Chile grappling with a potential constitutional transition

In less than two years, the desire of 80% of Chileans to draft a new, more democratic and social Constitution, compared to the one Pinochet’s dictatorship implemented in 1980, has evaporated. The grounds for the overwhelming victory of “No” in the referendum held on September 4, 2022 lie less in a revival of “Pinochetism”, as reported by many media outlets, and more in the obstinate document provided by the Constituent Assembly as a result of the 2019 popular movements.

The plurinational state chapter of the proposed Charter concerned Chileans the most. It comprises an autonomous legal system, a form of parallel justice, “on an equal footing with the national justice system” while granting rights to indigenous peoples, particularly the Mapuche. They make up approximately 10% of the population (1.7 million).

In the aftermath of the referendum, the President of Colombia, Gustavo Petro, evoked the return of Pinochet’s ideas to Chile. According to him, for instance, Chile’s indigenous peoples’ rights would be infringed once again. However, bringing up the ghosts of the past is a misconception and a barrier to transformation.

According to a survey of Chileans who self-identify as Mapuche, which was carried out earlier this year by the Center for Public Studies, more than 70% of respondents were against the independence of their community as proposed in the new Constitution. Only 12% of respondents were in favor of the plurinational state. Therefore, it was not unexpected that the “No” won 75% of the vote in the ten municipalities with the most significant Mapuche population concentrations.

Unquestionably, the unstable situation in southern Chile played a role in the results of the referendum. There, armed Mapuche organizations labeled as “illicit associations that are terrorist in character” (“asociaciones ilícitas de carácter terrorista”, in Spanish) by the Parliament in May have carried out a series of attacks in recent months. They want land restitution and indigenous sovereignty for Wallmapu, an ancestral Mapuche territory in southern Chile and Argentina. Also, Mapuche armed groups demand political independence and restrict forestry company operations in their territory.

Héctor Llaitul, the leader of Coordinadora Arauco-Malleco (CAM), one of the main armed Mapuche groups, was detained at the end of August, prompting a violent response from Mapuche extremists. The arrest occurred though the current President of Chile – 36 year old Gabriel Boric, elected last March –  is the most leftist leader since Salvador Allende, and progressives hold a majority in the Chilean Parliament. According to several analysts, this arrest indicates the government’s immediate and resolute response to the violence of armed organizations.

Boric, therefore, replicates the strategy of his predecessor, the conservative President Sebastián Piñera, whom even his own political coalition had strongly criticized, namely the militarization of the country’s southern region. The Mapuche even attempted to assassinate his Interior Minister, Izkia Siches, who had traveled to one of their strongholds, the community of Temucuicui, to initiate talks. Temucuicui evolved into a completely autonomous community from the rest of the country and impenetrable to the state due to barriers and violent attacks against Carabineros. As a result, Boric requested that Parliament again declare a state of emergency in the country’s south, as Piñera had done previously.

The new Constitution also called for the abolition of the current judicial system, and the establishment of a 17-member Council of Justice (Consejo de Justicia, the equivalent of a Supreme Court), of which only eight would be judges and two would be natives. The parliament would choose the remaining members. Despite the concerns of prominent socialists such as Isabel Allende, Salvador Allende’s third daughter, the abolition of the Senate  was included in the September draft.

Former President Eduardo Frei, a progressive Christian Democrat, also voted to reject the text of the new Constitution, even though he supports the creation of a new one. He criticized the “inadequate balance and separation of powers” that would allow a majority to drive the country “toward a totalitarian administration” similar to “those that are on the rise around the world.” The translation made by The Wall Street Journal columnist Mary Anastasia O’Grady: “Let’s not end up like Venezuela, Bolivia and Nicaragua.”

With its 388 articles totaling more than 54,000 words, the new Constitution was described by The Economist as “a fiscally irresponsible left-wing wish list”, overly long and, more importantly, populist. “A confusing mess, full of woolly language that more or less guarantees decades of squabbling about what it actually means,” according to the prestigious British magazine.

Moreover, concerns regarding the likelihood, under the new Constitution, of the executive branch exercising “political influence” over the judiciary system were an additional significant cause of friction among the Chilean people. As a result, Frei issued a word of caution before casting his vote, noting that “the independence and non-politicization of the judicial branch are essential because by capturing control of the judiciary, many dictatorships are becoming entrenched.”

More than any other part of the new Constitution, Chileans were concerned about the very concept of a plurinational country. A plurinational state is characterized by multiple nations with different legal systems that apply to distinct groups of people within the same polity. Frei believes this ideology threatens the “unitary state” and “equal rights for all citizens.” Former Transportation and  Telecommunications Minister under Michelle Bachelet, the economist René Javier Cortázar, claimed that if the new Magna Carta had been adopted, “instead of increasing our sense of national unity, it would have split us into numerous separate nations.”

What will happen now after the rejection of the new Constitution? According to a Pulso Ciudadano survey, 33.1% of Chileans favor revising the Constitution, while 50.3% want a new constituent process. Only 16.6% of respondents prefer maintaining the current Magna Carta, and 46.9% think it should be renewed immediately.

Implemented by former President Michelle Bachelet, Frente Amplio’s recommendations for the new constituent process include a technical committee, a referendum to be held in December 2023, and a Constituent Assembly voted entirely by the people.

All party leaders agree to form an expert committee for the new constitutional procedure. On the table are three formulas: that the new organization has a consultative but non-decisional nature, that its makeup guarantees all sectors, and that its membership is limited.

Chile Vamos, the right-wing coalition, has already disclosed some proposals for the new Constitution: a bicameral congress, the protection of the right to life and the environment, and maintaining the unity of the State of Chile.

In conclusion, Chile has a long road ahead for a new Constitution that must account for the economic and social problems and the threat of increasing violence, which could undermine the Boric government.