Keys to understanding the new draft of Chile’s Constitution: From the welfare state to the polls

A national referendum will be held on Dec. 17 to either approve or reject the document. This is Chile’s second attempt to put an end to the Constitution of 1980, which came into effect during Pinochet’s dictatorship

Chilean constitution
Chilean voters participate in the 2022 Constitutional Referendum.sofia yanjari
Antonia Laborde

This past Monday, the Constitutional Council of Chile — controlled by the right — approved the proposal for a new Constitution, which will be up for a citizens’ referendum on December 17. Voting will be compulsory.

The birth of Chile’s constituent process

In the last four years, there have been two attempts to change the Constitution of 1980. Amidst the social protests in Chile that began on October 18, 2019 — marked by mass demonstrations and violence — the political class agreed on an institutional solution to the crisis: offer a change to the current Constitution.

In November of that year, Sebastián Piñera — the incumbent president at the time — and all of his living predecessors, from a variety of political parties, signed the historic Agreement for Social Peace and a New Constitution. The government intended to consult the citizens of Chile and ask them if they wanted to bury the Constitution of 1980, which was born in the dictatorship of General Augusto Pinochet (1973-1990) and which has been reformed about 60 times following the transition to democracy. From the Broad Front coalition, Gabriel Boric — a member of Congress at the time — signed the agreement, becoming a key figure in the political solution to the crisis. However, the Communist Party and the far-right Republican Party didn’t sign. In October 2020, 80% of the electorate voted in favor of drafting a new Constitution.

In July 2021, a Constitutional Convention was installed. In May, Chileans had elected the joint body, which was made up of 155 members, most of them radical leftists who were unaffiliated with any political group. The process was marked by a series of controversies, with proposals made that would — if enacted — profoundly transform Chilean institutions. Some proposed measures that included the elimination of the Senate, or the recognition of multiple Indigenous nations within the country. The right called on the public to reject the proposed draft, while also accompanied by an important sector of the center-left, which deemed the proposal to be identity-based and extreme. In September 2022, 62% of Chileans shot down the proposal in a referendum.

A setback for President Boric

The resounding rejection was a very hard blow for the government of President Gabriel Boric, who was elected in 2021 and assumed office in March 2022. He had bet everything on a triumph of the proposed draft. The then-minister Giorgio Jackson — a close ally of the president — had even conditioned the structural reforms of Boric’s campaign on the approval of the new governing document. On the night of the defeat, the president expressed his intention to launch a new process and, in less than 48 hours, he carried out a major cabinet shuffle, sacrificing part of his inner-circle to integrate representatives of the moderate left into the political committee where the decisions regarding the process would be made.

The November 2022 agreement

Three months after the triumph of the rejection, the members of Congress — this time, from the Communist Party to the traditional right — agreed to begin a second constitutional process, setting a very different route from the previous one. New rules established limits on what could be proposed, seeking to prevent another fiasco. This time, there would be 12 basic points of agreement that would be tackled by a committee of experts, elected by the Chamber of Deputies and the Senate. Following that, a Constitutional Council of 50 members would be elected by popular vote, to work on the specialists’ draft.

The Republican victory in the Constitutional Council elections

This past May, the Republican Party — a far-right party with ties to the Pinochet dictatorship, which didn’t want to change the Constitution at all — got a plurality of the votes in the election of constitutional councillors. The Republicans took 22 of the 50 seats, with 35% of the vote. The traditional center-right parties, meanwhile, got 11 seats. The ruling coalition — Boric’s leftist bloc — got 17.

In addition to suddenly becoming the principal political force in Chile, the Republican Party — led by former congressman José Antonio Kast, who lost to Boric in the 2021 presidential elections — had veto power over the constitutional process. Together with the historic right, the Republican councillors had the ability to approve and modify constitutional norms, because they comfortably exceeded three-fifths of a quorum. There was no need to compromise with the left. “I want to ask the Republican Party not to make the mistake that we made,” Boric pleaded on election night.

The experts’ proposal

The 24 experts wrote a draft marked by moderation and broad-based political agreements, from the extreme-right to the hardest left. The main modification they presented was the consecration that Chile be organized as a social and democratic state within the rule of law — something that the center-left and left-wing parties had fought to implement for years. The right agreed to this. The proposed draft — for the first time in history — also recognized Indigenous people as part of the Chilean nation, incorporated the right to adequate housing and dignified work, while ensuring the protection of the environment.

The changes made by the right-wing members of the Council

This past June 7, the Constitutional Council — controlled by the right — made profound changes to the experts’ text, although it maintained about half of its proposals. However, while consecration of a social and democratic state of law was preserved, the left wing councillors argued that the other articles effectively made this definition “empty,” because they limited social rights such as health, education and pensions. The ruling coalition also took issue with the proposal to strengthen the power of the executive branch.

Among the most controversial norms is that “the law protects the lives of the unborn” and that “a child is understood to be any human being under 18 years of age.” Critics suggest that these articles could collide with the current abortion law. The final text also proposes the expulsion “in the shortest possible time frame” of migrants who enter through unauthorized avenues, “with full respect for human dignity, fundamental rights and guarantees and the international obligations [of] the state of Chile.”

One compromise having to do with incarcerated individuals is that those sentenced to a prison sentence may petition the court to be granted house arrest “provided that the existence of a terminal illness is proven in accordance with the law and that the convicted person does not represent a current danger to society.” However, critics indicate that the latter may benefit the 134 living Chilean soldiers convicted of human rights violations, who are currently imprisoned. 80% of them are over 70-years-old.

The proposal that will go to a referendum

The constitutional draft that the full Council approved on October 30 is twice as extensive as the current document. “The current Constitution has more articles, with a total of around 31,000 words. The current project has fewer articles, but reaches 50,000 words,” noted columnist Ascanio Cavallo in La Tercera. “Where do those extra 19,000 words come from? Mainly, from a thick array of new state bodies — about 20 in total — most of which are counterweights or supervisors of the existing ones. Only two single-person bodies remain free of supervision: the [presidency] and the Comptroller General’s Office. This is quite a paradox: [the whole process] is about controlling the state… but not by reducing its size, but by adding more state agencies,” he wrote.

The right affirms that the proposed Constitution is better than the current one, since it includes more tools for border control, a new Prosecutor’s Office focused on organized crime, an anti-corruption agency and a Victims’ Ombudsman’s Office. The right-wing councillors also celebrate that the draft reduces the number of elected federal deputies from 155 to 138. They highlight that it reflects pressing citizen concerns — such as security — and that the most identity-based norms are no longer included. In addition, they emphasize that the document would put an end to the four years of institutional uncertainty since the social crisis broke out.

According to critics, the proposed document has a defensive attitude in the face of an increasingly liberal society: it’s more conservative in values than the current one, especially when it comes to gender norms or educational matters. It also includes populist policies, such as offering workers exemptions from having to make contributions to the national pension system.

The improvements, according to progressives

From the left, councillors have highlighted the consecration of the welfare state (even if it’s lame), the progress in modernizing the state and improving some aspects of the electoral system. In EL PAÍS, center-left essayist Ernesto Ottone acknowledges these mild improvements… although he ultimately opts for rejecting the proposal.

Some progressives also recognize principles regarding decentralization, such as increasing the governmental function in both Chile’s municipalities and regional governments, as celebrated by Gabriel Osorio, one of the socialist constitutional experts elected by the Council.

The right grapples with the text

At the beginning of September — when the text was still taking shape — the right-wing opposition seemed to be in favor of adopting a new Constitution for Chile. Senator Javier Macaya — president of the right-wing Independent Democratic Union (UDI) — was one of the first to come out in support of the draft. However, this past October 3, there was an even bigger milestone: José Antonio Kast — leader of the powerful Republican Party — ended the mystery that existed regarding the position that his bloc would take. He said that, during the December 17 referendum, Chile would have “a great opportunity to change the future.”

That phrase from Kast made a difference, because Republicans — who had never been in favor of changing the Constitution of 1980 — were suddenly in favor of approving a new proposal in which, supported by the traditional right, they managed to carry out most of their proposals. Following his declaration, other center-right and right-wing figures came out to endorse the text, such as former presidential candidate for the traditional right-wing Let’s go Chile coalition Sebastián Sichel, as well as former president Sebastián Piñera (2010-2014, 2018-2022).

One of the final enigmas was the opinion that the main political figure of the opposition would take. Finally, last week, Evelyn Matthew — the mayor of La Providencia, a district in Santiago — announced her vote in favor of the document. A member of the UDI, she lost the 2013 presidential elections to the left-wing Michelle Bachelet. Today, she leads the polls for the 2025 presidential elections.

This past Monday, after appearing at the Constitutional Council, Matthei said: “Today, the text that all Chileans will vote on in December was approved. There’s a need — and a tremendous opportunity — to close the constituent process and leave behind uncertainties and divisions. Achieving the stability that we so need — and seeking to advance urgent issues, such as job creation and security — that’s what we all long for.”

The ruling party and other blocs announce their rejection of the proposed draft

On October 30, the ruling coalition’s advisors jointly announced that they would reject the proposal. However, there was no surprise in this revelation, given the signs of discomfort with several of the norms that have been pushed by the right — especially the Republican Party — and which were approved without the votes of any leftist councillors.

This past August — even before the amendments that Republicans proposed to the preliminary draft were voted on — Yerko Ljubetic, an advisor to Boric’s party, told EL PAÍS: “We’re not willing to subscribe to a Constitution written during democracy that’s worse than the one we have [from the dictatorship].” Over time, this opinion was reiterated on the left, which was limited on the Council by the fact that their 17 votes couldn’t compete with the 33 of the right.

The ruling parties — unlike their advisors — have decided to take the institutional route: they will wait until November 7 to announce their formal position. This is when the proposal will be delivered to President Boric, so that he can call a referendum. There’s no mystery that the ruling coalition will likely make a public call to vote against the new Constitution, since many leaders from across the center-left and far-left — including Senator Paulian Vodanovic from the Socialist Party, or Jaime Quintana from the president’s Social Convergence party — have been very critical of the text.

Today, Chile’s leftists are in a very uncomfortable position. If their historical aspiration has been to replace the Constitution that was born in the Pinochet dictatorship (although it has been reformed more than 60 times since 1989), voting against the right-wing proposal essentially means ratifying the current governing document.

The Boric administration is equally uncomfortable with the text, but it has made two things clear from the beginning of this second attempt: that it will maintain its independence during the campaign period before the referendum and that there will not be a new constitutional process during this administration, in the case that the “against” option wins (as most polls predict).

What the polls say

The polls reveal that the percentage of the public that wishes to vote against the constitutional proposal is significantly greater than the segment of the population that wants to vote in favor. In the latest Cadem survey, the favorable option reached 34% of the voter preferences, compared to 51% of those surveyed who were opposed. According to Pulso Ciudadano, 30.3% of Chileans would approve the text, while 69.7% would reject it. The latest Feedback poll shows that 30.8% will vote in favor, 52.7% against, while 10% will ruin their ballot (showing up to vote is mandatory). However, the trend of recent weeks reveals that more and more citizens are inclined to support the proposal… a slow but sustained advance.

Almost no options for a third constitutional process

The Boric administration has practically ruled out that, if the new text is rejected, there will be another constitutional process during the rest of the president’s term. “The conditions wouldn’t be appropriate,” admitted government spokesperson Camila Vallejo. And although there’s a fairly broad-based consensus in the political world that, at least, a “constitutional vacation” must be taken, the Communist Party has shown its interest in continuing without taking a break. “No government — neither this one nor the one to come — can terminate a constituent process that belongs to the people,” stated former communist presidential candidate Daniel Jadue.

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