Webinar Explores Implications of Chile's Constitutional Process

After the rejection of last year's initial proposal for a new constitutional text, Chile initiated a second attempt to reform its Constitution in early 2023. As the nation nears the final phase of this process, the Canadian Council for the Americas (CCA) and Columbia Global Centers | Santiago jointly hosted a webinar to examine the unfolding process and the stakes in the upcoming referendum where Chileans will once again cast their votes.

A pivotal aspect of this new process was the establishment of an Expert Commission of 24 experts appointed by Congress, which between March and June drafted a preliminary proposal to serve as a starting point for a Constitutional Council of 50 members that was elected in May via popular election, in which the Republican Party won the majority of the seats. After five months of work, the Council delivered the new Constitution project to President Gabriel Boric on November 7. He signed a decree and called for a new plebiscite to be held on December 17, in which Chileans will be required to vote in favor or against this text.

Just two days after this ceremony, CCA president Ken Frankel, along with panelists Robert Funk, Assistant Professor at Universidad de Chile’s School of Government and Columbia Law School graduates Verónica Undurraga (LAW’95), Professor of Law at Universidad Adolfo Ibáñez, and Domingo Lovera (LAW’07), Associate Professor at Universidad Diego Portales, president and member of the Expert Commission respectively, discussed key insights into this process, covering the Expert Commission's and Council's work, the proposed text's contents, expectations from a constitution, the current political context, and insights on the upcoming referendum.

Expert commission and new proposal

Regarding the work of the Expert Commission, Verónica Undurraga emphasized the importance of consensus during the organ’s work, stating that although challenging, its whole dynamic was built on agreements in order to offer the Constitutional Council a project that was acceptable to all political sensitivities: “We handed them an enabling draft, not committed to a specific ideology, but neutral, and that would allow an administration from any side to govern under this constitution.” She also mentioned that the commission gave reassurance to investors and the economic world by maintaining certain key pieces of economic public order, such as business freedom, general tax guarantees, and the autonomy of Chile’s Central Bank. In contrast, she stated that the final text protects the political system and in terms of social rights, it reinforces the current subsidiary state model in order to maintain the status quo.

Concerning women's rights, Undurraga expressed that compared with cultural and legal advances in this area in Chile, the proposed text "is a constitution created with many restrictions, with a handbrake on."

Domingo Lovera seconded Undurraga, emphasizing that the Commission reached agreements that didn't make everyone happy but allowed different political sectors to coexist in the future. For instance, he mentioned that the text they proposed heavily relied on institutions that came from the 1980 Constitution, “which for a large part of the left meant a significant concession.” Regarding the differences between both projects, he stressed that although the Council’s work was done with all the democratic legitimacy, "it took the 1980 Constitution and detailed it even further," adding that: "It offers an overly detailed text, which closes the doors and dismantles part of the enabling proposal we had drafted in the Expert Commission."

Additional problems that Lovera sees in the proposed text, are that it radicalizes public policy issues, particularly those related to social benefits, that it elevates to a constitutional level many regulations that are already being regulated at a legal level, that it involves technical difficulties that will make the State of Chile face a complex task of implementing it, and that in the end it: "Does not offer many solutions to the problems that the current Constitution has generated."

Present moment and upcoming plebiscite

Moving forward, Frankel inquired, about the contemporary political landscape that defines Chile today, and how did the country reach this juncture. In answer, Funk said that the current political moment is the result of distrust in politics, and that there is a common thread between the social outbreak and the present scenario: “I called the social crisis ‘Chile's populist moment’ because the country had not experienced a populist moment until then, and within the outbreak, there was an anti-party and anti-elite discourse,” he emphasized.

Later, Frankel inquired about what is the way forward for Chile, both constitutionally and politically, if the new text is not approved in December, Funk mentioned that although the option in favor of the new proposal has been increasing in the polls in recent weeks, it is difficult to know if the trend will continue in order to reach 50% of the votes. He also mentioned that he is torn between thinking the project may be approved because the public opinion is tired of the constitutional issue and may want to end this process, but also because the previous proposal included ideas that scared voters, such as the concept of plurinationality: “I have the feeling that except for the abortion issue, this proposal does not contain major words that can scare people and that this may persuade them to vote in favor of it in order to give closure to this process."

On the other hand, Funk also feels that the process will not end because this proposal is not the product of an agreement, which – in his view – “Is precisely what people were hoping for, for Chile to finally have a Constitution agreed upon and consensual, not imposed. Therefore, whether it is approved or not, the demands will continue.” Regarding the upcoming referendum, the academic said that because the outcome will be the result of having gone through a democratic process, it will legitimize either the current Constitution, or the new one.

In addition to what Funk expressed, Undurraga mentioned another reason she sees in favor of the approve option, is that the proposal introduced several rules for electoral purposes, with the aim of establishing a springboard to position the Republican presidential candidate, which is why the Republican councilors included very popular and attention-grabbing rules that have no basis or evidence that they will have an effect but are very attention-grabbing, such as tax exemptions, anti-immigrant discourses, among others: “The constitutional process was contaminated with electoral measures that have nothing to do with what a Constitution should do,” she closed.

Among the same lines, Lovera commented that in his view political stability is only possible if there is a cross-party pact that safeguards it, leaving the political extremes dissatisfied, which according to him is absent in this proposal.

About the position of the political parties in this setup, Funk thinks the situation is complicated both for the government and for the center-right wing presidential candidate, Evelyn Matthei, who has acknowledged that in spite of not quite liking the proposal, will vote in favor of for the process to end. “It’s clear that this is complicating her candidacy. For the government, it's even more complicated because the government's parties will oppose it, but the President has the responsibility to inform and promote the referendum without being accused of impartiality.” About how the result be interpreted, Funk stated that in this regard, the right-wing “has been brilliant” because it’s divided among those who will vote in favor, and those who will reject it, which “will prevent for the President and the left to come out as winners if the proposal is not approved.”

As Chile approaches the December 17 referendum, the implications and intricacies of its constitutional process continue to shape the nation's political discourse. To watch the full webinar in Spanish, click here.