Latin America Advisor

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Will Chile’s Second Constitutional Attempt Succeed?

Photo of Chile's constitution Chileans voted this month for the committee that will try for a second time to draft a new constitution. // File Photo: Patricio Mecklenburg Díaz (Metronick) via Creative Commons.

Right-wing parties on May 7 won a majority as Chileans voted for a 50-member commission that will draft a new constitution. The outcome marks a shift from the previous commission, which was dominated by independent and left-wing parties and that oversaw the first attempt at drafting a new constitution. Chileans rejected that proposed constitution in a September 2022 plebiscite. What does the result mean in terms of the direction the new draft constitution will take? How will the second attempt differ from the first, and how likely is it to succeed?

Mariano Machado, Americas principal analyst at Verisk Maplecroft: “Chile’s second-attempt constitution has entered uncharted waters, with no guarantee of a successful resolution by the end of 2023, when a new draft will be put to a public vote in another referendum. This second drafting process will take a more conservative direction. The election for the commission has resulted in further political fracturing and polarization at the cost of the traditional centrist forces. It has also promoted the revival of an ultraconservative right, in an apparent response to the radical leftist movement surrounding President Gabriel Boric. But even though this second attempt will swap who is in the driver’s seat–the left drove in the first initiative–there are strong similarities between both processes that could outperform differences. These include having a body that appears (again) ill-suited to deliver a consensus text and a weak ruling coalition (again) observing the process from the sidelines. Hence, how José Antonio Kast’s Republicanos balance their previous contempt for constitutional change with their newly found incentives to deliver the new charter will be the critical variable steering the process. Delivering a new constitution could strengthen Kast’s presidential aspirations; obstructing it could have significant consequences–especially if he were elected to La Moneda in 2025. However, the political class does not have control over the dominant risk for the process. With a society explicitly disenchanted with progress thus far, potentially having to elect between the current constitution and, perhaps, a more conservative one, the risk that a second text is rejected remains substantially high.”

Daniela Jara Leiva, director of the School of Sociology at Universidad de Valparaíso in Chile: “The second constitutional process after the defeat of the plebiscite has very different characteristics from the first attempt, as a reaction to this failed experience. First, three bodies will participate in the creation of the new draft (an expert committee appointed by Congress, a constitutional council recently elected by popular vote and an admissibility committee). They will ensure greater control over the results of the process. Unlike in the previous case, this time the different bodies will not start from scratch, rather, they will work on 12 principles previously agreed on by the political parties to avoid the new project being re-foundational. Among these principles are two central elements: the enshrinement of the social state of law and the preservation of the mixed provision as well as property rights. How the possible tensions that arise are resolved will depend on the success of the process. The expert committee will work on a new draft that the Constitutional Council will discuss and review. In the first process, one of the impediments was the distrust in the experts. Paradoxically, this time it will be the expert commission that ensures a greater balance and representation of different political sectors. This is important, since after the last plebiscite, the Republican Party, which currently represents the radical right, had a clear majority. Meanwhile, the center obtained no political representation. One of the lessons from the previous process was the cost to democracy when there is no space for compromise. Democratic deliberation prevents a majority from believing that it can wipe out a minority without recognizing it. It will be important to see how the radical right decides to use the high support it obtained. However, the high number of votes the extreme right garnered does not necessarily mean the population will ratify the second draft. We have seen that many voters on the radical right are from rural or lower-middle-class sectors. These sectors perceive their expectations of justice and security compromised. The electoral result of the next plebiscite is unclear.”

Robert Funk, professor in the Institute of Public Affairs at Universidad de Chile: “Even prior to this election, the Committee of Experts has been producing a document that is much more measured than the previous draft. Republicanos was formed by individuals who essentially believed that the traditional parties on Chile’s right were not right wing enough, and they will control the Constitutional Council. So it is reasonable to assume that the constitutional draft will change little from the existing document. This means that Chile now faces an almost farcical situation, in which the political sectors that have never wanted a new constitution will be in charge of drafting one, and those sectors that have for decades pushed for a new constitution are pretty much shut out of the drafting stage. Unless both sides are willing to compromise on some key points–including the elimination of the subsidiary state, social, Indigenous and sexual rights–it is easy to imagine a situation in which those who did not want a constitution will campaign for one, those who wanted one will campaign to reject it (which essentially means keeping the existing constitution they’ve always opposed) and the government, which is committed to shepherding the constitutional process to a satisfactory conclusion, will have to encourage voting in a referendum it will probably want to lose.” 

Noam Titelman, visiting fellow at the London School of Economics and senior researcher at Rumbo Colectivo: “The new constitutional assembly will have a three-fifths rule to approve every constitutional norm. The far right on its own controls more than two-fifths of the assembly, meaning it has virtual veto power. Together with the center right, there is workable majority that excludes the center and left parties. In other words, this could end up being a markedly right-wing constitution. However, at the end of the process, the constitutional draft will be submitted in another referendum. Current polls show a razor-thin tendency for approval, but if the draft is perceived as exclusionary, it is highly likely that voters will reject it. This might push the working majority to moderate some of its positions and attempt some form of agreement with the left. There are three main differences from the first attempt at a new constitution. The first is the hegemony of the right. In the previous process, the majority of the members of the assembly were left-leaning independents from a diverse array of social movements. The second difference is that there is much less interest in the population with the process. The previous process started with huge levels of support and hope, which were eroded as Chileans became disappointed with the work of the constitutional assembly. The current process commences in a much more adverse scenario with less interest and support. The third and perhaps most important difference of this process is the fact that it came after the first one, where few attempts were made to garner support beyond ideological lines. There is great interest in all political forces not to repeat the mistakes of the first process. Whether they will succeed or not is still to be seen. I am rather pessimistic, but there is still a chance to be surprised.” 


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