A New Constitution for Chile: will citizens get what they protested for?

By Kayla Hobby Kolbe

Mass protests erupted in Chile at the end of 2019.[1] After several months of citizens taking to the streets over social inequality, calling for higher wages, pensions, better health care, and education, the country’s then president, Sebastian Pinera, agreed to a public referendum.[2] The referendum allowed citizens to vote on whether they wanted a new constitution and if so, what kind of body they would like to draft the document.[3] Their options for the constitutional convention were either a body made up of entirely new elected representatives or a body in which half would be members of Congress.[4] On October 25, 2020, nearly 80 percent of Chilean voters agreed that the country should have a new constitution and that it should be written by an entirely new body of representatives.[5]

Chile’s previous constitution was written in 1980 by a group handpicked by the country’s then military ruler, Augusto Pinochet.[6] The law included no popular input and is widely blamed for inhibiting any progressive change for Chileans since its publication, despite the fact that the country transitioned to a democracy in 1990.[7] The previous constitution promoted “private enterprise in all sectors of the economy.”[8] This framework led to Chile having the “highest per capita income and the third-most multimillionaires in Latin America” while working and middle class families struggle with indebtedness due to Chile’s high costs of living.[9]

The new constitution will be drafted by 155 representatives who were elected in May of 2021.[10] The makeup of the Constitutional Convention is historic for several reasons.[11]First, seventeen positions were reserved for members of indigenous peoples.[12] Secondly, the Convention was elected with gender parity, meaning that the voting system was set so that neither men nor women could hold more than 55 percent of seats.[13] The new system also “allowed candidates or organizations that were not political parties to form electoral lists designed to attract votes for an entire slate” of representatives.[14] Elected members include lawyers, teachers, a housewife, scientists, social workers, vets, writers, journalists, actors, and doctors.[15]

Constitutional Conventions members are to have a draft of the new constitution completed by July 5, 2022.[16] Three months following the Convention’s publication, Chilean citizens will then vote on whether to approve or reject the document.[17] To begin the process, Convention members elected Elisa Loncón, leader of the Indigenous Mapuche, as president, and independent Jaime Bassa as vice president.[18] Next, members got to work on the Convention’s procedures and operating rules which were adopted in October of 2021, only four months into the Convention’s work.[19] To work on the substance of the new constitution, Convention members are utilizing traditional public hearings and town halls to gauge what is most important to Chilean citizens.[20] The popular initiative is another mechanism being used to draft the substance of the constitution.[21] Through the popular initiative, any citizen can propose a constitutional provision.[22] If the provision gathers more than 15,000 virtual signatures on the Convention platform in support, the proposal will then be considered by the corresponding thematic committee within the Convention.[23] The rules of the Convention established seven thematic committees, who will draft their respective sections that will be voted on by the Convention at large.[24] The committees are:

1. Political System, Government, Legislative Branch, and Electoral System

2. Constitutional Principles, Democracy, Nationality, and Citizenship

3. Form of State, Decentralization, Equity, Land Justice, Local Governments, and Tax Structure

4. Fundamental Rights

5. Environment, Rights of Nature, Natural Commons, and Economic Model

6. Justice Systems, Autonomous Oversight Bodies, and Constitutional Reform

7. Knowledge Systems, Science and Technology, Culture, Art, and Heritage[25]

While these committees will address how a country of 19 million is governed, they are also to resolve how the country will adapt to climate change, water scarcity issues, and worsening environmental degradation from mining activities, all in conjunction with the country’s social inequality issues.[26] These topics are complex, especially when one fifth of the world’s lithium, an important component in the shift from fossil fuels to renewable energy sources, is produced by the company SQM in Chile.[27] Constitutional Convention members will have to decide how the mining of lithium, and Chile’s other precious resources like copper and coal, should be regulated.[28] A law to increase the royalties from mined resources from Chilean land is also being discussed.[29] While such policies could promote more local decision-making and assist in distributing the wealth that comes with these industries, some also fear that stricter rules may scare off investors.[30] Another major decision that Convention members have to determine is whether or not to declare water as a basic human right.[31] Similarly, members are also posed with whether nature and/or future generations should have any legal rights, and if so, to what extent.[32] With so much to discuss, some Chileans worry the new constitution “will wind up being like a giant wish list that the country just can’t afford.”[33]

[1] See Philip Reeves, What A New Consitution Could Mean For Chile NPR (May 27, 2021, 4:07 PM), https://www.npr.org/2021/05/27/1000991508/many-in-the-group-writing-chiles-constitution-are-new-to-politics

[2] Id.

[3] See Jubilation as Chile votes to rewrite constitution, BBC News (Oct. 26, 2020), https://www.bbc.com/news/world-latin-america-54687090

[4] See Pascale Bonnefoy, An end to the Chapter of Dictatorship: Chileans Vote to Draft a New Constitution, The New york Times (Oct. 25, 2020), https://www.nytimes.com/2020/10/25/world/americas/chile-constitution-plebiscite.html

[5] Id.

[6] Somini Sengupta, Chile Writes a New Constitution, Confronting Climate Change Head On, The New York Times (Dec. 28, 2021), https://www.nytimes.com/2021/12/28/climate/chile-constitution-climate-change.html

[7] See Pascale Bonnefoy, supra note 4.

[8] Id.

[9] Id.

[10] See Chileans vote for 155-member assembly to draft new constitution, Aljazeera (May 16, 2021), https://www.aljazeera.com/news/2021/5/16/chile-votes-for-155-people-to-author-equality-based-constitution

[11] See Carolina Pérez Dattari, Chile: the battle for a transformative new constitution, Transnational Institute (Dec. 16, 2021), https://www.tni.org/en/article/chile-the-battle-for-a-transformative-new-constitution

[12] Id.

[13] Id.

[14] Javier Sajuria & Julieta Suarez-Cao, Chile elected delegates to draft a new constitution – and its not tilted toward the elites, The Washington Post (June 24, 2021, 6:00 am), https://www.washingtonpost.com/politics/2021/06/24/chile-elected-delegates-draft-new-constitution-its-not-tilted-toward-elites/

[15] See Chile begins drafting new post-Pinochet constution, France24 (April 7, 2021), https://www.france24.com/en/americas/20210704-chile-begins-drafting-new-post-pinochet-constitution

[16] See Carolina Pérez Dattari, supra note 11.

[17] Id.

[18] See Jennifer Piscopo, Chile Tries to Write a New Constitution, Public Seminar (Oct. 13, 2021), https://publicseminar.org/essays/chile-tries-to-write-a-new-constitution/

[19] Id.

[20] Carolina Pérez Dattari, supra note 11.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] See generally Somini Sengupta, supra note 6.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Carolina Pérez Dattari, supra note 11.

[32] Id.

[33] Philip Reeves, supra note 1.