“Iexist middle On July 4, Chilean President Gabriel Boric, 36, lamented: “We have not had a political…crisis in decades in our country, and Chileans have chosen more democracy and Not less democracy.” His words marked the end of a year-long process to rewrite the country’s constitution. The final draft was presented to Mr Boric at a ceremony and will now go to a referendum in September.
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Chile’s current constitution was adopted in 1980 during the dictatorship of Augusto Pinochet. Even though it has been revised nearly 60 times, it was still felt that an entirely new document was needed. In 2019, millions of people took to the streets to protest, some of which turned violent. Many of them believe that Chile’s problems stem from the old constitution. As a result, the then centre-right government put the idea of rewriting it to a referendum. Voters agreed.
The Constituent Assembly consisted of 155 people, many of whom were new to politics. It aims to rebuild trust in Chilean institutions. Half of the representatives are women and seats are allocated to indigenous peoples to reflect their proportion of the population. But instead of uniting the country, it has polarized it. Opinion polls suggest voters will reject the new constitution.
Part of the problem lies in the components themselves. While it is demographically representative, its ideological leanings are not. Only 43% of voters bothered to choose members for the May 2021 convention. Some 55 delegates were far-left, many of them on single promissory notes. Scandal doesn’t help. A deputy has resigned after falsely claiming he had cancer. They quarrel with each other. Indigenous voters complain of racism. Representatives from the right accused fellow MPs of wanting to establish a “native monarchy”. Just 40% trust the convention today, down from a high of 63% in July 2021. Two-thirds found the draft worrisome. A third thought it was promising.
Another problem is that Chileans’ concerns have changed. In May last year, most respondents were concerned about health care and pensions. These days, they are more concerned about inflation and rising crime. Yet the meeting took place in a utopian spirit. “The delegates see themselves as the founders of the new republic, and it’s unclear whether they should interpret their mandate that way,” said Gabriel Negreto, a constitutional expert at Chile’s Pontifical Catholic University.
The resulting draft included 388 articles, making it one of the longest constitutions in the world (see chart). It reflects the left-wing leanings of parliament. Despite its opaque language, it creates new socioeconomic rights that, if enforced, are sure to significantly increase government spending. One article said that from birth to death, “everyone has the right to be cared for” and ordered the creation of a state-run “care system”, whatever it may be. No matter how much it costs, the funds must be “sufficient and permanent”. Congress will be able to introduce spending-boosting bills, a power previously reserved for the president. (He retains veto power.)
Some articles unnerved investors. Unions have the right to strike for any reason they deem fit. Restrictions apply only if strikes affect essential public services. When land is expropriated, the state will pay a “reasonable price” for compensation, a protection weaker than the current constitution’s provision that owners will be compensated for “actually caused economic losses.” The right to water, previously considered part of someone’s private property, has now become a public good. They will be regulated by a new national agency that will issue licences. Farmers who consume 72 percent of Chile’s water say it creates uncertainty about the value of their land.
The final document showed a hint of restraint. It embodies the independence of the central bank and maintains most of the checks and balances. It limits local governments’ borrowing powers and makes repeated references to fiscal responsibility.
But constitutional scholars are concerned about the creation of a 17-member judicial committee with a broad mandate. It will nominate all judges; previously, there was a role for the Supreme Court, the Senate, the President and the Court of Appeals. Every five years, the committee reviews the work of judges (although it cannot review judgments) in public hearings. Rodrigo Correa of Adolfo Ibáñez University fears it will expose judges to pressure from public opinion.
The draft also touches on a number of subjects not normally considered constitutional. One of the articles grants citizens the right to “adequate, healthy, sufficient, nutritionally complete and culturally relevant food.” The text calls for the healthcare system, courts and police to all operate “with a gender perspective”, without elaborating.
If voters reject the new constitution, the old constitution will remain in effect. It can be improved. A supermajority in Congress can amend or repeal some of its 21 “organic laws,” making tweaking legislation difficult. For example, changing education policy in Chile is nearly impossible. The country’s constitutional court also needs reform. It generally protects vested interests: In 2018, it banned a law that gave consumer protection bureaus the power to sanction companies for price-fixing.
Mr Borik wants the new constitution to be ratified. His plans, such as creating a better National Health Service, would be easier to achieve if passed. But with opinion polls against the charter in recent months, his people stress that they can implement their agenda even without it. Still, if Parliament’s new constitution is stillborn, it would be a blow to Mr Borrick, who supports Parliament. ■
