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Constitutional reform awaits in Chile after the lockdown

por Federico Poore
The Essential, 23-04-2020

Nueva constitución en Chile

Were it not for the coronavirus pandemic, Chile would be launching a constitutional reform process this weekend, after six months of protests calling for the radical change of a political and economic system that was not long ago seen as the darling of the continent.

The plebiscite to reform the constitution, originally scheduled for April 26, was seen as highly likely to pass, as conservative President Sebastián Piñera struggled with rock-bottom approval ratings that have only slightly improved since the COVID-19 pandemic.

But thirst for reform has in all likelihood merely hit a pause. The energy of the protests is now focused on the new constitution, and the biggest political story of the continent last year will return to the forefront as soon as public health allows.

From protests to reform
It took a global pandemic to take protesters off Chile’s streets.

Had it not been for the health catastrophe that threatens to claim the lives of millions around the world, hundreds of thousands of marchers would have kept staging events like the last one of notice, the March 8 mobilization that marked the largest women’s demonstration in the country’s history.

The demonstrations first broke out on October 18, when high school students began to jump barriers in groups following a fare rise which put Santiago’s metro among the most expensive in Latin America. The mass fare-dodging quickly expanded into city-wide protests leading to violent clashes between protesters and police. Meanwhile, Piñera was spotted at an elegant pizza restaurant, only enhancing the image of an out-of-touch elite that did not understand everyday realities.

Protests rapidly escalated. More than a million people took it to the streets, bringing workplaces to a halt, and a new demand eventually unified the movement: a call to overhaul the country’s constitution, widely regarded as the embodiment of Augusto Pinochet’s neoconservative model.

Last November, Congress agreed to a referendum on replacing the constitution, hoping that the move could help end weeks of political unrest. Originally called for this week, the plebiscite now has been penciled for October 25.

An illegitimate origin
“The 1980 Constitution brought some new elements tied to its authoritarian and illegitimate origin,” former presidential candidate Marco Enríquez-Ominami told The Essential. “It defines the State as centralized and unitarian and introduces the concept of a subsidiary State, which allows it to intervene only where the market cannot provide the good or service.”

Pinochet finally stepped down after losing a 1988 plebiscite on his rule. Official estimates say more than 3,000 Chileans were killed by his military government. Many observers from that period said the country’s transition from Pinochet’s rule to civilian government had been remarkably smooth. Others pointed out that the dictatorship had implanted several structures that could later limit the transition to full democracy — something like a “guardian democracy.”

According to public law expert Felix-Anselm van Lier, the constitution constructed solid legal dykes that cemented the regime’s socio-economic and political vision beyond the end of the dictatorship. The so-called “binomial” electoral system ended up creating a two-party model dominated by centre-left and centre-right coalitions, effectively excluding minority parties from political participation. (This system was abandoned in 2015 and replaced by a more moderate political representation scheme.) There were also a number of supra-majoritarian requirements for the amendment of the “organic constitutional laws,” which dealt with issues like the education system and the conservative Constitutional Court.

“Pinochet’s constitution established a number of ‘counter-majoritarian’ mechanisms that made it very difficult to amend,” political analyst Ernesto Águila, an academic from the University of Chile, told The Essential. “That is why many people here refer to it as a constitución tramposa (‘tricky’ or ‘crooked’). This is what exploded on the 18th of October.”

What could change
Águila believes the new constitution will surely be more “neutral” in economic terms, leaving more room for the people to decide how to run the country’s health and education systems. “But it cannot be neutral in terms of social and human rights,” he warns. “It must address the issue of regionalization — Chile is a very unitarian state — and the political participation of indigenous communities, especially the Mapuche.”

Tomás Duval, a professor at the Autonomous University of Chile, believes the new text should address a number of important political and social demands. “The former could be addressed by introducing some sort of semi-presidentialism, and the latter by enshrining the state role in terms of health and pensions,” he said.

For Enríquez-Ominami, other main amendments should include education and housing rights as well as an overhaul of the Code of Waters and the Code of Mining. Some of these proposals could include charging for the use of water for large-scale mining and other policy responses to serious tensions and conflict emerging around natural resources.

Chileans will decide whether they want a new constitution and if they do, whether the body that draws up the new document should be a popularly elected assembly or one mixed with current lawmakers. Latest polls showed that some three quarters of citizens do want a new draft and that the majority favored a popular assembly — yet another sign of distrust of the country’s political elite.

A messy schedule

But not everyone agrees with this direction.

“Chile is about to make a huge mistake,” wrote Patricio Navia, a political scientist who teaches at New York University. The expert claimed that the electoral calendar will get in the way of reform, saying the constitutional convention will be drafting the new text at the same time as the new presidential election cycle is unfolding. “It is difficult to imagine that the two processes will not adversely influence each other. Presidential candidates will be actively opining on the issues being discussed by the constitutional convention and the convention will inevitably react to voter intention polls for the presidential election,” he said in an article published by Americas Quarterly.

Navia argued that while drafting a whole new constitution might correct the illegitimacy of origin of the current one, the two-year calendar that the change will entail will be too much of an effort. “Indeed, it may simply end in frustrated expectations – and cause society to become even angrier,” he said.

With the added uncertainty of the pandemic, the schedule could get even messier. The October 25 date set tentatively by lawmakers still needs the approval of two-thirds of congress in a formal vote.

“Should a Yes vote prevail, there will be a two-year-long discussion and we may have a problem with the dates, electing a new president with the current rules while at the same time changing the constitution. And the coronavirus pandemic will surely play a role in this process,” Duval agrees. “But I still believe a new text could represent an important social and political pact for the country.”

Por Federico Poore

Magíster en Economía Urbana (UTDT) con especialización en Datos. Fue editor de Política de la revista Debate y editor de Política y Economía del Buenos Aires Herald. Licenciado en Ciencias de la Comunicación (UBA), escribe sobre temas urbanos en La Nación, Chequeado y elDiarioAR.

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