Bernardo Carvalho de Mello
Background
The 2021 Chilean Constitutional Convention was created after a wave of protests in 2019, where thousands of people took to the streets, resulting in 23 deaths. The popular mobilisation for better living conditions only ended when then-president Sebastián Piñera reached an agreement that allowed the 2020 plebiscite to be held on a new constitutional process. At the time, 80% of Chileans voted for a new Constitution. The new Charter would substitute the current 1980 Constitution, drafted and enacted during the harsh military dictatorship headed by Augusto Pinochet.
The convention resulted in a proposal for a new Magna Carta with 388 articles. The document was the first in the country’s history to be written equally between men and women and, if approved, would have been a landmark not only in Latin-American Constitutionalism but worldwide.
Among the constituents were many leaders who did not participate in conventional political debate. One of the most famous examples is that of Giovanna Jazmín Grandón Caro, known as Tía Pikachu. She gained popularity during the 2019 protests for wearing a famous Pokémon cartoon character costume. A big surprise in the formation of the constituent convention was the 48 out of 155 parliamentarians elected to draft the new constitution who presented themselves independent of political parties, Tía Pikachu being one of them. This wing of constituents channelled popular desires for more social rights during in the text. The inclusivity factor was further exemplified by having had 17 reserved seats for indigenous peoples (elected in a parallel ballot) and six constituents who were members of the LGTBI+ community.
Innovations
One of the significant changes in the new text is that Chile was defined as a social democratic state governed by the rule of law. It may seem like subtle wordplay, but it demonstrated that the State would not have a subsidiary role, instead being responsible for reducing inequalities and promoting social rights.
The Constitution also stated that Chile would be a parity state and that 50% of positions in government bodies and public companies must therefore be held by women. Furthermore, it defined the Chilean State as plurinational — which recognises indigenous populations with land demarcation, political representation and administrative autonomy —intercultural and regional.
Another impactful change proposed by the new constitutional text was the creation of a public health, education, and social security system. It also establishes the guarantee of rights such as decent work and housing, in addition to “equitable, fair and efficient remuneration“.
Environment
The new Constitution paid particular attention to the environment. The plebiscite was held amid a heavy water crisis, and the current Constitution and the Water Code of 1981 created conditions for a kind of environmental market. The proposed Constitution included words that did not exist previously, such as guaranteeing and promoting rights. In environmental matters, there were also determinations for conserving the environment. Animals also become holders of rights as they are sentient beings. Water use becomes a fundamental human right, and its priority use becomes human consumption. Had it been approved; the new Constitution would break the private monopoly on water use in Chile.
A ‘Public defender of nature’ would also be created, whose mission was to preserve the environment in cases where action or omission by public or private bodies occurs to the detriment of the environment. The Justice system and its jurisdictional bodies would also have the duty to protect human and natural rights. It would be a move from an anthropocentric, market-based vision of the environment to one more aligned with human rights, elevating nature itself to an entity that holds rights.
Indigenous rights
In contrast to the current Constitution, the new text recognised 11 ethnicities and indigenous nations: Mapuche, Aymara, Rapa Nui, Lickanantay, Quechua, Colla, Diaguita, Chango, Kawashkar, Yaghan and Selk’nam.
It also recognised indigenous peoples as autonomous communities, with the validation of their languages, symbols, and educational institutions. The limit of autonomy, however, was the non-violation of the “unique and indivisible” character of the State of Chile and Chilean laws.
The new Charter validated the right of indigenous people to maintain their health practices and use their traditional medicines.
Work and Retirement pensions
Concerning labour legislation, the new text established the freedom of union organisation and the worker’s freedom of choice to join a union. As well as this, the very definition of ‘work’ would change, through defining what a fair wage should be, as well as validating the right to work remotely where applicable, and the right to strike for every worker. Another revolutionary aspect was salary parity, which determined that all professionals, men and women of any sexual orientation or gender identity, must be paid equally for equal work.
Furthermore, the proposed constitution would create a public pension system, improving the financial situations of retirees.
Significantly, the new text would have been the first constitution to enshrine access to abortion as a right. Beyond this, article 61 would guarantee the free exercise of sexual and reproductive rights without discrimination.
Article 61 of the Proposed Constitution, brought about by a grassroots feminist movement that obtained 15 thousand signatures, stated that the State would guarantee the exercise of sexual and reproductive rights without discrimination. It would be “with a focus on gender, inclusion and cultural relevance, as well as access to information, education, health and the services and benefits necessary for this, ensuring for all women and people capable of generating conditions for a pregnancy, a voluntary interruption of pregnancy voluntary and protected pregnancy, childbirth and motherhood”.
In 1990 Chile was a country far behind in civil rights. Ultraconservative groups such as Opus Dei had a strong influence on the Catholic population. When in 2017, the discredit in institutions was already felt, and the Church seemed weakened after the paedophilia scandals, Chile approved the decriminalisation of abortion in cases of danger to the mother’s life, foetal malformation, and rape.
Where did it all go wrong?
We must ask ourselves, why was this progressive text rejected by the population in the 2022 plebiscite? How come the same population that one year prior approved the writing of a new constitution with a 78.27% majority could now reject it by a margin of 62% to 38%?
While it is almost impossible to identify one single factor in such a major political event, some lessons can be drawn from the process. The “rechazo” (rejection) was a winner in all regions of Chile. Only in eight of 346 municipalities was a majority in favour of the constitutional proposal. The main message of the result is that the text prepared by the Constituent Assembly was not able to convince voters from the centre and part of the centre left.
Errors in the constituency process can be cited as negligence among independent constituents, which made the Assembly look bad among the population. Among the most striking cases is that of a member who pretended to have cancer or another who voted on a proposal while in the shower. Furthermore, the number and scope of fake news disseminated were abhorrent (something that, unfortunately, seems like the rule in all democratic processes in the world).
The discussion of such impactful and complex issues ended up being polarised and contaminated by a series of false news disseminated by groups contrary to the new constitutional text and its supporters. Resistance to change came from a portion of society concerned about the economic impact of the new provisions and from Catholic and evangelical groups who disagreed on the moral aspects.
One of the biggest pieces of misinformation was that it was necessary to reject this constitutional text so that another one could be formulated. Fake news disseminators alleged that it would be necessary to elect a new constituent. However, a new constituent process was not provided anywhere.
Another lie is that the Mapuche people would be able to sell part of Chilean territory to Argentina. This patriotic component in the debate on the new Constitution is not necessarily linked to the country’s economic elite, gaining much reach among ordinary citizens.
Another much-debated argument is that the new Magna Carta represented a copy of the Bolivian Constitution. In a xenophobic, racist and classicist fashion, part of Chile’s population identified Bolivia as an undeveloped country, linking this negative stereotype to how they observed the new Constitution.
Conclusion – hopeful remarks
In summary, while the drafting process marked a historic innovation for the Chilean government, the primary factor contributing to the failure of the proposed constitution was the pervasive presence of fake news and misinformation.
All this does not necessarily mean a glum future for this innovative and progressive Constitution to be approved by the Chilean population.
The process itself was innovative: it featured equal gender composition, mass participation of independent representatives, seats reserved for indigenous people, popular participation mechanisms and sessions outside the capital – to name just a few.
Nevertheless, as recognised by several experts in the field, the most revolutionary point of the process was gender parity, which led 77 women from the most varied professions to debate in the same spaces historically occupied by men. For comparison purposes, Chile’s Chamber of Deputies (lower legislative house) in 2022 had the highest number of women in its history, with just 55 of the 155 representatives, or 35% of the total.
It was the first draft of a new Constitution in which women participated on par in the history of the world. That, in itself, is a gigantic victory and signals progress in the future for Chile and the region.