was shortened, the assembly made smaller and the previous blank slate replaced by a series of agreed principles. The task of producing the first draft is in the hands of a Commission of Experts, with a technical body acting as an arbitrator. One of the few things that remained from the previous process was gender parity.

In January, a 24-member Commission of Experts selected by political parties was confirmed by Congress, amid criticisms of insufficient transparency. Congress also appointed a 14-member Technical Admissibility Committee tasked with guarding compliance with a series of principles including those of democratic republicanism, a unitarian decentralised state, the rule of law, separation of powers, bicameralism, the recognition of Indigenous peoples as part of an indivisible nation, the subordination of the armed and security forces to civilian rulers and the autonomy of the Central Bank and other bodies.

Starting in March, the Commission of Experts was given three months to produce a new draft, to be submitted to the Constitutional Council for debate and approval. A referendum will be held in December to either ratify or reject the new constitution.

Rise of the far right

Compared with the 2021 election for the Constitutional Convention, the election for the Constitutional Council was characterised by low levels of public engagement. A survey published in mid-April found that 48 per cent of respondents had little or no interest in the election and 62 per cent had little or no confidence in the constitution-making process. It’s clear that after an intense couple of years, fatigue set in. The only reason election turnout rose, to 83 per cent compared to 44 per cent in May 2021, is because voting was made compulsory.

Polls also showed increasing dissatisfaction with the government: in late 2022, approval rates had plummeted to 27 per cent while rejection rates hit 65 per cent. This made an anti-government protest vote likely.

While the 2021 campaign focused on inequality, this time the focus was on rising crime, economic hardship and irregular migration, pivoting to security issues. The party that most strongly reflected and instrumentalised these concerns came out the winner.

The far-right Republican Party, led by defeated presidential candidate José Antonio Kast, came first overall and in 70 per cent of municipalities. With 35.4 per cent of the votes cast, it won 23 seats on the 50-member council. The government-backed Unity for Chile, bringing together eight parties, came second, with 28.6 per cent of the vote and 16 seats. This was far less even than the 38 per cent who backed the proposed progressive constitution in the September 2022 referendum.

The traditional right-wing alliance Safe Chile, which includes National Renewal, the party of former president Piñera, received 21 per cent of the vote, winning 11 seats. No seats were won by the populist People’s Party and the centrist All for Chile alliance, led by the Christian Democratic Party. The political centre has vanished, with polarisation on the rise.

What to expect

The Expert Commission will deliver its draft proposal on 6 June; its members will then join the Constitutional Council with the right to speak but not vote. The Constitutional Council will have five months to work on the draft. It will be able to approve, amend or incorporate new norms with the votes of three-fifths of members. This means 31 votes will be needed to make decisions, while 21 will be sufficient to block decisions.

This gives the Republican Party, with its 23 votes, veto power. If it manages to work with the traditional right wing, their 34 votes will allow them to define the contents of the new constitution.

The chances of the new draft constitution being better than the old one are slim. In the best-case scenario, only cosmetic changes will be introduced. In the worst, an even more regressive text will result.

People will have the final say on 17 December. If they ratify the proposed text, Chile will adopt a constitution that is, at best, not much different from the existing one. If they reject it, Chileans will be stuck with the old constitution that many rose up against in 2019.

Either way, it seems clear that it’s game over when it comes to improving the constitution: a once-in-a-generation opportunity to expand the recognition of rights will have been lost. But there are other arenas where change can be brought about, and this is where civil society comes into play. If political institutions can’t deliver, it will fall on civil society to keep pushing for the recognition and protection of human rights.