Can Chile’s Radical New Constitution Survive a Vote?

Can Chile’s Radical New Constitution Survive a Vote?

Can Chile’s Radical New Constitution Survive a Vote?

The new Chilean Constitution would be one of the most progressive in the world, but passage is anything but certain.

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Santiago—“It was a peculiar decision,” Manuela Royo said, trying to explain why she decided to run to become one of the 154 delegates who would draft a new Chilean Constitution. I met Royo at the lavish Former National Congress Building in Santiago where the Constitutional Convention took place. She said she never envisioned herself in politics. It was, she said, water that led her here, and now the Constitution that she helped write establishes access to clean water as a human right. The delegates presented President Gabriel Boric with the proposed Constitution on July 4. Now there is just one more step for the document to become law: It needs to pass in a referendum on September 4.

Years ago, Royo, a human rights lawyer, visited Petorca with Modatima, an organization that fights to protect water for local communities and for which she is now the spokesperson. The region is famous for its avocados, but the plantations often leave the rest of the countryside without water. “I saw people who couldn’t take a shower, or cook anything,” she said, “and just next to them on the hills were rich people’s pools filled with water for their industry, for exporting. When I saw that, I said to myself, ‘I can’t just stand by and watch.’”

Like Royo, most delegates of the Chilean Constitutional Convention had no prior political experience. More than 60 percent of delegates had no party affiliation: They were activists, authors, academics, and representatives of social movements or Indigenous communities. And after pressure from feminist groups, an agreement between the government and the opposition required that half of the convention delegates be women.

If approved, the Chilean Constitution would be the first Constitution not written mostly or entirely by men. Seventeen delegate seats were also reserved for Indigenous people, who have historically been excluded from power. Royo said that the influence of social movements is visible in the delegates’ priorities, which include ecology, feminism, and participatory democracy. ”We who come from movements don’t take orders from above but from below, from our assemblies and organizations. And we have to abide by the mandate given us, which is the protection of nature and social justice.”

The diverse and left-leaning composition of delegates was a product of many factors. In a referendum held in October 2020, 78 percent of voters opted to replace the Constitution, and 79 percent voted that the new document’s authors should not include members of Congress—only individuals elected specifically for this purpose.

Still, the fact that people voted for so many independent candidates in May 2021 astonished much of Chilean society. Constitutional lawyer and Universidad de Chile professor Paz Irarrázabal said she expected few independent candidates to be elected because of the workings of the Chilean electoral system and the money needed for campaigning. The result ”was truly a surprise,” she said. “The participation was very high, and it permitted the election of a great diversity of people.”

The outcome of that vote revealed a deep aversion to parties and politicians. In May, the Centro de Estudios Públicos released a study showing that only 2 percent of Chileans trust political parties. The events that led up to the referendum also demonstrate the influence of social movements on the constitutional process. In 2019, an uprising that began with secondary school students protesting transit-fare hikes in Santiago turned into a nationwide expression of discontent with an inequitable economy marked by high costs for education and health care, low pensions, and the political exclusion of certain groups such as the Indigenous people.

The sometimes violent demonstrations brought down several ministers and nearly forced the president from office, according to Royo. But a group of party leaders—among them the current president, Boric—made a deal called the Agreement for Peace, which paved the way for a new Constitution if a majority voters supported it and if the ensuing draft Constitution survived a second vote. The deal required a ”blank sheet”: No part of the old Constitution would transfer to the new one, and every article in the proposed Constitution would need two-thirds support from the convention delegates.

The agreement lived up to its name—quieting the rallies. But many protesters thought the deal was insufficient. When I asked Royo, who participated in the protests, what she thought of the agreement for peace, her answer was immediate: ”Una mierda”—bullshit.

Why then did she decide to join the constitutional process? She explained: ”The Agreement for Peace was without participation. It was an agreement between political parties—and not even all of them. But once the agreement was in place, the question was whether to leave the decisions to be taken by the usual parties, and we decided we should assume responsibility and be part of the process.” Her we refers to activists and the social movements.

The independent delegates at the convention were mostly leftists. Working with the traditional left parties, they managed to reach the two-thirds threshold to pass articles without relying on more conservative delegates. While abortion is no longer a constitutional right in the United States, it would become one in Chile. The feminist groundswell has also led to a proposed Constitution that would mandate that women constitute at least 50 percent of all state organs, including Congress, the judicial system, and the boards of state-owned enterprises. In a much-debated proposal, the new Constitution would also allow the creation of Indigenous judicial systems that would exist in parallel with current courts, though the Chilean Supreme Court would still have the final say. The Constitution would also eliminate the Senate, replacing it with a regional chamber. The current Senate is reluctant to consider radical legislative proposals. Perhaps most ambitiously, the Constitution would introduce the rights to free education, quality health care, decent housing, clean water, and reliable energy. It would also guarantee minority, Indigenous, elderly, and disabled people’s rights. As the proposed Constitution puts it, ”Chile is a social and democratic State of rights. It’s plurinational, intercultural and ecological.”

What’s striking about all this is how far it is from the current Constitution, infamous for establishing Chile as what’s known as a subsidiary state, one that intervenes only when there are no private, market-based alternatives. The dictator Augusto Pinochet installed the current Constitution in 1980. To draft it, Pinochet appointed several economists who had studied at the University of Chicago with Milton Friedman. Since Pinochet’s departure in 1990, the Constitution has been amended many times, but its neoliberal core remains, and it has long impeded government action. When a democratic government wanted to create a common fund for the private and the public health care systems, the Constitution prevented it, because of its article on the individual’s right to choose between private and public alternatives. When legislators attempted to bar for-profit private schools, it was considered contrary to the constitutional right to earn a profit.

One example of the obstacles built into the old Constitution concerns the topic that Royo works with: water. The Chilean Constitution is the only one in the world that enshrines water as private property. During the dictatorship, Pinochet’s government authorized private individuals to use water resources for free and in perpetuity. This allowed them to sell permits to access the water on the open market. Royo tells this story as an example of the neoliberal idea that anything can be privatized and of how the Western world treats nature as an endless resource. The result, she said, “has left thousands of people without water.”

The new constitution would declare water a common good that no company or government could ever seize. Water distribution would prioritize human consumption, then the ecosystem, then rural agricultural families, and lastly, commercial industries like forestry, factories, and mining.

But right now, the future of the proposed constitution is uncertain. The latest opinion poll from the end of June shows 51 percent voters rejecting it and only 33 percent voting for passage. Though opinion polls in Chile have been wrong before, the left is rightly worried.

Many people who voted for changing the current Constitution told me they now think the delegates are overreaching. They would have preferred that the convention focus on dismantling the structural impediments in the Constitution that prevent the government from moving away from neoliberal policies. This, they argue, would have ensured that the new document passes. But Royo argues that given the protests of 2019, the new Constitution should encompass much more. She told me that in light of the demands of the people, the delegates had an obligation “to establish the governments’ responsibility when it comes to securing a minimum of dignity for all people.”

Many of the delegates blame a right-wing disinformation campaign led by the entrenched media for the lack of popular support for the proposed Constitution. Certainly, the media has confused matters by highlighting eccentric suggestions from individual delegates that were never close to making it into the draft Constitution.

Another explanation lies in the unpopularity of Boric. By the end of June, the president’s approval rating fell to 34 percent. Many people who initially supported a new Constitution but are now critical of the proposal told me how disappointed they were in the left-wing government. While most delegates have no ties to the Boric administration, the president’s role in the Agreement for Peace links his government to the constitutional convention in many people’s minds.

About a week after meeting in Santiago, Royo’s organization, Modatima, arranged a public meeting in Araucania, her district in southern Chile. Royo presented the proposed Constitution, and even though she is certain that the proposal will be rejected in Araucania, a region known for being conservative, she was met by mostly like-minded fans. A woman held up a draft of the new Constitution and said this was her family’s Constitution. When Royo introduced the constitution, everyone cheered, and when she told jokes, they laughed loudly.

But even here, the fear and doubt spreading through Chilean society were palpable. Someone asked Royo if it’s true that pensions will no longer be inheritable. Royo explained that no Constitution anywhere says anything about the topic. Another man asked if you own two properties, could one of them be expropriated? Manuela replied that when it comes to property, not much has changed. ”In general this is a social democratic project not a project of expropriation of property,” she told the crowd. Later on, she told me that in the meetings she attended in the following weeks, the scenes got worse. She was met with more skepticism, as the right kept spreading rumors and misconceptions.

What happens if the Constitution is rejected in September? Constitutional lawyer Irarrázabal thinks that no matter what side wins, we’ll still be in the beginning of a process. Even if the new Constitution is approved, there are expected to be changes to it. “If it’s true that society is so divided and that there is a lot of resistance amongst certain groups [against the new Constitution], we will probably see reforms of the new constitution.”

If it is rejected, even though the current Constitution would remain in effect, it’s possible that the political establishment would find another path to revise it, given that the vast majority of Chileans have clearly stated that they think the document outdated. Politicians do not want another uprising.

Irarrázabal pointed out how even the right-wing UDI party, founded by the same Jaime Guzmán who was an architect of the current Constitution, has expressed its openness to rewriting the current Constitution. But many on the left see UDI’s rhetoric as a strategy to convince people to reject the new Constitution. When I asked Royo about the third option, changing the Constitution through another means, she became serious: “That doesn’t exist. There’s no other formula.”

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