There is no shortage of challenges when a nation takes up the task of rewriting its Constitution. The new document has to meet a standard of omnipotence: it must speak for today but also for the future, it must speak for a collective unity but also be individually empowering. In the middle period of a post-colonial world, where opportunities to study the writing of a new Constitution are rare, Chile’s redrafting of its constitution is a refreshing take on constitutionalism for a modern society. A good refresher on reasons for overhaul, mechanisms for change, and the nature of rights to be recognised.
Regardless of the outcome of the public referendum on 4 September, the Chilean exercise leaves us important lessons for constitutional development.
Regardless of the outcome of the public referendum on 4 September, the Chilean exercise leaves us important lessons for constitutional development.
Chile pioneered the Latin American experience with extreme neoliberalism in the twentieth century.
As institutional support, the 1980 Chilean constitution internalised Pinochet’s neo-liberal agenda.
It took an innocuous four cent increase in metro fares in 2019 to bring matters to a boil: widespread protests against inequality erupted, and a decade old proposal to rewrite the Chilean Constitution had to be taken seriously.
The composition of the Constitutional Convention for the present draft constitution is a copybook example of participative democracy.
While the merits of such an express and expansive inclusion of socio-economic rights in the Constitution can be debated, the Chilean exercise forces us to examine what it takes to make a visionary and forward-thinking charter of rights.
Why Chile Decided to Rewrite Its Constitution
Chile pioneered the Latin American experience with extreme neoliberalism in the twentieth century. General Pinochet, advised by economists labelled the “Chicago Boys” for their attachment to liberal economic theories, pushed for privatisation, decreased public spending, trade liberalisation and deregulation to kickstart economic growth.
As institutional support, the 1980 Chilean constitution internalised Pinochet’s neo-liberal agenda, even going to such lengths as constitutionally privatising water. However, this “shock therapy” economics distorted the country’s politics for decades, engendering wide economic and social inequalities.
It took an innocuous four cent increase in metro fares in 2019 to bring matters to a boil: widespread protests against inequality erupted, and a decade old proposal to rewrite the Chilean Constitution had to be taken seriously.
The revolutionary public sentiment of the time was captured by President Boric in the ominous statement: “If Chile was the cradle of neoliberalism, it will also be its grave”.
The unrest in Chile foretells a kind of crisis of state that we can expect to see more often. The failures of neoliberalism in creating equal and even development have been experienced globally: the resultant discontent bubbles below the surface in most societies. In his work Liberalism and its Discontents, Francis Fukoyama credits neoliberalism for “populist reactions” such as Brexit and the election of Donald Trump, observing that “the result of a generation of neoliberal policies was the world that emerged by the 2010s, in which aggregate incomes were higher than ever, but inequality within countries had also grown enormously.”
Chile's Visionary Response to Contemporary Social Unrest
It is the Chilean response to this social unrest—meeting the charge of inequality with an offer of constitutional reform, and not tactical populist policies—that is visionary. By recognising inequality to be a constitutional problem, other issues of neoliberalism—concentration of wealth, a declining middle class, fetters on class mobility—also get elevated to the status of threats to liberal constitutionalism.
In contrast to a policy-based solution, a constitutional redressal of issues of inequality disrupts the nexus of privilege between the economically elite and the politically elite and their stranglehold over socio-economic processes.
Somewhat strangely, the Chilean exercise teaches us that it is through a revival of the socialist, welfare state that democracy will be strengthened and protected.
New Constitution's Emphasis on Participative Democracy
The legitimacy of a constitution inevitably hinges on the question of who drafted it. Chile’s 1980 constitution, written by the ruling junta and passed in a suspect plebiscite, has long been believed illegitimate. In deliberate contrast, the composition of the Constitutional Convention for the present draft constitution is a copybook example of participative democracy: elected, visibly diverse, with perfect gender parity and reserved seats for indigenous groups.
This same emphasis on adequate representation spills over from the composition of the drafting Convention to the substance of the document, which secures equal participation quotas for women in public institutions and representation of indigenous groups.
This is the second legacy of the Chilean exercise: the addressing of substantive issues of inequality through redistributing power in the polity, and securing representation. Such constitutional reform procedurally builds trust and legitimacy in institutions, thereby focusing on the means-to-the-end rather than the end itself. It echoes classical liberal principles which, in Fukuyama’s words provide “institutional solution to the problem of governing over diversity or… of peacefully managing diversity in pluralistic societies”.
Chile's Ambitious Draft Constitution Hits the Right Notes
The draft constitution is long and ambitious. Amongst its 388 articles, it touches on multiple aspects of individual, social and economic life, providing for rights to health, education, housing, abortion, decent work and a habitable planet, institutional gender equality, environmental protection, and indigenous rights. This is the end result of a drafting process that has seen its own evolution; the draft’s expansionist and maximalist approach comes from a radicalisation within the Constituent Convention.
While the merits of such an express and expansive inclusion of socio-economic rights in the Constitution can be debated, the Chilean exercise forces us to examine what it takes to make a visionary and forward-thinking charter of rights.
The draft’s confrontation of the challenge of climate change, for example, speaks to the evolving constitutional commitments of a modern state. Further, it is not just the nature of rights that matter, but the method of their adoption.
Can India Also Envision a Future Where Supreme Court Is Not the Only Saviour?
In India, we rely on the Supreme Court to not only protect but also enshrine constitutional socio-economic rights. Judicial precedent is, more often than not, the mechanism by which constitutional principles are updated, new rights are recognised and social development is deepened. Such an expansion of constitutional rights through purely judicial methods carries its own concerns.
The judiciary is neither elected nor representative, precedents can be overruled, and the process is inherently reactive, presupposing an existing wrong that has been brought to court for adjudication.
In contrast, the democratic presumptions behind the Chilean drafting exercise offer—both in substance and in methodology—a glimmer of a new, imaginative and revolutionary constitutional order and for that alone, this prototype will have a place in history.
(Nooreen Sarna is an advocate. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
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