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CWA # 1189, 31 December 2023
The World This Year
Chile in 2023: Crises of Constitutionality

  Hoimi Mukherjee
Hoimi Mukherjee is an Assistant Professor at the Department of Political Science in Bankura Zilla Saradamani Mahila Mahavidyapith.

Protests have marked Chile's domestic politics regarding the drafting of a new constitution, with several developments affecting the trajectory of this process in 2023. The events of 2023 are detailed below after the background to understand the complexities of drafting a constitution in response to socioeconomic churning.

Major Developments in 2023
First, the fallouts of the 2019 protests. In October 2019, massive demonstrations started in Chile's urban areas in response to a thirty peso increase in subway fares. This fares hike was deemed unsustainable due to the highest income inequality among the OECD countries. Violence, arson, and police excesses were observed during the state of Emergency in 2019 in a country marked for its social and economic stability. Most believed that the 1980 Constitution was responsible for the socioeconomic crises. Experts opine that its framework prioritises the private sector under the principle of subsidiarity, and successive governments had a narrow scope for reforms. Political parties and other stakeholders convened backdoor meetings, resulting in an 'Agreement for Social Peace and New Constitution' in mid-November 2019. Three amendments to the 1980 Constitution were made to initiate the drafting process for a new constitution. The first amendment centred around a referendum regarding the retention or repeal of the 1980 Constitution and whether Congress or an elected Constituent Assembly would draft a new Constitution. The second amendment focused on electing the members, and the third amendment addressed voting on the drafts to conclude the drafting cycle. In October 2020, nearly eighty per cent of the population voted to repeal the 1980 Constitution and to do it through an elected Constituent Assembly. The Constituent Assembly was to be formed with seats reserved for the indigenous and based on gender parity. In May 2021, Chileans elected the members of this Assembly with independent Left-wing forces commanding a majority. In March 2022, progressive Gabriel Boric assumed the Presidency of Chile, and upon receiving the first draft of the Constitution, he called for a referendum in September 2022. The draft was rejected by over sixty per cent and was characterised as too radical, with misinformation emanating from the right wing playing a significant role in its defeat. This halted the constitution drafting process until January of 2023.

Second, the constitutional process. In January, the political parties resumed the constitution formulation process through a New Agreement for Chile, while the general sentiment still favoured a new constitution according to public opinion polls like Espacio Público (November 2022), CADEM (December 2022) and Active (January 2023). However, the political parties decided to grant Congress powers to constitute the new drafting body, which went against the earlier referendum's decision of a popularly elected body being vested with the responsibility. This Agreement was formed around a consensus among the political parties on twelve fundamental principles, was confirmed through the Presidential assent and published in the Government Bulletin on January 17, 2023. Subsequently, the Chilean Congress formed two committees: an Experts' Committee and an Admissibility Committee formed on the principles of parity and share in Congress. The Experts' Committee was tasked with formulating the preliminary draft, and the Admissibility Committee was to monitor adherence to the twelve principles. In the next stage, a fifty-member popularly elected Constitutional Council was to be added to the draft created by the Experts' Committee.

Third, the May elections. On 07 May, elections for the Constitutional Council were convened, and the Far-Right faction secured a majority, with nearly 46 per cent of the seats and formed a coalition with the centre-right forces. With the progressive government-aligned forces securing 16 per cent of the seats, the right-wing coalition secured a three-fifths majority, effectively giving them a veto. This Council was headed by conservative Beatriz Hevia and submitted its draft to the President on 07 November. This draft contained clauses which were bound to be polarising, like the ones related to criminalising abortion in all cases and tougher stances on immigration and security directed against the indigenous population, among others.

Additionally, it contained provisions for national symbols and deregulation of the economy. Upon submission, the President called for another referendum on 17 December. Opinion polls in the period preceding the referendum indicated that most of the population was also aiming to reject this draft. On 17 December, the votes of the exercise revealed that fifty-five per cent of the population also rejected the conservative draft.

Major Issues in 2023
First, the fallouts of repealing the 1980 Constitution. The January 2023 opinion polls demonstrated that the larger sentiment favoured formulating a new Constitution. The 1980 Constitution was a document created by dictator Augusto Pinochet that solidified neoliberalism in the economy, the preponderance of the military, and the Conservatives in politics. When Chile transitioned to democracy, the negotiated manner of military withdrawal, instead of their overthrowing as was in the neighbouring South American countries, made immediate political reforms by the elected governments difficult. The 1980 Constitution reified this transition by limiting the scope of changes, which entailed Chile bolstering economic and political inequalities. 

Second, the increase in subway fares as a trigger. The long-standing grievances of students over the disparity in educational standards and economic opportunities between government schools and expensive private education, compulsory payment to the private pension schemes and the subsequent compulsion to retire late, unaffordability of standard healthcare available in the private sector, marginalisation of the indigenous peoples were disparate yet related issues that converged among the protestors. The State of Emergency declared by President Sebastian Piñera led to police excesses, leaving thirty people dead and galvanised more people on the streets. As alluded, the protestors attributed the socioeconomic crisis to the Constitution due to its subsidiarity principle granting the private sector a predominance in the economy and its provisions marginalising certain populations. The disparate demands of the coalition of indigenous, trade union, students and working-class protestors converged into a common demand of repealing the 1980 Constitution. They adopted the flag of the Mapuche, the marginalised indigenous groups who have faced state persecution over the extraction of vital minerals from their lands, symbolising the assertion of marginalised identities and the need for an alternate economic model. 

Third, the demands for better health and education. In 2021, the independent left-wing groups championed the above demands that secured the Constituent Assembly's majority. Their drafting process was made public, which ensured transparency but made it prone to misinterpretation. They spoke of recognition and autonomy to indigenous groups, a public health system, free higher education, a social security system, more rights for women in the workplace and nationalisation of lithium and copper production, among others. The draft identified Chile as a 'social democratic, plurinational, intercultural and ecological state.' These provisions seemed like responses to the earlier demands, but the 2022 draft was seen as destabilising and too radical due to disinformation. Its defeat was also attributed to poor communication from the government, a polarised environment and being a referendum on the Boric government. The polarised environment led to hostilities between indigenous and far-right forces in various parts of Chile in late 2022, leading to truckers' jams on highways, aspersions on Venezuelan migrants and looting in southern Chile. In these circumstances, law and order, security and control of migration became popular demands. 

Fourth, the failure of the government. The above demands were carried over to 2023, whereby the progressive government under Boric was seen as unable to handle law and order issues and was linked to the 2022 'radical' draft. When the drafting process resumed in 2023, Congress controlled it more. The twelve principles mentioned above refer to points of consensus among all the political parties. They limited the scope for wide-ranging reforms by securing certain features of the current politico-economic system as mandated by the 1980 Constitution. As the 2019 movement's momentum reduced, most of the population held the government at fault for not addressing the demands and for the prolonged process. The conservative opposition forces also emphasised the 2023 Constitutional Council vote as a referendum on the current government and advocated prioritising law and order. With the far-right Republican Party's and centre-right Safe Chile's electoral successes, it can be interpreted that the population were weary of the process, chose to focus on immediate issues like law and order and did not want a repeat of the 2022 draft. 

The 2023 draft reflected the views of the majority who drafted it, adhering closely to the agendas of the Republican Party. It enshrined private property, deregulation of natural resources, control of immigration, criminalisation of abortion and mandatory respect for the national symbols. Education, health, and pensions were not to be nationalised, deviating from the original demands of the 2019 movement. Widely perceived by commentators to be more conservative than the 1980 Constitution, these draft mobilised women protestors who opposed the restrictions on reproductive rights, which were secured after decades of struggle. These issues were placed on the national agenda when the referendum for the 2023 draft was conducted. The defeat of this draft shows that neither version addressed the aspirations of the Chileans, and Prof. Claudia Heiss observed in the Guardian dated 18 December 2023, that a more moderate draft was expected by common Chileans out of the two exercises (Bartlett 2023). 

2024: Looking Ahead
The rejection of the 2023 draft may indicate the end of the constitution drafting process after two exercises failed to secure the approval of the Chilean population. President Boric announced that a third drafting exercise is unlikely until his term ends in 2026 (Bartlett, 2023). The 2023 vote has two implications: first, the 1980 Constitution will remain in force, which the conservatives desired, and they have expressed opposition to a new process. Only the Communist Party of Chile has signalled that it is willing to work on a third draft. Second, there is a lack of clarity on the exit from the constitutional cycle as per the 2020 October vote. The amendment introduced in the 2019 Agreement for Chile outlined that the constitutional cycle will conclude with the popular acceptance of a draft of a new constitution. With most political stakeholders abandoning plans for a third draft, it remains unclear if the constitutional process can abruptly end. However, with the fatigue of the prolonged and inconclusive process, most Chileans are disillusioned about a fresh effort.

Analysing the process through the concept of constitutionality, that is, the state agreeing with the Constitution, there is an evident crisis of constitutionality for the Chilean population. They do not approve of the existing document, nor were they content with the two drafts presented to them. With fatigue over the current exercise and lack of political will, there is no apparent resolution of the reasons for the 2019 social outburst. 

About the author
Hoimi Mukherjee is an Assistant Professor at the Department of Political Science in Bankura Zilla Saradamani Mahila Mahavidyapith.

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