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What will happen with Chile’s radical draft constitution?

The lengthy 388-article document would transform the role of the state, but support for it is waning ahead of a referendum in September.

(CN) — With the drafting of a new constitution complete, Chileans will vote Sept. 4 on whether to replace the current dictatorship-era document.

The 154 members of the constitutional convention, which included schoolteachers, scientists, social workers and Indigenous leaders, handed the draft to President Gabriel Boric on July 5. “Today, we begin a new phase,” said Boric at the nation’s former congress building in the capital of Santiago. “Once more, it will be the people who have the final say on their destiny.”

Chile’s draft constitution marks a radical shift from the current constitution that was approved by the military government of Augusto Pinochet in 1980. Despite heavy modifications, the current document preserves the neoliberal fingerprints of its writers, which restricts the role of the state, omits certain rights, emphasizes private property and promotes a market-led model.

The new 388-article draft would transform the state into a provider of a strong safety net and social services, guarantee greater regional powers and Indigenous rights, enshrine a host of rights such as free higher education and health care, and protect the environment. Although 78% of Chileans voted in favor of writing up a new constitution in 2020, support for it continues to dissipate, with the majority of people intending to reject the draft constitution.

Chilean voters asked whether they would approve or reject the draft constitution in September’s referendum. (Courtesy of AS/COA)

“The historical context matters here,” said Patricio Navia, a political scientist and professor at the University of New York. Social unrest exploded across the country in 2019, first as a response to a rise in subway fares in Santiago before snowballing into a series of sustained mass demonstrations with a long list of grievances from the cost of living and privatization to inequality and lack of social protections.

Increasingly, people pointed to the constitution as the origin of many of the country’s social and economic ills. The political crisis deepened until Congress voted to hold a referendum on whether to rewrite the constitution.

“Chile is a member of the OECD, a club of mostly industrialized countries. And although the country is one of the poorest members, the expectations in Chile are very high and people demand OECD standards in public services,” said Navia. “But being the poorest household in a wealthy neighborhood means that expectations about what your household can do are often unmet.”

This membership of wealthy nations led Chileans to become what Navia calls discontented at the gates of the promised land. “People wanted their fair shot at success in Chile’s capitalist system,” he said, “but they also wanted a stronger safety net protection. That triggered the social riots of 2019. And the response by the political elite was the constitution writing process.”

The turnout for electing members of the constitutional convention was low, 43%, leading to a convention largely populated by independents, antiestablishment groups and left-wingers. The right-wing played a limited role in the drafting process, which clearly reflects the disparity in voting intentions by political alignment. Among the left, the draft has an approval rating of 70% yet significantly drops to 5% among the right.

Two other factors explain the waning support for the draft constitution. For one, the 388-article document would make it one of the world’s longest. “The text is extremely long and is more of a policy platform than a book of what the rules of the game will be,” Navia said. Some of the articles appear thorny to nail down into law — Article 67 recognizes spirituality as an essential element of human beings, while Article 131 gives animals special protections.

“Poems make better love letters than long novels,” said Navia. “Constitutions should be short. Long constitutions are like long contracts. Nobody reads them and then you have to modify them many times.”

Among the biggest political changes, the new constitution would replace the Senate with an alternative Chamber of Regions, which would sit alongside the Chamber of Deputies and be a body of regional representation — an attempt to decentralize power.

"The most problematic sections of the draft correspond to those referring to the organization of the state in Chapters 6 to 9 of the draft," said Marcelo Mella, a political scientist at the University of Santiago. "Among these points that generate strong controversy or are complex to implement are the process of decentralization of power proposed in the text of the new Constitution, not only because of the possible overlapping of territorial autonomies but also because of the economic costs of implementing new bodies and their respective bureaucracies, all in a context of severe economic crisis."

Mella added that “the problem with this is that it would create a clear imbalance between the two chambers by increasing the powers of the new Chamber of Deputies,” said Mella. “This could weaken the role of the opposition and undermine the checks and balances of the democratic system.”

Thirdly, the reality of higher inflation and poor economic performance is changing people’s concerns and damaging the approval ratings of President Boric, who is a firm supporter of the draft constitution. “Since his administration is in favor, many people are turning the referendum into an opportunity to punish the government,” said Navia.

If the draft is approved, it would give the Chilean state a strong progressive push forward. “Chapters 2 and 3 of the draft are big contributions,” said Mella. “They would establish a social and democratic state of rights, especially with regard to the recognition of Indigenous peoples, minorities, the elderly, and children.”

It would also give the state ecological commitments. “Noteworthy are the articles referring to the protection of nature and the environment,” said Mella, “especially the water statute and the creation of new institutions such as the National Water Agency,” under which access to water is a human right.

Yet the broad expansion of the Chilean state would come with deep costs as a result. “The long list of social rights will not be affordable,” added Navia. “Since Latin American countries have historically had huge debt problems, the new constitution amounts to forcing a recovering alcoholic (in terms of fiscal discipline) to live in a bar. That will not end well. As the constitution is very long, it will turn into a typical Latin American constitution. Long and ambitious but unenforceable.”

However Chileans vote, the Pinochet-era constitution already seems dead. Broad consensus exists for continuing the process of writing up a new constitution if the draft is rejected — whether through a new convention or a committee of experts. If the draft is approved, it would transform Chile into a radically progressive state and begin the monumental process of implementing it.

“If Chile is Luke Skywalker and Pinochet the current constitution,” Navia said, “killing Darth Vader and his legacy is going to take decades."

Courthouse News correspondent James Francis Whitehead is based in Buenos Aires, Argentina.

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