The left and the Chilean constitutional debate: The history of a rebellion, or the death throes of a political form

Chile’s political form expired on 18 October 2019, when huge protests erupted over an increase in public transport, which later turned into a real social explosion.

By Gilberto Lopes, in San José, Costa Rica

This is what Fernando Atria, a constitutional lawyer, then a member of the Constituent Assembly, elected in May 2021, told me. At that time, the businessman Sebastián Piñera, a man of enormous wealth and leader of right-wing sectors less strident than those of Juan Antonio Kast, was governing for the second time.

I spoke with Atria the day after the first round of elections on 21 November of that year, in which Kast came first, with almost 28% of the vote. Gabriel Boric, in second place, got just under 26%. Quite a surprise, after the real rebellion of 2019, which had led to the convening of the constituent assembly.

Expectations were enormous. Faced with an unexpected result, all eyes were on an uncertain second round in which Boric finally managed to win 56% of the vote.

-The right believes that the 1980 constitution still works, said Atria. “It believes that if the constituent process fails, we will go back to living in peace, under those constitutional norms”.

It is worth returning to the scenario of the time which – in my opinion – Atria helped to illuminate: “It is not possible to return to a constitution that was crushed by the 80% of ‘I approve’ votes in the plebiscite calling for the constituent assembly. But it is a mistake to think that it is up to the constituent moment to give (and win) all the battles. After the new constitution there will continue to be politics.

I was thinking then of the constitution that was being drafted (I think still in the hope that it would be approved). But the phrase is still valid, thinking of this new one, the drafting of which is just beginning, in a political scenario different from that of a couple of years ago.

The result of the first round of presidential elections, according to Atria, showed that the collapse of one political form, before the emergence of a new one, generated “conditions of extraordinary fluidity”.

“There has been much more concern about insecurity, about violence, about the inability of the political system to maintain order, and this was capitalised on by the far right”. “I hope that this result will make the convention more aware of the risk it faces. And that this will lead… (Atria stops, thinks… he struggled to find the words…) to a constituent discussion that is more aware of the limits it faces”.

In his view, the fundamental thing about a constitution is to establish the scheme in which political disputes in the country are to be resolved. To build a political form that is effective: that is the task of the constituent assembly, says Atria.

“I hope that what happened on Sunday (the result of the first round of the presidential election) will make the constituents aware of this, of the need for what comes out of the constituent assembly to be recognised by Chilean culture as a discussion of the political form that Chile needs. That is what leads to the success of the constituent process”.

As we know, this did not happen. The proposal was rejected months later by an overwhelming 62% of the votes.

Kast saw it as “the negation of the transformation that Chile needs”. He believes, he said at the time, as President Piñera believes, in neoliberal formulas and intends to insist on them.

He was referring to the possibility of a Kast in the presidency of the Republic. It did not happen. But now Kast has in his hands, and in those of his supporters, the elaboration of a new version of that constitution that should replace the one that originated in the 1973 coup (which Kast admires and defends).

In Atria’s view, Kast and his supporters could make their proposal, should he win the presidency of the Republic. But that it would represent a solution to Chile’s problems, no! “It goes in the opposite direction. That is not what Chile needs: it leads to instability, to ungovernability”.

What does Chile need?

Seen 50 years after the coup, it would seem that Chile needs to return to the course of reform interrupted by the dictatorship.

The polemical nature of the issue can be illustrated by a reflection of the recently deceased journalist Patricio Bañado, remembered for his hosting of the “NO” television slot in the 1988 plebiscite that decided against the continuation of the military regime. Last December, in a final interview, Bañado affirmed that he had never been an Allende supporter. He added: “I believe that the Allende government was one of Chile’s great historical mistakes.

A dramatic statement, no doubt. In his opinion, what should have happened was the continuity of reforms initiated by the Christian Democrat Eduardo Frei, Allende’s predecessor: an Agrarian Reform and the nationalisation of part of the copper. In his opinion, “if the left had united with Christian Democracy to deepen those changes and go step by step, it would have been unstoppable”.

It seems to me that the statement, put like that, is detached from the political reality of the time. It speculates on the path that was not on the table 50 years ago. As we know today, Frei was an important figure in the coup plot, but he was also assassinated by the same coup plotters, poisoned when he began to distance himself from a dictatorship that was already showing its most criminal traits.

What does Chile need today? Or, analysing the issue more broadly, what development project does the Latin American left need in order to advance reforms that dismantle the neoliberal world? A world that has raided public resources and destroyed every network of social solidarity, from trade union organisations to pension funds and natural resources.

The essence of the neoliberal model is the privatisation of public resources. Allende said that copper was Chile’s salary. He went beyond Frei’s reforms and nationalised it. With the coup, mining passed into private hands (minus the resources that financed the armed forces). But the story continues. The Chilean congress is now discussing an increase in the mining royalty and the policy for the exploitation of lithium.

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 that path.

In Chile (as well as in Argentina and other countries), perhaps nothing represented a better assault on public resources than the privatisation of the pension system. It meant the transfer of immense resources to small interest groups at the cost of miserable pensions for contributors. Manuel Riesco and his Centro de Estudios Nacionales de Desarrollo Alternativo have published detailed studies on the system (one, published in 2008, can be found here).

Despite the favourable conditions of the Chilean economy, which recovered from a deep crisis in the early 1980s, in the end “most of the affiliates were simply not going to receive pensions from the AFPs” (as pension administrators are known there).

“Their accumulated funds at retirement would be so meagre that their pensions would reach ridiculous amounts, in the order of 10 to 20 dollars per month for millions of members, and less than the minimum of 150 dollars for two-thirds of the workforce,” says Riesco.

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

The many paths along the way

The struggle to recover the lost road has many paths, routes of rebellion and rebellions. Chile’s history of those years cannot be understood without accompanying these struggles. The struggle of 2019 ended up shaking the institutions. But it was not characterised by cementing the pillars of new ones. In 2007 there had been another, that of the secondary school students, the “penguins”. They were repeated in 2011, with protests against the privatisation of education. That was where Boric and his group were forged.

But the constituent project did not successfully take up the force of these demands. As we shall see, central issues for getting the country back on track are barely mentioned in the rejected draft constitution, and I believe this was key to its rejection by almost two thirds of the electorate.

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

Two demands 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 atmosphere of renewed tensions in Araucanía, in the southern part of the country, where they have settled most strongly.

The treatment of both issues did not contribute to the votes in favour of the bill which, as we know, was also rejected in the areas with the greatest presence of indigenous peoples.

The constituent debate

Before continuing, I would like to point out that it is not the validity of the claims that is at issue here, but rather the scenario (and the form) chosen to assert them.

I believe that the debate on the rights of indigenous peoples is more explosive because it has to do with land ownership. Without ignoring the importance of the discussion on the nature of the state, the tension between the reaffirmation of its unity and the definition of its plurinational character. “Chile recognises the coexistence of diverse peoples and nations within the framework of the unity of the state”, the text said. “Indigenous peoples and nations are holders of fundamental collective rights”. In particular, “they have the right to autonomy; to self-government; to their own culture”.

The text returns to these themes again and again, pretending to resolve, with these declarations, a conflict that is in full development, without a vision on the subject being mature 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 draft stated that Chile was constituted as a “republic of solidarity” and that its democracy was “inclusive and parity”. The state should promote “a society where women, men, sexual and gender diversity and dissidence participate in conditions of substantive equality”.

I find it difficult to imagine that formulations of this kind would have a majority support, as can be deduced from the outcome 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 to incorporate it into its project. Naturally, I do not intend to resolve that challenge here. But I would like to suggest something.

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

Very little, if anything, was said about care – of children and the elderly – which falls almost entirely on women. Generally speaking, “unpaid work” was used to refer to care. This seems to me to be another big misconception. From my perspective, it is paid work and the problem is precisely how this work is remunerated.

The way to deal with the problem is not for men and women to share care. That is not possible, except in a few, non-substantive respects. The solution is for care to be provided by the state, with adequate day-care centres, kinders and homes for the elderly. It is not a question of paying carers for their work. Care must be provided by the state. This is the only way that adequate care can be ensured. It is a consequence of the economic and social changes that opened up the labour market to women, who should be paid not for their care, but for their work.

None of this was contemplated in the draft constitution built on the concept of “parity”, which they claimed to present as a breakthrough. Hardly anyone understood it that way (and rightly so, it seems to me), except for the right wing.

“If they put me in a Congress full of women and they all think like Margaret Thatcher, I feel well represented, I wouldn’t have any problem”, said Johannes Kaiser, a Republican MP known for his conservative approach, to the newspaper El Mostrador. The new constituent will be formed on a parity basis, with equal numbers of men and women, the majority of whom are conservative.

Transforming the country

2021 was not our first conversation with Atria. Three years earlier, in November 2017, elections were held in which Piñera won his second presidential term. Atria did not manage to be elected deputy.

But we talked: -There has been an epochal change in Chilean politics since the protest demonstrations of 2011. Those demonstrations, which were not only student demonstrations, produced a challenge to the neoliberal model.

“We are still under the effect of these mobilisations,” Atria said. “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 view, politics was “neutralised”. Transformations could not be made. “If you look at the last 27 years in Chile, there have been practically no significant changes,” he said.

“It doesn’t matter how many people march against the AFPs. The possibility of seriously discussing their elimination does not exist”.

“Even if transformations are constitutionally possible, they cannot be made because the institutional forms contain an idea of what is appropriate or not, of what is a serious policy or not.” “This neutralised policy is not strong enough to confront economic power. It only works when it responds to the interests of that economic power”.

Nor did Atria see it as possible to make them by means of major agreements. “When there are reforms that are in the interests of economic power, they come quickly. When they come from the citizens, they are ignored”.

So he said that the only way out was a constituent assembly. “The constitutional problem is going to be solved, by hook or by crook,” he said. “Someday something has to happen; not tomorrow, perhaps, but someday”.

For those of us on the left – he concluded – “a priority is unity”. “If there is no unity of the left, 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 commemoration of the 50th anniversary of the coup.