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Chile's lessons and failures in writing a new constitution

People with Chilean flags take part in a rally in support of amending the constitution established under the military rule (1973-90) of General Augusto Pinochet, ahead of Sunday's referendum, in Santiago, on October 22, 2020.  ( MARTIN BERNETTI/AFP via Getty Images)
People with Chilean flags take part in a rally in support of amending the constitution established under the military rule (1973-90) of General Augusto Pinochet, ahead of Sunday's referendum, in Santiago, on October 22, 2020. ( MARTIN BERNETTI/AFP via Getty Images)

In 2020, Chileans overwhelmingly supported writing a new constitution.

In 2022, they overwhelmingly rejected it.

This month, they will vote on a different version, but many say it’s worse than what they already have.

Today, On Point: Chile’s lessons and failures in writing a new constitution.

Guests

Peter Siavelis, politics and international affairs professor at Wake Forest University, who’s studied Chile for more than 30 years. He’s also the author of the academic paper “Chile’s Constitutional Chaos,” published in the Journal of Democracy.

Claudia Heiss, head of political science at the Universidad de Chile.

Also Featured

Patricio Navia, professor of liberal studies and adjunct assistant professor in the Center for Latin American and Caribbean Studies at New York University. Professor of political science at Universidad Diego Portales in Chile.

Louis Aucoin, expert on constitutionalism. He has helped countries such as Kosovo, Rwanda, and Cambodia write new constitutions.

Transcript

Part I

In October of 2019, mass protests erupted in Chile.

(PROTEST SOUND)

Hundreds of thousands of Chileans took to the streets nationwide. The protests paralyzed the country for months, shutting down the subway, closing stores, leading to property damage and the enforcement of military curfews. What caused this massive uprising? A coup? Or a war? Or something terribly violent like that?

Nothing like that, in fact. Chileans staged a national uprising because of a hike in subway fares. The metro system in Santiago, Chile’s capital city, increased fares by 4%. 30 Chilean pesos, to be exact. In 2019 U. S. dollars, that’s about four pennies. Now, while that might not seem like much, for many Chileans, it crossed a line.

On Point producer Paige Sutherland was reporting from Chile at the time, and she spoke with protesters like then 25-year-old Javier Aguilo.

JAVIER AGUILO: The great problem here is the inequality. There’s two Chile’s here. One up there, and they go to very beautiful schools, they have nice house. They can go to vacations everywhere, and there’s the other Chile.

They have to live with $500 a month.

CHAKRABARTI: Chile has some of the greatest income inequality among the Organization for Economic Cooperation and Development, or OECD member states. The top 10% of the country’s earners make 26.5 times that of an average Chilean. So the protesters weren’t simply objecting to a subway fare hike.

Their objection was to Chile’s mass inequality. And they wanted major change. They wanted a new constitution. One that would guarantee rights such as access to health care, education, and a decent retirement. Something Chile’s current constitution does not. And on October 25th, 2020, they got their chance.

(PROTEST SOUNDS)

In a constitutional referendum, Chileans overwhelmingly voted in support of writing a new constitution. 78% of voters, to be exact. In fact, all but 5 of Chile’s 346 municipalities supported it. It was a historic victory. Until then, the country had been saddled with a constitution written in 1980, meaning it was written under the dictatorship of General Augusto Pinochet.

His regime imprisoned, tortured, and killed thousands of Chileans. And just 12 members of that same regime wrote the country’s constitution. However, that October 2020 vote only authorized the creation of a new constitution, but now it had to be written. And suddenly, the idealism of 2019’s protests gave way to reality.

Because the first version of a new constitution came up for a vote on September 4th, 2022, so just last year. It was deemed one of the most progressive constitutions ever, legalizing abortion, adopting universal health care, and guaranteeing over one hundred other rights. However, in that vote, 62% of Chileans rejected that new draft constitution.

Here’s leftist and current president Gabriel Boric speaking after the vote.

Boric says, “I pledge to do my utmost to build together with Congress and civil society, a new constituent timetable that will provide us with a text that will take on board the lessons learned from the process. And manages to interpret the views of a broad majority of citizens,’ end quote. So Chile began drafting a new constitution.

This one has turned out decidedly more conservative. And many Chileans argue that the second draft is even worse than the current constitution, the one that was written under Pinochet. Later this week, on December 17th, Chileans will go back to the polls to vote once again to have their say on whether or not they want a new constitution or this draft of a new constitution.

So it’s been a complex, confusing, and so far unsuccessful process. In this hour, we want to learn what’s gone wrong. How did the hopes and dreams of a new constitution born from an historic social uprising in Chile lead to the drafting of a proposed constitution that many argue does not even address the demands of the 2019 protesters that sparked this process in the first place?

We’ll begin first with Claudia Heiss. She’s the head of political science at the Universidad de Chile, and she joins us from Santiago. Claudia Heiss, welcome to On Point.

CLAUDIA HEISS: Thank you, Meghna. It’s a pleasure to be here.

CHAKRABARTI: First of all, I would like to get a better understanding of the reality for most Chileans, in 2019, because I’m reading that even after that, 2020, 2021, that when it comes to the distribution of wealth in Chile, the top 10% or the 10% richest Chileans own about 80% of the entire nation’s wealth.

And according to some research, the bottom 50% of Chileans own negative 6% of the country’s wealth, meaning they’re more in debt than the money they have. So what did that mean in terms of real life for average Chileans?

HEISS: I think inequality is behind the outburst we had in 2019 and also a decade of social protest. We’ve had at least 10 years before the outburst of a very intense process of social movements, collective action in the streets, and lack of trust in politics, in party politics, in elections, to deal with that problem.

And as you say, Chile is one of the most unequal countries in Latin America, and inequality has not changed, since the return to democracy. So I think there’s an unfulfilled promise of democracy. That really was behind the protest and all this discontent.

CHAKRABARTI: I see. So that’s why, as I said, our producer Paige Sutherland was reporting from Chile at the time.

And she, in her reporting, notes that there were banners, such as undoing your legacy, meaning Pinochet’s legacy, will be our legacy, that really fundamental change in Chile was part of the goal here with the protest, is that what you’re talking about?

HEISS: Yes, and I think the problem is that people, many people expected that democracy would bring about a social safety net, would build something like the European welfare state and nothing like that happened.

The extreme neoliberalism that we inherited from the dictatorship was maintained throughout all these years. It’s true that the center left governments did increase public spending with a focus on the poor and poverty was very sharply reduced. We had 40% poverty at the beginning of democracy in the ’90s and we had a period of extreme high growth.

We were growing at 7% a year for almost a decade. So things were sustainable while we were growing at that rate, but growth decreased. And in the last years, we have had very modest growth rates of 2%, 3%. And in this context, with a lack of a safety net, this means that private debt is really what’s paying for people’s basic needs.

So the level of indebtedness really grew from 50% of private income to 75%. So that’s on average. So as you said, people, many people have more in debt that they earn. So the problem is that we built a system completely based on private debt.

CHAKRABARTI: Uh huh. Uh huh. So this makes a lot of sense then in the fact that Chileans who were protesting in 2019 looked not just to perhaps what they might see as small fixes, legislative fixes, but they wanted to really rewrite the fundamental, the basis of Chile’s constitution.

But I also understand that in addition in 2020 to that approval that voters gave to the process of writing a new constitution, I should say almost 80% of voters opted for that process to be done by a popularly elected convention instead of, let’s say, members of the Chilean congress or especially elected delegates.

What did that lead to?

HEISS: I think that the fact that we’ve had this, as you said before, this idea that it was not 30 pesos, it was 30 years, was a very critic assessment of the 30 years of democracy. And this came together with a deep mistrust of politics and politicians who had not been able to improve people’s quality of life and improve people’s access to basic needs like education, health, and pensions.

We have a very big crisis with the pensions. The replacement rate of pensions in Chile is 30%. So when you retire, you obtain 30% of what you earned. So people cannot retire, basically. So I think all of these things led to a big mistrust of politics and politicians. And this became linked to the constitution. Because the constitution was seen as the obstacle to performing these changes through legislative politics, through regular politics.

So political parties and political agendas looked as if they were tied by super majoritarian rules, by the lockdowns of the constitution. And this is what led to constitutional change. So it’s not that people really wanted to change everything per se, but people wanted a better access to these basic rights.

And so that it was the constitution that was used by those who did not want to perform that change as an excuse, you could say, not to grant these reforms.

CHAKRABARTI: I see. Okay. That makes a lot of sense. The lack of trust is a deep vein in many democracies now, including in the United States. But so what kind of delegates were voted, were elected for the constitutional convention?

Were they seasoned legislators or policy analysts? Who were they?

HEISS: This is, I think, one of the basic problems the process had. Because it was built on the mistrust of parties and politicians, the political system thought that the agreement to open the way for a constitution making democratic process, so that if the rules were too similar to regular politics, the process could have been unable to channel this discontent.

And we were seeing riots on the street. We had a month of very violent protests. And so the political party said, “Okay, we’re going to have a constituent assembly, but if we do it the same as Congress, people may not think that this is enough to channel discontent.” So in order to face this problem of mistrust, they opened the way for independents to be members of the convention.

So we had a lot of independents.

Part II

CHAKRABARTI: Today we’re talking about how to — and how not to — write a nation’s new constitution. And we’re looking specifically at Chile. Because later this week, voters in Chile go back to the polls. to see whether or not they want to approve a new draft constitution in this country, in that country.

It’s been a long and very winding road for Chileans and we’re trying to understand that today. And Claudia Heiss joins us. She’s in Santiago. She’s head of political science at the Universidad de Chile. And Claudia, let me ask you, you said that because of voter mistrust, they didn’t necessarily want seasoned politicians to be part of the convention that would write Chile’s new constitution after 2020.

I understand though that led about just under 90% of the delegates elected to that constitution convention had never even held political office, which is quite different from even having some political experience, formal political experience. Did that lead to, let’s say, some unusual or unorthodox events happening during the process of the convention?

HEISS: Absolutely. We had two thirds of the convention with members of different social organizations or even people who didn’t belong to any acknowledgeable organization, who were not party members. So only one third of the people in the convention belong to a party that had a platform that had negotiating goals.

So, many people went there for a single issue, to defend one particular issue that they were advocating. And also, the convention had special rules for gender parity. We had 50-50 women and men, which is very unusual for, it’s completely new for the political system. We’ve had a very masculine legislative body until 2018, only 15% of Congress were women in Chile.

So we’re coming from very backwards in that field. And also, there was a special space for indigenous peoples who have also largely been excluded from politics in Chile. And so this convention had 17 reserved seats for indigenous peoples. A lot of independence, and half women. So all of this meant that really political parties, and the traditional political elites lost their capacity to control the process and to control the agendas.

And this had a good side, that you could say that it opened to new groups and to represent new interest, but it also had a bad side. Because it made very difficult to negotiate. It made very difficult to defend general platforms as a constitution should have.

CHAKRABARTI: So I also understand that in addition to, let’s say, the complexities that led to, regarding negotiations, that sometimes there were very strange things that happened.

I’m seeing here that a lot of this happened during COVID, as we’re talking about, because it’s 2020. So Zoom was a big factor here and some people occasionally would Zoom in from showers or things like that.

HEISS: That’s right. Yeah. There was a convention member who was voting from the shower, and they told him, “Please, convention member close your camera.” Because they were like really working amazing hours.

They work like day and night. They didn’t stop for lunch. It was a very, very rushed process. They really tried to listen directly to many people. They had over 600 hearings during their procedures. So it was not, and they were very informal. They wanted to send the message of inclusion of non-traditional politics. That symbolically, I think, also scared a lot of people. Because many of them didn’t wear jackets and they didn’t look like regular politicians.

Because all the message of the convention was a message that we’re not traditional politics. And I think sometimes the symbolic and performative went really beyond the contents of what they were discussing.

CHAKRABARTI: I see. Okay. So let’s talk for a minute about what actually ended up in that first draft constitution that, as I’ll remind folks, Chileans ended up rejecting. So what was in that first draft?

HEISS: It was a very long constitution.

I think the fact that many of these people had never had access to power like this before, like the indigenous like women, made people very maximalist. They wanted to put everything there in case the door would close again, as the political system has worked before. And so they wanted to be very explicit about gender parity, gender equality, a system of care, many provisions for indigenous rights.

The rights of nature. It was extremely protective of nature and of the environment. As you said before, it was a very progressive text. It had a lot of rights. It had a lot of detail. And some of these details, it was not very clear how they would work in practice. Some of these were really declaration of intentions, rather than full-fledged provisions that you could know how they would work.

And because they couldn’t agree on the details, many of these things gave general assessments and said, and this will be regulated by law. So this entire project had to pass through the net of the regular political process. And it would have had to be legislated in detail by Congress.

CHAKRABARTI: I see. So this makes, this is so clarifying because using the U.S. constitution as an example. With as many faults as it may have, the idea is that the constitution lays out the instructions for the creation of institutions first, and then actually in the U.S., it was the Bill of Rights supposedly that, not supposedly, but the Bill of Rights that came after and was tacked on.

But it sounds like the rights in that first draft in the Chileans’ new proposed constitution was really where the focus was.

HEISS: This has really been a trend in Latin American constitutionalism recently. Many people, this is what Professor Roberto Gargarella from Argentina has pointed out in his work, that constitutional, particularly progressive constitutionalism in the region, has focused very much on rights and not so much on what he calls the engine machine, the engine room of the constitution.

So the nuts and bolts, the workings of the practical issues that are also an important part of the constitution, basically saying who does what and how. And I agree that this was people were more concerned about putting rights there. And if you don’t have the mechanisms to diffuse power to create inclusion in regular politics, then those rights tend to become just words. It’s very difficult to implement rights if you don’t have the correct mechanism.

CHAKRABARTI: Understood. Okay. Claudia Heiss is speaking to us. Excuse me, Claudia Heiss. I’m so sorry for mispronouncing your name. She’s speaking to us today from Santiago.

She’s head of political science at the Universidad de Chile. And if you can just stand by for a moment, I’d like to bring Peter Siavelis into the conversation. He’s joining us from Winston Salem, North Carolina. He’s politics and international affairs professor at Wake Forest University. He studied Chile for three decades and has also written several papers about Chile’s constitutional process here.

One whose title is “Chile’s Constitutional Chaos” that was published in the Journal of Democracy. Peter Siavelis, welcome to On Point.

PETER SIAVELIS: It’s a pleasure to be here, Meghna. Thank you.

CHAKRABARTI: Now in hearing how Claudia was describing that first convention that came about after the 2020 vote, it’s very understandable that Chileans would want to send people to this convention who represented the unheard voices of that country’s history. Because that’s exactly one of the things that the protesters were trying to get the nation to focus on again. But you said that there’s something fundamental to the way that convention was organized that left it open to misinformation, which may have had an impact on how Chileans actually voted on that first draft of the Constitution.

SIAVELIS: Yes, that’s correct. First, it’s a pleasure to be here with Claudia, my colleague, Claudia. I agree with everything she says. I just want to add a few things about the structure and nature of that convention that also led this document to finally go down to defeat in the final plebiscite. First, a lot of people like to talk about the ideology of the whole thing, and the demands and the social movements, but there was also an institutional element to the whole thing for the election to the constitutional assembly.

It was characterized by a voluntary vote, but the approval of the final document was obligatory. So really two separate sets of voters show the constituent assembly and then ultimately had to approve the document, which was problematic. Second, I agree completely with Claudia about the chaotic and problematic nature of the process, but what people ignore was that it was extraordinarily democratic.

A colleague, Jen Piscopo, and I call it in our article, democracy in real time. That is to say, people could see the decision-making process take place. Public proposals were allowed. Everything was debated, even if it had no chance of passing, even if it was absurd. And this gave the right an opportunity to twist the constitutional process.

For example, one set of delegates proposed changing the national anthem, which no Chilean is in favor of doing, but still that was aired in a democratic fashion and the right seized upon that to say, look what this crazy constitutional convention is doing. And all of the kind of shenanigans that you talked about as well also gave fodder for the right to say that this was simply a circus. And so for all these things, the right seized upon this for a disinformation campaign that took place during the whole process of the campaign for the reject or adopt. People calling it a Venezuela style Chavista constitution.

Saying that it would be possible that people’s homes would be seized, that indigenous people would have more rights than others and make non-indigenous peoples second class citizens. And so in this sense, all of this disinformation campaign played on the insecurities of people. And this is what led to the surprise that in the least economically developed districts of Santiago, there was an overwhelming reject. Because the disinformation campaign on the right played on these groups’ insecurities and vulnerabilities.

CHAKRABARTI: So I have to say Peter, this is, it’s striking a familiar chord. For American listeners, I think, because it sounds very similar to what we have here, where, let’s say, outlandish voices, people have the right to speak, but outlandish voices may be easily used to hijack a process or to hijack the intent or goals of any particular movement, left or right.

And we see that all the time here in the United States. That was one of the things that was playing out in Chile.

SIAVELIS: Absolutely. Because you see it here, this sort of populist appeals that we’re seeing in the United States. These play on the insecurities, vulnerabilities and fears of vulnerable populations.

And they work. And I think this process in Chile showed they work, because the Constitution certainly was not that radical a document, much of its language was. And I think this was also a little bit shocking to people because the language was outside of the normal tradition of constitutional law in the country.

CHAKRABARTI: Oh, that is fascinating. Peter and Claudia, I wonder if you could just hang on for a quick second because I want to play some parts of a conversation that we had with a Chilean academic who sees the whole constitutional process that Chile is undergoing as misguided from the beginning.

And he says that the original sin, quote-unquote, was that Chile agreed to write a new constitution in the first place.

PATRICIO NAVIA: People were interested in policy issues, and for that reason, the first constitutional draft and the second constitutional draft have a lot of policy issues. The constitution reads more like a policy platform, and the constitution should be more about institutional design.

CHAKRABARTI: That’s Patricio Navia. He’s a professor of liberal studies and an adjunct assistant professor at the Center for Latin American and Caribbean Studies at New York University, and he’s also a professor of political science at Universidad Diego Portales in Chile. Now, Navia says protester demands in 2019 to reform the pension system, reforms to health care and education.

Those things should be solved through executive policies and legislation, not through a new constitution.

NAVIA: The expectation people have is that the constitution is going to fix things. And Latin Americans are obsessed with writing new constitutions. And the evidence shows that writing new constitutions doesn’t really, or founding the country anew, doesn’t really fix the problems.

CHAKRABARTI: In fact, there have been more constitutions written in Latin America than in any other part of the world. For instance, the Dominican Republic has had 32 constitutions. Venezuela, 26. Ecuador, 21. Navia thinks Chile should have never initiated this process in the first place and not only because it was a waste of time, he says, but because he thinks it has actually made things worse.

NAVIA: The country was on the right track, was moving too slowly, but it was on the right track. And now we’ve lost our direction. And it looks increasingly likely that for the next couple of years, there will not really be that much economic growth. And the living conditions of people today are worse than they were in 2018.

I guess the lesson is that we have to learn to be patient, reform and improvements are just gradual.

CHAKRABARTI: Navia predicts that the latest version of a new constitution will be rejected by voters when they go to the polls on December 17th. And remember, this new version is significantly more conservative than the first one.

He’s worried that this could lead to even worse outcomes.

NAVIA: People who feel marginalized look for magic solutions, and the constitution writing process was Chile’s magic solution, and magic solutions don’t work. My concern is that after this magic pill fails, other people will come and say, “I have a different magic pill.”

A law-and-order right wing candidate that would put every criminal in jail. That’s going to be another magic pill that ends up failing, too.

CHAKRABARTI: That’s Patricio Navia, a professor of political science at Universidad Diego Portales in Chile and also at NYU. Claudia Heiss, I appreciate your patience in listening along here.

You touched on this a little bit earlier. About whether or not creating a new constitution was the best means to solve the problems Chileans are suffering. What’s your reaction to what Patricio said in that tape?

HEISS: I partly agree with him in that people were demanding social solutions to social problems.

But what he doesn’t say is that the Constitution was used all those years precisely not to respond to those demands. So the Constitution was a real problem. Because it was an obstacle to democratic politics, giving solutions to those issues. So what I disagree with is his assessment that Chile was on the right track.

I don’t think Chile was on the right track. And I think that’s proven by 10 years, as I said, a very intense social mobilizations, of a very strong student movement that wanted to change education, but that could not see that done. Because education was an organic constitutional law with a supermajority that made impossible to have a more equal and more socially oriented education system, the same with other social rights.

That could not move apart from this extremely neoliberal model of what people call in Chile, subsidiarity, the subsidiary state, where the primacy of the satisfaction of social needs, it’s given to the private, to the market, to the private companies, even with public funds.

And that was protected by the constitution. So the difference with other constitutional changes is that we do have a constitutional problem that is a legacy of authoritarianism in the form of enclaves or a straitjacket to what can be democratically done. Because when majorities have tried to perform these reforms, the Constitutional Court has said, “No, you cannot do that. It’s unconstitutional.”

This article was originally published on WBUR.org.

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