In October 2015, the Chilean President made a nationwide announcement to inaugurate the Constituent Process that would lead to a new Constitution. Following years of amendments to the Constitution drafted by the Pinochet dictatorship, Cristóbal Bellolio of University College London assesses how the process may be different this time, and asks: What will determine its success?
After the 1973 Chilean coup d'état that saw the democratically elected government of Salvador Allende overthrown by his army chief, Augusto Pinochet, the dictatorship started a long-term process of economic and institutional reconstruction. Consequently, one of the main aims of Augusto Pinochet’s dictatorship became to deliver a new constitutional order, since the existing Constitution of 1925 was deemed unsuitable to an age of institutional crisis. Drafted by a council whose members were mostly aligned with the regime, Pinochet presented a new text that was approved by over two-thirds of voters in a referendum in 1980.
In a national plebiscite held in 1988, the ‘NO’ campaign that opposed the continued presidency of Pinochet won nearly 56 per cent of the vote. Subsequently, government and opposition forces negotiated a set of constitutional amendments to give a more democratic character to Chile’s Constitution. Since all relevant forces were in basic agreement, 91 per cent of citizens supported the proposed reforms in a constitutional referendum held in 1989.
The last grossly authoritarian sections of the Constitution were finally removed by another package of amendments agreed by the social-democrat government of Ricardo Lagos and the right-wing opposition in 2005. At last, President Lagos declared, we have a fully democratic Constitution that unites us. However, this feeling of satisfaction would not last long.
A brand new Constitution?
A number of arguments have been made in the public discussion to the effect that the current constitutional order should be altogether abandoned, and that a brand new constitutional document should be drafted.
For some people, the fact that the Constitution was drawn up by a dictatorship is enough reason to justify its abolition. Subscribers to this view do not believe that the subsequent constitutional amendments have sufficiently ‘sanitized’ the Constitution of its illegitimate origin, as their defenders claim.
Others believe that the problem lies in a set of unfair rules for constitutional amendment. According to these rules, constitutional reforms are only possible with the support of very high quorums within Congress, which offers the heirs of Pinochet’s regime a kind of veto-power over the political process.
Finally, there is an important section of the political Left that wants a new constitutional text chiefly because they reject the economic limitations it imposes on the powers of the state, as well as the principle of subsidiarity and the primacy of property rights, all principles that have been enshrined in the Constitution.
From 2011 onwards, social movements of various kinds have swept the streets of Chile. Although the most vocal protests have been for a new model in education, these demands have at their root the one claim that subsumes all others: a new Constitution created by the people through a Constituent Assembly. The group behind this claim is composed of elite intellectuals and some grassroots movements.
Responding to the level of public feeling, the leftist candidate Michelle Bachelet (who was already President between 2006 and 2010) promised structural changes in education, a substantial tax reform, and also a new Constitution, without committing herself to any specific procedural steps.
In an attempt to seize the opportunity presented by the 2013 presidential election, the main movement advocating that a Constituent Assembly should be created to draft and adopt the Constitution called on the electorate to mark their ballot papers with the initials AC (Asamblea Constituyente). Roughly one in ten ballots were marked in this way.
The Constituent Process
In October 2015, President Bachelet made a nationwide announcement to inaugurate the Constituent Process. It will take place in seven successive stages:
- a phase of ‘civic and constitutional education’;
- Local and regional ‘Dialogues’ to gather citizens’ opinions;
- the creation of a ‘National Council of Observers’ to ensure the transparency of the process;
- the drafting of a new constitutional baseline grounded on the Dialogues’ outcomes;
- Constitutional Reform to allow for the wholesale replacement and not just the mere amendment of the current Constitution;
- Congressional debate (2018–2022) of the Constituent mechanism. This could be the same Congress, a mixed Convention with congressmen and women plus citizens, a proper Constituent Assembly, or even a referendum to delegate this decision to the people;
- a referendum to approve or reject the new text.
Bachelet’s seven-stage process has been received with scepticism. While right-wing politicians reject the idea that we are already in a ‘Constituent’ process, and advocate a theory of gradual change through amendments to the actual text, left-wing movements believe that the proposed route obscures the possibility of a Constituent Assembly.
There are also doubts about the competence of the ‘National Council of Observers’, and few observers really believe that the crucial Constitutional Reform mentioned in stage 45 will be successful in Congress. It may be the case that Bachelet is just kicking the problem down the road for the next term, thereby constitutionalizing the 2017 Presidential-Parliamentary election.
Thoughts on the Constitutional Conversation
The problem of Constitutional fetishism
So far, the public debate has been full of distorted ideas about the scope of modern Constitutions. Many people believe that a change to the content of the Constitution will enable them to live better lives almost automatically.
The situation is not helped by the polarity of the political debate. Some politicians on the Left tend to blame the current Constitution for all the evils in society, including culturally specific ones such as corruption, while politicians on the Right tend to identify all the good things that Chile has achieved in recent decades with Pinochet’s Constitution.
The procedural vs. the substantive
Generally speaking, advocates of a Constituent Assembly do not distinguish between the invitation to a fair procedure, and the outcomes that they are seeking to obtain. In practice, this tendency to conflate rules of procedure with substantive content has been an obstacle to widening the ideological scope of the invitation. Thus, for instance, liberals and conservatives alike are afraid to be caught in a mechanism that is predetermined to favour socialist aims.
A solution to the political crisis?
Key figures of the political establishment hold that we do not need a new Constitution — let alone a Constituent Assembly — because we are not experiencing an institutional crisis. They are probably right: Chile is not experiencing a deep institutional crisis. However, the narrower political crisis is undeniable.
Political parties and the Congress are suffering the lowest public approval rates in history. Confidence in traditional structures of representation is diminishing at a dangerous pace. So it seems that Chile would do well to renew a long-term national agreement to rebuild the fundamental trust of the public in the democratic process. The question is whether a Constituent Process would provide an opportunity of this kind.
The role of future generations
The generation that defeated — or supported — Pinochet and later on conducted the successful Chilean transition to democracy refuses to retire. Currently, the principal political actors of the 1989 and 2005 amendments remain largely unchanged. If we are facing a ‘third constitutional moment’, as some have called it, it would not appear to be particularly wise to rely on the same cast of characters that oversaw previous such efforts.
Many believe that if we are to begin a new phase in Chilean Republican history, it is important to promote new political actors among the post-Pinochet generation to be involved in this constitutional moment.
Is the Chilean Constituent Assembly the way forward?
The Constituent Assembly may be the best option available, though it is certainly not the only one to be proposed. Whatever the outcome, the reputational problems of the Chilean Congress would seem unlikely to go away any time soon. Deputies and Senators have repeatedly shown tendencies to use their position to their personal advantage, and cases of corruption are now everyday news.
That is why many believe that it would be a good idea to devise an ad hoc institution with democratically elected delegates from across the ideological spectrum, with the sole objective to deliberate upon and draft a new constitutional document, before a national referendum. The Political Right, on the other hand, think of Constituent Assemblies as Chavista-style mechanisms where populism rules and Marxism thrives.
Regardless of the political rhetoric on both sides, by the end of June 2016, more than 8,500 Self-Organized Local Dialogues had already taken place, in Chile as well as among Chilean nationals living elsewhere. These Dialogues, each with a minimum of ten and a maximum of thirty members, have addressed a number of issues related to values, principles, rights, duties, and institutions that the people would like to see in the constitutional text.
Supporters of the process have hailed this unprecedented civic initiative, though it is worth noting that, as expected, participation was greater among the more highly educated sectors of the population. The main parties of the political Right may not have wanted to endorse the exercise, fearing a liberal consensus, yet internal disagreement has been freely registered, and healthy debate ensued. As these lines are written, the government is calling for Provincial and Regional Dialogues which aim to formalize the debates that began in the Local Dialogues.
As a model of civic engagement in the constitution-making process, the success or failure of such an ambitious project may play an influential role in the future development of constitution-making in Latin America and further afield in years to come.
Cristobal Bellolio is Lecturer in Political Thought at Universidad Adolfo Ibáñez School of Government in Chile and the author of Renovación & Reemplazo (2013). He was a member of the political team of the then presidential candidate Sebastián Piñera and is a regular commentator in the Chilean media. He holds an MA in Legal and Political Theory from University College London, where he is currently studying for a PhD in Religion and Political Theory.