Chile's Constitutional Convention

The inaugural session of Chile's Constitutional Convention. (AP)

A Look at What Is—and Isn't—in Chile's Constitutional Draft

By Chase Harrison

After a 10-month process, the draft is in. Chileans will vote for or against the new constitution in a referendum slated for September 4.

On May 13, Chile’s constitutional convention presented the draft of its proposed foundational document. The 154 elected delegates worked for over 10 months through the complex process of proposing and approving hundreds of articles. The constitution, if approved, would replace Chile’s current Magna Carta, which was put in place in 1980 by the Pinochet dictatorship and has been reformed 52 times since.

The new document’s slant is decidedly progressive, which is unsurprising given the composition of the convention body elected in May 2021. The body is dominated by left and center-left delegates who worked with indigenous representatives to pass articles on topics such as the environment, healthcare, gender, education, and indigenous rights. “It’s an advancement that is responding to social demands and inequalities,” said Chilean human rights lawyer Dinka Benítez, referencing the mass mobilizations that started in 2019.

Chileans will eventually vote for or against the constitution in a September 4 referendum, but it’s not clear the “approve” camp will win. While 78 percent of voters voted in favor of the rewrite in October 2020, recent polling now shows only 38 percent support the document, with opponents voicing concern over provisions they see as radical. What voters decide will be a crucial test for President Gabriel Boric, who championed a constitutional rewrite while a congressman and will have to either oversee the implementation of the new framing document or steer the country forward from a “reject” vote.

What’s in the proposed document

The draft constitution would be the world’s longest, coming in at 499 articles. John Bartlett, a journalist who covers Chile for The Guardian, said the framers went for “a maximalist, refoundational approach” that centers around social rights for marginalized groups—such as women, the indigenous, and the disabled—while also guaranteeing universal rights around free speech, the environment, housing, water, and health. Many of these rights are present in the current constitution, but are amplified in the new one.

Women’s rights offer one example. Under the current document, gender-based discrimination is prohibited. The proposed document calls for gender parity in all government branches and public entities. New environmental and natural rights guarantee that the country’s land, water, and air resources remain protected and accessible. Water resources are a point of contention in Chile, where drought has led the capital to ration water and is affecting the mining sector.

The document establishes a national health service, meeting a major demand of the 2019 protests. It also creates a national education system that centralizes learning institutions under one agency and calls for free public education at every level. Chile’s public institutions have some of the highest fees in the world, and tuition rose 10 percent from 2010 to 2019.

The document also reshapes how Chile will be governed, eliminating the Senate from the country’s current bicameral congress and creating a Chamber of Regions instead. Presidential reelection for both consecutive or non-consecutive terms will be permitted once.

Not every proposal put forth in the convention made it into the draft document. For one, it doesn’t guarantee a much-demanded right to housing. Another rejected measure involved giving the national government mining rights over lithium, hydrocarbons, and rare earth metals, in addition to majority ownership over Chile’s lucrative copper mines. Still, mining will be subject to new regulation and environmental oversight. A critical sector for the country’s economy, mining accounts for 11 percent of Chile’s GDP. Chile’s lithium sector is also of global interest, given that it has the world’s largest quantity of commercially viable reserves, per a report by the Center for Strategic and International Studies.

The next step is for three commissions to streamline, write a preamble, and plan a constitutional transition to “allow legal shifts to be made without great risks or changes overnight,” explained Benítez. This review step should be finalized by July 4.

The debate over the new Magna Carta

By the time the document is finalized, the campaigns to approve or reject the Constitution will be underway. But Bartlett notes: “The campaign for reject started a year ago,” and it’s focused both on critiquing proposed articles and the convention itself. In April, for example, a group of 300 lawyers signed a letter expressing concern with the rigor of the convention and the quality of the document being produced.Throughout the ten-month process, questions were raised about the conduct of the delegates, one of whom voted while taking a shower, and the organization of the body. Misinformation has also been an issue. For example, a Chilean senator shared—and later retracted—a fake video of Venezuela’s Nicolás Maduro endorsing the draft constitution.

While the constitution was being drafted, critics warned it risked being too ambitious and aspirational. “It’s a shopping list, with an emphasis on issues that polls show don’t seem to be of prime concern for most Chileans," University of Chile's Robert Funk told Financial Times in April. Business leaders worried about initiatives like tax increases and the now-rejected mining law.

Since the draft’s conclusion, JP Morgan raised concerns that changes to electing Central Bank board members could have an impact on the institution’s autonomy. However, Morgan Stanley said the most radical proposals made in the convention ultimately did not make the draft and that the charter would actually promote investment. It’s a sentiment shared by Benítez who said, “the reject campaign has focused on the rejected articles and not the approved articles.”

Now that a draft is public, the approve camp will get the chance to promote a tangible document. They’ll likely focus on ways the constitution responds to the concerns raised during protests and the open, inclusive nature of the convention, explains Benítez. Coming out of the convention, supporters will now be able to form a cohesive narrative around their document. “There’s a simple argument that it’s better than the Pinochet constitution,” said Bartlett.

What role will Chile’s new president play in the approve-or-reject debate? “President Boric has said that the convention is autonomous and respects its autonomy,” said Benítez, “But he was one of those who in 2019 reached the political agreement that made possible the reform of the constitution and the work of the convention.” The president publicly critiqued aspects of the convention but indicated his general support for the rewrite. Still, Chile’s comptroller has warned that Boric should remain neutral.

Next steps

On September 4, the new constitution needs a simple majority to be approved. The path forward, however, gets thorny if the draft is rejected—there’s no clear contingency plan for what happens next.

But Benítez said that a “reject” result in the referendum wouldn’t necessarily be a death knell for replacing the Pinochet-era document. “Given that 80 percent of those who voted in the plebiscite want a new constitution, it seems that Chile … will necessarily have to find a way to have a new constitution,” said the lawyer.

Pia Fuentealba, Hope Wilkinson, and Carin Zissis contributed to this article.