Chile needs a structural change, a new social pact to erase the mark of the neoliberal dictatorship on Chilean democracy once and for all. Millions have taken to the streets to protest against the neoliberal model, the precariousness of daily life for the non-rich in the richest country in Latin America, the negligence and corruption of the political class, left and right, and also to demand a new constitution.
Although President Sebastian Piñera begrudgingly accepted this reality recently, claiming that “nobody predicted” this popular uprising, the truth is that neither the massive mobilizations nor the demand for a new constitution are surprising. What is surprising is that smart people deluded themselves into thinking that Chile could have been governed by the Pinochet constitution forever, despite its illegitimate, undemocratic origin, its imposition of neoliberal economics and social conservatism alien to the Chilean masses, or its social impact in terms of what the Chilean “miracle” model has produced: great aggregate wealth that has been appropriated mostly by the richest 1 percent, who own more than one-third of the country’s GDP, an indebted and precarious middle class, and a working class living in conditions of poverty.
Although indicators show a steady drop in poverty since 1987, measurements do not cover all aspects of the precarity of life at the edge of poverty, such as dying waiting for surgery due to an underfunded and poorly run public healthcare system. Chileans have been living in a material socio-economic apartheid in which the wealthy and some in the middle classes have access to first-world, even luxurious care at a hefty price, while the rest are stuck with long lines and lack of basic health security in the public system. In Santiago, the epicenter of the popular uprising, inequality hits people in the face on a daily basis. While those who can afford to use private highways can buy themselves shorter commutes, the working classes rely on public transportation or are unable to afford the tolls, and therefore spend long hours stuck in traffic.
While a broken healthcare system and high tolls may seem like problems of public policy, the state’s pervasive reliance on private companies to build infrastructure and provide basic services is not merely a policy choice but rather a constitutional constraint. Article 19.21 allows the state and its agencies to “carry out business activities or participate in them” only if authorized by a supermajority in Congress.
This restriction on state power in the economy is coupled with a robust right to private property that states that “no one may, in any case, be deprived of their property” except by a law authorizing the expropriation. Therefore, the executive would need the approval of Congress to apply eminent domain on each individual occasion.
What this represents is a solid guarantee to investors that their funds and future profits will be secure from nationalization. So, even if a president wanted to address the popular demand to abolish tolls on urban highways, for example, he would need to send a law to Congress requesting legislative permission to expropriate the highways. What he has offered instead is to negotiate with the companies to “stabilize” future price hikes.
Repealing and replacing the current neoliberal constitution is crucial for resolving the socio-political crisis in which Chile is submerged. Changing the basic law is not merely symbolic or inconsequential in dealing with the material deprivation facing the population, but critical to changing the role that the state is allowed to play in society, as well as the leverage oligarchs have to secure profits at the expense of the common welfare.
The Process Is the Product
While at first the president denied the need for a new constitution, and then wanted to have Congress write a new one, people in the streets and the opposition parties were asking for a constituent assembly.
Given the inaction of the national government, the Association of Municipalities — which groups elected mayors throughout the country — agreed to hold a non-binding vote in early December to ask citizens if they want a new constitution and what mechanism they would prefer. Feeling the pressure coming from local government, after days of intense negotiation between the president and the leaders of the major political parties (excluding the Communist Party and other small left-wing parties), an agreement was reached for a national plebiscite to be held in April 2020 to decide on the mechanism for constituent change.
Two options will be on the ballot: a mixed constituent convention, half of which would be composed of current legislators and the other half elected through popular vote, and a constituent convention completely elected through popular vote. Decisions inside either of the conventions would be reached by a two-thirds vote.
Even if this agreement among elites is a step in the right direction, it still allows delegitimized political parties to keep control over the constituent process, giving veto power to a conservative minority that is likely to block the introduction of social rights or incorporate provisions to undercut them.
A national constituent assembly has been the standard mechanism, used to establish the first representative democracies in France and the United States in the eighteenth century, and also in the recent experiments in Venezuela, Ecuador, Bolivia, and Iceland. Through this mechanism, citizens choose candidates for an assembly in which representatives negotiate with each other over substance and form and write the constitution based on their own judgment. The resulting document may be approved by the citizens in a referendum or simply by the constituent assembly.
The problems with this representative process, which I analyze below, are sufficient to force us to think of a more democratic method that will not only take into account technological advances that eliminate some of the physical barriers to participation, but also the spontaneous organization of cabildos — local assemblies — from which this informal constituent process is starting to take shape.
The risk that a national constituent assembly will reflect the political divisions of society — given that only those with national recognition or political machinery could win enough votes to be elected — is high. Therefore, the risk that these polarized factions will have difficulty reaching an agreement is also high. This could translate into a protracted constituent process and a text full of compromises that may not properly satisfy any of the parties.
And as the Bolivian (2006-7) case evidenced, ruling minority parties have a strong temptation to impose voting rules that give them veto power in the constituent assembly. After a referendum on calling a constituent assembly, the Bolivian Congress added a “minority protection” provision to the law convoking the assembly, which gave seats to parties holding only 5 percent of the vote — the majority of them right-wing groups — and imposed a supermajority voting rule. After the elections, Evo Morales’s party, MAS, was nineteen votes short of the two-thirds required to pass an article for the new constitution.
The overrepresentation of minority parties and the supermajority rule caused deadlock for seven months, which ended with MAS passing a rule by majority to override the supermajority rule, which finally led to a procedural compromise. This “illegal” rule breaking not only provoked socio-political violence but also undermined the legitimacy of the constitutional framework. Partisan pre-commitments to control the process could lead to a procedural dead end in which rules need to be bypassed for the constituent process to go on and yield a constitution instead of a stalemate.
In the event that one faction dominates the process, as happened in Venezuela in 1999, the minority — either because it lacks enough votes to have meaningful leverage in the assembly or because it self-excludes from the process — may view a constitution they didn’t get to influence as illegitimate, creating a precarious new social pact. In addition, under a charismatic leader such as Hugo Chávez, the constitutional process could become an acclamation of the president who leads the process or a way to manifest adherence to a specific partisan political project instead of a collective deliberative process regarding the fundamental norms of the republic. The legitimacy of the constitution and the stability of the model in such a case would be tied to the founder and therefore also too weak to endure after the leader is out of office.
Even if we dare to entertain the best scenario, in which a diverse and non-partisan representative assembly is elected, with members oriented to the common good, citizen participation — beyond the vote for representatives — is nonexistent. A national constituent assembly would only be able to establish a better version of what we have today, perhaps relying on models of European welfare states, but without necessarily establishing more democracy and popular participation in decision-making.
And if the local cabildos end up having some role in the process, this spontaneously constituted popular power would not have sufficient legitimacy to impose decisions on the elected national assembly. Popular “inputs” in this process, if any, would have only the power to suggest, not demand, which means the effective subordination of popular power to the authority of the chosen elite giving legal form to society. In this scenario, popular participation comes only to legitimize an elitist process without being able to really influence constitutional norms. Citizen participation in these processes dominated by national assemblies is generally low and mostly inconsequential.
If we accept that popular participation in the constituent process— beyond electing representatives for a national convention — is desirable, necessary, or unavoidable, the question then is: what is the most appropriate mechanism for popular participation in the establishment of a new constitution?
It also raises the question whether it is necessary to contemplate not only a participatory constituent process but also a political system that institutionalizes this participation within ordinary politics. What would be the point of mobilizing and organizing the Chilean people in cabildos if there is no place for them in the new constitution? Why should we simply reproduce the representative system without innovating in terms of popular participation in politics, if we already know that liberal democracies are plagued by a chronic representation deficit?
Especially in light of the fact that this process towards a new social pact started from an upsurge of popular collective action, both the constituent process and the political system that results from it should channel and institutionalize popular power in the new constitution. And because not much will change in the short term if a constituent assembly is elected — structural changes take time — the mobilized people cannot just simply go home and wait until the process is over, drowning in the meantime in oppressive routines of exploitation that are unbearable after their awakening in collective action.
Given the exclusively representative nature of our political systems, in which ordinary people — plebeians, as de facto second-class citizens — elect others to govern them, corruption and oligarchy are inevitable, since elites get to police themselves through political sparring, bargaining between political parties, and “checks and balances” among the different branches of government.
Elections have proven to be a poor form of accountability. Not only are corrupt candidates selected, but even ostensibly good leaders seem to not last very long. In this framework, popular power remains weak, dependent on the virtue of leaders who need to remain immune to the seduction of wealth and status, uncorrupted.
Chile’s oligarchical structure, in which the 1 percent and its corporations govern in collusion with the majority of the political class, is not an exception but increasingly the rule around the world. Even if Chile establishes a new constitution with social rights, this does not even remotely guarantee that the new social pact will survive inevitable oligarchic pushback or a long-term oligarchization of political leadership.
The people must remain active and alert, exercising an institutional power to counteract the oligarchic tendencies that are natural in any capitalist society. Those who protest today do not simply want to choose better leaders, but to be heard and have a voice in influencing political decision-making. The power exerted during the protests should be translated into political power at the institutional level. It is necessary to reconstruct the incipient social fabric that existed before the military coup and which today is woven in real time in social mobilizations and cabildos throughout the country, to have a system in which ordinary people have political power beyond the vote.
Chile has been a laboratory of socialism and neoliberalism. I propose that today Chile has become a laboratory for popular democracy. We have to think outside the constitutional box of liberal democracy — designed to insulate representatives from civil society — and establish a participatory system in which the people have the necessary tools to fight collectively against oppression and abuses.
To institutionalize the power of the people in cabildos would take not only political will but also the creation of a legal and material infrastructure, independent from government, political parties, and oligarchic interests. Only the executive branch is empowered by the current constitution to reorganize the territory and create new institutions. If he wanted to, President Piñera could take the conflict off the streets and into assemblies, by institutionalizing the self-convened cabildos and establishing local assemblies in community centers in every municipality in the country, where the people could meet and deliberate on the basic rights and principles that should frame the new constitution, which then could be written by a national constituent assembly.
The repeal of the constitution established under dictatorship must be complete, and the Chilean people — the plebeian classes mobilized and organized — deserve an active and decisive role both in the constituent process and in the new political system.