May 12, 2021, 8:26 p.m.
Chile is voting again after a national referendum last year resulted in a mandate for a new constitution. For two days on May 15 and 16, the Chileans will elect the 155 people who will draft the constitution, replacing the current document drawn up in 1980 under the dictatorship of General Augusto Pinochet. This is the first time in the history of Chile that they have had the opportunity to draft a constitution through a fully democratic, participatory process. At the weekend, Chileans will also cast their first ballots to elect regional governors – part of an ongoing struggle to decentralize the country – and council members and mayors will also be elected.
Despite years of dissatisfaction with the political system, a new constitution only became politically viable less than two years ago. When nationwide protests rocked the country in late 2019, the government agreed to hold a referendum on a new constitution at a meeting of party leaders in the early hours of November 15. When the vote finally took place on October 25, 2020, 78 percent of those who voted were in favor of replacing the Pinochet-era document.
"This is the climax of a political crisis that has been a long time coming," said Claudia Heiss, Head of Political Science at the University of Chile. "An increase in participation ends a binomial era (since the return to democracy) in which Chile was ruled by two coalitions with high governability but little representation."
Approximately 1,468 candidates run for the assembly, a significant percentage of whom are independent and represent a wide range of interests and agendas. A number of prominent figures from Chile's conservative bloc are also at the start – many despite the fact that they voted decisively against the drafting of a new constitution in the referendum last October.
Many Chileans hope that the constitutional process can provide the answers that traditional politics could not. The current document was drawn up by a handpicked team of Pinochet's confidants, led by Attorney Jaime Guzmán. It was ratified by a dubious referendum in which the airtime of the opposition campaign was severely restricted and state agents voted for it several times. The road to reform was long and hard-fought. Although the 1980 constitution was amended several times, most notably through a 1989 referendum and again by President Ricardo Lagos in 2005, popular support for years has built on replacing it altogether.
Starting with the 2013 presidential election, a movement from various civil society groups encouraged people to mark their ballots with AC, which stands for a constituent assembly. Former President Michelle Bachelet even submitted a full draft constitution to Congress when she stepped down in 2018, despite the fact that it was put together behind closed doors by experts without public participation.
Despite these attempts, the political and economic framework set by the 1980 Constitution remains largely intact, isolated from the large majority required to amend articles and laws. Despite widespread protests in favor of education reform, particularly in 2006 for improved standards and 2011 for for-profit higher education, the four-seventh majority required for such reforms in both houses has thwarted these attempts. In January 2020, 24 out of 43 senators voted in favor of reforming the unpopular private water rights system in Chile, but the clear majority was still five votes down from the two-thirds required to change that law.
The system gives exceptional powers to the President, who can regulate the legislative agenda and veto rights, while the Constitutional Court, to which the legislation can refer to rule on its constitutionality, has also played an important role in repealing the reforms. The current constitution does not recognize the indigenous peoples of Chile and does not guarantee specific social rights. It prefers a private, subsidiary model for the provision of services that limits the role of the state.
"The political system and the institutions were not able to translate demands into action. Mobilizations are the only way to hear people," said Heiss.
For the forthcoming constitutional process, several innovative mechanisms have been included to address a historic lack of participation. Of the 155 seats of the assembly, each representing a congressional district, 17 are reserved for the indigenous communities of Chile, which are appropriate to their size: seven for the Mapuche, two for the Aymara and one each for the Rapa Nui, Quechua, Atacameños, Diaguitas, Qulla, Kawésqar, Yaghanes and Changos. Chile has not yet guaranteed representation of the indigenous peoples in national politics.
The gathering will have a mandatory gender equality requirement – a first for a national constitutional project – and 5 percent of any list of people converging as a party or coalition must be made up of candidates with registered disabilities. Crucially, it has facilitated the participation of independent candidates who were historically prohibited from making lists, paving the way for the most comprehensive electoral process in Chile's history. Voters can select candidates from lists submitted by traditional parties, loose coalitions of independent candidates, and groups made up of a mixture of the two.
Once the Chilean Constitutional Assembly is convened, it must first elect a president and a vice-president from among its number, and then establish a charter that guides its work and draws up protocols to resolve disputes that are approved by a two-thirds majority. This will be important for its legitimacy and transparency. In order to broaden the participatory channels throughout the process, various proposals for the panel are discussed, including meetings across the country and consultations to incorporate popular demands in the decision-making process.
"One vote on the drafting of a new constitution, another on the election of a representative and another at the end on the ratification of the end product – without any intervening participation – does not make the process as legitimate as possible," said Heiss.
Once in session, each article must be passed by a two-thirds majority in the assembly to be incorporated into the constitution. In the new document, Chile must remain a democratic republic and is committed to the international treaties that have already been signed.
The congregation only has nine months to prepare the new document. This period can only be extended once by three months. The 1980 Constitution will remain in force until an exit referendum is held at the end of the process, with a mandatory vote to ratify or reject the new Constitution.
Since the protests of the constitution opened up political space with a variety of demands, the candidates interested in drafting a new constitution also represent different priorities. In interviews conducted in May of this year, three candidates who applied for the gathering explain what motivated them to join the process.
The following has been translated and condensed by the author.
Bárbara Sepúlveda (District 9)
Sepúlveda, 35, is a constitutional attorney from Santiago who grew up in Arica in northern Chile. She started her career in student politics and has been the executive director of the feminist law collective Abofem at the head of the country's women's movement since 2018. She has been a member of the Communist Party of Chile since 2004.
“My candidacy was a process of collective liberation: I was brought up by colleagues from my group and various feminist organizations. I never thought I'd be a candidate for anything, but the constitutional process fits very well with my specialization in gender and constitutional law, as well as my role in social movements. I feel well placed to translate social requirements into the technical language of a constitution.
“Every power of state has a role to play in gender equality and discrimination, and its guiding principles should be aligned with that. The constitution should explicitly mention sexual diversity, women's rights and reproductive rights. Finally, we must ensure that our democracy is equal in all organs of the state. From first page to last, the constitution should be drafted with gender equality in mind.
“The 1980 Constitution was an obstacle to change. Both the law and public order have been hampered by high quorums and the excessive power of the President and the Constitutional Court. Even though the political will was there, the constitution is the reason the country has not moved forward. To call this process a success, at least one social democratic state must be created that is not based on the logic of subsidiarity. I think when a new constitution comes into force and it is a true tool for change, the transition (to democracy) really begins. "
Cristina Dorador (District 3)
40-year-old Dorador is a microbiologist from Mejillones, a small town on the dry north coast of Chile. He has campaigned for the decentralization of Chile and ensuring a fair distribution of resources and opportunities across the country.
“As a scientist, I have been working on protecting ecosystems in the Atacama Desert and the salt flats in northern Chile for more than two decades. We became increasingly aware of how the areas we studied have changed over time due to the extraction of water, mainly for mining, and the need for strict public policies to protect these areas. I lived through the end of the dictatorship and, like many of us, took on the frustrations of our parents' generation. When the social movement broke out, I became more involved in actually making changes. It is thanks to the people who went out on the march that we have this historic opportunity.
“Besides the capital, Antofagasta has the highest GDP of all regions, but we have to compete for resources with other regions of a central fund. The north of Chile has made a massive contribution to the country's economic and cultural development, but this has not been recognized or assessed. The centralization in Chile is so pronounced that most people do not even realize the diversity of values and experiences we have here. The rules are made in Santiago and nobody thinks about the regions. Decentralization must be the backbone of the new constitution.
“Development in Chile is always about using natural resources and the word“ sustainable ”is added at the end – as if it was magically getting better. But we are part of the natural environment and we have to recognize this in our relationship with our surroundings. We have an opportunity here to rethink Chile and its economic development. Above all, the replacement of the 1980 constitution is an ethical imperative. "
Francisca Linconao (District 23)
Linconao, 62, is a machi, a spiritual authority in the indigenous Mapuche culture who has long been involved in the dispute over territorial rights across southern Chile. She has never been affiliated with a political party.
"I've been asked many times why I wanted to be a candidate, but I always say, 'Why shouldn't I? "I am a traditional Mapuche agency and my people and community have asked me to report. My commitment is to my territory and the role I have been assigned to support the physical and mental health of those who need it .
“The current constitution does not recognize the Mapuche or any of the other First Nations. The Chilean state has continued to conquer our country and we have come together as a people to resist this process. But the 1980 Constitution perpetuated state racism and hampered dialogue between the Chilean people and the First Nations. The priorities for Chile's First Nations in the new constitution will be to anchor a plurinational nation, restore the land of the ancestors, political participation and representation, and self-determination in all areas of life. Finally, we want to ensure that human rights are recognized for everyone – Mapuche and non-Mapuche.
“Chile must recognize its plurinationality with concrete measures. It must create effective spaces for political representation and participation for every indigenous group. This can be achieved by reviving traditional languages, restoring ancestral areas, promoting intercultural health, and respecting the traditional authorities of each people and their territories. Chile's socio-economic model is incompatible with the Mapuche worldview, as it is based on individualism and the limitless extraction of natural resources. We understand a person as part of ixofilmogen (biodiversity), not as a unit that somehow lies above nature. We respect ngen (territorial forces) and take care of the existing balance. This vision is not understood by the neoliberal model and that is why they haunted us as we fought for our rights and the rights of nature.
"A new constitution does not mean overnight change, but I am optimistic because I believe that the First Nations can be protagonists of this social transformation. As a woman and a traditional Mapuche authority, I will use all of my Kimun (knowledge) and Rakizuam (thoughts) for this task. "