On Sunday, December 17, Chileans face an enormously important and challenging decision for the second time in less than a year and a half—whether to accept or reject a proposal to replace their current constitution. How does one come to an up-or-down decision on a 50,000-word constitutional draft? In this case, the sprawling document includes a wide range of ideas drawn from constitutions across the globe as well as those from an eight-year national conversation in Chile. Our goal here is to simplify the cognitive task. We identify a dozen core ideas in the proposed text and compare them to those in the 1980 Constitution currently in force and, occasionally, to those in the 2022 proposal drafted by the Constitutional Convention, another important reference point. We also point readers to other constitutions in the world and how their ideas compare.
Civil Rights
Abortion
Not surprisingly, many will view the reform through the lens of reproductive rights. The Chilean historical context in this area is interesting. Until 2017, abortion was outlawed in Chile. In that year, Congress passed a law to allow abortion under three conditions (health of the mother, that of the child, and rape). The Constitutional Court upheld this law, despite challenges to its constitutionality under a right-to-life clause, Article 19, that seemed specifically to protect the unborn. Most of the 160 right-to-life clauses in the world are written more generally.
The proposal in front of the voters Sunday has a right-to-life clause very similar to that of the current constitution, except that its Article 16 shifts the reference to the unborn from “que” (that or which) to “quien” (who). Some see the shift in pronoun as encouraging the relitigation of the 2017 law, and thus jeopardizing the limited access to abortion. Others have argued that the limited abortion law is not at risk of being repealed. Whatever the pronoun, the protection of the unborn would be in stark contrast to the defeated 2022 proposal, whose Article 61 had provided unrestricted access to abortion.
Another issue that has generated discussion, linked to abortion but also to other provisions, is the individual and institutional right to conscientious objection established in Article 16.13. The question of whether institutions, in particular, can be conscientious objectors has been one of the most heated debates in Chile in recent years, especially in matters related to abortion.
Equality
Equality features prominently in constitutional discussions globally, with nearly all constitutions today providing at least a general guarantee of equality. It is no different in Chile. Equality was far and away the top topic raised in early consultations on public constitutional priorities, with 44% of citizen responses focused on some form of equality.
Perhaps paradoxically, constitutions sometimes single out some groups to be treated equally. The current constitution guarantees both general equality before the law and equality between men and women (Article 19.2). This year’s proposed replacement goes further to provide a general guarantee of equality and nondiscrimination (Article 16.3 and Article 156b) and also promote equality for women and men (Article 2 and Article 44), ethnic groups (Article 5), people with disabilities (Article 14), and people in the workplace (Article 16.26c and Article 110.3). It stops short of the 2022 proposal’s additional promotion of equality regardless of age and language and an additional guarantee of substantive equality, seeking to achieve not just equality but equitable outcomes.
Parents and Children
Constitutions in the world have begun to regulate parenthood; 96 have something on the rights and duties of parents. Another 146 constitutions specify the rights of children. There is something of a tension between the rights of parents and those of children, as most teenagers would attest. Some observers have argued that the Chilean proposal shifts the balance of power too far to the parents at the expense of child protection and the state’s educational mission.
The proposal in multiple places calls for a special role for parents in directing childhood, as a way of distancing the state from decisions related to children. Article 16 provides parents the prerogative to choose the educational and religious instruction for their children, going further than the current constitution’s allowance for parents to choose their children’s education (Article 19.7). Article 12 of the current proposal also gives parents a broader priority over the state in “determining the best interests of their children.”
Social Rights
Social and Democratic State
The current constitution frames the state in minimalist terms as a unitary democratic republic (Article 4). Similar to the 2022 proposal, the 2023 proposal diverges from this idea, establishing in Article 1 that Chile is a social and democratic state governed by the rule of law. Among the rights enshrined in the proposal based on this principle are the rights to health, education, social security, adequate housing, and water (in sections 22, 23, 28, 29, and 30 of Article 16). Globally such rights are in ascendance, with over 70% of constitutions addressing the right to health and the right to education. A smaller but growing proportion of countries globally address the right to housing (39%) and the right to water (19%).
According to Article 24 of the Chilean proposal, these rights are of a progressive nature, allowing for both public and private provision, and their fulfillment is subject to the principle of fiscal responsibility. Additionally, the proposal stipulates that it is the duty of the State to ensure an adequate level of protection for each right and to address any difficulties hindering its satisfaction.
The nature of the social and democratic rule of law state has been one of the most debated points of the constitutional proposal. Some suggest the proposal perpetuates the neoliberal economic model of the Chilean state by giving an excessively large role to the private sector and establishing limitations on the state's regulatory power such as that established in Article 23.1. Conversely, others have noted that the participation of the private sector in the satisfaction of social rights is perfectly compatible with a social state and that it is common in other states with the same characteristics, such as Germany and Spain.
Environment
157 of the 193 constitutions in force in the world provide for the protection of the environment in one way or another (all provisions here). Both the current constitution (Article 19.8) and the new proposal (Article 16.21) express this idea as a right to a pollution-free environment. Both also state that such protection is a duty—though in the current constitution it is a duty of the state, while the proposal states it as a duty of the citizen. In fact, the proposal identifies environmental protection and the protection of animals as two of the eight duties of Chileans listed in Article 37.
The current proposal is much more detailed about what environmental protection means. It includes an extensive chapter (XVI) on the environment, with eight articles devoted to aspects of conservation, education, enforcement, energy policy, and waste management. The document is serious about the environment, though perhaps not as imaginative as the 2022 proposal, which added the concept of Pachamama—rights for nature herself (e.g, Article 103).
‘New’ Rights
The current Chilean proposal raises over two dozen rights and duties that are not yet tracked by CCP in national constitutions. This does not mean these rights haven’t been raised in other constitutions, but they are newer features of constitutions so we don’t yet have data on whether and how often they arise. Countries like Chile are leading the way on these experiments with new rights.
Public Participation
Public participation has been a central focus throughout the Chilean constitution-making process. The government initiated the process in 2015 in large part due to widespread calls for greater public participation in Chilean governance. The government has since sought public input during the drafting process at a scope rarely seen in constitutional design.
The current proposal adds extensive provisions on public participation, defining public participation as a core power and right of the Chilean people and creating a state duty to promote this right to “encourage broad citizen deliberation.” The proposal also requires public participation in lawmaking and state administration and supervision, requires creation of citizen deliberation forums to advise government bodies, and allows regional and local officials to seek public input through local plebiscites and consultations.
Gender Parity
Calls for gender parity, too, have been central to the Chilean constituent process. Gender equality was among the top issues citizens said should be addressed in the new constitution. This priority of gender equality was reflected in the drafting institutions as well. The Chilean Constitutional Convention elected in 2021 was one of the first such institutions globally to require gender parity, and the Expert Commission and Constitutional Council responsible for this year’s proposal likewise had equal numbers of men and women.
Chile’s current proposal requires ‘balanced’ participation of women and men as candidates for elected positions and in political parties. With this, the proposal finds something of a middle ground between the current constitution that guarantees equality without specific parity requirements (Article 19.2) and the 2022 proposal that provided more detailed parity requirements and framed such equal participation as the minimum condition for broader substantive equality sought in the proposal (Article 6 and Article 25.3).
The proposal also innovates in other areas related to gender. Article 16.23 establishes the State's obligation to finance and coordinate a free daycare system. Article 13 recognizes the value of care and co-responsibility. Article 16.26 promotes non-discrimination in wages between men and women.
National Identity
Plurinationality and Indigenous Peoples
A central debate in Chile has focused on how to recognize the diverse ethnic and indigenous communities in Chile. It reflects a long-standing debate globally over whether minority groups should be integrated into a single national identity or recognized in a multicultural national identity. It also reflects recent steps by some Latin American countries to constitutionalize a ‘plurinationality’ that recognizes multiple nations coexisting within the country.
The prior proposal in 2022 steered toward plurinationality. Article 1 declared Chile as a plurinational state, encompassing diverse nations within the same territory, following the examples set by countries such as Bolivia and Ecuador. Plurinationality in this prior Chilean proposal entailed a range of exclusive rights for indigenous peoples, including territorial autonomy, legal pluralism, and reserved seats in state bodies.
The current proposal distances itself from plurinationality and establishes interculturality as the principle governing relations among the various ethnic groups. Article 5 in the 2023 proposal asserts that the Chilean nation is one and indivisible, with native peoples being an integral part of it. It also establishes the state's duty to respect and promote individual and collective rights as guaranteed by the Chilean legal system and international treaties. This takes a middle road between the current Chilean constitution that makes no reference to ethnic and cultural diversity (apart from transitory provisions added in 2021 to guarantee indigenous representation in the Constitutional Convention) and the plurinational 2022 proposal.
Immigration
Since the return of democracy, economic growth and political stability have made Chile a major immigration destination within Latin America. Yet recent events such as large-scale arrivals from countries such as Haiti and Venezuela have heightened debates about how the new constitution should broach the issue. Heated protests against immigration have emerged, and the Chilean government has implemented new visa restrictions as of late.
The constitutional proposal reflects the salience of the immigration issue. Article 16.4b establishes the power of the government to deport non-citizens (except refugees and asylum seekers), leaving “the entry, stay, residence and departure of foreigners” as well as “the cases, procedures, forms and conditions for release or expulsion” to ordinary law. The language indicates release from detention or deportation should occur “in the shortest time possible.” The article then prohibits any individual or group from assisting illegal entry into the republic.
State Institutions
Decentralization
Decentralized governance has long been an important part of the constitutional conversation in Chile. The 2022 proposal outlined a dramatic shift in the state’s organization in this area. In contrast to the state’s current orientation as a unitary state (Article 3), the 2022 proposal would have defined Chile as a ‘regionalized’ state (Article 1), composed of fully autonomous regions responsible for all government functions (Article 202). The current proposal defines Chile as a unitary state with decentralized governance (Article 4).
Border Police
Immigration issues have likewise shaped institutions in the constitutional proposal. The thirty-sixth transitory provision in part sets the direction of the new constitutional regime with regard to border security. The provision mandates the creation of a border police that “shall be responsible for the control, patrol and protection of the national land borders.” The president must submit legislation to give form to the new police force within five years.
Judicial Autonomy
In any country, the judiciary is central to ensuring constitutional adherence and accountability across all government institutions. Objectivity and autonomy are thus key objectives in judicial selection and oversight. Processes entrusting selection and oversight to the judiciary itself or to a body representing diverse institutions are often understood as supporting the greatest degree of judicial autonomy so the judiciary is not shaped by a narrow set of officials.
Chile’s 2023 proposal makes considerable changes to judicial selection. It retains the president’s role in appointing judges and Supreme Court justices from a list of nominated candidates, but changes the nominating body from the courts themselves to a new body (composed of a presidential appointee, two Senate appointees, and four judges) and it lowers the threshold for Senate approval of those appointments. Regarding selection of Chile’s Constitutional Court, the proposal retains a role for the president, Senate, and Supreme Court, but increases the role of the Supreme Court and removes the role of the House of Representatives in the selection process.
The proposal also makes substantial changes to oversight of judicial personnel and finances—factors that are key to judicial autonomy after judges are selected. Overall, it reduces the supervisory powers of the Supreme Court, which is the highest court in the Chilean judiciary. Article 162 shifts the power to supervise, evaluate, and transfer judges from the Supreme Court to the new body noted above, composed of judges and presidential and Senate appointees. It also eliminates the Supreme Court’s power to remove lower court judges and does not specify which institution now has the power to remove judges. The proposal also shifts the power to oversee judicial personnel and finances from the Supreme Court to a new body.
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These 12 key issues offer a glimpse into the content and approaches included in the 2023 proposal. Readers can explore these and other issues further using CCP’s constitutional comparison tool.