Chile’s constitutional process: back to square one?
Three dizzying years came to an abrupt halt on 4 September, when Chilean citizens overwhelmingly rejected the draft text of a progressive constitution designed by the most inclusive process in the country’s history. In reacting to the vote, the government – born out of the same protests that led to the rejected constitution – avoided placing the blame on the disinformation campaign that distorted public debate. Instead it acknowledged that the change on offer was not in tune with the priorities and aspirations of most people. Since a majority have also long written off the 1980 authoritarian constitution, there’s now an urgent need to rethink the path towards change.
On 4 September, Chileans went to the polls to decide whether to adopt a progressive new constitution, instituted in response to the majority’s long-standing demands and designed in the most inclusive process in the country’s history. They overwhelmingly rejected it.
This brought to a halt, at least temporarily, a historic process set in motion on 14 October 2019, when students organised a mass evasion of metro fares in the capital, Santiago, after the price increased by 30 Chilean pesos.
The 2019 protests sparked the largest mobilisations in Chile’s recent history, with hundreds of thousands taking to the streets for weeks on end, challenging the enduring legacy of the Pinochet dictatorship.
Over 17 years of despotic rule, from 1973 to 1990, General Augusto Pinochet reshaped the country through the adoption of an extreme neoliberal economic model, privatising basic services including health, education and pensions, and giving free rein to market forces while deepening inequalities that persist to this day – a major factor behind the 2019 protests.
The economic and social order established by the dictatorship was enshrined in a constitution drafted by a non-elected ‘expert committee’ and approved in a plebiscite of dubious legitimacy in 1980. That constitutional framework still stands. Successive democratic governments have had to work within its limitations, laboriously managing to carve out some space through reforms in 1989 and 2005.
In 2019, a generation born and raised in democracy said ‘enough’. They started a journey that led to the election of Chile’s youngest and most unconventional president ever – himself a former student leader and protester – and the launch of the constitution-making process that would produce a draft text defining Chile as a ‘social and democratic rule of law state’.
The constitution needed to be ratified in an ‘exit referendum’, which many of those in favour of the constitution had initially thought a formality – given the overwhelming support shown in the 2020 referendum that established the process to develop the constitution. This turned out to be a fatal mistake.
Chronicle of a defeat foretold
Voting isn’t compulsory in Chile, and voter turnout is typically low, between 45 and 50 per cent. But as part of the agreement leading to the constitution-making process, compulsory voting and automatic voter registration were established for the exit referendum, with steep fines imposed if people failed to turn up. This meant there were a lot of people who don’t usually vote ready to be persuaded one way or the other.
Not surprisingly, the exit referendum saw the highest turnout in Chile’s democratic history. While only 7.5 million people voted in the 2020 referendum, 13 million did so in 2022.
In 2020, 5.8 million, around 78 per cent, voted in favour of a new constitution, and even more backed a newly elected constitutional convention to draft it rather than a mixed body of elected citizens and members of Congress.
In 2022, in contrast, even with many more people voting, fewer backed the constitution: only 4.8 million voted to approve it. In 2020, those voting against a new constitution amounted to 1.6 million, roughly 22 per cent, but they became a staggering 7.8 million in 2022. The approve camp lost a million supporters, while the reject camp won 6.2 million. Most who had previously abstained voted to reject.
People voted against the constitution in every single one of Chile’s regions, including the Santiago metropolitan area, the epicentre of the protests. It lost even in lower-class areas where President Gabriel Boric swept the 2021 presidential election.
Opinion polls were right all along: support for the new constitution reached its peak – 47 per cent – in February, and then steadily declined until reaching its lowest point, 32 per cent, in July. The first opinion polls showed only around 30 per cent rejecting the new constitution, but support for rejection grew as the campaign went along. Throughout there were many undecided voters, and ultimately many of these came down on the side of rejecting the proposal.
What went wrong?
Following the October 2020 entry referendum, another vote was held in May 2021 to select members of the Constitutional Convention. The vote was designed to ensure gender-balanced representation and included reserved seats for representatives of historically marginalised Indigenous peoples.
The resulting Constitutional Convention offered a much more accurate picture of Chilean society than any other political institution. Half of its members were women, and Indigenous people, young people, people from the interior and people not from political and economic elites were all well represented. Elisa Loncón, an Indigenous Mapuche woman, academic and human rights defender, was elected the body’s president.
Most seats were in the hands of independents and left-wing groups. Parties on the right won less than a third of seats, leaving them unable to block decisions, since these needed to be made by a two-thirds vote. Groups that have never had a place at the table now had a strong voice in the most consequential of decision-making processes.
There were several implications of this set-up.
Lacking veto power, right-wing groups increasingly disengaged from the constitution-making process. This opened up space for the radicalisation of some segments of the left, which in turn alienated moderate centre-left politicians and parties. Several mainstream Socialist Party politicians ultimately campaigned for the constitution to be rejected, not least because they opposed the Convention’s decision to eliminate the Senate.
Those defecting centre-left figures became the most effective spokespeople for the reject campaign, which was careful not to give prominence to hardcore Pinochet supporters who might scare off moderate voters.
Mostly freed from actual constitution-making work, the reject side started its campaign long before there was a constitution to reject. And it wasn’t a fair fight. The reject camp had seemingly endless funding and most of the media on its side, receiving disproportionate coverage from domestic and international press. Independent research revealed that the reject campaign received almost four times the amount of private funding of the approve campaign, which focused on a door-to-door strategy and held numerous mass rallies, or ‘apruebazos’.
As part of its desire to model a different form of politics from that of the discredited political class, the Convention adopted a policy of radical transparency. This ended up backfiring, because it became an ongoing spectacle, with conflicts magnified and issues caricatured for entertainment – and for political profit. It wasn’t long before the Convention fell into the same kind of discredit as other political institutions, seen as out of touch or preoccupied with self-indulgent debate. ‘Now we have two elites’, political scientist Juan Pablo Luna concluded. ‘And both are strongly questioned by the citizenry’.
Voices from the frontline
Julieta Suárez Cao is an Associate Professor of Comparative Politics at the Catholic University of Chile. She played a leading role in the design and promotion of the innovative electoral system that ensured a gender-parity outcome in the 2021 Convention election. Just ahead of the vote, Julieta assessed the reasons why the reject option would likely win and the possible scenarios after that.
The Constitutional Convention has been extremely transparent, perhaps too transparent. It became a sort of constitutional reality TV, a show that was broadcast every day, 24 hours a day. Clearly, the news that made it into the media tended to be about inconsequential and even ridiculous issues, so it did not represent what was really going on there. For example, one convention member proposed to dismantle all state institutions; of course, this never even made it out of the commission, but still made headlines for a long time. Such things created an adverse climate around the Convention, which I think affected the campaign.
A distorted climate of opinion has been created by disinformation campaigns, presenting implausible interpretations of debates and fake news to sow doubts about the contents of the constitutional text. For example, the claim that the new constitution does not protect private property or that Indigenous people would have ‘privileges’ was widely circulated. All of this has interfered with public debate and cast doubt over the viability of the proposal.
But practically nobody defends Pinochet’s constitution: almost everybody who promotes rejection does so with the argument that rejection must be followed by reform. In other words, almost nobody advocates for keeping the current constitution, although that is precisely what will happen, at least in the short term. Given the lack of agreement within the rejectionist coalition, its victory would open up a period of enormous uncertainty.
This is an edited extract of our conversation with Julieta. Read the full interview here.
Although the Convention’s inclusiveness entailed the presence of unusual, even eccentric perspectives, extreme views were typically marginal and not reflected in the final text. Crucially, elements vital to the right, such as Central Bank autonomy and the protection of property rights, stayed in. The constitution only offered broad outlines. It would have required new laws to be passed to elaborate the detail, meaning that decisions made by the Convention would have been further tempered as they went through the Senate – under right-wing control – and the Chamber of Deputies, where forces are tied.
On 4 July, after exactly one year of work, the Convention delivered a highly progressive 21st century constitution enshrining gender parity and Indigenous peoples’ rights, environmental rights, disability rights and LGBTQI+ rights.
But a fictional spectre of radicalism was systematically propagated during a prolonged social media disinformation campaign. Outright lies about the draft text were spread far and wide, particularly on divisive topics such as sexual and reproductive rights and Indigenous peoples’ rights. It was said that the constitution’s recognition of Chile as a plurinational and intercultural state would divide Chile into several countries, that abortion would be allowed until the ninth month of pregnancy and that the right to private property would be eliminated.
More questions than answers
But disinformation only tells part of the story: the real question is why such a blatant disinformation campaign encountered so many people willing to believe it.
In 2020, 80 per cent of voters – the overwhelming majority of those motivated to vote – signalled their support for a new constitution, mostly because they rejected the existing one, born out of a dictatorship, lacking both democratic legitimacy and the ability to afford them the rights – to health, education, land and water, a dignified life – that many had insistently demanded on the streets. Only in the country’s five richest districts did voters reject the idea.
But rejecting what we don’t like is a lot easier than agreeing on an alternative to replace it. The results of the 2022 vote made clear that the proposed alternative failed to speak to the concerns of the majority.
In his address to the nation when the results came out, Boric was careful not to underestimate the intelligence of voters or question their motivations. He praised high turnout as an expression of commitment to democracy and dialogue, and acknowledged that the majority had simply not liked the proposal before them. He insisted that the people’s voice must be listened to and more work is needed to reach a new proposal that lives up to people’s aspirations. The next morning, he started talks with the presidents of the Senate and the Chamber of Deputies to figure out next steps on the constitutional road ahead.
For now, decision-making power appears to be back in the hands of the political class whose rejection kicked off the whole process. It’s not yet clear if another referendum will be called to begin another process, or who would be in charge of drafting a new constitution. The recent constitutional process set the bar high in terms of representativeness and inclusiveness. Would people be happy with less?
The million-dollar question is how society will react if a new constitution does not come out of this and the process does not continue or continues in a deficient way.
It’s still the case that for the overwhelming majority, the Pinochet order is a thing of the past – it’s just that no consensus has yet been reached on what should replace it. Hunger for change hasn’t been placated and there’s no going back to the pre-mobilisation era. Back on square one, advocates for change must regroup and re-engage.
OUR CALLS FOR ACTION
Government and opposition should aim in their negotiations to identify a way forward that is inclusive and democratic.
The approve camp should come together again and agree on essential citizen demands that must urgently be addressed.
Civil society should contribute to improving the conditions for public debate by working to counter the spread of disinformation.
Cover photo by Marcelo Hernández/Getty Images