History in the Making: Rewriting Pinochet’s Constitution for Chile

Chile’s protests began because of an unpopular public transportation rate hike, similar to France’s 2018 “yellow vest” riots— with protestors going to the streets for larger demands, such as better living conditions. At the height of the protests, an estimated 1.2 million people gathered in Plaza Italia in Santiago, Chile’s capital. As a result, political groups reached an agreement to replace the 1980 constitution, which was tailored to Augusto Pinochet’s dictatorial preferences and those of the “Chicago boys” who oversaw Chile’s economy for him. 

The recent protests have their origins in the 2006 “Penguin Revolution,” which was led by 13-18-year-old high school students demanding their right to free, high-quality education. In one of the most unequal nations in the area and one of the most vulnerable to climate change, the government is frequently unable to facilitate inclusion or safeguard the environment. Despite the fact that the Pinochet-era constitution was considerably revised under Ricardo Lagos’ presidency in 2005, it still bears the dictator’s ideological imprint. It excludes rights, such as the right to housing, and concentrates on preserving the military regime’s legacy as well as a market-led approach to social services.

Overturning an undemocratic legacy

As per the draft Constitution, native people will have the “right to the full exercise of their collective and individual rights.” The text mentions rights to self-governance and to recognize their lands and heritage. The new institutional frame establishes that “Chile is a social and democratic State of law. It is multinational, intercultural and ecological”, it maintains the current distribution of power, replaces the subsidiary State with one of protection of social rights, and advances in the decentralization of the country with regional autonomies and “indigenous territorial autonomies”. The country’s land, water, and air resources will remain protected and accessible thanks to new environmental and natural rights. 

The draft document also establishes a national health service, which was a key demand of the 2019 mass protests. It also sets out a comprehensive national education system, which unifies learning institutions under a single body and mandates free public education at all levels. Chile’s public universities charge some of the world’s highest prices, with tuition rising 10% between 2010 and 2019. It also eliminates the senate in favor of a single-chamber legislature, among other changes, and pave the way for the replacement of Chile’s severely despised private water rights regime.

Chile’s new constitution, with 499 articles, would be the longest in the world, raising concerns about the delegates’ “maximalist” attitude. The convention is letting its imaginations run wild and has come up with ideas and notions that have never been tested. The proposed constitution now under development aims to satisfy every stakeholder and fulfill every social goal. The convention has been split into three commissions: one to compress and streamline the document; another to devise the transition from one constitution to the next, and a third to produce a preamble. 

In many places of the world, particularly Latin America, democratic governments have been fighting for legitimacy. Given Chile’s position in Latin America as one of the continent’s wealthiest and most stable democracies, the result is likely to have far-reaching consequences. With an income disparity 65 percent higher than the OECD average, Chile is currently the third most unequal country in the OECD.

Social movements occasionally gain policy gains, but they seldom result in the type of systemic transformation that Chile is attempting now. In the present period, constitutional conventions, particularly those made of specifically elected delegates, are extremely rare. Such conventions are typically held soon after nations end civil conflicts, such as in Nepal in 2008, or during the transition from dictatorship to democracy, such as in Tunisia in 2011, following the Arab Spring.  Chile’s constitutional convention will also be the first in the world to require gender parity among the delegates.

According to the majority of convention participants, Chile needs significant reform. Rather than analyzing prior constitutions and national constitutional history to determine what should be retained and what should be discarded, the conference decided to start from scratch. Many convention participants are adamant that no part of the current constitution, which was drafted under military dictatorship and has been tweaked about 50 times since democracy was restored, should be included in the future one. Many Chileans are optimistic about the potential of this institutional transformation. Only by integrating complex social mobilization tactics with political action has it been possible to arrive at this point. A mix of formal processes and the people of Chile’s grounded efforts to articulate claims in innovative and democratic ways have inspired this moment. As a result, it acknowledges the country’s existing and desired character.

[Photo by Rjcastillo, via Wikimedia Commons]

The views and opinions expressed in this article are those of the author.

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