Constitutional project for Chile voted by plebiscite in December 2023 (Getty Images).
The road to the crisis of representativeness.
Although the constitutional process in which the Chilean society was recently involved began in 2019, its reasons go back to 1980 when the general and dictator Augusto Pinochet ordered the closure of Congress and ceased the 1925 Constitution, by which Chile was established as a Republic. Since then and until today, the National Constitution of Chile is in force, which was created by the military, approved by decree and ratified fraudulently.
Following Heiss (2018, p. 124), a "protected democracy" governs in Chile through the 1980 Constitution; a limited pluralism that gave the military a tutelary role over the political system. According to Atria (2018, p. 66), the aim was to protect the model of the military dictatorship and not democracy itself; to this end, it was possible to create a neutralized political institutionality that made attempts to transform the model impossible through an indirect protection mechanism where the conditions for making decisions were conditions that ensured that those decisions would not transform the model. Thus, decisions that would transform the status quo had to be made on the basis of "grand bargains" that would guarantee the inability to generate fundamental changes (Heiss, 2018, p.125).
In turn, it is generated that society directs its frustration towards a generic "political class". The same political class that is neutralized and incapable of processing demands for transformation; which derives in that the solution should be outside the political power to manage to contain the de facto power (Atria, 2018, p. 70). In this line, despite the reforms, the Constitution maintains the model of the dictatorship; achieving that key areas of the project are "immune to the democratic process" (Heiss, 2018, p. 125).
This frustration or malaise, can also be expressed as a lack of confidence in politics, added to this the separation between political and social interests; leading to what can be defined as a crisis of representativeness (Torres, 2018, p. 237). The interests of politics veered to those of the elite that manages it, generating a space of internal struggles obfuscated in the struggle for power, which displaces social demands (2018, p. 236).
Beyond the fact that politics itself is incapable of representing social interests, it happens simultaneously that citizens do not see institutional channels as valid spaces for representation. Thus, a neutralized political practice is seen by the citizen as irresponsible, that fails to channel demands and that "aligns itself with the interests of the powerful allowing the abuse of the weak" (Atria, 2018, p. 70).
Constitutional reform: background.
The dictatorship created a model that is going to have its consequences in the Chilean political culture and in its political system. Thus, we see political neutralization as the cause of the crisis of representativeness. Today this problem is still valid and is one of the main obstacles to complete the reform.
Torres affirms that the dictatorship generated a restricted democracy, of low quality and authoritarian enclaves. In turn, citing Arrau and Avendaño, he points out that it produced a direct effect on the depoliticization of citizenship due to its restrictive nature; consequently, political activity loses conflictivity (Torres, 2018, p. 227) and becomes irrelevant, as Heiss (2018) points out. Likewise, the current Constitution, despite the reforms, was never fully accepted. This led in recent years, particularly since 2011, to demands from various sectors that, for their satisfaction, required a constitutional change (Cárdenas Gracia, 2021, p, 96).
Heiss explains that the idea of a new Constitution began to be felt when the center-left Nueva Mayoría coalition included its creation in its political program, aiming for a "democratic, institutional and participatory" procedure. This process began in 2015 during Michelle Bachelet's government and, in 2018, the President presented the project to Congress days before leaving the government. However, it was rejected due to setbacks that obfuscated the mood of certain sectors (Cárdenas Gracia, 2021, p. 97), combined with the complex systematization of the participatory stage and the null interference that other actors had after that stage (Muñoz and Román, 2019).
Constitutional Reform Process: 2019-2023.
Already with Sebastián Piñera as President, in 2019 the claim for constitutional reform restarted, which brought with it several demonstrations and, before them, reactions from the government. It was in November 2019 when reforms to the current Constitution were approved through the Agreement for Social Peace and the New Constitution (Negretto, 2021, p.2), which regulate the instruments and mechanisms both citizen and institutional for the convening of the Constitutional Convention; and the approval of the project through a vote that would require a two-thirds majority of the Convention and, after this approval, the holding of a plebiscite with mandatory voting (Cárdenas Gracia, 2021, p. 97; Negretto, 2021, p. 2-3).
The Agreement established the need for a profound institutional change and outlined the principles that would structure the reform process; mainly through citizen participation (Negretto, 2021, p. 2, 4). The beginning of the constituent process was defined by a plebiscite held in October 2020. According to the Electoral Service of Chile, with a participation of 49.2%, it resulted in an affirmative vote for a new Constitution and for a Constituent Convention, where all members would be elected exclusively for the process. The Convention would have the exclusive task of drafting the new text in order to deepen the rights of citizens, restrict to some extent the Executive power and eliminate the restrictions to the majority rule that led to the neutralization of politics.
Anticipated by various political actors and materialized on September 4, 2022 through the vote of the official mandatory referendum, the constitutional text drafted by the Convention was rejected by 61.8%. This referendum achieved a milestone in terms of citizen participation, reaching 85.8% of the total population. A milestone that, in turn, confirms the failure of the Convention and a change in the political momentum towards congressional control of the new process (García Pino et. al, 2023).
After the rejection of the first draft, a new process was initiated. The drafted proposal was approved by the Council on October 30, 2023 after extensive debate. However, again, on December 17, 2023, the draft text was rejected by 55.7% of votes as reported by the Chilean Electoral Service. Being the fourth year where the country is trying to change its Constitution without any success, it leads to raise certain questions in order to understand the possible solution to the constant stumbling attempts and if there is a way out soon or it will end up dissolving as the years go by.
Successive failed attempts: a possible way out?
In principle, Atria points out that in the face of the situation of political neutralization that Chile is going through in the model established by the dictatorship, in order to transform the political culture, it is necessary to face squarely a new constitution of an enabling nature of political power (2018, p. 72). Chile is in a Catch 22 situation where the solution to the problem requires that the problem is already solved, making it a paradoxical situation. To achieve this, it is necessary to do something that the neutralized policy itself cannot achieve: this explains the complexity of the mechanism of constitutional change.
The "Catch 22" has no way of finding a way out in the constituted powers, that is, those created by norms, the "institutional" ones. Rather, the solution lies in a constituent power, that social power without institutional mediation; quoting Arendt he explains that power is the human capacity to act in concert (p. 73-74). But, what would be the solution if the concerted action of Chilean society repeatedly falls in the negative, without achieving, after years of trying, a new Constitution?
Atria states that the constituent power responds to the aptitude to contribute to the development of the citizen capacity to act in order to comply with the demand for a new Constitution, assuming the task of giving real channel to it (2018, p. 75). The reactions of society do not seem to agree with this aptitude: Fernanda Paúl, in her article for BBC News Mundo (2023), points out as a key that explains the rejection of the second proposal to the constitutional "weariness" and points out that, according to the Cadem survey, 32% of voters had practically lost interest in the process, turning their attention to other specific concerns perhaps more achievable at this stage, such as security, crime and drug trafficking (Paúl, 2023); relegating the Constitution after the bitterness of an elongated process and decimated hopes. Being five elections and probably waiting for others, the Chilean society shows signs of fatigue, discredit to the process and disappointment.
Another reason mentioned by Paul is the "punishment" to the political class, being a problem the disunity of the different political sectors. It seems that the process is back to square one, where there is a disconnection between politics and society, and their interests clash; Torres' words before the situation prior to the reform process, seem to apply again after two (or three, counting 2018) attempts of the same.
Following Negretto, representatives should not only respond to popular demands, but also (and primarily) make decisions after "careful and comprehensive" deliberation as to the consequences of alternative solutions (2021, p. 19). Apparently, this has not been achieved to date.
Thus, it is that President Gabriel Boric refuses that, during his mandate, a new constitutional process takes place because "the urgencies are other" (Paul, 2023). Therefore, for the time being, Chile is without an immediate solution, since, as the President indicates, it is impossible to ignore the frustration and weariness of society in the face of a process that, in the first instance, should have been decisive in pursuit of its interest for a new political system in accordance with the current panorama of the country.
We see, then, that the need for a constituent power that truly represents and acts in concert with society is presented as a possible solution, but the reality shows a complex scenario where distrust and disenchantment hinder the achievement of this goal.
Finally, although the future of Chile is uncertain, it is not necessary to resort to counterfactual science to have a fact: the fact that no alternative solution has given any apparent solution and the new Constitution is on stand by tells us a lot. In this context, the construction of a new democratic political culture, capable of overcoming the neutralization of power and responding to the demands of the citizenry, appears as a crucial challenge for the future of Chile.
References.
-Atria, F. (2018). On the new constitution and its urgency. In Ciudadanías para la Democracia (pp. 63-81). Santiago de Chile: Ariadna Ediciones.
-Cárdenas Gracia, J. (2021). La Conveción constituciional chilena y el constituyente originario. In Revista del Posgrado en Derecho de la UNAM. Mexico.
-Heiss, C. (2018). Political participation and constitutional drafting: the case of Chile. In Derecho y Crítica social (pp. 115-138).
-Muñoz, A., & Román, C. (November 12, 2019). Why Bachelet's constitutional process did not prosper: When a Constituent Convention was thrown overboard. Retrieved from La Tercera PM: https://www.latercera.com/la-tercera-pm/noticia/no-prospero-proceso-constitucional-bachelet-cuando-se-echo-la-borda-una-convencion-constituyente/897460/
-Negretto, G. (2021). Deepening Democracy? Promises and challenges of Chile's Road to a New Constitution. Journal on the Rule of Law, 1-24.
-Paúl, F. (December 18, 2023). 3 keys that explain why Chile rejected the second proposal to change the Constitution (and what happens now). Retrieved from BBC News World : https://www.bbc.com/mundo/articles/cner24k0j9lo
-Pino, G. G., Henriquez Viñas, M., & Salazar Pizarro, S. (February 3, 2023). Third Time's a Charm? Chile Embarks on a New Constitution-making Process. Retrieved from ConstitutionNet: https://constitutionnet.org/news/third-times-charm-chile-embarks-new-constitution-making-process
-Torres, N. (2018). Political crisis and citizen politicization. Analysis of the relationship between politics and citizenship in Chile in the current political moment. In enCiencia Política ( pp. 223-250).
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