The process of creating a new Constitution like what is happening in Chile is important not only for Chilean society, but for the entire region. If the proposal is finally approved in the plebiscite of September 4, 2022, the new Constitution would join the region’s new Constitutions, such as those approved in Venezuela in 1999, Ecuador in 2008 and Bolivia in 2009. However, the case of Chile presents some peculiarities.
First, since its transition to democracy in 1989, this country has maintained relative political stability, superior to most countries in the region, as it was not until 2019 that mass protests revealed social dissatisfaction, particularly with the economic system.
Second, Chile is one of the few countries whose population has maintained a medium-high degree of satisfaction with democracy, as, according to data from the Latinobarómetro from 1995 to 2020, the preference for democracy has consistently surpassed the preference for authoritarianism.
And third, although Chile maintained the 1980 Constitution, of Pinochet origin, in 2005 its elites managed to adapt it to democracy. But this model seems to be exhausted, and in October 2020 the majority of Chileans (78%) voted to create a new Constitution, and in May 2021 the Constitutional Convention was elected.
While the processes in Venezuela, Ecuador and Bolivia were strongly influenced by populist leaders, in Chile there is a plurality of actors involved, although with a clear majority leaning towards the left. In this context, the advantage in favor of “rejection” in the ratification plebiscite is worrying.
A Constitution is essentially a pact to ensure rights, distribute obligations and organize relations between groups of power, which at a given moment are disputing the hegemony of politics. There are constitutions that last in time, and others that do not, and there are those that are efficient, and others that become a dead letter.
Democratic constitutions are not the same as those that uphold non-democratic regimes. Written constitutions, unlike the unwritten ones typical of the common law tradition, must change with the spirit of the times. Either they adapt or they must be replaced.
Constitutions are the space where power factors measure their strength within political systems. Therefore, the institutional project embodied in a Constitution is fundamental and must favor a balance between adequate political representation and efficient governance of the system.
If representation is favored over governability, situations of instability are created; and if governance is favored over representation, a rigid system is generated. In the long run, both situations lead to the delegitimization of the political regime.
The success of democratic and written Constitutions does not necessarily depend on their origin, if they were democratically drafted; it depends on whether the principles they postulate are universal and whether citizenship internalizes them.
Regardless of how democratically the Constitutional Convention was formed, it seems that there has not been an in-depth diagnosis of what Chilean citizenship has expressed in other ways, and the absence of this is leading to a proposal for a Constitution that is not very innovative.
According to Latinobarómetro 2020, there is a growing unease with the government, regardless of its political direction. More than 70% of respondents have little interest in politics, and the president, the judiciary, Congress and political parties, in that order, are the institutions that generate the least trust.
But the project confirms presidentialism as a form of government, as if there was no dissatisfaction with this system. The new Constitution creates a limited presidency controlled by several autonomous bodies, creates an asymmetric bicameral legislature, in which the Chamber of Deputies practically monopolizes the creation of laws, the decision on which laws are urgent and the control over public spending.
It also conditions the results of votes in the Chamber of Regions (Upper Chamber) on the fact that, when its vote is negative in relation to what is approved in the Lower Chamber, the result can still be submitted to a mixed commission of both chambers “to resolve discrepancies”.
Many state functions are over-regulated in the project. This would be remedied if the principles were well established and clearly required to be implemented in secondary laws.
However, by placing fundamental and regulatory issues at the same constitutional level, institutional rigidity is created, which can open the door to undemocratic solutions. The recent history of Peru, which by parliamentaryization of its presidentialism generated a highly unstable system, should have been an example to be considered by the members of the Convention.
While the current Constitution has 147 articles, the draft proposal contains 499 which together propose a quasi-liberal Constitution because it makes distinctions between groups of people. Although it assumes the values of freedom and equality, it leaves ample room for contradiction.
The proposed Constitution is also quasi-democratic, as the idea of democracy is incorrectly described and lacks taxonomic categorization, as it is not clear whether democracy is spoken of as a genus or a species. For example, the term “representative democracy” never appears, but the entire institutional design is precisely that of a representative democracy.
In contrast, the word “parity” or “parity” appears 36 times, “plurinational” 18 times, “democracy” and “democratic” 40 times, while “participation” 140 times; “representation” and its derivations appear only 73 times, while the term “political parties” appears only 4 times and prohibitively.
In many cases, what is postulated as a principle appears as a noun, others as an adjective, sometimes as a verb, which thus creates contradictions with other terms, even in the same paragraph.
The project has yet to be harmonized and is due to be delivered on July 4th, but the problem is that the seeds of disenchantment have already been sown.
If the bill were finally approved by a simple majority, it would be an imposition on the rest of the citizens and, instead of a step forward, it would be a serious setback with unforeseeable consequences. So far, polls show that this is not the constitution that Chilean society wants — so if it is rejected, a historic opportunity will also have been lost.
*Translation from Spanish by Giulia Gaspar.
