An increasing number of Chileans have become opposed to proposals coming from the country’s Constitutional Convention (pictured). // File Photo: Chile Constitutional Convention.

Recent opinion polls in Chile indicate that, for the first time, more Chileans would reject the new draft of the constitution than approve it. Survey results released on April 4 show that 40 percent of respondents would vote in favor of the new constitution, while 46 percent would reject it, according to Reuters. An elected assembly is tasked with rewriting Chile’s dictatorship-era constitution, which will be put to voters in a referendum this year. What accounts for the sharp decline in support for the constitutional initiative? What specific proposals drafted by the assembly—which is dominated by leftists and independents—have been the most polarizing? What are the consequences for the country if the new constitution is rejected by a majority of Chileans?

Carolina Goic, Chilean senator and former presidential candidate: “Chile’s Constitutional Convention is responsible for the weighty task of drafting a new document that addresses widespread citizen discontent that led to months-long street protests. It is hoped that a new constitution will allow a new political era to begin. The challenge is to build ‘everyone’s house,’ or in other words, a constitutional framework that builds a new social contract—one that abandons the divisions of the Pinochet dictatorship. The text of the constitution will be put to Chileans in a plebiscite to be held on Sept. 4. Several recent surveys and opinion polls show that more people would now reject the constitution rather than approve it. Among the proposals that generate the most concerns are those centered around pension funds, changes to the justice system, questions around the definition of a plurinational state and the implications of having new autonomous territories. The proposed political system under discussion would also put an end to bicameralism—doing away with the Senate—and in so doing, putting at risk the checks and balances needed for a healthy democracy. The truth is that beyond the details of the proposals, the main task of the constitutional assembly is to build a great national agreement across multiple sectors of society, but there are still many groups that feel excluded from the conversation. So, the draft of the constitution needs to be designed in such a way that people’s uncertainties are lowered rather than heightened. If the draft text that is presented to the Chilean people isn’t clear, or doesn’t address the concerns of certain groups, then it will most likely be rejected.”

Michael Diaz, managing partner, and Eric Pons, associate attorney at Diaz Reus & Targ: “The words of Jean-Jacques Rousseau adequately capture the social and political undercurrents in Chile: ‘In truth, laws are always useful to those with possessions and harmful to those who have nothing; from which it follows that the social state is advantageous to men only when all possess something, and none has too much.’ In October 2020, after historic levels of social unrest in Chile related to the private sector’s control of health, housing, education and retirement programs, a super-majority of Chilean voters agreed to overhaul the country’s heavily pro-market constitution enacted under President Augusto Pinochet. The legislature has until July 5, 2022, to finalize a draft of the new constitution, but popular support for it has waned significantly. While the movement to develop a more equitable system remains, the Chilean people seem wary of uprooting the political and financial system entirely, which allowed for decades-long economic progress. The more controversial constitutional reforms include the abolishment of the bicameral legislature, nationalization of Chile’s natural resources, limiting the amount of mining that can take place near Indigenous land and increased mining operational costs related to addressing environmental concerns. Public support also appears strained due to partisan gridlock in the legislature and a lack of consensus on issues related to the management of pensions, public services and the health care system. In fact, 93 of 96 constitutional reform proposals were voted down in one of the commissions tasked with designing Chile’s new political system. Should the Chilean government be unable to deliver a new constitution, the current dictatorship-era constitution will remain in place. This would be a major setback for President Gabriel Boric’s ambitious social-democratic agenda.”

Santiago Canton, director of the Peter D. Bell Rule of Law Program at the Inter-American Dialogue and visiting scholar at American University’s Washington College of Law: “Debate about reforming Chile’s Pinochet-era constitution has been going on since the country’s return to democracy in 1989. The meticulously planned democratic transition would never be truly complete without a constitution drafted ‘by the people, for the people.’ However, the current constitutional reform process is not the product of that longstanding political and academic debate. Rather, it is the offspring of the street demonstrations that allowed for President Sebastián Piñera to remain in power, and for Gabriel Boric to become president. In this context, part of the decline in support for the constitutional change is closely tied to Boric’s approval ratings: the same survey that shows a 10-point decline in the number of people that are willing to approve a new constitution also shows a five-point decline in Boric’s approval ratings. Also, some of the proposed reforms have polarized the constitutional assembly, raising concern throughout Chile, as it had grown accustomed to the political moderation of decades past. These polarizing discussions are centered around property rights, the nationalization of the mining sector, freedom of expression and the right to truthful information, Indigenous rights to autonomy and self-government, and declaring Chile a plurinational and intercultural state. In 2019, the prospect of a new constitution addressing the social issues that gave rise to the months-long violent protests helped Piñera end his term without a major social crisis. Failing to approve a new constitution may give rise to new protests and will deliver a dangerous blow to Boric’s administration. His capacity for leadership will be under constant scrutiny as he endeavors to unite a polarized Chilean society.” 

Patricio Navia, professor of liberal studies at New York University: “In October 2021, Chileans overwhelmingly voted in favor of starting a Constitutional Convention. People believed that the constitution was the culprit for all the things that did not work well in Chile. Blaming the Pinochet-era constitution became the favorite excuse for many shortcomings that were caused by historical variables and that could be solved by policy reform or by tweaking institutions, rather than writing the constitution anew. Yet, Chileans opted to write a new constitution instead of amending and reforming the existing one. Now, the convention is made up of people with little political and government experience. They have decided to write a new constitution while ignoring all relevant Chilean history and comparative constitutional law. Chileans are getting increasingly worried about the content of the new text. While people wanted to amend the document and make it better, the Constitutional Convention is fixated on starting everything from scratch. It gets into unnecessary detail and covers issues that constitutions in well-functioning democracies don’t generally cover. The text that the Constitutional Convention is drafting is far too radical for what most Chileans want. It is unclear what will happen. The convention can still change course and produce a more reasonable constitution that builds on the nation’s constitutional history and traditions. People are not that familiar yet with the content of the new constitution. Thus, anything could happen in the referendum in September. But we do know that the Constitutional Convention wasted a precious opportunity to draft a text that could correct the shortcomings of the 1980 constitution and keep what has worked well in Chile. That is what Chileans wanted and that was the mandate the Constitutional Convention had and has failed to fulfill.” 

Pamela Figueroa, professor in the Institute of Advanced Studies at the University of Santiago de Chile: “The constitutional drafting process is in the final stages. So far, 177 articles have been approved, and they address everything from a social and democratic state and the concept of plurinationality, to sexual and reproductive rights, parity, environmental and animal protections, among other things. Last week, various surveys showed that a growing number of people say they would reject the draft constitution in its current form. These surveys have set off alarm bells among experts, political leaders and civil society groups. The dynamic that the work of the Constitutional Convention has taken is that a wide variety of issues and points of view have been deliberated in the commissions, and what goes to the plenary session is approved by a majority, where each of the proposals must be approved by two-thirds vote. Given the fragmentation of the political forces, the approved norms are those that represent a large majority of conservatives and moderates, and those that are more radical tend to fall by the wayside. However, the debates prior to the votes have generated uncertainty due to the controversy related to how the new constitution is being drafted. Time is limited; the time to communicate clearly to Chileans about how the text is deliberated upon and approved is now. Above all, the convention must articulate how the draft constitution’s aim is to create a broad political and social agreement which addresses the demands of citizens and deepens democracy in Chile. ” 

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