Several polls indicate the upward trend of the Rejection option in the plebiscite to exit the constituent process. It is high time for both the Government and the Convention to change course to prevent this process from failing. It is also necessary to think from now on what to do if the new Constitution is rejected. If this is not done — and however alarmist it sounds — what remains of our rule of law and our democracy will sooner or later go down the drain.
In fact, the 1980 Constitution is dead. No relevant political or social actor acts as if its rules are in force. Thus, if the constituent process fails, there will be no institution left that the majority of society considers legitimate. Therefore, if rejection wins, the only remaining principle of authority would be fear: fear of state coercion on the one hand, or of chaos and violence on the other. Needless to say, you cannot build societies where “dignity becomes customary” on these bases.
In addition, the failure of the constituent process would send the terrible signal that (once again) in Chile it is not possible to achieve things peacefully and institutionally, but that the latent threat of violence is always required. As Kathya Araujo’s research indicates, Chileans have culturally very incorporated the idea that “guagua that does not cry does not mama”; that Chile is a country of essentially corrupt and lazy people who only do what you want if you threaten and attack them, like a boss of the fund, hitting guascazos left and right. Fostering this culture of abuse is contrary to creating egalitarian and cooperative societies, which is what – paradoxically – most Chileans want when they talk about “dignity”. But the failure of the constituent process would only spur us to take our culture of abuse to the next level.
However, President Boric and the conventional Bassa are wrong: not everything that comes out of the Convention is acceptable, nor is the fear of chaos enough to vote I approve. Whether the leftmost wing of the Convention and the government like it or not, post-30-year-old Chileans are above all consumers: individualistic, desideologized, pragmatic, utilitarian and, above all, irritable and impatient. The new Constitution may promise various sweets that encourage a person to vote Approve — social rights, recognition of vulnerable minorities and indigenous peoples, rights of nature, parity, etc. — but it is enough that a red line of that person is crossed for him to vote Reject.
Therefore, there is an asymmetry of results here. The harm caused by a rule that someone deems unacceptable is greater than the benefit caused by a rule that that person deems good. Then, it’s easier to reject than to approve. After all (and as much of the psychological literature indicates), humans are averse to loss. We are far more affected by the fear of what we can lose—and the pain of what we suffer—than by the hope of what we can gain, or the pleasure of what we get. After all, this is how we have survived for thousands of years a hostile world.
Chileans will not accept any imbunche or mamarracho that comes out of the Constitutional Convention. Even if the new Constitution is approved by the minimum margin, that would already be a fiasco, since practically half of the country would not recognize the new Constitution as its own, so the constitutional debate would remain in force. This would make it difficult for governments to focus primarily on resolving the country’s social urgencies, paving the way for new frustrations and, eventually, new social outbursts.
In these circumstances, the constituent process requires a rescue plan. Some points of this plan would require modifications to the agreement of November 15, 2019 and the constitutional reform that originated the constituent process. Other points may be applied on the Convention’s own initiative.
I’m not naïve. I know that implementing such a plan under the current political conditions is difficult. A relevant part of the right wants revenge for the treatment suffered during the previous government. Since the former Concertación and the Frente Amplio were not generous to the right when she governed, the right is more willing to take it out than to cooperate. And a relevant part of the left sees the constituent process as the opportunity to make a Constitution by and for them. Therefore, that left has little will to change its proposals to make thexto more digestible for those who do not think like them.
But if the constituent process fails, the very political game that allows the existence of the right and the left may die. And the survival of that game is more important than the desire for revenge or the desire to have a partisan Constitution. This is so not only from a moral or justice point of view, but also from a convenience point of view. After all, what’s the point of getting even or getting everything you want if you risk losing everything?
The plan
Thus, the rescue plan I propose consists of the following:
Extension of the term of the Convention
Unpopular as it may be, to produce a good Constitution — or at least passable by a wide margin — the Convention requires an extension of between six months and one year. In the worst-case scenario, this makes it possible to refine the rules well, eliminating duplications, inconsistencies, gaps and bad wording. In the best-case scenario, this allows the Convention to consider expert and citizen opinion more closely in order to improve such standards.
It has already become clear that the term of operation of the Convention is too short, especially considering that the new Constitution is intended to be written on a blank sheet. Due to this lack of time, the approval of constitutional norms is being done on a horseback, without sufficient discussion or reflection, damaging their quality. This lack of time was compounded by the problems of setting up the Convention; territorial weeks; and the attempt to implement high degrees of citizen participation without considering the costs of such participation. Indeed, if there is something that shows the costs in time and civic virtue that citizen participation requires to function, it is the irrelevance that the norms proposed by citizens have had in the constituent process.
Increasing the powers of the Harmonization Commission
Any increase in the term of operation of the Convention must be accompanied by an increase in the powers of the Harmonization Commission. This commission is in charge of editing the draft Constitution so that it is a consistent and well-written text, with as few gaps, redundancies and contradictions as possible. Like many texts written in groups, the draft Constitution has several drafting errors. But the Harmonization Commission cannot fully correct these errors because, according to the Rules of Procedure of the Convention, it cannot “alter, modify or replace” constitutional norms already approved.
The poor wording of the Constitution that is presented to the country decreases its chances of approval, so it is necessary to correct this problem as soon as possible. Moreover, even if the new Constitution (misspelled and all) is approved, its drafting problems will make it difficult for the State and individuals to implement. After all, the more poorly written a text is, the greater the opportunities to misinterpret it.
Application of the 2/3 rule in commissions
The current 2/3 rule for adopting standards in the plenary of the Convention should also be applied within its committees to approve draft norms that reach the plenary. This is likely to generate more politically cross-cutting draft rules than many of those currently formulated, increasing their potential support by the plenary. In short, using the 2/3 in committees helps to produce draft rules that are more amenable to the plenary. This would significantly diminish the controversies that fall on the Convention.
Much of the discredit of the Convention comes from the draft norms approved in committees, projects that are mostly rejected by the Plenary to be reformulated. This is because draft norms are approved by a majority in committees, while such bills require 2/3 in plenary to become norms of the draft Constitution. That is why the reports of the commissions are usually full of extremist, crazy, poorly written or improper draft norms of a Constitution.
The reputational damage caused to the Convention by poor draft norms adopted in committees should not be underestimated. Even if these projects are rejected by the Plenary – as has mostly happened – they contribute to the fact that a relevant part of public opinion is left with the impression that “the expropriation was approved without compensation”; “the courts shall be at the mercy of the politicians”; or that “workers will not own their pension savings.” In short, these draft norms encourage a significant part of public opinion to perceive the Convention as a mob of brainless ultra-left pachamámicos unable to handle the ship of state well. This caRichness may be unfair, but it is what remains.
In addition, the 2/3 rule in the commissions encourages more right-wingers to be involved in the drafting of draft rules, which is necessary for the success of the process. Until now, the right has not been a relevant actor in the constituent process. This is problematic because that sector represents a large part of the electorate. The Convention is Chile’s most representative body demographically speaking, but not ideologically speaking. The Convention is a mirror of Chile in that it has more people of different ages, ethnicities, genders, professions, geographical origin and socio-economic status than other Chilean State bodies. But the Convention is not a mirror of Chile in that far more than half of those people are left-wing.
Whether the majority of the Convention likes it or not, in ideological terms (and considering its historic election results), the right represents at least 40% of the country. And its bad electoral result in the Convention was due to the social explosion; the unpopularity of former President Piñera; a bad strategy in the face of the constituent process; and the pandemic. Consequently, without the inclusion of the right — and assuming it passes — the new constitution will replicate the same problem as the one in 1980, only the other way around. That is, much of the country (this time, right-wing people) is not going to feel the Constitution as their own, so they will not be inclined to love, promote and respect it.
This lack of consideration on the part of the right – partially remedied with the application of the 2/3 rule in the commissions – encourages the Constitution to be increasingly perceived as left-wing and feeds the collapse of moderate sectors that initially supported the process, but now see it with growing skepticism. In short, this lack of consideration of the right feeds phenomena such as “Yellows for Chile” and “One that unites us”, which in turn brings water to the mill of rejection.
Statute of expropriation similar to the current Constitution (including pension funds)
The Convention would be quite helpful in the face of public opinion if it adopted a regulation of expropriation similar to that of the current Constitution. This implies at least that: (i) compensation for expropriation is paid before taking possession of the expropriated property; (ii) the value of the compensation is the market value of the expropriated property; and (iii) if there is no agreement between the State and the expropriated, compensation is paid in cash and its value is fixed by a court. Naturally, these rules would extend to pension funds currently deposited with AFPs.
If there is something that demonstrates the popularity of pension withdrawals and the citizens’ initiative “Con mi plata no”; the uproar caused by the statements of the treaty Fontaine on the ownership of these funds; and the controversies generated by the first draft expropriation norms that came out of the Convention, among other things, it is clear that– when it comes to defending our own– Chileans are deeply neoliberal and distrustful of the State and others.
The people do not want revolution, they want social security (paying as little as possible, of course), an end to abuses and money. Then, anything that smacks of an imposition of solidarity by the state on what we have — including our pension funds, which is the only savings of most Chileans — will generate citizen outrage. This does not prevent the creation of pension systems of distribution with future income, but what citizens already have is untouchable.
If the Rejection wins, default application of the Bachelet Constitution
Finally, the agreement of November 15 can be reformed so that, if the “Rejection” wins, the project sent by former President Bachelet at the end of her second term will be applied as a new Constitution. This is not placing a third option in the exit plebiscite. Rather, it is to modify the effects that occur if the Rejection wins.
As I indicated earlier, the 1980 Constitution is dead. Therefore, if the Rejection wins, it is necessary to fill the vacuum of legitimacy that is generated as soon as possible to stop the continuous erosion of our institutionality; erosion that, together with aggravating the serious problems of public order that we have in the northern and southern macrozones of the country, is likely to lead us to a second social explosion; a populism that promises to restore security by blood and fire (with all the costs of democracy and human rights that that means); military coups; or, in the worst-case scenario, a civil war.
The constitutional project of former President Bachelet (hereinafter, the “Bachelet Constitution”) is optimal to fill the vacuum of legitimacy that generates a triumph ofl Rejection. This is so for several reasons. First, the Bachelet Constitution adequately combines continuity and change. On the one hand, this Constitution preserves much of the Chilean constitutional tradition, which reassures the most conservative. On the other hand, the Bachelet Constitution recognizes indigenous peoples: it expressly prohibits discrimination on the basis of race, gender and disability, among other categories; and establishes that Chile is a social and democratic State based on the rule of law. This Constitution then takes care of the demands for identity, equal treatment and greater state intervention in the provision of social security.
Second, the Bachelet Constitution corrects the most criticized features of the current Constitution that make the left consider it “cheating.” That is, the Bachelet Constitution eliminates the supra-majority quorum laws and limits the powers of the Constitutional Court. This allows future governments on the right and left to implement their policies more easily than the current constitution, though without putting the basic rights of their opponents at too much risk.
Finally, without being fully flexible, the Bachelet Constitution is easier to reform than the 1980 Constitution. In fact, any chapter of the Bachelet Constitution can be reformed by Congress by 3/5 of its sitting parliamentarians (some chapters of the 1980 Constitution require 2/3). And this Constitution allows for future constitutional conventions under requirements similar to those of the Nov. 15 agreement. Therefore, the Bachelet Constitution is ductile enough to incorporate aspects of the draft constitution currently under discussion in the future if deemed necessary.
In short, if the Rejection wins in the exit plebiscite, the Bachelet Constitution is better positioned than that of 1980 to relegitimize political power – with the restoration of order that this entails – along with leaving the door open to future constitutional modifications. The Bachelet Constitution substantially decreases the cost of rejecting. As happened in South Africa in the 90s, the Bachelet Constitution may end up being a transitional constitution between the 1980 Constitution and the one that will be generated in the future. Alternatively, the Bachelet Constitution may end up becoming “everyone’s house.”
Probably, nothing I say here will be picked up by our authorities. But it is irresponsible to remain silent in the face of the serious risks that our democracy runs if the constituent process fails; risks whose materialization seems closer every day. Although the constituent process is not over, the minute to sound the alarm, if you can easily fall to the cliff, is now, not when we have the final text. Hopefully the Government and the Convention will react. It’s still time.
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The content expressed in this opinion column is the sole responsibility of its author, and does not necessarily reflect the editorial line or position of El Mostrador.
