More than 30 years separate the Brazilian National Constituent Assembly (ANC) and the Chilean Constitutional Convention. There are similarities and differences between the two processes, but both are surrounded by conflicting expectations and substantial differences.
The convening of a constituent assembly in Brazil comes as part of the movement for direct presidential elections, at this moment of transition from an authoritarian regime to a democratic one. The process in Chile, a consolidated democracy, begins with student mobilizations against the rise in subway fares in Santiago.
In both cases, however, broad mobilizations benefited from government reactions. On the Brazilian side, the defeat of the “Diretas” directs part of the political parties and social movements to invest in the Proposed Amendment to the Constitution (PEC) of the Constituent Assembly.
On the Chilean side, police repression of students increased the intensity and volume of dissatisfaction until reaching the entire country, coining the term social explosion, on October 18, 2019 (18-O), when the demonstrations were diversified. Another important distinction is in the political leadership and in the institutional relationships of the actors that precede the installation of the constituents.
In Brazil and in the wake of the Brazilian Democratic Movement (MDB), a party-movement in opposition to the military regime, the political actors who participate in the “Diretas” (and later in the ANC) ideologically range from the center-right to the left.
In the Chilean case, the mobilizations are not strictly connected to the parties, they are even packaged in the wake of distrust with traditional politics. Among the so-called independientes, non-affiliated actors who make up a significant portion of the Convention, there is an ideological position between the so-called new left and the radical left.
In both countries, political elites were able to build broad political-party pacts at a time of high social mobilization, added to the contrast and weakening of right-wing governments.
In the Brazilian case, the Democratic Alliance brings together political forces dispersed across the ideological spectrum in opposition to the candidacy that represented continuity.
After the death of the newly elected President, Tancredo Neves, his deputy, José Sarney, fulfilled the slate’s promise to kick-start a constituent assembly. The convening of the ANC was the functional substitute for the rupture that had not occurred with the previous regime and was part of a demand on the part of organized civil society.
In the Chilean outbreak, traditional political elites use the overcoming of the constitution inherited from Pinochet as a reaction and way out to reduce the country’s social tensions.
In the Acuerdo por la Paz Social y la Nueva Constitución, signed by the main political party leaders, a plebiscite was established to consult both on a new constitution and on the model of exclusive or mixed representatives. Likewise, the approval of the new Magna Carta was conditional on a mandatory plebiscite.
There is an important distinction here. The Brazilian constituent was born from an amendment to the constitution, whose process was timidly heard by specialists and class representatives, and adopts a congressional model in which those who write the new letter also accumulate the function of ordinary legislators.
In Chile, on the other hand, the call for a national plebiscite is a reaction by political parties to settle social protests. Chilean society then approves the constituent with a large majority and defines the model of Constitutional Convention with exclusive representatives.
In other words, the different incentives in the relations between political and social actors result in different results of the constituent processes: one controlled by political-institutional actors and the other pushed by leaders and social organizations.
For connections with the public, the ANC is known for the intense participation of social movements as well as employers’ organizations and movements in some of its sessions. Forced bipartisanship bequeathed to the MDB the role of opposition to the military regime, whose legitimacy and social connections benefited the narrowing and bridges between the party-movement and society.
In Chile, the majority of its exclusive independent representatives, coming from social movements and territories, are suspicious of traditional parties. These actors included in the Convention social proportionalities in the commissions such as gender parity, plurinationality, and territorial equity.
Constitution-making in both cases is similar and from the bottom up, that is, thematic commissions produce drafts that are taken to the plenary.
The Internal Regulations in the ANC installed eight commissions (plus a powerful systematization commission), while the Chilean General Regulation has seven thematic commissions. In Brazil, the first regiment required an absolute majority of votes for deliberations in committees and in the plenary.
In Chile it is a simple majority for the committees and two-thirds for the plenary. In the event of approval by a simple majority in the plenary, it is returned to the committees for adjustments with the possibility of being submitted to a vote in the plenary for a single time.
This aspect was different in the Brazilian assembly, where it was up to the systematization commission to gather the drafts of the eight commissions and prepare a single one to be voted on in plenary, without opportunities for feedback to the commissions. We know, however, that the process was more truncated due to the revolt against the Internal Regulations that resulted in changes to the rules and also in the formation of the so-called “centrão”.
The Chilean constituent currently faces similar challenges to the final stage of the Brazilian experience. In addition to the difficulty of approving the flood of regulations, Chile has also seen a significant increase in rejection, that is, unpopularity and popular disapproval of Convención, according to recent public opinion polls.
In Brazil, despite the nickname “Citizen Constitution”, the final text also received criticism and accusations of being progressive or too detailed — it is worth remembering that the Workers’ Party bench refused to sign its final version. Furthermore, negotiations failed to promote consensus on some crucial topics.
Having chosen presidentialism as a system of government, despite not being the original preference of the majority of the constituents, it was defined that a future plebiscite could revise this decision.
Similar disputes occurred in the Chilean case and the independents and part of the party left, not enthusiastic about presidentialism, tried to reform it via parliamentary and semi-presidential proposals, but failed.
Having lost that war, they won other battles: they approved the extinction of the Senate and proposed a new Territorial Chamber — with its design still open.
One of the most important and underestimated political by-products of the Brazilian constituent process is the formation of the so-called centrão, a supra-party union of parliamentarians dissatisfied with the direction of the ANC.
The rise of this group with a conservative bias, although ideologically heterogeneous, was not related to the imposition of a supposedly left-wing text, but to the difficulty of changing the draft that would come out of the Systematization Commission, as well as dissatisfaction with the probability of parliamentarism and reduction of the mandate of the then president Sarney.
As a result of the centre-right uprising, the rules of the game were changed after almost a year of work, implying the difficulty of forming majorities on divisive issues. Negotiations at the doors of the plenary set the tone for their votes, which, in part, explains the dissatisfaction of several groups with the final result. The Chilean Convention will have one, but three systematization commissions: Armonización, Normas Transitorias, and Preámbulo.
The Brazilian lesson is useful for the country, given that this is an especially critical and tense moment in the process. The call for a plebiscite to approve the Chilean Magna Carta is scheduled for September 4th.
In the event of a victory for the rejection in the exit plebiscite, the experience of Chile could become a key and rare case in the history of constitutional ratifications in Latin America and in the world.
