The Chilean Constitutional Debate



The story of a rebellion or the death throes of a political form

The Chilean political form expired on October 18, 2019, when huge protests broke out over an increase in public transport prices, which later turned into a true social eruption. That's what Fernando Atria, constitutionalist lawyer, then member of the Constituent Assembly, elected in May 2021, told me. At that moment, businessman Sebastián Piñera, a man of enormous wealth and leader of less strident right-wing sectors by Juan Antonio Kast.

I spoke with Fernando Atria the day after the first round of elections, on November 21 of that year, in which Juan Antonio Kast was in first place, with almost 28% of the votes. Gabriel Boric, in second place, reached just under 26%. A big surprise, after the real rebellion of 2019, which had led to the convening of the Constituent Assembly.

Expectations were huge. Faced with an unexpected result, all attention was directed towards an uncertain second round, in which Gabriel Boric ended up obtaining 56% of the votes. “The right believes that the 1980 Constitution still works,” said Fernando Atria. “He believes that, if the constituent process fails, we will live in peace again, under these constitutional norms”.

It is worth going back to the scenario of the time that – in my opinion – Fernando Atria helped to illuminate: “It is not possible to return to a Constitution that was crushed by 80% of the 'approved' votes in the plebiscite that called the Constituent Assembly. But it is a mistake to think that it is up to the constituent moment to fight (and win) all battles. After the new Constitution, politics will continue”.

He was thinking then of the Constitution that was being drafted (and I believe he was still hoping that it would be approved). But the phrase remains in force, thinking about this new one, whose elaboration is just beginning, in a political scenario different from that of a few years ago.

The result of the first round of presidential elections, according to Fernando Atria, showed that the collapse of a political form, before the emergence of a new one, produced “conditions of extraordinary fluidity”. “There was much greater concern with insecurity, with violence, with the inability of the political system to maintain order, and this was capitalized on by the extreme right.” “I hope this result will make the Convention more aware of the risk it is taking. And that this leads… (Atria stops, thinks… she had difficulty finding the words…) to a constituent discussion that is more aware of the limits it faces”.

In his opinion, the fundamental aspect of a Constitution is to establish the scheme in which the country's political disputes will be resolved. Building an effective political form: that is the task of the Constituent Assembly, guaranteed Fernando Atria. “I hope that what happened on Sunday (the result of the first round of the presidential elections) makes constituents aware of this, of the need for what emerges from the Constituent Assembly to be recognized by Chilean culture as a discussion on the political form of that Chile needs. This is what leads to the success of the constituent process”.

As we know, that didn't happen. The proposal was rejected months later by an overwhelming majority of 62% of the vote. For Juan Antonio Kast this was “the denial of the transformation that Chile needs”. He believes, he said at that time, like President Sebastián Piñera, in neoliberal formulas and he intends to insist on them.

He was referring to the possibility of Juan Antonio Kast as President of the Republic. This did not happened. But now Kast has in his hands, and those of his supporters, the elaboration of a new version of that constitution that will replace the one that originated in the 1973 coup (which Juan Antonio Kast admires and defends).

In the opinion of Fernando Atria, Juan Antonio Kast and his supporters could present his proposal, if he won the presidency of the Republic. But that this would represent a solution to Chile's problems, no! “It goes in the opposite direction. This is not what Chile needs: it leads to instability, ungovernability”.

What does Chile need?

Seen after 50 years of the coup, it seems that Chile needs to resume the path of reforms interrupted by the dictatorship. The controversial nature of the issue can be illustrated by a reflection by journalist Patricio Bañado, recently deceased and remembered for conducting the “No” television space in the 1988 plebiscite, which decided against the continuation of the military regime. Last December, in a last interview, Patricio Bañado stated that he had never been an Allende supporter. And he added: "I believe that Allende's government was one of the great historical mistakes of Chile".

A dramatic phrase, no doubt. In his opinion, what should have happened was the continuation of the reforms initiated by the Christian Democrat Eduardo Frei, Allende's predecessor: an agrarian reform and the nationalization of part of copper. For him, “if the left had united with Christian Democracy to deepen these changes and advance step by step, this process could not be stopped”.

It seems to me that the statement, thus formulated, distances itself from the political reality of the time. It speculates on a path that hasn't been on the table for 50 years. As we know today, Eduardo Frei was an important figure in the coup plot, but he was also murdered by the same coup leaders, poisoned when he began to distance himself from a dictatorship that was already showing its most criminal traits.

What does Chile need today? Or, analyzing the issue more broadly, what development project does the Latin American left need to advance the reforms that dismantle the neoliberal world? A world that robbed public resources and destroyed all social solidarity networks, from trade union organizations to pension funds, passing through natural resources.

The essence of the neoliberal model is the privatization of public resources. Allende said that copper was Chile's salary. He went beyond Frei's reforms and nationalized him. With the coup, mining passed into private hands (with the exception of resources that financed the armed forces). But the story goes on. Now the Chilean Congress is discussing an increase in royalties of mining and the lithium exploration policy.

In September, the civil-military coup will be 50 years old. These 50 years of Chilean history can only be understood as the struggle to recover this path. In Chile (as in Argentina and other countries), perhaps nothing represented a better attack on public resources than the privatization of the pension system. It meant the transfer of immense resources to small interest groups at the expense of miserable taxpayers' pensions. Manuel Riesco and his Center for National Development Studies Alternativo published detailed studies on the system (one of them, published in 2008, can be consulted here).

Despite the favorable conditions of the Chilean economy, which recovered from a deep crisis in the early 80s, in the end, “most members simply would not receive AFP pensions” (as pension management entities are known). “Their accumulated funds at retirement would be so meager that their pensions would reach ridiculous amounts, on the order of 10 to 20 dollars a month for millions of members, and less than the minimum of 150 dollars for two thirds of the workforce”, says Manuel risk.

Despite the key aspect of this issue as a factor of discontent in the country, the constituent project only mentioned generalities when it said that “the elderly are holders of the rights established in this Constitution and in the international human rights treaties ratified and in force in Chile”. He added that “they have the right to age with dignity; to obtain social security monthly payments sufficient for a dignified life”.

The various trails along the way

The struggle to recover the lost path has many trails, routes of rebellion and rebellion. The history of Chile in those years cannot be understood without following these struggles. The 2019 struggle ended up shaking the institutions. But it was not characterized by cementing the pillars of other new ones. In 2007 another had happened, that of secondary school students, the “penguins”. They were repeated in 2011, with the protests against the privatization of education. That's where Gabriel Boric and his group were forged.

But the constituent project did not adequately gather the strength of these demands. As we will see, the core issues for resuming the course of the country are only mentioned in the rejected draft constitution, and I believe that this was fundamental for its rejection by almost two thirds of voters.

Instead of a text with a political vision that would serve as an umbrella to incorporate the different sectoral demands, the text brings together the positions of different sectors, without this political vision to articulate them. It puts everyone in competition with everyone else.

Two claims were expressed with particular force in this text: equal representation between men and women in the most diverse political spheres and the definition of spaces for indigenous peoples, especially the Mapuche, in an environment of renewed tensions in Araucânia, in the south of the country, where settled more strongly. The treatment of both issues did not contribute to gathering votes in favor of the project, which, as we know, was also rejected in areas with a greater presence of indigenous peoples.

The constituent debate

Before continuing, I would like to point out that the validity of the claims is not under discussion here, but the scenario, and the form, chosen to claim them.

I think that the debate around the rights of indigenous peoples has a greater explosive capacity because it has to do with land ownership. Without ignoring the importance of the discussion about the nature of the State, the tension between the reaffirmation of its unity and the definition of its plurinational character. “Chile recognizes the coexistence of different peoples and nations within the framework of the unity of the State”, says the text. “Indigenous peoples and nations are holders of fundamental collective rights”. In particular, “they have the right to autonomy, self-government and their own culture”.

The text returns to these themes repeatedly, intending to resolve, with these statements, a conflict that is in full swing, without a mature view on the subject in society. If this theme seems to me to be the most “explosive”, there is another, whose reiteration is present throughout the text: that of parity in the representation of men and women in public institutions.

The bill asserted that Chile constituted itself as a “solidarity republic” and that its democracy was “inclusive and equal”. The State should promote “a society in which women, men, sexual and gender diversities and dissidence participate in conditions of substantive equality”. It is difficult to imagine that formulations of this type have majority support, as can be deduced from the result of the consultation.

But there is something that interests me even more, and that is the treatment of a relevant issue for which the left has not found a consensual way of incorporating it into its project. Naturally, it is not my intention to resolve this challenge here. But I would like to suggest something.

One of the most relevant problems for this participation is not the legal (or constitutional) establishment of parity – which has no political relevance, as we will see –, but the tasks of care. The failed constitution project focused, however, on parity.

Very little, or almost nothing, was said about the care – of children and the elderly – which falls almost entirely on women. Generally speaking, “unpaid work” was used to refer to care tasks. This seems to me to be another big mistake. From my point of view, this is paid work, and the problem is exactly how this work is paid.

The way to solve the problem is not sharing care between men and women. This is not possible, except in some non-substantive respects. The solution is for the care tasks to be taken over by the State, with suitable nurseries, day care centers and homes for the elderly. This is not about paying caregivers for their work. The care must be assumed by the State. It's the only way to ensure proper care. It is a consequence of economic and social changes that have opened the doors of the labor market to women, who must be paid not for care tasks, but for their work.

None of this was contemplated in the constitution project built on the concept of “parity”, which they intended to present as a great advance. Hardly anyone understood it that way (and rightly so, it seems to me), except the right. “If you put me in a Congress full of women and they all thought like Margaret Thatcher, I would feel well represented, I wouldn’t have any problems”, he told the newspaper. The counter Johannes Kaiser, a Republican congressman known for his conservative approach. The new constituent will be made up in equal numbers, with an equal number of men and women, most of whom are conservative.

Making changes in the country

The one in 2021 was not my first conversation with Fernando Atria. Three years earlier, in November 2017, elections were held in which Piñera won his second presidential term. Fernando Atria was unable to be elected deputy.

But we talked: “There has been an epochal change in Chilean politics since the demonstrations of 2011. These demonstrations, which were not just by students, produced a challenge to the neoliberal model. “We are still under the effect of these mobilizations,” said Fernando Atria. “But during this government (he is speaking at the end of Michelle Bachelet's second term), we learned what our problem really is: it is a political form incapable of producing significant transformations in the country”.

In his opinion, the policy was “neutralized”. Transformations were not allowed. “If we look at the last 27 years in Chile, there has been virtually no significant change,” he said. “It doesn't matter how many people march against the AFPs. The possibility of seriously discussing its elimination does not exist”. “Even if the transformations are constitutionally possible, they cannot be made because the institutional forms contain an idea of ​​what is appropriate and what is not, what is a serious policy and what is not”. “This neutralized policy is not strong enough to stand up to economic power. It only works when it responds to the interests of that economic power”.

Fernando Atria also didn't think they were possible through big deals. “When there are reforms that interest economic power, they come quickly. When they come from citizens, they are ignored”. Therefore, he said that the only way out was a Constituent Assembly. “The constitutional problem will be solved, for better or for worse,” he said. “One day, something has to happen; not tomorrow, perhaps, but one day.” For those on the left like us, he concluded, "the priority is unity." “If there is no left unity, we will have two lefts, which will see the destruction of the other as a challenge”. I would like to continue this dialogue when I return to Chile for the 50th anniversary ceremonies of the coup.

*Gilberto Lopes is a journalist, PhD in Society and Cultural Studies from the Universidad de Costa Rica (UCR). Author, among other books, of Political crisis of the modern world (Uruk).

Translation: Fernando Lima das Neves.

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