Republic of Chile: from sober deliberation to attempted revolution

In October 2015, the President of Chile, Michelle Bachelet, announced the opening of a process of adopting a new Constitution for Chile with the intention to repeal the current Constitution, which was passed in 1980, during the era of the dictatorship of Augusto Pinochet.⁸ In 1988, a plebiscite was held in which the ”no” campaign opposing Pinochet’s continuity in the presidency won nearly 56 per cent of the vote.

“New constitutionalism” & constituent power 193 dismantle the dictator’s constitutional legacy. Even though several packages of amendments had been passed from 1989 that aimed to set aside the authoritarian sections of the Constitution, and go forward with the democratization of the system, discontentment around the constitutional framework had subsisted in large sectors of Chilean society for decades. After all, the 1980 Constitution in force was still that which had been approved under an authoritarian regime and the high quorums required to amend the nuclear sections of the Constitution conferred the heirs of Pinochet’s regime a kind of veto power over the political process (Bellolio, 2016; Carrillo, 2002).

Echoing such claims and hoping that over the years a wider majority for constitutional transformation had been consolidated, President Bachelet triggered a constituent process with the aim of passing a newly branded Constitution able to replace any vestige of the authoritarian past (Heiss, 2017, pp. 472-473). At the same time, given the context in which the constitutional movement was going to be developed, a stable democracy in the digital era, the constitutional process was committed from the outset to a crowdsourced paradigm grounded in deep public involvement, transparency, and inclusiveness.

The Chilean constitutional initiative, however, had to face up to some important challenges that diluted the whole process. First, as I had already suggested in commenting on the European Union struggle to pass the Treaty Establishing a Constitution, constitutional transformations were not likely to be achieved in time of ordinary politics and lacking a political, economic, or social crisis. Bachelet’s mandate between 2014 and 2018 was a relatively calm and prosperous one. Though the enormous social differences and inequality that were, under the surface, nourishing the restlessness that would arise in 2019, by the mid-2010s the Chilean recovery from the previous global crises had been quite successful.

Although the constituent process had been celebrated by several regional and international organizations, such as the OECD, it did not generate a massive mobilization of opinion, nor a passionate debate among citizens.

the constitutional agenda, during Bachelet’s initiative, had not been detached from that developed by the ordinary institutional debate. In fact, as the constitution-making process had been designed and scheduled, ordinary debates on politics had been intertwined with constitutional discussions: the discussion on the Constituent mechanism, for instance, was foreseen to take place after the 2017 Presidential and Parliamentarian elections leaving therefore the future of the constitutional reform clinging on to the regular elections of the representatives. Bachelet herself sought for another term in office presenting herself as the candidate of constitutional reform but, set against the case of Roosevelt and the New Deal (in which the constitutional discussion was linked to the presidential candidate solutions for the great economic disorder) the case of Bachelet, without any structural crisis to surmount, reduced the constitutional debate to the assessment of the ordinary presidential administration. In lacking turmoil, the risk of confusing the constitutional agenda with the ordinary agenda (something as prosaic as winning ordinary elections) was higher. What was worse: some accusations of corruption that tarnished Bachelet’s last months in office also promoted scepticism around the constitutional blueprint that was associated with her figure.

Another paradox shown by the Chilean case during Bachelet’s mandate lay in the fact, as happened in Iceland, that even though some part of the society might have been mobilized, decisive groups remained unconcerned (such as the conservative and liberal establishment). Ordinary politics had not been abandoned and, consequently, nothing substantial happened to persuade them to participate in debate with those that supported a constitutional change.

In the 2017 presidential elections, the constitutional transformative project proposed by the left and led by President Bachelet was confronted with that of the right-wing candidate Sebastian Pinera, who rejected the creation of a new constitutional arrangement.

Yet, in autumn 2019, the context changed completely. The frustration among wide sectors of Chilean society with the political system’s incapability to distribute the benefits of economic growth in an egalitarian way was expressed from October 18, in an explosion of riots and violence known as el estallido social (Atria, 2020, p. 53). The demands on the streets seemed to be miscellaneous, but most of them targeted the privileged political class which was perceived as the main cause of inequality (Verdugo, 2019a). Popular claims interpreted constitutional arrangements inherited from the Pinochet era as the institutional resorts that had permitted the entrenchment of such privileged cadres at the expense of an impoverished and precarious majority and, accordingly, most citizens insisted that the total constitutional replacement was a conditio sine qua non for any social transformation.

The events in Chile in 2019 adopting a revolutionary character encapsulated some features of the constitutional theory here described:

1. the 1980 Constitution, in spite of its partial amendments, embodied the particular decision on the allocation of power assumed during the dictator­ship and grounded on a neo-liberal socio-economic model that enabled the consolidation of a political and economic elite.

2. the social opposition to the system (not only against Pinera’s government but adopting a general distrust towards the whole arch of the political establishment) urged to embrace another decision on the allocation of power pivoting around a more just and democratic order.

3. the constitutional system is deemed as the cornerstone of the operation: there shall not be profound social change if a new constitution does not replace entirely the old one (disregarding whether the formal codified constitutional amendment procedures are respected or not).

4. the constitutional change is expected to bring about inclusion in the political, economic, and social life of parts of the society previously marginalized.

5. violence is a determining factor in the impulse for change. The demand for constitutional replacement did not gather supra-majorities both within the society and the representatives until the scene began to be coloured by blood and violations of human rights.

After the initial resistance of Pinera’s government expressed in the declaration of a state of emergency, and harsh repression against the protesters, precisely the victims that such reaction caused meant that the consensus for constitutional revamping was generated. The intensity of the confrontation brought Pinera to capitulate and to commit himself to reforms. As we have seen regarding other experiences, only when those holding the power see their position stagger, do they assume the demands of the outsiders and relinquish to their prerogatives. The waters of the revolutionary impetus calmed when representatives, heeding the popular clamour, reached an agreement called “for Social Peace and a New Constitution” in which the authorities accepted the call for a binding, national plebiscite to decide whether and how to write a new Constitution (Atria, 2020, pp. 55-56). The plebiscite, after a postponement caused by the Covid-19 crisis, was finally held on October25, 2020. According to the agreement that had been concluded in November 2019, the people had to vote for two questions on the ballot: the first question was if they wanted a new constitution (which had to be answered by “Approve” or “Reject”) and the second question was related to the organization of the Constituent Convention.

Whether the Chilean Agreement “for Social Peace” and the subsequent episodes in the path for a new Chilean constitution were signs of the Chilean constitutional system truly transforming, or represented a stitch-up by the political elite to contain popular rage, will be appreciated in the following years. A constitutional movement able to turn the existing structures of power in Chilean society upside down might, in another sense, even reverse the democratic achievements of the post-authoritarian era (see Verdugo, 2019b, pp. 204-205) and become thus an additional example in Latin America of the use of the constitutional framework for the sake of a punctual democratic majority built aside the traditional political class. At any rate, it might be already presumed that the Chilean demand for a new constitution translating a new distribution of power was, given the convulsive nature of the 2019 events, more likely to succeed than its previous attempts.