Chile seemed on the way to setting an example for Latin America. In response to the social protests in October 2019, the main political parties agreed to pave the way for a new constitution. In October 2020, almost 80 percent of citizens voted in a referendum to elect a constitutional convention, which was elected directly by the people in May 2021.
This was made up of equal numbers of women and men and gave representatives of the indigenous population 11 percent of the seats. Independent candidates won more than half of the seats, and the vast majority of Convention members had not previously held elective offices. The Chilean constitution-making process was therefore glorified by observers as exemplary for democratic renewal and as a model for Latin America.
In fact, the draft constitution presented on July 4, 2022 contains many innovative elements in terms of social rights, women’s rights, indigenous peoples’ rights, protection of minorities, protection of the environment and respect for nature. It gives the state greater opportunities to intervene and regulate the economy and lays the foundations for a social and ecological constitutional state.
The heterogeneous composition of the constitutional convention, the openness to proposals from civil society and the simultaneous pressure to form a consensus (i.e. a two-thirds majority for all proposals) meant that the constitutional text, with 388 articles, was very extensive and thus also offered many areas of attack.
Opinion polls have long pointed to a rejection. The clarity of the result is surprising: 62 percent rejected the draft constitution, only 38 percent voted in favor.
The political right has certainly mobilized massively against the draft constitution, including with fake nwws. Changes in the pension, health and education systems contained in the draft (with their strong private component), the greater consideration of environmental protection in investments or the redefinition of water rights threatened interests and privileges.
As is often the case with referendums, voting was not just about the question on the ballot, but also about support for the government, which was low in polls. The political environment had changed since the constitution was first drafted. As the sluggish economy, high inflation and rising crime preoccupy citizens, some of the debates surrounding the constitution seemed far removed from their everyday problems.
Not only the political climate, but also the electorate has changed in the course of the constitutional process. The constitutional convention was elected in May 2021 with a turnout of 43 percent. The left majority in the constitutional convention was an accidental majority that did not necessarily reflect the spectrum of opinion in Chilean society.
In the December 2021 general election, the political right fared significantly better, with a slightly higher turnout, and a far-right candidate garnered nearly 44 percent of the vote in the second round of the presidential election. Voting was compulsory in the constitutional referendum on September 4, and turnout was 86 percent, twice as high as in May 2021.
The position of the indigenous peoples took up a lot of space in the public debate. The draft constitution gave them more rights, but also led to controversial discussions. A further complication was that the draft constitution did not contribute to pacifying the violent conflicts in southern Chile. The draft constitution fell through in all regions, but the rejection was particularly clear with over 70 percent in the Araucanía region, where violent conflicts with parts of the indigenous population occur again and again and where a state of emergency was declared.
The course of the campaign and the discussions about the proposed constitution went in favor of the rejection option, as the differences in the consequences of rejection and approval were put into perspective. The opponents declared that they were also in principle in favor of a new constitution, but not in favor of this draft. And supporters acknowledged that if the new constitution were adopted, some key parts would need to be revised. Some prominent centre-left figures also expressed their doubts about the draft constitution.
The rejection of the draft constitution is also a defeat for President Boric. But this can also be an opportunity. Although politically ailing, the president could take on a mediating role and pave the way for a draft constitution that can be reached by consensus. In any case, the desire and the mandate for a new constitution continue to exist. Now it is time to decide on the procedure. But that is the job of Congress. A new constitutional convention will probably be elected, with much greater influence from the parties.
Surprisingly for a representative democracy, the failed draft constitution did not devote a separate article to political parties. The distance to the parties can be explained by the composition of the constitutional convention and the low level of trust in the parties documented by opinion polls. In this respect, it is an irony of history that after the negative vote in the referendum, the further course of constitutional reform will be largely determined by the political parties. The political right and centre-left parties will play a greater role here than in the previous constitutional convention.
The political elite must decide as quickly as possible how to proceed. The population expects the promise of a new constitution to be kept. Otherwise there is a risk of renewed social unrest and political protests, as well as a further loss of confidence in political institutions. This would be the negative scenario.
The positive scenario would be the drafting of a constitution that retains as many of the progressive innovations as possible, but also accommodates the concerns of the opposition front. Perhaps strongly polarizing and unconsensual issues should not be regulated by the constitution, but in the legislative process. Should the critical reflection on the reasons for the failure of the draft constitution lead to a new constitution supported by a broad social consensus, Chile could still become a role model for Latin America.