CIVICUS speaks with Patricia Reyes, director of Fundación Multitudes, about the process to develop a new constitution in Chile since a previous draft was rejected in a referendum in September 2022.
Fundación Multitudes is a civil society organisation dedicated to generating spaces and building capacity for civil society to participate effectively in decision-making processes.
Why does Chile need a new constitution?
The constitution-making process in which Chile has been immersed since 2022 was a response to a longstanding social and political crisis that erupted in October 2019. Faced with the eruption of social demands for greater protection, equity and guarantees of basic social rights such as education, health and social security, which in some cases were expressed with unusual violence, all political sectors agreed to initiate a constitution-making process.
Initially, an inclusive process unfolded that produced a draft constitution that incorporated adequate standards of rights protection for a democratic and social state. But the proposal failed to win the support of the more conservative parts of society and was rejected in a referendum, largely because of mistakes made in the process. These were mainly due to the political inexperience of the members of the constituent commission, who were mostly independents with no links to political parties. They overlooked the need to reach broad agreements encompassing all parts of society, and particularly traditional political players. Other factors were the incorporation of some drastic changes in political institutions and the inability to communicate the benefits of the new constitutional text adequately to the public as a whole.
After the proposal was rejected, the social demands that had triggered the process were still there, and the existing constitution continued to be as ineffective in resolving them as it was when the social outburst occurred. To solve our problems of democratic coexistence, we need a new social pact that can unite us around a shared institutional project. That is why the constitution-making process was resumed, this time in a more traditional format, which has produced a new draft that will again have to be submitted to a popular vote.
How different is the new draft from the one that emerged from the 2021 Constitutional Convention?
The new draft is a lot more similar to the current constitution. It introduces more modest changes. Compared to the previous one, I think it rolls back some rights that had already been won, particularly for historically excluded groups such as women. Nor does it introduce recognition of other vulnerable population groups , such as Indigenous peoples and children and adolescents. But it does share with the previous draft the reaffirmation of freedom of enterprise and the concept of a subsidiary state.
The two processes have been quite different because in the first case the constituent body included many citizens elected by popular vote and independent of political parties, while the second involved a Council of Experts appointed by the two chambers of Congress and a Constitutional Council elected by popular vote but made up mostly of members proposed by political parties ranging from the centre to the far right.
However, there is one thing that the proposals resulting from both processes share: both have been considered partisan in nature, viewed as aligned with the interests of a specific political camp. They reflect the division of Chile rather than being an instrument for its union.
What changes would the new draft make to the existing constitution?
Overall, the text reproduces the current institutional framework, except for the fact that it reduces the number of members of parliament. It also enshrines the same rights as the current constitution. It shares many of its strengths but also suffers from many of the same weaknesses.
The draft contains several articles that have caused controversy because of the regressive way in which they could be interpreted. For example, in the area of reproductive rights, constitutional provisions could mean that the rule that currently allows abortion in cases of rape, danger to the life of the mother and non-viability of the foetus could be declared unconstitutional.
The incorporation of a special anti-corruption body could enter into conflicts of competence with the current Office of the Comptroller General of the Republic. Additionally, some populist tools would be introduced to allow the immediate expulsion of undocumented migrants, along with some tax exemptions – a matter that generally does not belong in a constitutional text – and a number of highly sensitive provisions, such as the possibility of allowing terminally ill convicts to serve their sentences at home, which could benefit people convicted of crimes against humanity committed during the period of dictatorship.
On the plus side, a Victims’ Ombudsman’s Office would be established and progress would be made on decentralisation, granting greater powers to local governments.
What’s the position of different groups towards the referendum to be held on the latest draft?
Most right-wing parties approve of the project, while those on the left reject it and those in the centre have a great diversity of opinions, with some campaigning for approval and others for rejection.
But the last word will be up to voters, who are going through what has been defined as a moment of constitutional exhaustion. Because of the lengthy and controversial process and the lack of cross-cutting agreements, there is a lot of apathy and indecision, as well as conflicting positions. Right now polls show a majority of people would reject the new constitution, but the vote is on 17 December, so there is still a long way to go, and there are many people who have not yet decided how they will vote.
Civic space in Chile is rated ‘narrowed’ by the CIVICUS Monitor.
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