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Chile is voting on one of the most progressive constitutions in the world. But consensus is crumbling

<i>Marcelo Hernandez/Getty Images</i><br/>A demonstrator waves the Chilean flag during a November 2020 protest against then President Sebastian Pinera in Santiago.
Getty Images
Marcelo Hernandez/Getty Images
A demonstrator waves the Chilean flag during a November 2020 protest against then President Sebastian Pinera in Santiago.

By Daniela Mohor W., for CNN

In the past few weeks, Daniela Jorquera, a 55-year-old Chilean sociologist who defines herself as progressive, started going to rallies to support adopting a new constitution.

“I saw a lot of young people, families. There was music and colorful flags; it had nothing to do with the political confrontation we see in the news everyday,” she said.

When she walked back to her car, Jorquera, who lives in Santiago, said she felt full of hope. “I thought: we will win, how can we not?”

Yet, like most Chileans, she knows that certainty is precisely what Chile lacks these days.

On Sunday, polls opened in the country to allow Chileans to decide on whether to adopt a new proposed constitution, one that was originally conceived to fix the country’s stark inequality. The country’s current constitution was written during Augusto Pinochet´s dictatorship and — despite many amendments — most Chileans say it lacks legitimacy and is too free-market oriented.

Protests and social upheaval in 2020 forced then-president Sebastien Piñera to call a referendum on creating a new constitution, the final draft of which was submitted to Piñera’s successor, leftist Gabriel Boric, this year.

But although 78% of Chilean voters supported the idea of constitutional change back in October 2020 entry referendum, today they appear divided on the draft proposed.

Soon after the draft was made public last July, different polls began showing an increasing trend toward the rejection of the charter, with the government publicly recognizing that scenario.

In a Twitter post hours before the polls opened, Boric said on Saturday night: “In Chile, we resolve our differences with more democracy, never with less. I am deeply proud that we have come this far.”

A groundbreaking drafting process

The constitutional process has been praised internationally for giving the country an institutional way out of a social crisis, and for responding to modern Chileans’ demands for more equality and a more inclusive and participatory democracy.

The constitutional assembly convened to rewrite the constitution was the first in the world to have full gender parity, and the first in the country´s history to include designated seats for indigenous representatives. It included a majority of independents reflecting Chileans’ distrust in traditional parties — and was more representative of the country´s diversity.

If approved, Chile’s constitution would become one of the most progressive in the world, giving the state a front-line role in the provision of social rights. The draft puts a strong emphasis on indigenous self-determination and on the protection of the environment; the highly privatized water rights system will be dismantled, among other things. Gender equality will be required in all public institutions and companies, and the respect for sexual diversity is also enshrined.

But the project has become bitterly divisive for some. The right argues the draft would shift the country too far left, or that it is too ambitious and difficult to turn into efficient laws, and even some of its supporters on the left want adjustments to be made, with their slogan “approve to reform.”

Conservatives have led an aggressive campaign against the constitutional change, accusing the Boric administration of electoral interventionism. His left-wing government is currently under administrative investigation by the Chilean comptroller general over allegations it used a public information campaign about the referendum to advocate in favor of the new constitution. The comptroller separately found that the Minister Secretary General of the Presidency, Giorgio Jackson had failed to respect the principle of non-interventionism required before the referendum.

Boric responded to those allegations telling the press that the government would cooperate with the investigation and that his administration’s actions are is “in no case interventionism, but rather information dissemination.”

A large part of the center-left has also become wary of the document and called to reject it. Cristián Warnken, a well-known literature professor and television interviewer, is one of them. He recently founded “Amarillos por Chile,” a movement of moderates asking for a new convention and the writing of another draft.

“We would have wanted a new constitution with a State that guarantees social rights, protects the environment and many other things included in this proposal, but by turning it into an ideological statement, the convention decapitalized the great possibility we had to have a constitution approved by a vast majority,” he said.

Sebastián Izquierdo, a researcher at the Center of Public Studies (CEP) in Santiago praises the convention´s ability to meet the one-year deadline to write its proposal. But he is not a fan of the result.

“The text is too maximalist. It makes reaching agreements very difficult and leaves too much space for ambiguity and different interpretations, which has caused many problems,” he said.

One of the most controversial issues is that of indigenous rights. The draft defines Chile as “a plurinational State” and proposes to give more autonomy to indigenous communities, including a parallel justice system. That was enough to raise fears that Chile’s unity is at risk or that native people won´t have to respond to the rule of law, although the proposal doesn’t stipulate that, Izquierdo said.

Some argue that embracing plurinationality is important for reflecting the reality in Chile, Mireya Dávila, a political scientist and assistant professor at the Universidad de Chile, points out.

“The new constitution tries implicitly to grant equal conditions to communities that were exploited for centuries and who are the country´s first nations,” she told CNN.

Also under fire are parts of the proposal related to the reorganization of the political system and the state’s role in guaranteeing equitable access to health and better pensions.

Under the new constitution, the Senate would be replaced by a regional chamber, which skeptics say would give the lower house too much power.

The current health care system would be replaced by a single national state-funded service. Currently, Chilean citizens can opt for coverage by public national health funds or private insurers. In both cases, health care is funded by a social security contribution equal to 7% of every worker’s wage. But the pricing of private health insurance varies, giving the wealthier access to better services.

Advocates for the change to a single service say this will result in better care for more people, while critics worry it risks overwhelming an already strained public system.

Conservatives also worry that the new constitution would affect the existing private pension funds system — a legacy from the military regime that is seen by many Chileans as a symbol of inequality. But others, including some businesses and economists, credit it for the country’s strong capital markets and steady economic growth.

Claudio Salinas, a conservative councilman and the coordinator of a group of civil society organizations calling to reject the charter proposal, says they are concerned the private pension funds some workers have saved until now will eventually be “expropriated” or not “inheritable” to their family in case of death.

However, the draft constitution does not say this — rather, the future of pension funds is expected to be regulated by a new law in the Congress.

Supporters of the new constitution counter that their opponents have gone over the board with unsupported arguments, describing their criticisms as fake news designed to scare Chileans with exaggerated interpretations of the text.

“They have said we wouldn´t have the same national anthem, that the flag would change, and that private property would be eliminated, for instance. These aren’t things included in the proposal but spreading those fake news has created a scenario of much uncertainty,” said Vlado Mirosevic, a congressman for the Liberal party and the spokesperson for the approval campaign.

He compares misinformation around Chile’s new constitutional draft to the MAGA movement in the US and to the Brexit campaign in the UK.

Misinformation has indeed been an issue, though experts say it can be difficult to distinguish between intentional fake news and legitimate differences in the interpretation of the proposed draft. The proliferation of social media posts aiming to undermine the vote’s integrity has already led Chile’s electoral service to reject false claims on its website.

The untraditional nature of the constituent assembly has undoubtedly also played a role in further polarizing the country, after an already confrontational presidential election. Former presidential candidate José Antonio Kast´s far right Republican Party called the constitutional assembly “a circus” after two of the members drew negative attention going to sessions wearing costumes of Pikachu and of a blue dinosaur. More recently, a member voted remotely from his shower.

Early on, the body’s public image took a hit when a journalistic investigation unveiled that one of its representatives had built his campaign talking about his fight against cancer, although he didn’t have the disease. He later said that he had actually been referring to a different illness that was “socially stigmatizing.” He resigned, but the episode has often been referenced by critics of the constituent assembly.

The end of privileges

María José Donoso is a 37-year-old accountant who lives in Maipú, a middle-class area of Santiago. Her partner lost his job during the pandemic and she stopped working to take care of their young daughter. They currently live on a US $550 monthly budget, selling handcrafts on a market.

To be able to study, Donoso said, she had to work part-time because she had no free education. To get a doctor´s appointment, she added, she must wait for months, while wealthier people can be cared for immediately.

“I will vote yes to new constitution because it will help level the field. Those who are afraid of changes are businessmen or politicians afraid of losing their privileges,” she said.

According to the World Inequity Lab, a research center focusing on the study of income and wealth distribution worldwide, Chile is one of the most unequal countries in Latin America with the top 10% concentrating 60% of the average national income.

The need to address that reality is main argument of the approval campaign.

“We are not naïve. We know there is room for improvement, and we have the flexibility to do it,” Mirosevic said. “But this text is a much better starting point than what we have now,” he said.

The uncertain outcome of the referendum has put additional strain on an already struggling economy. According to data released in July by the National Institute of Statistics (INE), the Consumer Price Index, an indicator of inflation, registered a 13.1% increase in the past year.

Against this backdrop, an investigation led by a group of economists calculated the social rights guaranteed by the new constitution would cost an estimated 8.9% to 14.2 % of the GDP per year. Chances of making those rights a reality in the short term are scarce, and high expectations may lead to new popular discontent, Izquierdo said.

Opinions diverge. Carolina Tohá, a long-time politician and a former member of socialist President Michelle Bachelet´s administration, told CNN that “the new constitution mentions a progressive implementation of social rights and is very clear in establishing the principle of fiscal responsibility.”

Attempting to give Chileans — and markets — some certainty, earlier this month President Boric summoned his coalition to reach an agreement about possible reforms to the charter in case of approval. They were made public in mid-August and address the most controversial principles. Boric also stated that, be it rejected, there would be a new convention and redrafting.

On the other side, Chile’s right-wing coalition also committed to amend the current constitution in terms of social rights. And this month, Congress voted in favor of a constitutional reform that reduces legislative quorums to facilitate potential tweaks to the current charter.

But on each side distrust prevails about the opponents’ real intentions. Only one thing is certain: The constitutional process in Chile is not over. After the plebiscite, no matter who wins, coalitions on both sides have committed to make changes either to the new or the current constitution.

“After September 4, the constitutional process will … either put the new constitution in place or to look at new alternatives if it is not adopted,” said Dávila, the assistant professor at the Universidad de Chile.

In any case, she added, Chile is poised to set a precedent in Latin America: If the new constitution is adopted, it can be an example of a constitutional change that strengthens democracy in terms of social rights and environment; if rejected, it will show that the path to follow is dialogue within democracy.

“This shows that the debate about the kind of society we want is not settled yet,” said Gonzalo Cowley, an expert in innovation who has led several crowdsourced studies of the constitutional process. “There is no real consensus on how we meet Chileans’ demands.”

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CNN’s Michelle Velez contributed to this report.

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