In 2021 and 2022, the exceptionally democratic Constitutional Convention drafted a new Constitution for Chile. In the plebiscite of September 4, 2022, 62% of the Chilean population rejected it. On December 15th of that same year, the parties with parliamentary representation agreed to initiate a new process. This was to be focused primarily on the participation of experts appointed by the parties and, only secondarily, with elected representatives. On May 7th, the elections for representatives to the Constitutional Council took place. There were 50 seats + 1 reserved for indigenous peoples, far less than the 155+17 of the Convention. Its task was to produce a second draft.
The results of the election show very clearly the character of this constitutional reform process: the Republican Party of Chile got the biggest vote – 35.41% of the votes and 23 elected representatives out of a total of 50. This party was only founded in June 2019. It represents an updated Pinochetism within the framework of the new wave of extreme right-wing formations in the world. Next, President Boric’s progressive and centre-left coalition, called Unidad Para Chile, took 28.59% of the votes and managed to get 16 representatives. Finally, the traditional right wing, in the Chile Seguro pact, got 21.07% of the votes and 11 elected representatives. Interestingly, both the extreme centre pact, in the Todo por Chile list, and the Partido de la Gente (right-wing populist) had very low votes, which did not allow them to enter the Council. Finally, a representative of the indigenous peoples was elected to the Constitutional Council for a reserved seat.
Another novelty was the null vote (votes which are incomplete or incorrect and which are therefore not counted). These reached 16.98% (equivalent to 2,119,506 votes). This compared with 3.03% null votes (187,819 votes) in the election of representatives for the previous constituent process in May 2021. How can this impressive increase in the null vote be explained?
Some analyses suggest that it is a vote that in the plebiscite of September 2022 would have been inclined to approve the proposed new Constitution. This would not be surprising, given that this new constitutional process has been designed to be the opposite of the previous process. There was a mobilisation for the null vote. Former Convention members, current parliamentarians, social organisations and different actors of politics and grassroots activism in Chile took part in it.
It is very difficult for any particular group to lay claim to the null votes, but they can be seen as an expression of a critical view of the process. And they could lay the basis for a challenge to it in the coming months and also have influence in the exit plebiscite in which Chile will vote for or against the second constitutional draft.
The new process
We have already referred elsewhere to the characteristics of this constitutional process which followed the defeat of the Constitutional Convention in the plebiscite of September 4, 2022. But what must be rescued for the analysis of these electoral results is that it is a process tutored by the parties that, a priori, establishes some fundamental contents of the constitutional draft and that excludes the main actors who had mobilised in October 2019 and, of these, those who had participated in the previous Constitutional Convention. Non-party political activists and social movements were left out of this new process.
Since the rejection of the new constitution project in the September plebiscite, the political forces with parliamentary representation had a vigorous debate about what to do with the constituent impulse that erupted in 2019. In December 2022 they signed the Agreement for Chile, where the terms of this new process were established. It includes an Expert Commission (appointed by the Congress according to the balance of parliamentary forces). This Commission will produce a draft based on the 12 constitutional principles defined in the same agreement.
The process also establishes a Constitutional Council with 50 elected representatives. These will come exclusively by political parties, unlike the previous process that allowed lists of independents, where social movements participated). This Council reviews and votes on the draft that the Commission has produced, fine-tuning the details. And finally, a Technical Committee (also appointed by Congress), which will act as a meta-constitutional court, will verify that the text approved by the Council complies with the 12 principles defined in the Agreement for Chile.
Between September and December 2022, one of the parties that strongly opposed a new constituent process was the Republican Party, with José Antonio Kast at its head. How is it possible for the main opponent of an institution to win an almost absolute majority of its seats? This shows how complex the political process in Chile is. And it gives an idea of the challenges facing the left today.
The Pinochet Constitution and the current crossroads
The results of the May 7th election have been read as a strong blow levelled at the government. They gave a confusing political response. They affirmed that they will maintain their political direction. They aim to isolate the Republican Party by appealing to the “democratic” and “dialoguing” character of the traditional right wing. For its part, the Republican Party still does not know what to do with its new toy. From Day 1 it has faced attacks from all political quarters. They have denounced its elected representatives who have been accused of sexual abuse. President Bortic has urged them “not to make the same mistake we made“, referring to the supposed lack of dialogue in the Constitutional Convention.
The attitude of the Republican Party has been perfectly predictable. Luis Silva, lawyer and member of Opus Dei, with the highest number of votes on its list, has pointed out that he is “not afraid of disagreement. That’s what votes are for. And if they don’t have the votes, they must leave the streets. If they don’t, we will call the public security forces, because that is what they are there for, to make a right enforceable (…) If not, you end up dancing to the music of the left”. The Republican Party has used an openly anti-left and anti-feminist rhetoric, as other figures of the global ultra-right have done. With this approach, it has managed to achieve a novel political and ideological influence over the political right and its social bases,. It has placed at the centre of its vision a repressive authoritarian, conservative Christian and xenophobic nationalist project. José Antonio Kast was its presidential candidate in 2021 and managed to win the first round, only to lose to Gabriel Boric. That first round was perhaps the first electoral glimpse of what was to come for Chile.
One of the slogans that has sustained the constituent struggle in recent years has been the denunciation of the “Pinochet constitution”. This points out in one sentence the illegitimate nature of its approval during the dictatorship, and the neoliberal nature of its content. Unfortunately, the question of its illegitimate origin has outweighed the question of its content, at least for progressives. This can be seen reflected in the statement by the Minister of Women, Antonia Orellana. She states that the fact that “the new Constitution is drafted under a democracy… has a value in itself”.
There is no doubt that a constitution drafted under dictatorship has an illegitimate origin. But we cannot lost sight of the content. The dictatorship didn’t promote a new constitution just to legitimise itself legally. It sought to get rid of the democratic, republican and developmentalist opportunities provided by the previous Constitution of 1925. Above all, it wanted to prevent the possibility of the emergence of a new constituent revolution with a socialist horizon. The 1980 constitution was Pinochet’s “never again”: never again a people organised, never again a revolutionary left, never again the working class in power.
In the present scenario, the constitutional dilemma is that the new constitution could be worse than Pinochet’s constitution, which puts the constituent sectors in a totally unfavorable situation. In the same interview we quoted above, the now constitutional council member, Luis Silva (Republican), stated that “The big problem is with the government, because if they call for it to be approved, they are going to sign a right-wing Constitution. If they call for its rejection, they will keep the one they wanted to change. And what is going to happen is that in either of the two scenarios, when they cease to be government, they are going to take to the streets to ask for a new Constitution. And if we Republicans are in government, I’m going to send them to hell”.
This is what Chile’s constituent crisis has become.