Chile’s Upcoming Election and Constitutional Convention are Chances for Change

Photo by Carlos Figueroa

11/18/2021 12:00am

Two years ago, the streets of Santiago, Chile were overrun by tear gas, fire, and armored military vehicles. The clash between peaceful protesters and armed forces evoked memories of the violent oppression under former dictator Augusto Pinochet. What began as a protest against a $0.04 price hike in subway fares turned into a mass movement against inequality, referred to as the “Estallido Social” (Social Outburst). Fed up with Pinochet-era neoliberalism that had deprived Chileans of educational opportunities, fair access to water, and health care, protesters demanded a complete overhaul of the system. After months of demonstrations, their calls finally came to fruition when the government agreed to a referendum in October 2020 on whether to rewrite the constitution, which was subsequently approved by an overwhelming 78% of voters. 

With the first round of presidential elections this Sunday, November 21, it is imperative to consider the historical implications of the current constitution and the structural changes a new constitution could bring to the very topics that candidates are currently debating. If approved, a new constitution would be put into place under the incoming administration. Moreover, the next president could threaten the autonomy of the Constitutional Convention (CC), the body responsible for rewriting the constitution, and potentially influence its agenda.  

Augusto Pinochet’s Economic Legacy 

The protesters’ grievances, and the push for a new constitution, were rooted in the legacy of Chile’s military dictatorship. In 1973, Chile’s democratically elected socialist president Salvador Allende was overthrown in a violent US-backed coup led by Pinochet. Shortly after, Pinochet ordered the drafting of a new constitution that embodied his views for Chile’s future. In 1980, the new constitution was ratified after a questionable plebiscite that “did not have electoral records,” as EFE notes. 

The new constitution was heavily influenced by the economic philosophy of neoliberal pioneers Friedrich Hayek, Milton Friedman, and James Buchanan. They viewed the constitution as a necessary means to “limit sovereign states, anchor economic freedoms and protect markets from democratic pressures for greater equality” to institutionalize and uphold their neoliberal agenda. Hayek even dubbed Chile as “one of the great economic miracles of our time.” The millions who drew the short end of the privatization stick saw this as anything but a miracle. 

Some historians of Chile’s economy separate the Pinochet era into, roughly, two periods: 1973–1982, and 1982–1990. In the former, the “Chicago Boys,” a group of Chilean economists educated at the University of Chicago under Milton Friedman and Arnold Harberger, rolled out neoliberal reforms — privatization, deregulation, and decreased government spending. A subsequent economic crisis in 1982 forced the military dictatorship to renationalize (temporarily) the Chilean banking system, reverse various liberalization reforms, and reintroduce regulations in the financial sector. By 1990, GDP per capita recovered to $2,494.527, nearly reaching the same levels as in 1981, $2,979.608. It wasn’t until after the nation’s transition to democracy in the 1990s that center-left governments began to implement tax reforms and social programs to reduce unemployment and poverty. 

Even with these reforms, Chile remains one of the most unequal countries among wealthy nations, where “the income of the richest [is] 13.6 times greater than those of the poorest.” Ultimately, the 1980 constitution provided the foundation for policies that prioritized business interests over the well-being and health of Chile’s citizens. Rewriting the constitution has been an ongoing battle for Chileans. In her 2013 presidential bid, former President Michelle Bachelet campaigned on the promise of a new constitution and unsuccessfully pushed legislation to initiate the process of a rewrite just five days before she left office in 2018. Failed attempts and growing inequality led Chileans to take to the streets in 2019. It was both an “awakening” and continued fight against deep-rooted ideologies and policies that were never intended to benefit the majority of Chileans.

The Referendum and Constitutional Convention 

In an attempt to quell the protests, Chile’s right-wing president, Sebastian Piñera, sent in the military and reversed the subway price increase, along with promising higher pensions, better health care coverage, and tax reform. But Chileans weren’t convinced that another round of patchy social programs and empty promises would address their needs. To appease protesters, the Piñera administration agreed to hold a referendum. It asked the Chilean people two questions: Do you want a new constitution? And if yes, who should write it: a combination of parliament members and popularly elected members, or exclusively popularly elected members?

An overwhelming 78 percent of Chileans who participated in the referendum voted “yes” to drafting a new constitution, and 79 percent wanted an exclusively popularly elected body to do it. The Constitutional Convention (CC), responsible for drafting the new constitution, is made up of 155 members, with an equal number of men and women, and with 17 seats reserved for Indigenous peoples. While there is much work to be done, ensuring Indigenous representation and gender parity was a step in the right direction for the CC, especially as the current constitution is the only one in Latin America that does not recognize Indigenous peoples.

The Piñera administration declared the CC would need a two-thirds majority to approve any new constitutional articles. In an astonishing victory, independent, anti-elite, and left-leaning candidates won a majority of seats in the Convention, defeating members of Piñera’s Chile Vamos party and the center-right coalition who ended up with only 37 out of 155 seats. 

The CC convened in July and will have nine months to rewrite the constitution, with a three-month extension period if needed. Chileans will then vote to approve or reject the new constitution in an “exit referendum.” If approved, the new constitution will be put into effect immediately; if rejected, the current constitution will remain. Critics of the CC argue the constitution has transformed over the years, making it distinct from its ties to the military dictatorship, but proponents claim much of the document is intact and must be rewritten to truly address the demands of protesters.

Impact of the 1980 Constitution

The independent, antiestablishment CC members have wide-ranging goals, shaped by their understanding of how the 1980 constitution continues to impact Chilean society and stifle progressive reforms. The 1980 constitution consolidated the power of the president, strengthened the civil-military relationship, restricted political freedoms, and established a new neoliberal social and economic order by giving the state a subsidiary role and enabling private entities to take control of essential industries — including education, health care, and water. 

According to Martín Arias-Loyola, the current constitution equates “freedom with private property, free enterprise and individual rights,” resulting in the privatization of education, health care, water, and the pension system, among a multitude of other sectors. Chilean political scientist Claudia Heiss explains that the constitution does this by guaranteeing citizens “freedoms” rather than “rights.” Chileans have the “freedom” to health care and higher education, but rights to these are not guaranteed under the constitution. In short: if you can pay, the privilege is all yours. The grievances of the Estallido Social and previous student, Indigenous, and feminist-led protests boil down to one main demand: social protection. Instead of overhauling the status quo in order to guarantee such protection, past governments only implemented ad hoc social programs and policies to address the system’s failings. 

Beyond the content of the text, the constitution was designed to be difficult to change. Conservative constitutional lawyer Jaime Guzmán played a role in ensuring that the right wing had the power to prevent any major reforms, thus maintaining the status quo that Pinochet wanted to uphold. Guzmán states the constitution “must ensure that if the adversaries come to govern, they are constrained to follow an action not so different from what one would hope for …” In an attempt to neutralize adversaries, any changes to the constitution had to be made by more than a majority, giving the right wing veto power. While Heiss hopes to see both the dogmatic (i.e., pertaining to rights) and the organic (i.e., distribution of power) sections of the constitution addressed in the rewriting, she argues that more attention should focus on changing the organic parts to rework the distribution of power.

Changes to the 1980 Constitution

While the constitution has undergone many reforms since Chile’s return to democracy in 1990, Contexto, a group of organizations analyzing and encouraging public participation in the constitutional process, finds that at least 43 percent of the constitution remains the same as the 1980 version. The most harmful legacies of the 1980 constitution pertain to education, health care, water rights, transportation, reproductive rights, the pension system, and police reform. New policies in all these areas were implemented in accordance with the 1980 constitution. 

For example, prior to Pinochet, Chile had a state-run centralized education system. Pinochet decentralized the system by giving municipalities control, created new rules for funding public education, and imposed further deregulation, resulting in a 50 percent increase in private schools financed with public funds between 1980 and 1990. The privatization and segregation of education resulted in a massive opportunity gap for primary and secondary school students. Higher education also became a for-profit industry, attainable almost exclusively for wealthy families who can afford to send their children to private universities or to receive high quality primary and secondary education, which can set them up for acceptance into academically competitive public universities.

Another legacy rooted in the 1980 constitution is the denial of reproductive rights. Guzmán drafted a “right-to-life clause” in the 1980 constitution, and helped pass legislation in 1989 that effectively banned abortion. A landmark ruling in 2017 “decriminalized abortion under three circumstances: if the life of the pregnant woman or girl is at risk; if the pregnancy is the result of rape; or if the fetus suffers severe conditions not compatible with life outside of the womb.” However, there is still a concession that allows doctors to deny patients abortion services on moral grounds, with the exception of life-threatening cases. While commendable, it is only a small step toward securing reproductive rights in Chile.

Some critics of the CC argue the constitution has been substantially modified over the past 40 years. In 2005, President Ricardo Lagos declared that after 54 modifications to the constitution, Chile had broken from the military dictatorship and would no longer follow a document that divides the Chilean people. Some positive changes include declaring “men and women are equal before the law” (No.2); guaranteed state legal representation for defendants (No.3); guarantees of political pluralism (No.15); and increases in the right to primary and secondary education (No.10). While these and other changes influenced the state’s role and provided a degree of greater social protection, there are 16 rights that remain the same in relation to the “moral life of citizens and economic development,” as Contexto describes it.

Regardless of the modifications, the real-world impacts and social relations established by the constitution continue to dominate Chilean society long after its transition from dictatorship to democracy in the 1990s. Jonathan Barton argues the authoritarian capitalist state became a democratic capitalist state, maintaining Pinochet’s vision of Chile as emulated in his constitution. In other words, regime change did not include structural economic change. Neoliberalism’s beneficiaries kept control of the means of production, and with inadequate state-provided social protection, Chile continues to be one of the most unequal countries in the region. Chile’s institutions and established social relations kept the Pinochet-era constitution — and neoliberalism — alive, despite some tweaks.

Objectives of the Constitutional Convention 

Despite the modifications made over the years, the constitution has failed to meet the demands of most Chileans. The CC’s left-leaning members are pushing for “ending the subsidiary role of the state, overcoming the extractivist economy, recovering lands for native peoples, plurinationality, recovering labor rights, establishing food sovereignty, changing the pension system and establishing the right to quality public education, among other issues.” The minority of right-wing members from Vamos por Chile, hope to uphold the status quo of a private sector-dominated economy and the “freedoms” outlined in the current constitution. This includes protecting the freedoms of private economic activity and maintaining the central bank’s autonomy.  

However, the CC is not composed of two distinct, cohesive left and right blocs. There are idiosyncratic coalitions and independents, and constant shifting, of both “left” and “right” blocs, that has resulted in no one coalition having a supermajority. The most contentious divides within and among the various blocs include changes to private land, water rights, education, and the pension system. 

What’s next for Chile?

It is unclear yet what this all means for Chile, for the region, for women, for Indigenous peoples, and for other marginalized groups. Some warn that the CC already is not living up to progressives’ expectations. While the popular demand for rewriting the constitution in itself debunks the Chilean neoliberal “miracle,” the success of a new constitution would play a crucial role in fundamentally challenging the status quo. If successful, Chile would no longer have to work within the constraints of the current economic order, and could reimagine a new social formation that promotes collective values and secures rights to education, health care, and water, among others. This reimagining could offer momentum for other countries to follow suit, as already seen in the new constitutions of Bolivia and Ecuador that prioritized Indigenous rights over a decade ago. In addition, the process by which the CC was created can act as a model for other countries to fairly and justly rewrite their constitutions, namely by ensuring gender parity and Indigenous representation in the constituent assemblies.

Without downplaying its importance, the constitution would not, of course, be a panacea to Chile’s deeply entrenched social divisions, racism, sexism, and inequity. The established social relations and geographic divides among the winners and losers of economic growth persist. Constitutional changes must be accompanied by behavioral change and new legislation to provide social protections and wealth redistribution. Therefore, the winner of Sunday’s presidential elections — and the subsequent second round between the top two candidates, scheduled for December 19 — will largely determine how impactful a new constitution could be, as it would be enacted during their time in office. Moreover, the CC’s autonomous status will be put under political pressure with a new president, potentially derailing or uplifting its goals. While a new constitution’s historic impact would not be known for years to come, the 2019 Estallido Social protesters have undeniably left their mark on Chile, and signaled to the world their determination to overhaul a system that institutionalized economic disparities. 

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