Omar Bennett
Chile has been working on a new constitution since 2019, when anti-government protests rocked the country. The first draft, crafted by a constitutional convention chosen by voters, was rejected by 61.86% of voters in a 2022 referendum. The draft was criticized for being too far-left, with sweeping reforms that would have replaced the 200-year-old Senate with a new Chamber of Regions. A second, more conservative draft was proposed in 2023, but opinion polls suggested that it may also fail to get the backing necessary to come into force. On December 17, 2023, Chile held a referendum to either approve or reject this second draft.
| Characteristics | Values |
|---|---|
| Date of referendum | December 17, 2023 |
| Previous referendum | September 4, 2022 |
| Result of previous referendum | Rejected by 61.86% of voters |
| Result of 2023 referendum | TBD |
| Political consensus | No |
| Political forces | Right-wing opposition, left-wing |
| Political parties | Democracia Cristiana, Republican Party, Partido Republicano, UDI |
| Political leaders | Sebastián Piñera, José Antonio Kast, Boric, Paulina Vodanovic |
| Constitutional council composition | 24 individuals designated by Congress, 51 representatives elected by the Chilean people |
| Number of articles in the draft | 387 |
| Number of chapters in the draft | 8 |
| Topics covered in the draft | Democracy, plurinational state, self-determination, constitutional principles, fundamental rights, environmental issues, justice systems, knowledge systems, rights of indigenous peoples, gender equality, freedom of religion, human rights, etc. |
| Voting threshold for approval | Two-thirds in the first process, three-fifths in the second |
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What You'll Learn
The Chilean public rejected the draft constitution
The first attempt to draft a new constitution began on November 15, 2019, when Chilean political parties across the political spectrum agreed to set a timeline for drafting a new constitution following a massive social uprising in October of that year. Elections for the Chilean Constitutional Convention of 2021 were held on May 15 and 16, 2021, to select members tasked with drafting a new constitution. The Constitutional Convention was composed of 78 men and 77 women, achieving gender parity. The draft of the new constitution presented in May 2022 comprised eight chapters, addressing the foundations of democracy, the characterisation of Chile as a plurinational state, self-determination, constitutional principles, fundamental rights, environmental issues, justice systems, knowledge systems, and the rights of indigenous peoples.
The first draft was criticised for being "too far-left". Some of the more contentious aspects of the draft included the proposed elimination of the Senate, an institution that has been part of the Republic of Chile since its inception, and the implementation of "unlimited parity," which critics argued could lead to female dominance in government bodies. The first draft also included provisions for the state to recognise and protect families in their various forms and expressions, without restricting them to exclusively filitive or consanguineous ties, and to guarantee them a dignified life. It also included measures to promote intercultural dialogue and recognise ethnic and cultural diversity.
The second draft, created by a new constitutional council, was more conservative and backed by the right-wing Republican Party. However, it was criticised by left-wing critics for its emphasis on private property rights and the inclusion of private sector participation in the provision of basic services. Despite the changes, the Chilean public still rejected the draft constitution. As a result, Chile will likely face a third constitutional plebiscite in the near future.
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The constitution-making process
Chile's constitution-making process has been a long and complex one, with several key moments and mechanisms employed to control the temptation of constituent powers. The process began on November 15, 2019, as a result of a massive social uprising in October of that year. Chilean political parties across the spectrum reached an agreement to set a timeline for drafting a new constitution. The first step was a proposal for constitutional reform, presented to the National Congress on December 6, 2019, and marked for urgent debate. On December 19, 2019, the Senate approved the constitutional reform, allowing for a national plebiscite to determine whether Chile would draft a new constitution and, if so, who would be responsible.
The next stage was the election of the Chilean Constitutional Convention in 2021, composed of 78 men and 77 women, making it the first constituent assembly in the world to achieve gender parity. The convention included lawyers, law students, professors, engineers, journalists, indigenous peoples' representatives, and more. This body was responsible for drafting the new constitution, which was initially presented in May 2022 and comprised eight chapters, each developed by one of eight commissions. The draft addressed foundations of democracy, characterisation of Chile as a plurinational state, self-determination of its peoples, constitutional principles, fundamental rights, environmental issues, justice systems, knowledge systems, and the rights of indigenous peoples.
However, this first draft faced criticism and resistance. Some considered it too radical, with sweeping reforms and proposals to change established institutions, such as replacing the Senate with a new Chamber of Regions. There were also concerns about a potential shift towards female dominance in government bodies and the embedding of 'millennial' values that might not align with traditional segments of the country. As a result, the draft was revised, and a new constitutional council was created, composed of 24 individuals designated by Congress and 51 representatives elected by the Chilean people. This council produced a second draft, which was more conservative and aimed to address some of the criticisms of the first.
On December 17, 2023, Chile held a national referendum to approve or reject the second draft. Despite the revisions, this draft was also rejected by voters, with 61.86% voting against it. The rejection was attributed to various factors, including a lack of political consensus, constitutional fatigue, and divisions among Chileans. The process has highlighted the challenges of constitution-making and the need for both legal and political containment practices to facilitate collaborative drafting.
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Political consensus and the role of the Republican Party
Chile has been a “constitutional laboratory” over the past four years, with two constitutional drafts, two mandatory referendums, and the establishment of two different constituent assemblies. The current constitution requires significant changes, particularly in areas like the political system, judiciary, and catalog of rights.
The far-right Republican Party (PLR), led by José Antonio Kast, became the main political force in Chile after the Constitutional Council elections. The PLR secured 22 or 23 seats on the 50-member council, which was tasked with drafting a new constitution. The Republican Party pursued a strategy of exacerbating polarization and pushing specific divisive amendments and rhetoric. This strategy was eventually accepted by center-right parties. The left capitalized on polarization to break away from an uncomfortable draft.
The constitutional proposal drafted by the council, dominated by the extreme right of the Republican Party and the traditional right of Chile Vamos, received majority support from the political parties opposed to President Gabriel Boric's left-wing government. The ruling party and the center-left staunchly opposed the project. The Republican Party, which had veto power over the constitutional process, together with the historic right, had the ability to approve and modify constitutional norms.
The referendum on the draft constitution was held on December 17, 2023, with mandatory voting and record turnout. The “Rechazo” (reject) vote beat the "Apruebo" (approve) vote by nearly 25 percentage points. This outcome was a crushing defeat for progressive Chilean forces and a victory for those who opposed a “refoundational” constitution that was considered contrary to "the soul of Chile" and "Chileans' common sense."
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The need for citizen participation
Chile has been working on a new constitution since 2019, when massive anti-government protests rocked the country. The first draft, crafted by a constitutional convention chosen by voters, was rejected by 61.86% of voters in a 2022 referendum. The second draft, created by a constitutional council of 24 individuals designated by Congress and 51 representatives elected by the Chilean people, was also rejected in a December 2023 referendum.
Involving citizens in the constitution-making process helps to ensure that the final document reflects the values and aspirations of the people. It also helps to build consensus and buy-in for the new constitution, which is crucial for its successful implementation. Citizen participation can take various forms, including referendums, plebiscites, and the election of representatives to constitutional assemblies or councils.
In the case of Chile, citizen participation has been facilitated through mandatory voting in referendums, which has resulted in high levels of participation. For example, the 2022 referendum on the first draft constitution saw the participation of over thirteen million voters, or 85.86% of the electoral roll, making it the electoral process with the highest participation in Chile's history up to that point.
However, citizen participation alone is not enough to ensure a successful constitution-making process. It must be coupled with political containment agreements or practices that facilitate collaborative drafting and compromise between different political factions. In Chile, the lack of such agreements or practices may have contributed to the rejection of both draft constitutions.
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The constitution's content and criticisms
Chile's 2022 proposed Political Constitution of the Republic of Chile was rejected by a margin of 62% to 38%. The proposed constitution was the product of a massive social uprising in October 2019, which led Chilean political parties across the political spectrum to agree on a timeline for drafting a new constitution. The existing constitution was enacted in 1980 during the dictatorship of Augusto Pinochet, and critics say it lacks legitimacy.
The proposed constitution was twice as long as the current document, with 50,000 words compared to the current 31,000. It included provisions for gender parity, gender equality, a system of care, and indigenous rights. It also sought to establish Chile as a social and democratic state within the rule of law. One compromise was that incarcerated individuals could petition the court to be granted house arrest if they had a terminal illness and did not pose a current danger to society. However, critics noted that this could benefit the 134 Chilean soldiers convicted of human rights violations.
The rejection of the proposed constitution was a defeat for progressive Chilean forces. The "Rechazo" (reject) vote won by nearly 25 percentage points, with high turnout. The "Rechazo" groups celebrated their win against "revanchism" and "radical Octoberism", referring to the 2019 uprising. They considered the proposed constitution refoundational and contrary to "the soul of Chile" and "Chileans' common sense".
The constitution-making process in Chile has been marked by a lack of political consensus and "constitutional fatigue". The powerful Republican Party, positioned at the far right of the Chilean political spectrum, did not pay enough attention to polls indicating the public's desire for political agreements. Instead, they pursued a divisive strategy, exacerbating polarization. While legal rules for containment of constituent powers are important, it is essential to have political containment practices to facilitate collaborative drafting.
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Frequently asked questions
No, the majority of Chileans voted against the proposed new constitution. The "reject" vote won by nearly 25 percentage points in a referendum with mandatory voting and record turnout.
The first draft was criticized for being "too far-left". The second draft, which was more conservative, was criticized for not adequately protecting indigenous rights and for the weight given to private property rights.
It is highly probable that Chile will face a third constitutional plebiscite in a few months.
