The Plebiscite; Chile’s Go-To Therapy
On Sunday, October 25, 2020, over seven million Chileans participated in a plebiscite that decisively launched a process to rewrite Chile’s Constitution. About 75% of them favored the constitutional rewrite, and to do it via the election of 155 citizens to make up a Constitutional Convention (CC).
This extraordinary but highly democratic mechanism to determine public support for important national decisions has had a decisive role throughout the history of Chile’s constitutional development. Chileans know how to hold successful elections; as a society they have proven repeatedly that they are committed to orderly, peaceful elections, and for years have had the election commission mechanisms to do so effectively. This plebiscite was exceptional in that it had to be orchestrated within the confines and inherent risks of the Covid-19 pandemic. That about half the eligible voters went to the polling places, in the face of the pandemic and in a system where voting is voluntary, speaks well for Chileans’ commitment to making their voices heard through democratic means like the plebiscite.
Chile’s first plebiscite was held in October of 1812. With involvement of the United States consul Robert Poinsett, an assembly of 315 people approved a set of provisional constitutional regulations for the emerging country, that went into effect in 1813. Then, in 1833, Diego Portales drew up a constitution which lasted almost a century. In 1925, this constitution was revised to resolve recurrent struggles between supporters of a powerful legislature and weak executive, and those who preferred a strong president. Again, a plebiscite resolved the issue, and confirmed the preference for a strong presidential system of government.
The 1925 constitution also endured, lasting almost a half century. So when the Pinochet-led military junta took control in 1973, the ruling constitution was essentially one that combined elements of the 1833 and 1925 constitutions. Unwilling to function under the constraints, institutional structures and guaranteed civil liberties of this constitution, the Pinochet government ruled initially through decrees. However, in 1980 the junta replaced the suspended constitution with one of its own making, and Pinochet orchestrated a jerry-rigged plebiscite in a clumsy attempt to claim that the document had citizen approval.
It surprises many that Pinochet’s highly authoritarian constitution, crafted in dictatorship (hence “illegitimate”), did in fact provide for the mechanism that eventually was used to remove the dictatorial regime: the plebiscite. In 1988, led by a loose coalition of opposition leaders (Chile still had a functioning, but highly controlled and restricted legislature), Chileans took a huge leap of faith, peacefully but insistently participating en masse in the now iconic “Si” or “No” plebiscite organized within the confines of the undemocratic, oppressive dictatorship, where most political and civil rights were systematically smothered. In that plebiscite, a vote for “Si” meant the Military Junta led by Augusto Pinochet would continue to govern for several more years; “No” was a vote to remove the military junta from power and return to elections and democratic decision making.
The clear preference (56%) for the “No” option on October 5, 1988, ushered in an impressive transition to democratic, representative government in Chile. That plebiscite allowed Chileans, against huge odds, to make their voices heard, to register their desire for change; it is still celebrated as an incredible expression of popular will in the face of strong, repressive forces to the contrary.
The 1980 constitution, conceived in dictatorship but modified and amended several times since, is popularly referred to as Pinochet’s constitution. It remains Chile’s Magna Carta to this day, and is the constitution to which public servants and elected officials swear allegiance (defend and obey). Significant amendments were made in 2005, including the removal of the most egregious authoritarian elements, and henceforth the constitution has carried the signature of the democratically elected President at the time, Ricardo Lagos. It has not, however, shed its popular label as “Pinochet’s illegitimate constitution.”
Much has been written (including in this blog) about the notable ascension of Chile during the thirty years following the 1988 plebiscite, in terms of democratic governance, socio-economic development especially poverty alleviation, fiscal responsibility and hence, stability, and other indicators when compared to her neighbors in Latin America. The GDP per capita rose from about $8,000 to almost $25,000, topping the list of Latin American countries that, along with other socioeconomic advances, warranted membership in the OECD organization of developed countries.
Chile’s return to democratic rule in 1990, while certainly not easy, proceeded through seven elected governments alternating between coalitions of the right, center, and left ideologies of the Chilean political panorama. The country appeared to have a “proyecto pais“, a coherent national project which seemed to unify Chileans desirous of economic growth and the inherent benefits of development.
There were many indicators of successful growth in Chile throughout the ensuing three decades : international trade was expanding within multiple celebrated free trade agreements (including with the US, European Union, China, and a group of Pacific rim countries), large numbers of Chilean students went abroad to study post-graduate courses while foreign students flocked to Chilean University campuses in academic exchange programs, and immigrants flowed from neighboring countries in search of jobs and business opportunities. Impressive sectors of the capital city of Santiago attracted multinational businesses and organizations to ultra modern Manhattan-style office complexes staffed with young middle class professionals trained in business management and competent in the new tools of digital communication. Waves of foreign and national tourists travelled throughout Chile to enjoy the singular natural areas and increasingly appreciated wine culture.
Santiago had joined other major cities as a destination for international meetings and conventions; in fact, in 2019 the important summit of national leaders of APEC, the Asia-Pacific Economic Cooperation, was to be held in Santiago, as was the huge COP-25 gathering to launch the Paris Climate Change Agreement.
But lurking in the shadows of this apparent affluence was a society increasingly stressed by the effects of persistent poverty at the periphery, a lower middle class of workers whose salaries and consumer credit card debt kept them just a payday away from slipping back into poverty, and a upper middle class and private corporate sector either blind or indifferent to the reality of the suffering of their poorer Chilean compatriots. The precarious state of living conditions for at least half the population, and the indignities that accompany unabated inequality within Chilean society, was giving the lie to the claims of the elite, and many outside observers, that the country was “doing very well”. President Pinera often boasted that Chile was “a paradise, an island within a less developed Latin America.” He, and many others who believed the same, were served a very rude awakening on October 18, 2019.
Opinions abound about what happened in Chile around October 18, when a general uprising of citizens erupted in a series of protests and violence. This, subsequently complicated and exaggerated by the Covid-19 pandemic which has greatly impacted Chile, slammed the brakes on any illusions that Chile was destined for greater levels of development.
The protests seemed to be directed at the entire power structure in Chile: the president, Congress, political parties, the police, and the church. While the specific target of the protest rhetoric at times was insufficient pensions, deficient and expensive education, and mediocre public health care, the complaints coalesced against what was termed the “neoliberal” economic model and its “inherent inequality” forced upon Chilean society by the “illegitimate Pinochet constitution”; the indignity of it all felt by much of society had finally become too much to tolerate.
During the year from October 18, 2019, to October 16, 2020, a painful reckoning of the two disparate visions of Chile played out in the streets with protests, violence, and chaos throughout the country. A very weak and tenuous President struggled with an opposition-heavy legislature that was unable to come together to accomplish anything itself except formal orders of impeachment against the President’s ministers and President Piñera himself. The government became pretty much impotent and unable to take control of the chaotic and self destructive dynamic at play in the streets.
For a month following the outbreak, Chile played chicken with political and social disintegration. The government and its security forces panicked in the face of a social uprising that did not have identifiable leadership nor a unifying theme or demand. There did not seem to be any one entity with which the government could negotiate. The whole situation degenerated daily but especially every Friday evening when large gatherings at the plaza Italia would devolve in destruction, arrests, and police/protestor violence.
The all too familiar give and take between the security forces (Carabineros and sometimes the army) activated the deficient capabilities in Chile for public security and its still inherent problem with human rights abuses.
On November 25, 2019, concerned that the estallido (the most popular term for the social uprising that broke out on October 18, 2019, was leading the country towards civil fracture, a fortuitous coming together of the parts produced a transversal political agreement called the Agreement For Peace and a New Constitution. The agreement featured a constitutionally endorsed scheme to consult the opinion of the populace regarding the need for a new constitution through, of course: a plebiscite.
So here we are, October 2020; almost a year after this Agreement For Peace and a New Constitution was signed. The plebiscite has now been held and the process has begun to elect 155 members of a constitutional convention to write a new constitution, accompanied by an almost universal deep sigh of relief.
Throughout the runup to the plebiscite, academics, columnists, politicians, and frankly almost anyone with an interest in Chile has opined on the causes of the estallido, and the opportunities and risks inherent in a constitutional rewrite. A general public catharsis has produced endless analyses of the existing constitution and proposals for what needs to be included in the new Magna Carta. Panel discussions on constitutions of other countries compared to Chile’s have proliferated through meeting Apps like Zoom and Teams, YouTube videos as well as written proposals in the editorial pages of Chile’s newspapers and myriad publications of think tanks and Universities.
Newspapers and journals throughout the world treated the outcome of the plebiscite and the decision to rewrite Chile’s constitution as highly newsworthy. Some of the older analysts tried to help others understand by retelling the history of Salvador Allende’s attempt to lead Chileans to socialism, again lamenting the military coup, his suicide and the ensuing Pinochet dictatorship, suggesting that finally, a half century later, maybe, just maybe, there is a chance to recover the hopes and dreams that were dashed back then. Others focused on criticisms of the neoliberal economic system (set up in the 1970s and purportedly embedded in the 1980 constitution), as the main reason inequality of wealth and opportunity exist in Chile today. Most analysts endorsed the idea that President Pinera, his government, the legislature, and political party leadership had proved to be so incompetent they must all take responsibility for the estallido and its consequences.
Past President Michelle Bachelet, now living and working in Geneva, Switzerland, as U.N. High Commissioner for Human Rights, became heavily involved in the struggle. Her office, and other human rights advocates, have joined the serious critiques of Chile’s approach to maintaining civil order, and are actively promoting significant restructuring of Chile’s police force and their operational protocols.
But to the point of a new constitution, Bachelet has long believed Chile needed a new constitution, and to that end she and her team prepared a proposal for a constitutional rewrite at the very end of her government. Incoming President Piñera, having campaigned and been elected on a platform that relegated low priority to the idea of a new constitution, shelved the proposal. This same draft document has now been taken out, dusted off, and circulated by the foundation set up since she left the presidency, to continue to pursue the public policies she endorsed, and to ensure her legacy. It will be one of many proposals available for reference by the CC. In hindsight, it’s tempting to lament this “road not taken”, since Bachelet’s proposal called for debate and consideration by the sitting parliament, not an independent constituent assembly that now will be formed.
The overwhelming vote to move forward with rewriting the constitution may be, in a way, therapeutic for Chileans who are trying to move on with their lives in a very confusing time. The process can, and should, move forward as proposed. Political parties from the left, right, center will spend the next six months selecting and campaigning for the individuals they want to participate in the CC. The rules as set so far are interesting: half of the 155 members must be women. Although the election will be organized according to parliamentary election districts with lists of candidates put forward by political parties, the idea is that those selected must somehow include independents and people of all walks of life, all ages, and from all regions of the country.
Probably the most difficult issue right now regarding CC participation is the recognition that several indigenous peoples, pueblos originarios (Mapuche, Aymara, Rapanui, Atacameno, Quechuas, Colla, Diaguita, Kawesqar, Yagan), and Afrodescendientes should be included, either through the reservation of some of the 155 places, or creating additional places specifically for them. This issue is a difficult one, because many of these groups, especially the most numerous Mapuche, do not organize nor recognize representation consistent with the Chilean legal/political structure. To this point, one of the most challenging tasks in rewriting the Chilean Constitution is how to better recognize these pueblos originarios in relation to the State, and broadly in society. The present constitution does not recognize them at all as different cultures nor do they have specific representation in the legislature. The proposal has been made that in the case of the Mapuche, their language, Mapudungun, should be identified in the Constitution as a national language, taught in schools and used in the public arena along with Spanish. Coming out of the CC, Chile could be declared a pluri-national State, like Ecuador and Bolivia. A satisfactory resolution of this issue in the new constitution could finally open the door to reconciliation of the debt the State of Chile has with her pueblos originarios.
Everyone agrees that the CC must craft a new constitution that modernizes the institutions of government. The actual system of extreme presidentialism may give way to more parliamentarian alternatives, possibly one where a President shares executive power with a prime minister, or some form of co-presidency has been mentioned. There also seems to be a generalized (but not total) inclination in the opinions being circulated, to an economic system with more involvement of the State in the guaranteed provision of social services like health care, education, pensions, and even housing, which are now basically privatized. Underlying many of the proposals is a desire to refocus Chile’s constitution in a way that leads Chile to be more like the Nordic countries. It is popular at this moment in the discussion to suggest that “social democracy” should be the overall model, so Chileans can feel and act more “European”, moving away from the present “neoliberalism”, that is more related to the way they see the United States.
Defenders of the present constitution (those who voted “rechazo” in the plebiscite) are mostly concerned about losing in the rewrite certain institutional elements they believe provide the stability and individual freedom for economic growth, such as an independent central bank, a constitutional review tribunal, a fair and expeditious judicial system, and freedom from private property confiscation. Each of these items has a convoluted and controversial history in Chile, but they have proven to be key to providing the stability private investment requires to make long term commitments required for development.
Chile’s government operations, public services like health care and higher education, and higher paying professional employment are all highly centralized in the capital, Santiago. The exception is the Chilean Congress, which was moved during the Pinochet period to Valparaiso, a ninety minute drive from Santiago. Although it was probably sent away to get it out of his hair, it will most likely be moved back to Santiago in the near future. Providing the incentives for significant decentralization of decision making, investment, and social services throughout the country has been proposed since the 1970s. The Pinochet government divided Chile, which was divided in Provinces, into twelve Regions headed by an appointed intendente. But rather than delegate power and resources to the intendentes, the regional infrastructure served more to control what was going on in the regions rather than help them manage and finance their own local development. Slowly, over the years, the twelve regions have proliferated, now to 16, with 54 Provinces.
An effective regionalized structure with delegated decision making powers and the ability of the regional authorities to raise resources for regional projects and services will surely be considered and could end up in the new constitution.
One of the oft heard criticisms of the current constitution is that it required super majorities to approve certain changes or to pass some types of legislation. The degree to which these regulations really did, over the years, prevent Chile from making progress is debatable, since many changes in the constitution were accomplished. Clearly, though, the requirement in the legislature to obtain greater than a simple majority to approve a law did make changes more difficult. But, that is inherent to a certain extent in any effective constitution, for if certain (if not all) elements of the document are easily changed, for example by simple majority, then why bother with a constitution at all? Anyway, we will just have to wait to see how restrictive and limiting Chileans will want their new constitution to be.
It is important to note that the agreement and mandate for the CC limited the scope of the body to a rewrite of the constitution only. It will convene about a month after the members are chosen in the April 11, 2021, election, determine its own operating structure and procedures, and produce a constitution made up of elements each of which has been agreed to by two thirds of the CC members. (Note: It is interesting that in an environment where the requirement of “super majorities” to approve changes in the present constitution has been criticized for holding back the changes in Chile’s constitution, the same individuals making that argument have agreed to a 2/3 super majority requirement for each element to be included in the new constitution.)
The CC will have the new constitution document ready in nine months or at the outside, one year. So sometime most likely in June of 2022, Chileans will again be asked to participate in a plebiscite to approve what will then be Chile’s new constitution. This plebiscite will be held with obligatory voting, and hopefully not under the constraints of a pandemic.
This Constitutional Convention process is, for better or for worse, coincident with a very complex regular electoral process. In what seems an incredible challenge, Chileans are scheduled to hold primary elections for mayors and regional governors on November 29, election of mayors and governors on April 11 (now to coincide with the selection of CC members), second round election for governors if necessary on May 9, CC will convene probably in June, primary elections for President and Legislature July 4, election of president and parliament on November 21, and second round election for president if needed on December 19; six general elections over the next fifteen months, and one plebiscite to ratify the new constitution.
When you take into account that the country is still grappling with the social, economic, and political effects of the national estallido, and controlling the covid-19 pandemic, this ambitious electoral agenda is dizzying. But if this calendar of electoral events holds true, Chile would have a new president and a set of legislators, all newly elected under the rules of the soon-to-be-retired constitution, in place when the new constitution is finally adopted. These would be the authorities who would lead the new Chile under the new constitution beginning sometime in late 2022.
In the meantime, optimists and well-wishers see a scenario in which president Piñera and his team, at a minimum, focus on programs that help reactivate the economy (especially extraordinary support to small and medium business) and produce rapid job creation. The congress, in concert with the corresponding sectorial ministers in the executive, continue to debate and approve reform packages already in the works like those for changes to the retirement system, police and public safety. And, of course, continue to manage the private/public response to the Covid-19 pandemic to bring the level of contagion and fatalities down and prepare to distribute effectively and equitably the vaccine(s) ultimately available in Chile.
There was a moment or two over the past year, given everything that was happening in Chile, when it was tempting to redefine Chile’s “exceptionalism” in the region a myth. In the face of weaknesses in their mostly lauded approach to grow with equity, why were they either unwilling or unable to correct, change, amend in time to avoid the costly estallido that included ugly violence? Was it really Pinochet’s “Illegitimate” constitution with its “supermajorities” and the “neoliberal” model that was to blame for Chile’s pervasive narco problem, generalized disrespect for historical icons and symbols of authority, and the burning of schools, libraries, churches, and the Violeta Parra Museum?
I am not sure, but I hope that Pinochet’s constitution was the cause, because if it was not, Chileans have a rough time ahead. But if it was, Chileans now have the solution in their hands, and can get on with making things right. If the Constitutional Convention process can proceed parallel to the normal order of government operations and the legislature, Chile may be in a relatively healthy position (economically, fiscally, and socially) to confront the challenges of absorbing a new constitution.
A lot can go wrong over the next two years to delay or derail the process Chileans have begun with their plebiscite on October 25, 2020. Maybe this is the start of the real transition from the dictatorship to democracy, as some of the more enthusiastic constitutionalists have suggested. Or maybe it’s just another phase in the process, a process that many see as endless, since we are all in constant pursuit of a better, usually different, future.
One final thought: In preparing this article, I read “The Summer of 1787”, a history of the drafting of the US constitution in Philadelphia. It is fascinating, especially for someone like me who studied more environmental sciences than history. For many reasons the drafting of the US constitution and the present rewrite of the Chilean constitution are not especially parallel. However, there may be lessons from 1787 helpful to Chile 2020. To be accomplished, astute leadership is required, but someone has to write it. Compromises will be required. A time deadline must be set and adhered to. General dissatisfaction with the final outcome for not having satisfied anyone to the fullest is a sign of success. Oh yes, a final bit of advice: determine which part of Chile most mirrors South Carolina in 1787, and leave anyone from there out of the Convention.
Good luck, Chile.
Posted in Leesburg, Virginia, a “blue” state, on election day, November 3, 2020.