Why did Chileans Reject the New Constitution?

Op-Ed by Dan Israel Preminger

LLM Candidate, Yale Law School

On October 25, 2020 Chileans resolved to embark on a constitutional process through an unprecedented referendum. Eighty percent of voters decided to elect members of a Constitutional Convention to draft a new Constitution for Chile, one that would replace Augusto Pinochet’s Constitution of 1980.

Two years later, on Sunday, September 4, Chileans would determine whether to ratify the newly drafted Constitution. Every citizen was given a ballot with a single question:

Do you approve the new Constitution proposed by the Constitutional Convention?

Two alternatives were then presented: “Approve” or “Reject.” When the results were announced at 7:30 pm that night many of us were shocked. Only 38.14% of the voters opted to approve the new draft, whilst an overwhelming 61,86% decided to reject the new constitution.

Chile’s remarkable constitutional journey thus ended in the most unexpected way. The proposed Constitution was the most ecologically advanced constitution in the world, transformed Chile into a social and democratic state, and enshrined vigorous social, cultural and economic rights for every citizen. The text was written by the first constitutional convention in the world with complete gender parity (50% of the delegates elected for the Convention were women) and with reserved seats for the multiple Indigenous peoples that live in the country to ensure proportional representation.

Those of us who supported the constitutional process now need to ask ourselves: Why did the majority of Chileans vote to reject the new draft?

Congress announced that two-third of the 155 delegates to the Constitutional Convention were required to approve every article of the new Constitution before the proposed text could be submitted to public referendum. In May 2021, voters elected these delegates. This vote came at the height of distrust and disbelief in conventional politics, leading voters to turn their eyes upon the hundreds of independent candidates that had no previous association with the political system and were therefore perceived to be more trustworthy than their predecessors. As a result, traditional center-left political parties and right-wing parties together constituted less than 30% of the votes. Left-leaning delegates and Indigenous representatives (most of them with progressive views) accounted for the other 70%. These electoral results were widely celebrated by the most progressive sectors of the political system, as it enabled progressives to approve all articles without a single vote from the traditional parties. However, the dominance of the left-wing parties ultimately became one of the main reasons for the Convention’s failure. After the delegates were elected, several right-wing delegates realized that their contribution to the constitutional process would be minimal and opted to boycott the Convention from within.

Soon after the delegates began to meet, the Convention garnered reputation for its cockiness and arrogance. The results from the May vote were interpreted by the delegates themselves as a popular mandate to reimagine and transform as many aspects of the Constitution as possible. Delegates decided to rename and restructure traditional institutions like the Senate and the Judiciary, enumerate dozens of new constitutional rights, and formulate several new doctrines and principles to redirect how the state functions. Although the bulk of these reforms represented principled and historic gains, widely sought by the population, some of them did not. The Convention operated on the premise that the new Constitution would be ratified no matter what and that every demand for change with a minimal degree of support in society belonged in the text.

The vast majority of the delegates worked relentlessly throughout the year. The monumental challenge of discussing and ratifying the rules of procedure that would govern their work and then using these same rules to produce a constitutional text, all of this in less than one year, was a feat of nature. Unfortunately, the commendable efforts of many were stained by the actions of a few. A journalistic investigation unveiled that a delegate of the Convention had faked a cancer diagnosis to get elected. Two delegates attended a session of the Convention dressed up as Pikachu and an inflatable blue dinosaur. A delegate voted remotely from his shower without turning off his camera.

Those who opposed a new Constitution from the outset made a mockery out of these incidents. With the support of social media and some of the mainstream media outlets these incidents were amplified, and the image of the Convention as an irreverent circus sponsored by taxpayer’s money prevailed. The abundance of widespread fake news fabricated by extremists and repeated by the media also had a devastating effect on the public’s ability to engage with the constitutional debate on its merits.

The damage of these episodes was fatally underestimated. Until the very last minute, delegates and supporters of the Convention dismissed the concerns of the general public and maintained a presumptuous discourse that failed to recognize the flaws in the process and in the text that had caused increased concern in the general public. Additionally, the Convention failed to acknowledge the social and economic regression that occurred between the years 2019-2022. The 16 months that transpired between the May 2021 elections of the delegates and the referendum on September 4 were by no means ordinary. During these months, the economic crisis caused by the COVID-19 pandemic increasingly began to hit lower-class and middle-class Chileans, displacing the urgency for a constitutional document that might have long-term effects with the pressing need for job and economic security. The combination of these forces led to growing disenchantment among Chileans with respect to the constitutional enterprise.

Given this context, the historical participation on September 4 came as a surprise. With 85% turnout and more than 13 million votes, this was by far, the election with the greatest participation in Chile’s history. Many Chileans voted for the first time. The reasons that motivated these voters are severely understudied, and therefore we only have preliminary ideas about what is it that made them opt, in overwhelming numbers, to reject the new text. We do know, however, that the 2019-2022 constitutional process failed to provide the needed certainty required to embrace the audacious solution offered by the Convention.

Those of us who believed and still believe in an urgent need for a new, legitimate, constitution for Chile can’t give up now.  As long as the current Constitution remains, our work remains undone. The constitutional process should serve as a lesson of humility. The work towards a new Chile that respects the diversity of its peoples, protects the environment, and sets the foundations for a fair and equal society does not end with the result of a single electoral event. It will only come as a consequence of sustained, responsible, and audacious efforts of millions. A new constitution will only be one component of these efforts.