Chile debates on what to do if the new Constitution is rejected

Barely two weeks after the proposal of the new Constitution finally hit the streets and bookstores, the debate split between the main rules of the text and the road map in case the citizenship rejects it in the referendum of September 4, as polls project.

The discussion exploded when President Gabriel Boric said that if the rejection won, he would promote a new constituent process that would last a year and a half.

Legally, in such a scenario, the Constitution drafted in 1980 by the Pinochet dictatorship remains in force, and, according to the lawyers consulted for this report, the process ends.

However, there is an almost transversal political consensus on its continuity. What there is no agreement on, a little more than six weeks before the vote, is how it should be.

In October 2020, almost 80% of Chileans voted for a new Constitution. Also, it should be drafted by an elected body for that purpose, without the participation of congress members.

“If the rejection wins, we have to look for a formula to make a new Constitution because the 80s Constitution was delegitimized after the plebiscite of 2020″, argues María Cristina Escudero, a political scientist and counselor of the Electoral Service of Chile (Servel).

The author of Constituent Assemblies in Latin America (LOM, 2022) affirms that what “would eventually fail is a ratification of the text in the final plebiscite. A political agreement should try to take what has been done and resolve that last step. Not to turn everything backward”.

Some propose to modify the dates and deadlines established in the Constitution for the current process and repeat the mechanism: a Constitutional Convention, whose members are elected by the citizens. Others propose it should be drafted by a committee of experts or a mixed Convention (constituents and congressmen).

The option of having it written by Congress is the one that has the least support in the polls.

“The conditions that led us to elect a Constitutional Convention still exist. In addition to the legitimacy issue, Congress must continue functioning for day-to-day tasks: approving budgets, tax reform, and health issues. It does not seem appropriate to mix contingent politics with constitutional politics,” Escudero points out.

One of the many questions to be resolved if rejection wins and a political agreement is reached to move forward with a new constituent process is whether to replicate the characteristics of the convention: parity, with seats reserved for native peoples and independents.

The leader of the right-wing Independent Democratic Union (UDI) party, Javier Macaya, already assured Tolerancia Cero that “the issue of native and independent peoples was a design error”. And about parity, he said, “it may be a necessary tool at some point in time to move forward”.

Tomás Jordán, lawyer and coordinator of the constituent process of the second government of Michelle Bachelet (2014-2018), assures that, if the rejection wins, the first thing that the political system has to solve is what value it will give to the referendum of 2020.

“If it decides that the citizens’ will is still in force, it necessarily has to give value to the fact that the majority voted for an elected constitutional convention to write the text,” he says. On the option of Congress modifying the dates related to the process to implement a new one, Jordán clarifies that “it is not that easy.”

“That necessarily implies agreeing that that is the procedure. Political actors may say that this is not the way. What would have to be done is to renew the political agreement, to define if those rules are the ones they want,” he adds.

The right and part of the center-left are leading the rejection campaign, but they do not share the road map that should be implemented. “If rejection wins, there are two paths,” says Jordán, “to start a new constituent initiative, something that falls to both Congress and the president, or to reform the current Constitution, which can be done without the president.”

“Rejection is more politically and legally costly. I believe that from now on, those who are going for approval should define a package of reforms that they would make to the text under discussion. Negotiating and processing that package in Congress will take less time than discussing the whole Constitution”, he explains.

President Boric affirmed this Monday that “those who favor the rejection do not have a plan for the continuity of the constituent process”.

Chile Vamos, the coalition that groups the right and the center-right, presented the headlines of the ten commitments they will assume in the hypothetical case of a new process.

Among them are the “modernization and expansion of fundamental rights” -it does not specify which ones-“more democracy and participation” -it does not give examples- and the “resolute protection of our environment”.

Only one left-wing party (PPD) has presented a list of changes it would make to the text if approved.

For constitutional lawyer Claudio Alvarado, executive director of the Institute of Society Studies (IES), the government should ask itself why the rejection is at the top of the polls or defend the constitutional proposal instead of talking about it.

“It should try to convene, to generate great agreements, because what we do after the referendum does not depend only on what La Moneda wants but also on the Congress. This horizon seems to be absent from his equation today. A State perspective will be required to solve inflation, public order, and the road map. The Gabriel Boric of the first round reappeared, which has never worked for him,” assures Alvarado.

With information from El País