Chile’s Second Constitutional Plebiscite: Of Headlines and Compromises

by | 14 Dec 2023

On December 17th Chile will face its second constitutional plebiscite in little more than a year. As might be recalled, in September 2022, 68.89% voted to reject the draft Constitution written by a Convention in which the Left held a considerable majority. This time, two bodies took part in the drafting process: First there was an Expert Committee appointed by Congress, whose balanced composition of members appointed by Left and Right-wing parties gave way to a preliminary draft characterized by compromise and moderation. The second body was a popularly elected Constitutional Council, that was elected in May this year. It was this Council that had the final say with regards to the constitutional draft. Out of its 50 members, 33 were from the Right, and 17 from the Left. And since the quorum for making decisions was ⅗, the Right had the votes to pass any amendment they chose, without the agreement of the Left. And so they did.

The bodies’ design and rules of procedure were fixed in December 2022 through an agreement between (most of) the parties with seats in Congress – Acuerdo por Chile – in an effort (some would say a rush) to close the constituent chapter, but with no popular manifestation preceding or accompanying it. The agreement also included 12 substantive ‘limits’ to the exercise of the constituent power. Although these were very general – headline-type – ideas, many appeared as reassurance that certain aspects of the Chilean constitutional tradition would remain in place. However, some innovations were also included in the form of compromise formulae which could be endorsed by both the Left and the Right.

 Limit nº 5 was the best example of the latter: “Chile is a social and Democratic State of Law, whose purpose is to promote the common good; that recognizes fundamental rights and freedoms; and that promote the progressive development of social rights, subject to the principle of responsibility of the treasury, and through state and private institutions.” This limit appeared to declare that – unlike, for example, the idea of a plurinational state – the idea of a social state had not been one that was rejected in September 2022. However, a different way of articulating the idea was required: a different story for the same headline.

Within the Expert Committee’s preliminary draft, the social state once again appeared as an element of compromise between the Right and the Left, in that it offered a design which enabled future democratic debates regarding the physiognomy and inner workings of the social state. However, this 17 December, the people of Chile will have to decide whether they are in favor or against a text that no longer contains a compromise between Left and Right, but rather, a compromise between two fractions of the Right: Chile Vamos – the “traditional right” coalition, and Partido Republicano – a young, far-right party.

From a progressive perspective, such a synthesis of Right and far-right perspectives can be described as a story whose headline does not match its content. Although after much pressure from the Left, the first article of the draft that will be submitted to the plebiscite enshrines a social state clause with elements that may allow a progressive reading, the design laid out in the rest of the text is one that prevents relevant changes to the Chilean socio-economic model. What is more, the draft sets forward a design that encourages the maintenance and increase of the power of private actors, and the dis-empowerment of citizens and of the (social) State itself. More specifically:

  • (i) The rights to health and social security are enshrined in such a way, that far from setting incentives to improve our health and social security systems, they set incentives to secure the continuance of the business models that were imposed by the dictatorship in these areas, now strengthened through robust constitutional guarantees [art. 16.22; 16.28].
  • (ii) Workers’ rights are restricted. Thus, strikes are only permitted in the context of bargaining processes, in a clear attempt to shut down the interpretative paths opened up by precedents that have achieved to circumvent past similar limitations enshrined in our Work Code (enabled by international standards) [art. 16.26; 16.27].
  • (iii) Two provisions were established that would have grave consequences for tax collection (which is already low as it is): a property tax exemption for family homes that may only benefit 23% of properties, since 77% are already exempt [art. 16.29]; and a mandate to consider certain (very vaguely described) expenses as deductible for the determination of income taxes, in a context in which 85% of the population does not pay said taxes -thus, only serving the richest 15% of the population [art. 16.31].
  • (iv) The formulae that enshrine criminal rights, and especially, rights concerning administrative regulation and sanctioning powers exerted by administrative bodies, risk seriously weakening the State’s ability to hold the private sector accountable for its abusive practices [art. 16.8; 16.9]. The State’s power to invalidate administrative acts and its powers regarding administrative contracts are also put at risk [art. 8.5]. 
  • (v) Various provisions contain new – very broadly defined – titles to sue the State for damages [arts. 8.5; 16.9; 16.31; 111.2]. What is more, since the draft prescribes the creation of a procedure to obtain compensation for damages caused by the Legislative Branch’s unconstitutional acts, a reason to sue the (legislative) State might be found in every corner of the text [art. 16.31]. Needless to say, these titles will mostly benefit powerful private actors (not precisely a majoritarian part of Chileans), to the serious detriment of State assets.
  • (vi) On account of the aforementioned provisions, the draft sets incentives for judicial recourse, especially in the field of regulated markets, to the benefit of large corporations. Yet, with regard to social rights, judicial recourse and the power of courts to address them are severely restrained [arts. 25; 26].

Does this constitutional draft establish a social state? Does it enable the construction of one? Beyond doctrinal discussions, we will hopefully be able to discern a political decision regarding this matter on December 17th. But in the meantime, one can only point out that the claim to improve the living conditions of the Chilean people which lies at the heart of the demand for a social state has not been reached through the model that the constitutional draft strives to preserve, deepen, and exacerbate.

María Pardo-Vergara

Member of the Constitutional Council 

Lecturer and Researcher at UCN Coquimbo, Chile

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