A guide to Chile’s constitutions, old and new
Chile has re-written its constitution, but voters aren’t happy
On July 4th Chile’s constitutional convention, which has been writing a new magna carta for one year, handed in its final draft. The document comes from turmoil: the body that drafted it was elected in the wake of huge protests against inequality and poor public services in 2019. If approved in a referendum in September, it would replace Chile’s current charter, written under the military dictatorship of Augusto Pinochet (1973–1990).
This blogpost looks at why Chile’s existing constitution is hated, what the new constitution proposes, and considers why so many Chileans are disenchanted with the text and the body that wrote it. Rather than healing a divided nation, the process of rewriting the charter has increased polarisation.
Part I: What’s the fuss about the current constitution?
The constitution of 1980 is one of the most important, and loathed, legacies of the Pinochet era. Drafted by a committee of loyal technocrats led by Jaime Guzmán, the dictatorship’s main ideologue, it enshrined one of the strictest rights to private property in the world–including over water–and gave the state a subsidiary role in the provision of public services such as education and health, in general favouring private providers.
For many Chileans, the constitution has been a symbol of the country’s inability to come to terms with the dictatorship, whose close allies continue to hold much sway in politics and economics. Shortly before Pinochet was forced to step down in 1990, Guzmán included so-called traps in the charter to safeguard the dictatorship’s legacy after the transition to democracy.
One of these traps was the binomial electoral system, in which the top two candidates in any district got seats in Congress, provided that the runner-up got at least a third of the vote. That means that even if the centre-left won 69% of votes and a right-wing party received only 31%, they got equal representation in the legislature. This rule was only abandoned in 2015 and replaced by a proportional system with gender quotas in party lists. Such extreme distortions of representation led many Chileans to trust little in Congress or political parties. According to one UN report, Chile experienced the greatest fall in electoral participation of any country except Madagascar between 1990 and 2016.
Other traps included making Pinochet a Senator for life and keeping him as the head of the army until he was arrested in London in 1998 for crimes against humanity. A handful of military generals were given reserved seats in Congress until 2005–fully 15 years after the end of the dictatorship. And extremely high quorums of between four-sevenths and two-thirds in both houses are required to change a series of “organic laws”. The topics that are included under these laws are mostly understandable–changing the constitution or the Central Bank should require more than a simple majority, for example. But Guzmán also included educational reform in the organic laws on the day that Pinochet stepped down, clearly with the objective of tying down the incoming democratic government. Taking education out of the organic laws was one of the most important slogans in huge protests that swept the country in 2005 and 2011.
Though Pinochet’s constitution has been amended around 60 times, and today bears more of the hallmark of President Ricardo Lagos’s reforms to it from 2005, it continues to lack popular legitimacy. For at least a decade many Chileans have called for reforms to the charter. During her second term Michelle Bachelet, a centre-left president, gathered over 200,000 people in town halls to discuss changes, and had a committee propose a new constitution. The draft was presented shortly before she left office in 2018.
The administration of the right-wing president that succeeded her shelved the draft, declaring that “a constitution is not a game.” They would come to regret their decision. In October 2019 over a million protesters filled the streets voicing all sorts of demands, from lower inequality to a stronger safety net to animal rights and the end of the patriarchy. Politicians were at a loss for what to do. In a bid to quell the unrest they offered to let Chileans vote on whether they wanted a new constitution, and what body would write it. 51% of the electorate turned out in October 2020; almost 80% of Chileans voted to re-write the charter, and wanted a constitutional convention to do the job.
Part II: Is the constitution really the problem?
Chile’s current constitution evidently has a democratic deficit. But in many ways, it is not clear whether the constitution itself has been the biggest obstacle to creating a stronger safety net–the most important demand from 2019.
First, important reforms have been made under the current text. It is hard to square a supposedly ultra-neoliberal charter with the existence of a public healthcare system (which 76% of Chileans use), free college for the poorest 60% of the population (first approved in 2016 and later extended), and a universal basic pension (approved in 2008 but expanded several times, including just last year). Many of the ugliest vestiges from the dictatorship–such as reserved seats for generals or the binomial system–have been taken out. Some scholars also argue that the strong property rights enshrined in the constitution allowed Chile’s economy to flourish by giving investors long-term certainty. In part these protections laid the groundwork for GDP per capita to grow sixfold since 1990 and for poverty to fall from 40% to 10% today. However much outrage there was on the streets in 2019, Chile remains Latin America’s undisputed success story over the last thirty years and is today considered a high income country by the World Bank (the classification includes countries with a gross national income per capita of more than $13,205). In the region, only Panama and Uruguay are in the same league.
Critics still complain that the education, healthcare and pensions systems are segregated so that the poor receive worse services. The education system is heavily privatised, with the 9% of elite private schools disproportionately producing the country’s leaders and CEOs. Though all Chileans must pay a 7% tax for either public or private insurance, outcomes vary widely–according to a study published in 2019 in the Lancet, a British medical journal, life expectancy at birth for a woman born in the poorest neighbourhood of Santiago is nearly 18 years lower than for a woman born in the richest neighbourhood, a much larger gap than in the other five Latin American cities surveyed, including Mexico City and Buenos Aires. (Although overall life expectancy is one of the highest in the world, and the gap is so big because rich old ladies in Santiago live until the grand old age of 96 — higher than basically anywhere else.) Pinochet did not require the armed forces to join the much-loathed private pension funds, known as the AFPs, which were introduced in 1981. That means that the government spends more on pensions for the security forces and on those who remained in the pre-1981 system (more than 2% of GDP) than it does for the whole of the rest of the population (less than 1%).
The question is whether these sticking points require an entirely new constitution to be written. In 2016, during Bachelet’s second term, the government passed a sweeping education reform that included banning secondary schools that received state funds from selecting students or charging fees, making college free for the poorest 60% of the population, and reforming the administration of the public school system to improve its efficiency. Right now the government of Gabriel Boric is seeking to introduce important changes to healthcare by creating a unified system, much like Britain’s NHS, in which everyone’s 7% contribution would go to the public system and private insurance would only be complementary. Similar changes are being discussed for the AFPs. Both of these proposals will be hard fought in Congress, but deep reforms are expected–and are quite possible within the existing constitutional framework.
So the problem may lie elsewhere, namely in the difficulties of building strong majorities in Congress. Chile’s party system is so fragmented that it can be hard for governments to get anything done. The legislature is elected at the same time as the first round of the presidential vote — meaning that by the time the president is chosen in the second round, they will have to govern with a bunch of parties that are not aligned with them. Today there are 20 parties in Congress and the president’s coalition has only around a third of the seats in the lower house. Right-wing parties have also often proven intransigent to debate. And there is consensus that the Constitutional Tribunal, appointments to which are far too politicised, has an extremely conservative interpretation of the text (think of the current US Supreme Court composition, but for thirty years). It has often protected vested interests, such as when it prohibited the Consumer Protection Bureau from sanctioning companies that colluded to fix prices in 2018. Changing the structure of the court would require better appointments, not an overhaul of the magna carta.
For many people, then, offering to rewrite the country’s constitution looked like an escape for a political establishment that had no idea how to hang onto power after the 2019 protests. The promise of re-founding the nation has often been dangled during crises of representation in Latin America. Since the 1980s, either as a result of transitions to democracy or after populist leaders came to power, constitutions have been rewritten in Argentina, Brazil, Peru, Colombia, Venezuela, Ecuador and Bolivia. With the exception of Argentina and Peru, most of these texts are extremely long, running upwards of 250 articles. The problem is that this has often failed to solve crises of representation because the causes of policy inaction–delegitimised political parties, fragmented Congresses, and a lack of consensus over the reforms that are really needed–don’t go away.
Part III: What does the new constitution propose?
If approved, the new constitution would be one of the longest in the world (see Figure 1). Its main axes are feminism, environmentalism, de-centralisation and indigenous rights. It expands a number of rights, including those of nature, animal rights, the right to decent housing, and a right to care from the cradle to the grave.
Same same, but different
Some articles essentially amplify existing rights. For example the rights of nature–which are very vaguely defined (Article 127: Nature has rights. The State and society have a duty to protect and respect them) — are an extension to the right to a clean environment enshrined in the current constitution (Chapter II, Article 8 says: [It is a right] to live in a pollution-free environment. It is the duty of the State to ensure that this right is not affected and to protect the preservation of nature.) I’m not sure why everyone is so excited about the rights of nature in the new draft if the State is already required to protect it. Ecuador was the first country to add the rights of nature to its constitution in 2008 and that didn’t prevent ex-president Rafael Correa from locking up indigenous protesters who demonstrated against big mining firms, or from deepening the country’s dependence on exports of fossil fuels.
Elsewhere, the new constitution would ban profit in education. Again, the hullabaloo around this is perplexing. Bachelet’s 2016 reforms already banned voucher schools from making a profit. Public schools are not allowed to make a profit. And universities are not allowed to make a profit since at least the 1990s, though many get around this by setting themselves up as property companies and leasing out their premises to universities(weirdly the Constitutional Tribunal held up the right for universities to do so in 2018). So the ban on profits might only affect the 9% of fully fee-paying schools in the country, which are currently allowed to make a profit. Yet many of these are run as religious non-profits. It’s not clear this proposal is particularly radical.
Finally, one other important right builds on an existing law. Chile’s current constitution enshrined water as a property right, which could be held in perpetuity and inherited. Owners could speculate on their water and sell it during droughts. This system did not incentivise efficiency: an owner could sit on his or her water for years without using it, while other potential non-shareholders went without. Second, it did not take scarcity into account. Chile is undergoing one of the longest droughts in history, currently in its 13th year. Upstream farmers therefore often get more water than downstream users, which has sometimes left entire communities without drinking water.
Basically nobody defends this system anymore. In many other places, like California and Canada, water is held as public trust and the government can regulate its use during droughts. Because of the evident flaws in the system, in January of this year a new water code was ratified which took 12 years to discuss in Congress. It caps existing water rights at 30 years (though the concession is renewable) and new concessions will be based on the availability of water supply source and can be shortened during periods of drought.
But the water code only applies to new concessions, when the problem lies with existing ones. The new constitution basically creates a new water agency and applies the 2022 water code retroactively. The big controversy is that the new draft makes water incomerciable, or “non-tradable.” For farmers, who consume 72% of Chile’s water, this matters because water rights are included in the value of their property. If water becomes non-tradable, that value will fall significantly. It is the only example of possible expropriation in the new constitution, and clearly the word “non-tradable” needs to be removed or clarified in future amendments. I think the fact that a new water code was passed in Congress this year is another example that the problem is related, but not limited to, the constitution — but rather to policy inertia.
What is new?
Despite some continuation, the proposed constitution clearly has a lot of new stuff in it–otherwise it wouldn’t have 388 articles compared to the current text’s 143. Figure 2 shows the rights that are enshrined in the existing text, and which ones the new constitution would add.
Take women’s rights. The old constitution simply states that “men and women are equal before the law” (Chapter 3, Article 2). The new one goes to town on gender equality. It enshrines parity in the judiciary and all elected organs, and says that the National Health Service, the courts, and the police must operate “with a gender perspective,” without ever elaborating what this means. Article 312, for example, says that the judiciary “shall be governed by the principles of parity and gender perspective”, “must guarantee substantive equality,” and that courts “must rule in a gender-sensitive manner.” Article 6.4 says that all bodies of the state must have “a gender perspective in their institutional design, fiscal and budgetary policy and in the exercise of their functions.” The new text also opens the door to legalise abortion by enshrining the right to voluntarily interrupt pregnancy (Article 61.2).
The right to strike is also greatly expanded. It is not technically enshrined in the existing constitution but rather is presented as a negative right, in that the only place where strikes are mentioned is to explain who cannot go on them (public officials and workers in companies that provide essential services). The new text gives trade unions significantly more power. Articles 47 and 48 establish the right for trade unions to strike for any reason they see fit, while they would be guaranteed the right to participate in the decisions of their company (a law will set the parameters for that). The draft also argues that “all forms of job insecurity are prohibited,” with unclear implications for gig work. In many countries, unions are allowed to strike for reasons relating to their work but are more constricted in their ability to mobilise for political reasons.
The new constitution also provides a right to decent work, care, leisure, sports, and special protections for children and disabled people. Some of these are pretty vague and could be very expensive for the state to fund, or at least lead to litigation. For example, Article 50 says: “Everyone has the right to care. This includes the right to care, to be cared for and to care for oneself from birth to death. […] The State guarantees this right through a Comprehensive Care System, norms and public policies that promote personal autonomy and that incorporate human rights, gender and intersectional approaches. The system will be state-run, parity-based, solidarity-based, universal and culturally relevant. Its funding will be progressive, sufficient and permanent.” That’s a lot of adjectives. Other rights, like work, leisure and sports, already exist in many international human rights conventions. Whatever “decent work” means will need to be defined by legislators.
The most novel part about the constitution concerns the rights of indigenous people. They are not even mentioned in Chile’s current constitution, even though they make up around 13% of the population. The new constitution would recognise their languages, grant them autonomy over their territories, and allow them to have their own judicial systems.
These last two are causing some of the fiercest debates in Chile. Some critics believe that Article 191, which says that indigenous people must give their consent to pass any reforms that affect their rights, is too broad and could give such groups legislative veto power. Others believe that parallel judicial systems should not exist in one country. Yet they already exist in loads of countries with first nation populations, such as the United States, Canada, and Bolivia. The law would delimit what the indigenous tribunals can rule on and what they cannot (e.g. fundamental rights). Any disputes would be resolved by the Supreme Court.
And then there are some new additions that just increase the word count. Article 54.4 says that the State must “promote the country’s culinary and gastronomic heritage”. Article 56 says that everyone has “the right to adequate, healthy, sufficient, nutritionally complete and culturally relevant food. […] The State shall guarantee on a continuous and permanent basis the availability of and access to food that satisfies this right, especially in geographically isolated areas.” Article 131.2 says that “the State and its organs shall promote education based on empathy and respect for animals.” Randomly, Article 66.3 forces the State to “recognise spirituality as an essential element of the human being.”
It gets even woolier. Article 29 says “the State recognises neurodiversity and guarantees neurodivergent people their right to an autonomous life and to freely develop their personality and identity.” Article 92.4 says the State must “promote, encourage and guarantee the harmonious interrelation and respect for all symbolic, cultural and heritage expressions, whether tangible or intangible […]under the principles of collaboration and inter-culturality.” The chances of any of this being realised are about zero.
Beyond rights–reforms to the system of government
Constitutions are meant to regulate how the judiciary, the legislature and the executive interact with one another, design electoral systems, and set out some basic rights. Chile’s new constitution focuses a lot on rights, but the reforms to other areas are confusing and may water down some checks and balances.
The new constitution proposes to overhaul how appointments are made to the judiciary. A judicial council would be in charge of nominating all judges, where previously the Supreme Court, the president, the court of appeals, and the Senate all played a role. Admittedly the Senate had politicised some nominations, similar to what happened with Merrick Garland in the US, but some scholars I spoke to feel this concentration goes too far. The risk is not that the judicial council becomes politicised (as has been the case in countries like Turkey or Hungary), but that corporate judicial interests begin to play a much stronger role.
In addition, the body would evaluate judges’ work every 5 years, which will include ‘public audiences’. Though the article on the judicial council explicitly says this cannot include a revision of judges’ sentences, some may feel under pressure to rule in a certain way if they are publicly evaluated shortly after a sentence is handed down. One analyst I spoke to put it like this: “if I have a case on femicide in front of me that has been in the media, and in 6 months’ time I have my evaluation with a public audience, and I don’t think there is enough evidence to condemn the guy, but the public wants blood — I am in deep shit.”
The new constitution also weakens the powers of the Senate by creating an “asymmetrical bi-cameral system,” which would be the first of its kind in the world. This was the result of lots of wrangling between factions in the convention, some of which wanted a parliamentary system and others who argued for a strong executive, and so nobody seems very happy with the result. Basically the Senate will be renamed the Chamber of the Regions and can rule on any bill about taxes, the budget, education, health, housing, environmental regulation, changes to the constitution, the judiciary, the electoral system, states of emergency, and laws in Chile’s 16 regions. For everything else only the lower house will have to vote. The Senate also loses some power over nominations, like the Comptroller General and Supreme Court justices. It’s too early to tell whether this design incentivises broader accords or weakens checks and balances.
Apart from these examples, most checks and balances are maintained. Central Bank independence remains, though the organ’s functions appear to be expanded — Article 358 says “In fulfilling its purpose, the Central Bank shall consider financial stability, exchange rate volatility, employment protection, care for the environment and the natural heritage, and the principles set out in the Constitution and the law”. The document also mentions fiscal responsibility several times, for example in Article 183, which says that “public finances shall be conducted in accordance with the principles of sustainability and fiscal responsibility, which shall guide the actions of the state in all its institutions and at all levels.” Critics who are freaking out that the constitution could be an expensive laundry-list of rights should be aware that the costliest demands will necessarily be attenuated by this article.
Another important feature is that the new text promotes greater democratic participation. Congress would have to discuss a bill if around 500,000 people propose it, and it would have to discuss revoking a bill fully or partially if 5% of the electoral roll proposes it (none of the proposed laws could touch on the budget, tax reform, or fundamental rights.) The text would also re-establish mandatory voting. Chile made voting voluntary in 2012 and participation is extremely low, which exacerbates problems of representation. (Mandatory voting exists in Australia, Belgium, Singapore, and much of Latin America). The rest of the constitution says nothing about how the electoral system works or even anything about political parties — a significant omission.
Finally, the constitution devolves power away from Santiago. Some critics are afraid of the proposed scope of decentralisation. It is not clear how much financial or political autonomy the regions will have, because it leaves it to Congress to work out (see Article 187.2).
There were important missed opportunities for reform. The new text does little to improve the problem of governability. In fact, it might aggravate it. It takes the president’s prerogative to propose bills that would affect the budget, tax reform or social security, and gives it to the lower house of Congress. The president would retain his or her ability to veto the bill. This may create incentives for deputies to propose unfeasible but popular projects and lay the blame on the executive when these get rejected. Though the proposed text does say deputies need to get their proposal checked by a financial committee beforehand, that does not take away the creation of a new incentive that will likely pit Congress against the president.
This is especially so because the president’s veto power will significantly weaken: currently, the president has the power to reject or request changes to bills passed by Congress, but Congress can insist on getting the law passed if a 2/3rds majority in both houses vote in favour; the new constitution would lower this quorum to 3/5 if the president rejects a proposed bill entirely, or to a simple majority in the lower house if the rejection is partial. A simple majority is all that’s needed to approve a bill in the first place, so in effect this removes the president’s veto power.
And the new text leaves the Constitutional Tribunal (TC) essentially intact. It does remove the TC’s power to deem proposed bills unconstitutional. This was widely supported because the TC has sometimes acted like a third chamber of Congress, and it was usually right-wing parties that would threaten to take bills they didn’t like to the court, whose backing they could count on. But apart from this the TC remains basically as is, and the nomination process is unchanged.
Part IV: Why are Chileans unhappy with the proposal?
For the past four months polls have shown that more Chileans will reject the new text rather than approve it (see Figure 3). There are still almost two months left before the plebiscite on September 4th, and much can change before then. But why are so many Chileans angry?
The biggest problem with the constitution is not the text itself–although it’s too long, sometimes waffly, and has some substantive issues–but the process that drafted it. Most Chileans who will vote to reject will not do so after reading the texts closely. They’ll do it because they don’t like how the members of the convention did their job.
On the surface, the convention was more representative of Chilean society than Congress. It had gender parity and 17 reserved seats for indigenous people, in line with their share of the population. This is worthy of praise, but in reality the convention was not ideologically representative: it had far more leftist delegates than Chile’s other representative bodies and was more left-leaning than the average Chilean voter.
The convention members like to think that this was because a rule change lowered the bar for independents to participate in the May 2021 elections in which delegates were chosen, allowing more fresh faces to win seats in the body. But that’s only half the story. Many Chileans felt the convention went too far in many areas, and scandals and fake news hurt its reputation. It also suffered a representation problem from the start, because only 43% of the electorate turned out to vote in May 2021.
The convention members didn’t heed the warnings that Chileans were becoming disenchanted with the process: in legislative elections in November, right-wing parties gained seats in the Senate. In December 44% of Chileans voted for José Antonio Kast, an illiberal presidential candidate who campaigned on the promise to undo the work of the convention. Voter concerns have also shifted significantly. When the convention was elected, Chileans worried most about healthcare and pensions. Today, they care more about inflation and crime (see Figure 4). Yet the convention carried on in a utopian spirit and didn’t moderate as much as it should have.
Scandals and bickering didn’t help. The ex-List of the People, a motley group of anti-establishment figures that rose to fame during the 2019 protests, is mostly to blame for the convention’s poor reputation. In September it emerged that one of its members, Rodrigo Rojas Vade, who had become famous during the protests for campaigning for free and quality healthcare on the grounds that he had a rare form of leukaemia which was not being treated adequately in the public system, had lied about having cancer. Some of its members came to the convention wearing costumes that had propelled them to fame, such as a Pikachu outfit, which led many people to believe they weren’t taking their jobs terribly seriously. On the first day the convention met, several members shouted over the national anthem, which was being played by a youth orchestra.
One positive outcome of this may be the vindication of political parties, which are better organised and can channel voter demands more coherently than a band of outsiders whose main selling point is that they hate the system they are charged with re-designing.
A torrent of fake news hurt the convention’s reputation, too. Right-wing representatives accused their opponents of wanting to create an “indigenous monarchy”. Their allies have spread falsities, such as that the charter would abolish the national anthem and flag. One Chilean senator shared a doctored video of Venezuela’s dictator, Nicolás Maduro, endorsing the charter (the Senator later redacted his tweet). Some conservative groups have claimed that women will be able to abort at 9 months of pregnancy, when Congress is actually meant to set the number of weeks during which abortions will be permitted.
One study showed that fake news has proliferated in recent months and that 80% of it is negative about the convention. Another showed that 58% of people have admitted to reading information that they later found out was false–but by then, many had shared the news on social media.
Part of the damage to the convention’s reputation was because the process has been hyper-democratic. Everything was streamed in real time, meaning that even the most extreme proposals, such as one which would have nationalised all natural resources, got a lot of media attention even if they did not make it into the final text.
Not all has been negative. Apart form vindicating political parties, the process of re-writing the constitution has also made it hard to imagine a future without the active participation of indigenous people in Chilean politics. It will also become increasingly difficult to justify having so few women in traditional politics after this process, in which feminists were protagonists. The requirement for gender parity enshrined in the new text has actually been fairly popular, or at least not caused much controversy. Chile already has gender quotas in party lists, but still only 23% of lower house representatives are women. And the whole process has forced much of the right to reckon with the demand for constitutional change — most people in the “reject” camp are now proposing scrapping the old text or significantly reforming it.
What comes next?
The government of Gabriel Boric is in a bind. Boric himself put a lot of political capital into supporting the process of re-drafting the constitution, and it would be a blow to his government if the project were stillborn.
Because nobody is terribly happy with the new or the old texts, the discussion has turned to the best reform proposals for the day after the referendum. Polls show that most Chileans want to reform the existing text or reform the new one. If the constitution is approved, this will mean getting to work quickly on giving some articles more clarity and curtailing the scope of others. If the constitution is rejected, it will mean removing the high quorums for reforms in the existing constitution, amending the Constitutional Tribunal, and making a concerted effort to create a stronger welfare state.
In the past, Chile’s right has not been willing to change the country’s hated constitution. They opposed removing the designated seats for generals in the Senate and shelved Bachelet’s proposal. They have consistently shored up the Constitutional Tribunal even though there is consensus among scholars that it does not work well. And they have defended authoritarian vestiges such as the binomial system because it benefited them. Now that they are calling on people to reject the proposed constitution, it is not clear that they will be willing to make the changes that are required to the current text, or to respond to the social demands that brought people to the streets in 2019.
Another problem is that most people who will vote to reject want to call another convention to try its hand at drafting a text. Boric himself has now said that if the text is rejected, the process of discussing the constitution will be extended by another year and a half. I don’t know if prolonging the uncertainty of the last three years is healthy, but it may be the best way to heal a divided nation. For now, Chileans only have difficult choices ahead.
