Chile’s Kaleidoscopic Constituent Assembly

Chile is getting rid of Pinochet — at long last. Last month, Chileans elected – for the very first time in the country’s history – a constituent assembly that will draft a constitutional text to replace the current Constitution, which the dictator imposed in 1980. Chileans have elected a colourful assembly, comprised by individuals with backgrounds as diverse as the country itself, a roster that no one, no pundit, no scholar, no citizen, no news outlet, expected. Though the result of the deliberative process that will soon commence is uncertain, one thing is sure: Chile’s constituent assembly resembles the country in ways that no political arrangement had allowed so far, for the rules that the Pinochet constitutional system put in place created both a legal and cultural system where only certain things were possible to be discussed, where some discourses simply had no room at the table, where a political minority —the conservative right— had an effective veto power over public affairs. The historic constituent assembly has changed the terms of what is possible, filling the Chilean people with hope, as we struggle with the worst moment of the pandemic.

How we got here

The process started in October 2019, when major protests erupted in Santiago and other major cities in response to a 0.4 USD spike in the capital’s subway fare. The fare increase, however, was just the proximate cause of this constituent moment. What truly imploded was the country’s neoliberal system, with its emblematic privatized health, education and social security system; with its permanent mistreatment of the country’s environment, and, more significantly, of the people’s sense of dignity.

In response to the massive mobilizations, the Piñera administration responded by decreeing a state of exception – akin to the permanent state under Pinochet, throughout which Chile’s current constitution was drafted. The army was sent to patrol the streets of all major cities. International organizations, such as the United Nations and Human Rights Watch, have documented the ensuing human rights violations. The ugliest face of the repression, just as we have recently witnessed in Colombia, was the police firing at protesters’ eyes. In this context, with escalating violence in the streets and protests that did not wane, Chile’s political parties agreed to set up a constituent process — an outlet to the deadlocked political system that was cracking from the inside.

In March 2020, the pandemic hit. Congress had to postpone the April 2020 referendum on whether Chileans wished to adopt a new constitutional text until October. October came, and not only did the option in favour of replacing the 1980 Constitution win overwhelmingly, but Chileans also voted in favour of doing this through a fully elected body, not an assembly comprised of both members of Congress and citizens. Evidently, the Chilean people were tired of the ruling class — of “los mismos de siempre”, translated as “the usual suspects”.

The incoming assembly

Disillusionment with the los mismos de siempre were unequivocally affirmed when Chileans went to the polls on 15 and 16 May 2021. Pundits and the mainstream media had consistently anticipated a result where the right-wing – which managed to gather a single list of candidates, many of whom were outspoken defenders of Pinochet’s Constitution – would get a large number of delegates. The left, in contrast, without a unitary list of candidates, would get a lower number of delegates. According to the same commentators, independent candidates would be able to secure very few, if any, spots, as political parties had made it virtually impossible for them to compete on equal footing with candidates running under existing political parties’ lists.

They were all wrong. The vote shook the ground and affirmed the result of the October 2020 referendum. The day after the electoral earthquake, a message circulated on social media which highlighted some of the main results of the election. I wish I could give credit to whoever wrote this, but the author, like many others, was anonymous. The message’s content can give a fair sense of what – in my view – made the election so surprising and so consequential to what lies ahead. Here are some of the highlights:

• Chile’s assembly is the first one in the world with gender parity: seventy-seven women and seventy-eight men have been tasked to draft the new constitutional text, that will be proposed to the Chilean people in 2022.
• The first vote that was announced on live television went to a Mapuche indigenous woman. Why is this important? Because one of the most dramatic discussions that followed the adoption of the constitutional itinerary concerned both gender parity and reserved seats for indigenous peoples – two of Chile’s most saliently disadvantaged groups. Even a spiritual indigenous leader, who faced terrorism-related charges and was in prison, won a seat at the Convention. The Chilean assembly’s intersectionality will surely inform future attempts at inclusive constitution-making processes.
• The conservative-right-wing candidates received 63 percent of overall campaign contributions, yet they obtained only 24 per cent of the seats. These figures exemplify the country’s highly unequal distribution of wealth and, as a consequence, of political power.
• There are at least six LGBTIQ delegates. In a country that has historically been considered among the most conservative in an already conservative region, the vote in support of candidates who actively advocate for LGBTIQ rights is a strong indication of the ongoing social change.
• Former Secretary of Interior, Gonzalo Blumel, under whose tenure the Chilean police committed massive human rights violations, did not get elected. I highlight this because Mr. Blumel was never held politically accountable – unlike his predecessor, who was impeached, just a few weeks after the eruption of protests, despite his stepping down. Lack of political accountability has been a salient feature of Chile’s constitutional culture, and for many people Mr. Blumel’s candidacy was the insult added to the injuries they suffered.

The debates to come

The constituent assembly will convene on 4 July 2021. There are of course plenty of issues that the convention will have to address, but I want to emphasize three: (i) the convention’s rules of procedure; (ii) the underlying debates on social rights; and (iii) the discussion on the scope of the convention’s constituent powers.

(i) The convention’s rules of procedure

Upon its convening, the convention will have to adopt – in a 2/3 vote of its members – the convention’s rules of procedure. It is unclear how long that deliberation will take. The convention is set to work for nine months, which will most likely be extended to a year. That is not a lot of time to draft a new constitutional text. Therefore, it is critical that the delegates promptly agree on the rules of procedure, to allow as much time as possible to the substantive deliberation of the country’s new constitutional structure and the rights and liberties that citizens will enjoy. Form is substance. Hence the contours of the formal procedures under which the convention will operate will necessarily affect the outcomes.

(ii) Debates on social rights

The discussion on fundamental rights is expected to dominate much of the convention’s work. After all, the main cause of the 2019 social mobilization was the people’s discontent with the neoliberal system that Pinochet imposed in the 1980 Constitution, where social rights are listed but not guaranteed.

The uprising was inextricable from the people’s sense of having enough of a model in which the haves and have-nots live completely different and segregated lives. For very few, world-class education, health, housing and social security is available; for most people, however, affording life without the fear of falling into poverty if a family member falls sick, the purview of sending kids to college, or – if that is a possibility – securing jobs that will allow for a full and prosper life is, at most, a campaign promise. Such discontent was encapsulated in the revolt’s motto, “it’s not 30 pesos [the subway fare hike] – it’s 30 years [the post-Pinochet years]”.

How the convention responds to the demands for a more inclusive polity will likely determine the convention’s chances for success. But this will require not only writing up lofty clauses guaranteeing social rights, but revising some of the existing financial and fiscal structures that have enabled the unequal distribution of social goods in the first place.

(iii) The scope of the convention’s constituent powers

Recently, a number of delegates made a statement declaring that “the original constituent power is a fully autonomous power”, and that the constituent process “may not be limited to the drafting of a new Constitution under immovable rules”. The statement seems to call for openly disregarding the institutional itinerary that made the constituent process possible, causing (what I would call) “constitutional anxiety” in many leaders and officials.

The statement brings home the “paradox of constituent power”. If constituent power is sovereign, then it cannot be subject to limitations. However, without legal form, constituent power simply cannot come into existence. In Chile, an agreement among political parties in November 2019, in direct response to the massive protests and the escalating police brutality and human rights violations, paved the way for a constitutional amendment that enabled the constituent process. Such is the legal form under which the constituent power has been constituted.

The reform provided rules to convene the October 2020 referendum, elect delegates, and regulate the convention’s basic rules of procedure. In a non-binding clause (Art. 135 of the Constitution), the reform provided for the duty of the convention to respect judicial decisions, international treaties and the republican character of the government. Finally, the reform provided a legal recourse before the Supreme Court to challenge procedural, not substantive, violations. Hence, the question as to how the convention will handle the cries for a fully autonomous constituent power, not bound by the norms that made possible the election of delegates and the convention itself, remains open. In my view, the issue requires a sort of constitutive commitment from all members of the convention, who must accept both the validity and legitimacy of those rules in order to make the subsequent deliberative process possible and legitimate.

***

On Sunday 16 May, while my fellow citizens elected the delegates to the convention, I ventured to the Jamaica Downtown Jazz Festival in New York City. Melissa Aldana, a Chilean saxophonist based in New York, was performing in what was the first live music event I attended in more than fifteen months. Aldana ended her show with a tune titled “Los ojos de Chile” (The eyes of Chile, which was also a benefit show that she organized in December 2019). She wrote the tune in honour of the many protesters who have been blinded by the police repression. After the show, I talked to her about her music and we discussed the historic day that was taking place in our country. I purchased her latest CD, we hugged, and I went back home thinking how far the process had gone – to inspire artists as well as colleagues who ran as candidates, and to mobilize voters who elected the most colourful assembly one could have ever imagined. An assembly that looks like the country itself.

* Associate Professor of Law & Director, Centre for Transnational Law, Rutgers Law School (United States) / Permanent Visiting Professor, Diego Portales University (Chile).