Above photo: Chileans march in demand of a new constitution in 2020, after the social outburst of 2019. AFP/File photo.
Chilean society is once again at the culmination of a transformative constitutional process. This pivotal juncture will decide whether the constitution drafted by a legislature dominated by conservative and right-wing parties will replace the current constitution which was established during Augusto Pinochet’s dictatorship. After a first failed attempt to establish a new constitution, this new draft introduces stricter measures concerning irregular migration, firmly entrenches the existing pension and healthcare systems—both subjects of substantial critique. It additionally introduces provisions that pose significant threats to sexual and reproductive rights, specifically through the establishment of “rights for those who are about to be born” and the legalization of “conscientious objection” regarding the provision of goods and services.
“For the second time the political sectors are unwilling to cross the fence and go beyond their own majorities to open the opportunity for consensus,” observes Claudio Fuentes, Chilean researcher and director of the Institute for Social Science Research at the Diego Portales University.
Fuentes’s observation pertains to both the current constitutional process, which is currently dominated by the ultraconservative Republican Party and other right-wing coalitions, and the preceding process. The earlier constituent assembly was designed as a political response to the 2019 social upheaval. In that instance, members of the assembly were elected through popular vote, resulting in a majority that leaned progressive and left-leaning, aligning with the social demands articulated during the massive protests of that period.
Freedom of conscience, abortion, and pension system
Analysts warn that unlike that first attempt from the progressive side, which resulted in a draft that universalized fundamental rights but was ultimately rejected in the exit plebiscite, the current process could produce a new constitution with several repressive articles.
Fuentes highlights four of the most worrisome problems that could be generated by the implementation of the new constitution. In the first place is the incorporation of conscientious objection, both at the individual and institutional level. “Individuals or institutions are going to be able to refuse measures based on opinions. Conscientious objection is very problematic and this remains in the Constitution,” explains the academic, who gives the example of a school that could discriminate against a student because of gender or a pharmacy that could refuse to sell the morning-after pill.
Secondly, there is the article that could jeopardize the abortion law in Chile which allows the termination of pregnancy in case of rape, non-viability of the fetus, and if the mother’s life is in danger. “It establishes the right of the person who is about to be born, and by giving personhood to the fetus opens the possibility for the constitutionality of abortion to be reviewed before a court,” Fuentes adds.
Thirdly, the current model of pension and healthcare systems are established firmly in the new text, where there is no solidarity among contributors and it depends solely and exclusively on the contribution capacity of each worker. The privatized healthcare system (ISAPRES) and the pension fund administrators (AFP), created under the dictatorship, would become constitutional.
“The current pension system depends on workers’ savings,” Fuentes explains. “If you save a lot, you have a better pension, but the majority of the population has very low pensions because they have very little saving capacity and therefore the model is reduced to an every man for himself.”
According to him, the biggest problem of constitutionalizing this system is that it will limit the future political options that Congress can take to seek mechanisms of intra- and intergenerational solidarity. Something similar, he also explains, will happen with the healthcare system. “It establishes the individual contribution and the freedom to choose between the public or private system, but obviously this creates a division between those who have the money to pay for private health care and those who will have to go to the public system with a universal health plan that has minimum guarantees,” he says.
Other rights at risk
In addition to the aforementioned articles, the new text is anti-immigrant with an article that orders the expulsion “in the shortest possible time” of foreigners who enter Chile “illegally or through unauthorized passages.”
In addition, it prohibits the right to strike for state, municipal, public utility or strategic sector workers.
It also provides that terminally ill prisoners may be released on house arrest, which is designed to specifically release hundreds of detainees who committed human rights violations during the Pinochet dictatorship.
Prediction reserved
The exit plebiscite, where Chilean society will have to say “I approve” or “I reject,” will be held on December 17. So far, polls show a majority vote against the draft, but specialists prefer to be cautious.
Fuentes incorporates the idea of “constitutional populism” to describe the campaign that the Republican Party is carrying out to win with the Approval. “They take three or four issues that concern citizens and turn them into a battle horse, such as reducing congressional seats, expelling illegal immigrants, ending corruption, and lowering taxes… very popular issues, with a lot of constitutional favoritism that could tip the balance,” he clarifies.
According to the pollster Cadem, so far 54% of Chileans are against the new constitutional draft while 31% are in favor. According to Fuentes, this will be a much more competitive plebiscite than the previous one, and may lead to a closer result.