Por Rodolfo Disi y Alexander Hudson
Publicado en I-CONnect, International Journal of Constitutional Law 

Next month, citizens of Chile will go to the polls to decide whether or not to draft a new constitution, and on the form of the assembly that would draft that new constitution next year. The two options for the potential constitutional drafting body involve some tradeoffs between enhancing the democratic bona fides of the drafting body, and ensuring political elite buy-in. Specifically, one option would create a specially elected constituent assembly (following the rules of the normal legislative elections), while the other would mix its membership between current members of the legislature and citizen-participants elected for this specific purpose. Both Chile’s recent past experience with constitutional reform (the failed process of 2016-2018) and comparative examples suggest that some caution would be wise. We argue that successful constitution-making processes must find a delicate balance between empowering the people and ensuring that political elites will support the new constitution. In this respect, the failed constitution-making process in Iceland may be especially informative.

The background to the current constitution-making process is the wave of protests that swept over Chile from October 2019 to March 2020. The nominal triggering event was an increase in the cost of transit tickets in Santiago, but in reality the protests addressed concerns about increasingly apparent income inequality and other economic issues that had been rising in importance for many Chileans for some years. The constitution itself is a relic from the Pinochet dictatorship, and its supermajority requirements in certain areas have long been understood to present unreasonable impediments to policy making. The constitution is thus centrally implicated in the current political struggles and the promise in November 2019 to consult the people about constitutional reform was an important step in placating some of the protesters’ concerns. Certainly, a constitution cannot on its own resolve these deep economic problems. Yet the political commitments toward change could be given expression in a new constitution.

In an environment of political turmoil and mass protest, calling a referendum on constitutional change seems reasonable. Referendums have the notable advantage of at least appearing to bypass discredited political elites, and are by far the most common means of involving the public in processes of constitutional change. Chile also has an interesting history with the use of referenda in constitutional change. Late in his dictatorship, Augusto Pinochet attempted to use a referendum to build some legitimacy for his attempt to remain in office for another eight years. This was a politically fatal moment of overconfidence on his part, as Chileans voted instead for new elections that ultimately returned the country to democracy.

Recent polling data suggests that the upcoming referendum is most likely to result in a constituent process (a vote for Apruebo), despite the fact that 89% of the campaign contributions in the months leading up to the referendum have gone to the “reject” (Rechazo) side. It seems clear that the well-funded political interests on the right are not in favor of the new constitution-making process, and may regret the November 2019 agreement that initiated it. In some sense, while celebrated for its participatory aspects, the failed 2016-2018 constitution-making process was more in line with elite interests, as it was up to the legislature to propose a new constitution.

In the second matter considered by the referendum, the option for a newly elected constituent assembly is most likely to win. This is the more familiar of the two options, and is also likely to have more legitimacy with the most disaffected portions of the electorate. The polls have been remarkably stable for the better part of a year, showing little sign of change despite the massive economic effects of the pandemic, and significant campaign spending. There has been a strong majority in favor of drafting a new constitution since at least 2019. The margins are closer regarding the form of the drafting body (and there are more respondents who express uncertainty on this question). However, it seems most likely that a majority will support a new constitutional convention.

Figure 1: 
Public opinion polls on the two upcoming referendum questions (November 2019 to September 2020).  Source: Activa’s “Pulso Ciudadano,”

The choice in constitution drafting bodies is between what we might call a traditional constituent assembly, and a mixed assembly. The traditional constituent assembly would be elected using almost the same proportional representation system that is used to elect the lower chamber of the legislature, and seems likely to return a similar group of people. However, we should note that unlike the legislature, the constituent assembly would ensure gender parity and greater representation for independent candidates than the current legislature. In the next few days, the Senate will hold a vote on assigning a number of reserved seats in this constituent assembly for representatives of the country’s indigenous peoples. The aim of these seats is to further legitimize the constitution-making process, since the country’s indigenous peoples are currently not constitutionally-recognized, and to offer a political solution to the centuries-long conflict between the Chilean state and members of the Mapuche ethnic group in southern Chile. Somewhat counterintuitively (given the electoral system) the constituent assembly option is more likely to create conditions for the kind of broad and significant debate about the content of the constitution that many would find normatively appealing in a constitution-making process.

The mixed assembly is an interesting option that has rarely (if ever) been used to draft a complete constitution. The proposal would create a constituent assembly in which half of the members would be drawn from the current legislature, and the other half would be popularly elected. This mixed membership between professional politicians and interested citizens shares something of the spirit of the first Irish Constitutional Convention that met between 2012 and 2014. An assembly of this type raises some interesting questions about how politicians interact with citizens in a law-making context, and about which group would dominate the proceedings. Research in the Irish case suggests that politicians may deviate from their usual approach and listen more to citizen views. Yet the politicians in the Irish case also managed to limit the agenda for reform, particularly when it affected their direct interests in the design of the electoral system. This is particularly concerning in the Chilean case, as it is possible that a constituent convention of this type would lead to a very constrained reform agenda.

However, the danger in a citizen-driven process (if the constituent assembly would in fact produce such an outcome) is the potential conflict between the constitutional settlement reached in that forum and the broader interests of political elites. The (until now) failed effort to replace the constitution in Iceland in 2009-2013 is instructive in this regard. While the citizen-drafted constitution was widely celebrated and in fact passed in a consultative referendum, the political parties in parliament refused to bring it up for a vote, leaving the new constitution in a sort of political limbo for the past seven years.

While the two countries are a literal world apart, their recent constitutional experiences have something in common. In Chile as in Iceland, what appears to be primarily an economic crisis has provoked a fundamental reassessment of the constitutional order. Moreover, the economic and political crises led to such deep dissatisfaction with the political order that a high level of citizen engagement in the constitution-making process was understood to be necessary. Yet there are significant differences in terms of the extent of the crisis, and the apparent power of entrenched interests. Though the moment of empowered political participation proved to be somewhat ephemeral, in Iceland in 2011 the crisis was seen to be so acute that the government resigned and the constitution-making process began with an explicit exclusion of established politicians. The crisis in Chile is chronic, and the efforts to address it have certainly not excluded the established political parties.

Yet, as noted above, Iceland provides us with some cautionary notes for Chile. While Chile may be able to avoid the ultimate failure in Iceland as the ratification referendum in Chile will be binding, there are many other potential pitfalls. Conservative political groups in Chile have in recent months proposed modifying the current constitution using the 2016-2018 process,having the legislature draft the new constitution, and imposing a minimum threshold to validate the result of the ratifying referendum — all options to slow or lessen the effects of popular input. The core problem in Chile, as in Iceland, is keeping political elites on the side of the process while taking serious steps to address the economic and political dysfunctions that led to the constitution-making process. In Iceland, the radically participatory nature of the process ended up jeopardizing the successes that were made in the drafting phase.

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