The Chilean referendum for a new Constitution

By Francisco Salinas

On Sunday 25th October Chilean citizens are having a referendum. Everyone voting will have their say on two questions, each one with two possible outcomes: (1) “Do you want a new Constitution?” I Approve [apruebo] / I Reject [rechazo]; (2) “What kind of body should draft the new Constitution?” Constitutional Convention (with 100% new elected representatives) / Mixed Constitutional Convention (with 50% parliament members and 50% new elected representatives).

How did we get to this situation? What is at stake? Let me do a quick recap.

The current Constitution that formally rules Chilean social and normative life was ideologically designed and ratified during the dictatorship of Augusto Pinochet (1973-1990). It was voted on in 1980 in a fraudulent referendum under conditions of an absence of political freedoms and unbder authoritarian rule. As such, Pinochet’s constitution has been widely acknowledged as illegitimate since its origins.

The foundation of the 1980 Constitution began in 1973, a week after the brutal coup d’état against the democratically elected socialist government of Salvador Allende (1970-1973). It was drafted by a group of right-wing lawyers selected by the Military Junta and led by Enrique Ortúzar. The document put forward a set of individualistic, depoliticising, anti-syndicalist and anti-communist values to build a new social contract in Chile. It was ideologically designed behind closed doors and without consultation with political parties, which were prescribed between 1979 and 1988.

Even though democracy returned to Chile in 1990, the arrangements registered in the 1980 Constitution created many barriers to developing truly democratic institutions and policies. Indeed, many progressive and democratic decisions made by the Parliament and the Senate have been dismissed repeatedly as ‘unconstitutional’ by the seven people constituting a Constitutional Court able to make ‘definitive and binding’ decisions about constitutional matters. For instance, this court has declared unconstitutional, or become an obstacle to, reforms aiming to decriminalise abortion and prohibit profit-seeking university providers.  In addition, it has put constraints on many social relief policies required in these pandemic times. Moreover, the current Constitution has acted as a straitjacket for the many changes needed in a country that, even though resource-rich, is one of the most unequal amongst OECD countries.

But the distribution of wealth is only the tip of the iceberg of Chile’s Pandora’s Box. Under the motto ‘Chile woke up’, a nationwide popular uprising spread across the country after October 2019 – only bracketed for some months by the COVID-19 crisis. Accordingly, many social demands have become prominent. Chileans are mobilizing for demands such as fairer pensions, a better public health system, less segregated education, an end to sexist policies and a recognition of indigenous peoples.  Above all, there is a transversal demand for dignity, i.e. the desire for an institutional and practical acknowledgement of all the inhabitants in the country as human beings that are worthy of respect and whose basic human rights should be seen as invulnerable.

Instead of attempting a reasonable way to confront popular demands, Sebastián Piñera’s right wing government have chosen the pathway of authoritarian repression. According to the Chilean prosecutor’s office, just in October, 27 people died in these protests. The National Institute for Human Rights (INDH) recognises that hundreds had eye injuries and thousands suffered harm after attacks from the Carabineros de Chile (Chilean National Police).

By December 2019 President Piñera had achieved a record of unpopularity that might be explained by his authoritarian management of this social uprising. At his worst, one poll showed that his administration only had a 4.5% of approval. As a consequence of this, the brutal repression experienced by the population triggered the demand for a re-foundation of Chile’s police and the resignation of Piñera and many of his ministers.

In this context of anomie and crisis, in which popular expectations were at odds with the normative order, the draft of a new Constitution rapidly came to be the main demand of the social movements, grassroots organisations and civil society actors mobilising across the country. Alongside the protests, a series of autonomous assemblies sprang up all over the country with people studying the Constitution and discussing their desires and expectation about the future of Chile.

These spaces, starting in October, can be acknowledged as the starting point of the current Constitutional process. As a reaction to this ‘constituent’ atmosphere along with the nationwide uprising, many members of the Parliament from ten political parties signed an agreement to hold a referendum that could start the process of creating a new Chilean Constitution.

The deal was criticised by some groups on the left as a manoeuvre to save Piñera from the powerful demonstrations against his administration. Additionally, some people have been doubtful about this agreement in a climate of distrust of political parties and elite groups. Others emphasised a more technical problem: negotiators from the left had yielded too much territory to the right by agreeing a quorum of three-quarters in order to reach any constitutional agreement amongst the constituting body. Therefore, a minority of conservative representatives will be likely to have the chance of dismantling a progressive agenda.

Nevertheless, and with all these flaws, it is undeniable that this process opens up the possibility of moving on from a partisan Constitution made in a dictatorship, that for many years was seen as immovable, and create a much more democratic Constitution.

The referendum was originally scheduled for 26th April 2020, but it was postponed due to the pandemic. The pandemic is still out there but the climate of social unrest does not permit any further delays in this process. On October 25th, Chileans will have the historical chance of proposing a new political beginning for the future of Chile, over and above the legacy of the dictatorship.

The apruebo will likely win these elections as it is the option most transversally supported among protestors in the street, in public opinion, among the political parties on the left and some groups on the democratic right. Of course, in a democracy, the alternative option should also be respected in case it is chosen. Worryingly, however, the rechazo option has made visible new and old neo-fascist groups who worship either the figure of Pinochet or the values of his illegitimate Constitution.

Fractures in the social fabric do not have easy solutions, but the discussion about a new Constitution is an important step forward for the Chilean people. I and many others hope that the apruebo can do well and that the opposition to Piñera’s government can find good strategies to channel the people’s mandate afterwards. There’s a lot to be done!

Main image: Protests in Santiago, Chile, 2019. Author: Carlos Figueroa, licensed under the Creative Commons Attribution-Share Alike 4.0 International license.

Images in the text were taken by the author.