A Year After Protests Began, Chile’s Constitutional Referendum Goes Ahead

On Sunday, after months of protests, voters can choose to keep or begin a process of replacing the current constitution.

People with Chilean flags take part in a rally ahead of Sunday's referendum, in Santiago, on Oct. 22. Chileans will be asked two questions: if they want a new constitution and who should draft it.
People with Chilean flags take part in a rally ahead of Sunday's referendum, in Santiago, on Oct. 22. Chileans will be asked two questions: if they want a new constitution and who should draft it. MARTIN BERNETTI/AFP via Getty Images

SANTIAGO, Chile—On the evening of Oct. 5, 1988, Eugenio García, a 36-year-old advertising executive, sat hunched in front of a flickering television set, waiting anxiously for news. That afternoon, polls had closed in a historic referendum: Chile would choose between another eight years of General Augusto Pinochet’s repressive dictatorship (1973-1990) or a transition to democracy.

García had been part of the team that masterminded the NO campaign against Pinochet’s continued rule. With a rainbow as its symbol, the campaign used its two 15-minute televised slots each day to project an explosion of color, hope, and forward-thinking to the nation. Its slogan? Chile, ¡la alegría ya viene!, or ‘happiness is coming!’

Just after 2 a.m. it was announced that the NO campaign had won with 56 percent of the vote and Pinochet had reluctantly accepted the result. García went to bed, exhausted, without fully appreciating the magnitude of the win. He vividly recalls picking up a copy of La Tercera, one of Chile’s main newspapers, several days later, and seeing the image of a young man embracing a police officer on its front page. “That was when I really knew we had won,” García, now 67, says, “The victory didn’t just set the wheels in motion for Pinochet’s exit, but it hinted that a more profound reconciliation was possible.”

Now, 32 years later and still haunted by the legacy of the dictatorship, Chile stands at another crossroads. Starting in October last year, a visceral, cathartic, and at times violent wave of protests, centered on issues of socioeconomic inequality, has shaken the country to its core. The uprising paved the way for a period of introspection as coronavirus quarantines set in—and a constitutional referendum now that they are lifting. Since the events of last October, hundreds of thousands of people have poured onto the streets during months of unrest, demanding fundamental change in issues running the gamut: the pension system; public education; environmental protection; and indigenous peoples’ rights. Increasingly, the 1980 Pinochet-era constitution has become the target of demonstrators’ anger. And now, on Oct. 25, Chile will hold a referendum on its replacement.

In the vote, which was postponed by the pandemic, Chileans will be handed two ballot papers. The first will ask voters if they want a new constitution (to which they can answer ‘I approve’ or ‘I reject’); the second gives two options for the type of body that can draft the new document (either a ‘mixed convention,’ or a ‘constitutional assembly’). In the former, the assembly would be split equally between sitting parliamentarians and other citizens who put themselves forward for election; in the latter, the assembly would be elected entirely from civil society.

Although polling is not permitted within two weeks of a vote, the last surveys before that cut-off suggest that a majority of Chileans—roughly two-thirds—are in favor of a new constitution, with a narrower majority also in favor of the civil society-led constitutional assembly process.

“In Chile we’ve never had consensus on the fundamental issues, so constitutions have been imposed either by force or exclusion—and in the case of the 1980 document, both,” historian Verónica Valdivia, a professor at Diego Portales University in Santiago, said. Chile has had several constitutions, most of which have been drafted without popular input. The Pinochet-era document was written by a specialist group close to Pinochet. The constitution has been reformed several times since, most profoundly in 2005 under the government of former President Ricardo Lagos, but critics suggest that the changes have not gone far enough to fundamentally democratize the document.

In particular, they highlight some glaring welfare omissions in the constitution, primarily concerning housing, health, and education rights. Further, Chile’s nine indigenous groups, accounting for nearly 13 percent of the population—roughly two million people, according to the 2017 census—are not recognized or offered special protections in the text at all, unlike all other countries in Latin America, which have recognized indigenous groups in their constitutions.

The document also concentrates political power overwhelmingly in the executive and in Santiago, rather than devolving powers to Chile’s underdeveloped regions. For example, Antofagasta, the north’s mining powerhouse, provides much of Chile’s total capital but doesn’t have much say in how it is spent.

Those in favor of change say the 1980 constitution is the embodiment of the dictatorship’s unfair and undignified system, which marginalized the majority and concentrated wealth, power, and influence in an insulated minority. “Although often we think of them as relating only to political power, constitutions also set out the type of society that can coalesce around their rules,” said Viviana Ponce de León, a constitutional scholar at Chile’s Austral University.

By contrast, those in favor of the current constitution and its model argue that the document works well enough. They point out that the economy has grown under this constitution and claim that the upheaval brought about by replacing it will stunt Chile’s progress rather than enable it. (According to the World Bank, between 1990 and 2018, Chile’s gross domestic product grew roughly 800% to $298 billion—yet United Nations Development Programme data also shows that the country’s richest 1 percent control a third of its wealth.) Many have also adopted a mantra of rejecting wholesale change in order to prioritize reform, but the document cannot be overhauled so easily. A three-fifths majority of both the lower house and senate is required to change most articles in the constitution, and for some key political and economic articles, the margin is even higher.

Replacing the document outright may be easier. For the drafting of the new document, either a mixed assembly of 86 sitting parliamentarians and 86 other delegates elected from civil society, or a constituent assembly with all 155 chosen from the population at large, will be set up for the task. For any law to be incorporated into the new constitution, it will have to receive at least two-thirds support from this body. Some have voiced concern that this clean- slate approach could produce a scant document, although there is no shortage of ideas that could be discussed. Groups on both the political left and right have drawn up draft versions reflecting their constitutional priorities over the last decade. Former President Michelle Bachelet even presented a full draft written by civil servants in late 2018. The referendum, however, is the first opportunity for voters to participate in pushing an entirely new project forward.

The process of creating the world’s newest constitution also holds promise for many. A March 24 agreement enshrined gender parity in the body that drafts it, should that body be a constitutional convention, meaning that Chile has the opportunity to draft the first national constitution with guaranteed equal participation of women. Negotiations are still ongoing as to how best to guarantee seats for indigenous peoples.

However the group is formed, the delegates will then have between nine and 12 months to write an entirely new constitution, and a referendum would be held in mid-2022, in which participation would be compulsory, to ratify the finished product.

If the document is then rejected, the 1980 constitution will remain in force, returning Chile’s activists to square one, albeit with a draft constitution upon which they may draw in future. The drafting process is also subject to uncertainty—parliamentarians may use an extension to the drafting period of six months. In response to the referendum vote this weekend and throughout any potential constitutional drafting process, the country could return to extended protest amid a renewed campaign for change.

If the document is then rejected, the 1980 constitution will remain in force, returning Chile’s activists to square one.

Back in October, as protestors streamed down Santiago’s wide avenues to congregate in Plaza Italia, some carried cardboard placards carrying the message: “The happiness never came, so we had to go out to find it.” García’s response? “It’s a little unfair to take our campaign as being responsible for the political course of the nation.” He continued, smiling, “My opinion is that happiness did arrive, because there was this explosion of joy—the slogan wasn’t meant to be taken as anything more than that.

“The country has changed substantially, there’s no doubting that, but there are still ropes that tether Chile to its past, and many of these are constitutional.” Sunday’s referendum will determine if and how these ropes may begin to be severed.

John Bartlett is a British multimedia journalist covering the politics, cultures, and histories of Latin America. Twitter: @jwbartlett92