Voters go to the polls in the constitutional plebiscite in Santiago, in September 2022.Sofia Yanjari
Chile's Constitutional Council, controlled by the right, has approved on Monday the proposal for a new Constitution that will be plebiscited by citizens on December 17 with mandatory voting. These are the keys to the two attempts to change the Fundamental Charter that have marked the last four years of Chilean politics.
The constituent moment after the outbreak
In the midst of the social outbreak in Chile that began on October 18, 2019, with great violence and citizen demonstrations, the political class agreed on an institutional solution to the deep crisis: to offer a change to the current Constitution. In November of that year, the presidents of almost all political parties signed the historic Peace Agreement and the new Constitution, to ask citizens if they wanted to bury the Magna Carta of 1980, born in the dictatorship of Augusto Pinochet, but reformed some 60 times in democracy. The Communist Party did not join the pact. From the Broad Front, Gabriel Boric, as a deputy, signed the agreement, becoming a key figure in the political solution to the crisis. The Republican Party, in formation, came out against it.
In October 2020, 80% of the electorate voted in favour of drafting a new constitution.
The first failed attempt of 2021-2022
In July 2021, the Constitutional Convention was installed, a parity body of 155 members elected by the citizens, dominated by the left, especially the identitarian and radical. 64% of the conventionalists came from the independent world and only 36% were members of a traditional political force. The process was marked by a series of controversies and norms that profoundly transformed Chilean institutions, such as the elimination of the Senate or the recognition of the plurinationality of the Chilean State. The right called for its rejection accompanied by an important sector of the center-left, branding it as identitarian and maximalist. In September 2022, 62% of Chileans rejected the proposal.
A blow to Boric's government
The resounding rejection was a very hard blow for the government of Gabriel Boric, which had bet everything on a triumph of the text. The then minister Giorgio Jackson, who was very close to the president, had even conditioned the structural reforms of the campaign to the approval of the new Fundamental Charter. On the night of the defeat, the president expressed his intention to carry out a new process and in less than 48 hours he made a profound change of Cabinet, sacrificing part of his inner circle to integrate representatives of the moderate left into the political committee, where he makes the main decisions.
The November 2022 agreement
Three months after the triumph of the Rejection, the Congress – from the Communist Party to the traditional right – agreed to initiate a second constitutional process, setting a very different route from the previous one, with rules that installed limits and sought to prevent a refoundational proposal so as not to repeat the previous fiasco. There would be 12 basic points of cross-cutting agreement on which an Expert Committee elected by the Chamber of Deputies and the Senate would work, and then a Constitutional Council of 50 members elected by popular vote, who would work on the specialists' draft.
The Republican triumph in the Council
Last May, the Republican Party, a far-right formation that did not want to change the Constitution born in dictatorship, reached 35% of the vote in the election of constitutional councillors and won 22 of the 50 seats. The traditional right got 11 and the ruling party got 17. In addition to becoming the leading Chilean political force, José Antonio Kast's party had veto power and, together with the historical right, the ability to propose, approve and modify constitutional norms, because they comfortably exceed three-fifths of the quorum, without the need for the votes of the left. "I want to invite the Republican Party not to make the mistake we made," Boric said on election night.
The experts' proposal
The 24 experts drafted a draft marked by moderation and cross-cutting political agreements, from the far right to the hardest left. The main modification they presented was the consecration that Chile is organized in a social and democratic state of law, a struggle promoted for years by the center-left and the left, and to which the right joined. It recognized, for the first time in history, indigenous peoples as part of the Chilean nation, incorporated the right to adequate housing, decent work and ensured the protection of the environment, among other points.
The changes made by the right wing in the Council
On June 7, work began in which the Constitutional Council, controlled by the right, made profound changes to the experts' text, although it maintained about half of its proposals. Despite the fact that the consecration of a social and democratic state of law was preserved, the left considers that other articles leave the definition "empty", because it is limited or restricted by the very norms of social rights such as health, education and pensions. Critics point out that the solidarity role would be prevented. It also generates rejection in the ruling party that, although presidentialism is maintained, the president's ability to exercise his will is increased.
Among the most controversial norms is that "the law protects the life of the unborn" and that "a child is understood to be any human being under 18 years of age". Critics argue that these articles could collide with the abortion law on three grounds. The final text proposes the expulsion "in the shortest possible time" of migrants who enter through unauthorized crossings "with full respect for human dignity, fundamental rights and guarantees and the international obligations acquired by the State of Chile" and that persons sentenced to a prison sentence may request the court to be placed under house arrest "provided that it is proven in accordance with the law, the existence of a terminal illness and that the convicted person does not represent a present danger to society." Critics point out that the latter could benefit the 134 military officers convicted of human rights violations, imprisoned in Punta Peuco, where 80% of them are over 70 years old.
The proposal to be put to a plebiscite
The constitutional proposal approved by the plenary session of the Council on Monday, October 30, is twice as extensive as the current one. "The current constitution has more articles, with a total of around 31,000 words. The current project has fewer articles, but it reaches 50,000 words," columnist Ascanio Cavallo said over the weekend in La Tercera. "Where do those extra 19,000 words come from? Mainly, from a thick stream of new state bodies, about 20 in all, most of which are counterweights or overseers of the existing ones. Only two single-member bodies, the President of the Republic and the Comptroller, remain free of supervision. It's quite a paradox: it's about controlling the state, but not by reducing it, but with more state agencies," he added.
The right wing argues that it is better than the current Magna Carta, since it includes more tools for border control, a Prosecutor's Office focused on organized crime, an anti-corruption agency, a Victims' Ombudsman and because it reduces the number of deputies from 155 to 138, among other measures. They point out that it reflects citizen concerns, such as security, and that the most identity-based norms fell by the wayside. In addition, they stress that it would put an end to the four years of institutional uncertainty since the social outbreak. According to critics, it presents a defensive attitude towards an increasingly liberal society that is more conservative in terms of values than the current one, expressed in the norms of women or preeminence in educational matters (of education outside the scope of the role played by the State). It also includes populist rules such as exemptions from contributions to the main residence and the ownership of pension funds.
Progress, according to progressivism
From the left, they have highlighted the consecration of the Social State, even if it is lame, the advances in terms of modernization of the State, and in some aspects of the electoral system, as listed by the center-left essayist Ernesto Ottone in EL PAÍS, which, however, he chooses to reject. Also the recognition of principles in terms of decentralization, such as the existence of the function of government in both municipalities and regional governments, as celebrated by the socialist commissioner Gabriel Osorio on the television program Zero Tolerance.
The right squares with the text
At the beginning of September, when the new text was still taking shape, the opposition began to show its cards for the option In favor. One of the first to do so was the senator and president of the UDI, from the traditional right, Javier Macaya, who announced the support of his party. But a milestone in the process occurred on October 3, the day that the leader of the Republican Party, former presidential candidate José Antonio Kast, put an end to the mystery that existed regarding the position that his party would take when he said that in the December 17 plebiscite Chile will have "a great opportunity to change the future."
That phrase of Kast made a difference, because Republicans, who were never in favor of changing the current Constitution, were now in favor of approving a new proposal in which, supported by the traditional right, he managed to push through most of his proposals for the Magna Carta.
Then, the opposition's endorsements of the text followed one another in rapid succession. He was supported by the former presidential candidate of the traditional right-wing Chile Vamos conglomerate, Sebastián Sichel, and then former President Sebastián Piñera (2010-2014, 2018-2022).
One of the latest conundrums was the choice to be taken by the main political figure of the opposition, the mayor of Providencia, of the UDI, Evelyn Matthei, who last week announced her vote in favor. On Monday, after being approved by the Constitutional Council, Matthei said: "Today the text that all Chileans will vote on in December was approved. There is a need and a tremendous possibility to close the constituent process and leave behind uncertainties and divisions. Achieving that stability that we need so much and seeking to make progress on urgent issues such as job creation and security, that is what we all yearn for."
The ruling party and other sectors announce their rejection
The councillors of the ruling party announced on Monday for the first time that they would reject the proposal. However, there was no surprise in this revelation, since the signs of discomfort with several of the rules promoted by the right, especially the Republican Party, and that were approved with their votes against, were more than evident for months.
For example, in August, even before the vote was taken on the amendments that Republicans proposed to the draft of the Expert Commission, the counselor of Social Convergence, President Boric's party, Yerko Ljubetic, told EL PAÍS: "We are not willing to sign a Constitution written in democracy that is worse than the one we have." It has been a phrase that, over time, was reiterated by the left, which entered a path with stones when they realized that their 17 votes were not enough with the 33 of the right.
The parties of the ruling party, unlike their advisors, have decided to take the institutional and formal path to announce their position until November 7, when the proposal will be delivered to President Boric and then he will call the plebiscite. Nor is it a mystery when they call for a vote against, since their leaders, such as the president of the Socialist Party, Senator Paulina Vodanovic and her parts of the PDP, Jaime Quintana and of the Social Convergence, in which Boric is a member, Deputy Diego Ibáñez, have been very critical of the text.
The left is today in a very awkward position, because if its historical aspiration has been to replace the Constitution that was born in the Pinochet dictatorship, although reformed more than 60 times since 1989, voting against it means ratifying the current Fundamental Charter.
Boric's government is equally uncomfortable with the text, but has resolved two issues since the beginning of this second attempt: that it will maintain the dispensation, that is, that it will not get involved, and that there will not be a new constitutional process during this administration in the event that the Against option wins, as most polls predict.
What the Polls Say
Polls show that the option of voting against the constitutional proposal is significantly higher than that of voting in favor. In the latest Cadem poll, 34% of the preferences reached 51% of the preferences against it. 15% say they are undecided. According to Pulso Ciudadano, 30.3% would approve of the text, while 69.7% would reject it. The latest Feedback poll shows that 30.8% will vote in favour, 52.7% against and 10% will vote null. The trend of recent weeks reveals that more and more citizens are inclined to support the proposal, a slow but steady progress.
Almost no options for a third process
Boric's government has practically ruled out that, in the event that the new text is rejected, there will be another constitutional process in his administration. "There would hardly be conditions in this government," spokeswoman Camila Vallejo said. And while there is a fairly cross-cutting consensus in the political world that we should at least take a "constitutional vacation," the Communist Party has shown its interest in continuing immediately. "No government, neither this one nor the one to come, can conclude a constituent process that belongs to the people, because it is not up to the governments that are in question to be the ones to define whether the constituent processes are carried out or not," said former communist presidential candidate Daniel Jadue.