The dream that can still be: The Chilean process to a social contract

In October 2019, massive social unrest erupted in Chile at a scale unseen since its transition to democracy in 1990. The protests included massive rallies across the country demanding a new social, economic and environmental pact.

For political parties across the spectrum it was evident that social demands were pushing to replace the 1980’s Constitution. This had been adopted during the military regime of Augusto Pinochet (1973–1989) without any democratic oversight. Even though the constitution was reformed in 2005, it retains the ideological fingerprints of Chile’s dictatorship.

While for many external observers, the so-called ‘Chilean awakening’ was triggered by the marginal increase of the metro fare in the capital, Santiago, the general sentiment of the streets was evident for the protesters: 'It’s not about 30 pesos, it’s about 30 years’ played one of the slogans. It has been roughly 30 years since 1988, when Chile began its transition from the Pinochet dictatorship to liberal democracy. Those three decades have seen restoration of civil rights, but also an extension of many of the regime’s economic policies, which privileged only the elites.

The social uprising needs to be understood in the context of the extreme inequalities in the country. Inequalities of wealth and income have not decreased in the last decade.^[1] Despite modest advances, the levels of poverty and extreme poverty are concerning and much higher than the OECD average.^[2]Most of the population are struggling with high living costs, lack of social protection, low wages, unaffordable and segregated housing, privatised pension and health systems, and an underfunded and segregated education system that undermines equality of opportunities.^[3]

On the street the social unrest was captured under the slogan ‘Until dignity becomes customary’. According to surveys,^[4] people associated the concept of ‘dignity’ with quality public services, education, healthcare and decent pensions, all of which correspond to the exercise of economic, social and cultural rights (ESC rights).

Social demand for ESC rights has been at the centre of citizens' demands for the last three decades in Chile. The student movements (2006 and 2011), the environmental protests (e.g., ‘Patagonia without dams’, 2011), and the protest over the privatisation of the pension system and lack of decent pensions (e.g. ‘No + AFP movement’, 2016) rebelled against the commodification of economic and social rights. The constituent process initiated by President Michelle Bachelet in her second term (2014–2018) also revealed the importance of the protection of these rights at the constitutional level.

On 15 November 2019, to provide an institutional solution to the unleashed crisis, all major political parties signed the so-called ‘Agreement for Social Peace and the New Constitution’.^[5] The aim was to channel the social conflict through an institutional process to replace the constitution. This political agreement set the time frame and the parameters for the constitutional process which included two referendums: one at the beginning of the process (the so-called ‘entry referendum’) and another to approve or reject the text to be elaborated during the process (the so-called, exit referendum).

In the entry referendum citizens were called to approve or reject the possibility of drafting a new constitution as well as the body that should draft it (i.e. a ‘Mixed Constitutional Convention’ made up of an equal number of members elected by popular vote and members of the Congress, or a ‘Constitutional Convention’ made up exclusively of representatives elected by popular vote). Postponed due to Covid-19, the referendum was finally held in October 2020, when an overwhelming majority of Chileans (78%) voted in support of a new constitution. The vast majority also expressed their will that this was to be drafted solely by elected citizens, not members of Congress (79% of voters).

The Constitutional Convention was composed of 155 elected members and was designed with many innovative features to ensure its popular representation. Most prominently, it allowed independent candidates, required gender parity and reserved seats for indigenous peoples. As a result, those elected to be members of the Constitutional Convention were common citizens whose backgrounds reflected the diversity of the country and differed considerably from those who have traditionally held power.^[6]

The work of the Constitutional Convention was not exempted from difficulties and controversies, some of which were triggered by mistakes and political errors of its own members. Most of the members of the Convention had no political experience, and overnight became subject to political scrutiny and media spotlight. As they were constantly in the news, any nonsense or inappropriate comment that one of them might say was repeated and exploited by the media ad nauseam mainly to delegitimise the process. This turbulent environment was exacerbated by institutional difficulties such as lack of appropriate financial and human resources to realise their work and a very limited time frame to write the constitution (the Constitutional Convention was given nine months extendable for three more to fulfil its task). All these factors facilitated the proliferation of fake and misleading news that undermined the legitimacy of the process and deepened the insecurity, uncertainty and exhaustion of many people in Chile.

After 10 months of work, the Constitutional Convention proposed a new constitution (hereafter: the Conventional text).^[7] Despite all the challenges it confronted, the proposed text was aligned with human rights, gender-inclusive and climate-sensitive standards. Among its innovative provisions, the draft proposal included a long list of economic, social, cultural and environmental rights; ensured gender parity and equality clauses across government branches; recognised rights and autonomy for indigenous peoples; and recognised as a duty of the state the prevention, adaptation and mitigation measures to halt the climate emergency.

The Conventional text could have been the new social contract that the Chilean people had been demanding for years. However, on 4 September 2022 the result of the so-called exit referendum was an overwhelming ‘rejection’ of the text proposed by the Constitutional Convention. As a consequence, the Pinochet-era constitution remains in place and at the time of writing, there is no political consensus on the way forward.

Despite the exit referendum outcome, in this essay we argue that there are some social transformative consensuses that came to the fore through the now-concluded constitutional process that can and must be traced to set the bases of a new social contract in the future. To achieve this argument, we first highlight five key elements any social contract should have, analysing the contrasts between the current constitution and the Conventional text and the ways in which Chilean society has changed since the current magna carta was enacted. Secondly, we shed light on the results of the exit referendum outcome. Finally, in the conclusion, we assert that the rejection of the Conventional text cannot be interpreted as a rejection of the desire and need to adopt a new social contract. Moreover, any constitutional process Chile decides to embark further on should take into account the learnings and mistakes of the recent past and therefore depart from the existing social contract in the country.

As economist Minouche Shafik so rightly states, we ‘are living at a time when, in many societies, people feel disappointed by the social contract and the life it offers them’.^[8] This disappointment has been clear in Chile in recent decades and was made unavoidable in October 2019 with millions of people rallying at massive demonstrations throughout the country, demanding a new social contract under the slogan ‘Until dignity becomes customary’.^[9] The 2019 social uprising together with the extremely tense and divisive political climate before and after the exit referendum in September 2022 are clear evidence of the demands for a new social contract by the Chilean population. The economic model enshrined in the 1980’s Constitution has brought massive environmental, social and economic inequalities^[10] and extreme social discontent, particularly by the youth that feels left behind.^[11] It has also caused environmental damage^[12] including severe droughts due to unsustainable use of resources.

Despite the referendum outcome, which maintained the 1980’s Constitution in force, the demands for a new social contract are still valid and need to be addressed with a sense of urgency. In this section we highlight five key elements we consider any social contract should have: uphold human rights, ensure gender justice, address historical injustices, respect nature and recognise solidarity. ^[13] For each element we analyse how the constitution in force (i.e. the 1980’s Constitution) contrasts with the Conventional text and the ways in which Chilean society has changed since the current constitution was enacted.

The 1980’s Constitution^[14] includes a very narrow list of human rights, including a limited approach to ESC rights. In fact, the legal design and restricted justiciability of human rights make a clear distinction between civil and political rights and ESC rights. For example, the provisions that enshrined a limited number of ESC rights are framed as liberties,^[15] preventing their consideration as individual and collective entitlements. The framing strongly favours the provision of ESC rights by private actors (the so-called ‘subsidiarity principle’).^[16] Instead of rights, they are understood as ‘commodities’ to be acquired from the market depending on the individual economic capacity^[17] or residual benefits to be granted at the discretion of the state,^[18] with limited possibilities to claim them in courts.^[19]

In sharp contrast, the Conventional text^[20] included a clause of interdependency^[21] of all human rights and a specific provision on progressivity and non-regression.^[22] It also enshrined a comprehensive list of rights including innovative rights within the Chilean constitutional tradition such as the prohibition of enforced disappearances,^[23] the right to memory and the guarantees of non-repetition and the rights to truth, justice and comprehensive reparation;^[24] the rights to water and sanitation,^[25] the right to housing,^[26] the right to the city,^[27] the right to food^[28] and the right to a vital minimum of energy,^[29] among many other ESC rights. It also enshrined new mechanisms to enforce these rights such as universal and quality public services,^[30] just fiscal policies^[31] and a general clause of justiciability.^[32]

So far, neither the indivisibility of all rights nor the inclusion of these rights have been publicly contended. However, the specific terms on which some rights were incorporated in the text have been a source of polemics such as housing, property and social security. Therefore, we believe that there is a basis of consensus around the need for recognition of all rights in their full scope of indivisibility, although the specific content of some of them would require debate and consensus.

An eco-social contract requires including those individuals historically excluded from previous social contracts, in the case of Chile this largely applies to women. The 1980's Constitution does not include any reference to gender, and it only mentions women’s rights when regulating equality before the law (formal equality). In some ways, the constitution broadly reflects the idiosyncrasy of the time in which the constitution was written.

A constitution is a foundational element of normative discourse and behaviour as it sets the social behaviours that should be protected (and therefore, promoted) and those which should be prevented (and discouraged). In this sense, the constitution promotes a ‘right way of living in the world’ which becomes much defined by ‘the rule of law, by rights and duties as well as by genealogy, family, role and rank’.^[33] Thereby, the (intentional) lack of attention to women’s rights produces the effect of relegating them to the care and domestic world, leaving the male breadwinners in charge of public affairs and the familiar representation and protection and thus reinforcing a model which discriminates against women.

However, women’s role in society has dramatically changed. Today’s reality is sharply different from that of the 1980s in many ways, including through the increased rates of girls’ education and women’s participation in the labour market. These changes put pressure on the current constitution, turning the social contract away from the paradigms in which it was written.^[34] Thus, new rights and regulations are needed to account for these apparently new subjects.

Accordingly, the Conventional text largely reflected the many ways in which Chilean society has changed since then. From its very beginning, the constitutional process was designed to incorporate gender parity in the Constitutional Convention. Moreover, the text considerably expanded women’s rights by introducing the right to care and the corresponding duties of the state to support care work, ^[35] sexual and reproductive rights,^[36] principles of gender^[37] and substantive equality,^[38] institutional parity,^[39] the right to live a life free from gender violence,^[40] institutional justice systems with a gender approach^[41] and the right to comprehensive sex education^[42] among many other gender-transformative provisions. Furthermore, the Conventional text also included LGBTQ+ sensitive provisions such as the right to sexual orientation and gender identity^[43] as well as the recognition and protection of families in all their forms.^[44] In this way, the Conventional text was much closer to the reality of 21st century Chile and aligned with most modern constitutions and international human rights law.

Considering entrenched social norms and the limited debate around the Conventional text (the process lasted only 10 months and there were just two months from the adoption of the text to the exit referendum), it is difficult to know to what extent the rejection of the text reflected a disagreement over women’s rights and the gender content of the proposed text. Nonetheless, there are reasons to argue that there is relative consensus on the ways in which some women’s rights have been included in the proposal, particularly in relation to care and parity. For example, since the exit referendum, almost all parliamentary and social debates include institutional gender parity as a starting point.^[45] However, some specific sexual and reproductive rights and gender rights such as abortion and the right to gender identity may have been determinants for some voters. In a conservative society, sexual orientation and gender identity rights are seen mainly as identity claims rather than general social demands. If more time were given to Chilean society to mature and meaningfully process the significance of these rights in their day-to-day life, some voters might take a different view.

As noted, the current constitutional text focuses on the breadwinner male as the main subject. Thus, it does not include women and LGBTQ+ communities. However, these are not the only excluded and ignored subjects in the constitution. Several other historically excluded subjects that participate in the social contract such as persons with disabilities, older people, children and indigenous peoples are also excluded. The male breadwinner – which is taken by the constitution as the ultimate moral agent– can only achieve and maintain his identity in a certain type of culture; cultures that ‘are carried on in institutions and associations which require stability and continuity and frequently also support from society as a whole’.^[46] Therefore, the atomism which places the breadwinner as an autonomous being who is self-sufficient and just like every other subject is a standpoint that averts the interdependency between all human beings.

In contrast, the proposed Conventional text included several provisions regulating the rights of children,^[47] the rights of persons with disabilities,^[48] the recognition of neurodiverse people,^[49] the rights of people deprived of liberty,^[50] the rights of older people^[51] and a large set of rights of indigenous peoples and communities.^[52]

Some of these provisions seem not to be contested, such as the inclusion of persons with disabilities, older people and children’s rights. Even within defenders of the rejection alternative in the exit referendum there were advocates for these rights. Thus, it is safe to assume that there is some consensus around the expansion of the constitutional subjects towards those spaces. However, there are still great tensions around the rights of indigenous peoples. Therefore, even if we could assert that there is social agreement around the inclusion of certain groups in a new social contract, it remains to be seen whether a new constitutional process would be able to advance on the recognition and rights of indigenous peoples

While the 1980’s Constitution only provides and regulates for the present, there is no provision in it alluding to the future of the country and future generations. If a constitutional text is not equipped to answer to the future, there is a major limitation to its scope and application. Furthermore, in an increasingly depleted environmental situation ‘young people around the world are indicative of their frustration with a social contract that they feel is cheating them of their right to a stable and inhabitable planet’.^[53] As these younger generations do not count as real subjects of the constitutional text, the tension is almost visible between the text and the social reality.

The 1980’s Constitution places an overemphasis in the present which has resulted in the massive failure to guarantee the respect for sustainable use of resources, biodiversity and planetary boundaries. It completely ignores the interdependence between humans and nature. Despite the efforts to enshrine the right to live in a pollution-free environment, it fails to account for nature as a subject of rights and protection, emphasising the rights of people over its exploitation and only tangentially on the protection of the environment for human-oriented purposes.

One of the most evident contrasts between the text presented by the Constitutional Convention and the 1980’s Constitution is the extensive protection of nature and the environment. The Conventional text includes the right to a healthy and ecologically balanced environment^[54] in a full chapter about nature and the environment^[55] which provides for nature rights,^[56] the confrontation of the climate and ecological crisis,^[57] the rights and protection of animals,^[58] the establishment of natural common goods,^[59] the statute of the waters,^[60] the statute of minerals^[61] and the institutional defence of these rights.^[62]

The discussion around the constitutional process highlighted that a new social contract should take responsibility for the present and future lives of those it intends to regulate. While it seems evident from the debates that Chilean people would like a different approach to that of the 1980’s Constitution, to what extent they would fully embrace an eco-social contract is not yet evident. The rejected Conventional text included a very ambitious regulation of nature and animal rights as well as detailed recognition of particular statutes for rivers, minerals, lands, skies, air and other components of nature. However, none of these particular elements have been contested by the rejection campaign or the political debates in the aftermath of the referendum. On the contrary, recent parliamentary debates have agreed that any new constitution should commit to the protection and conservation of nature and its biodiversity. ^[63] Thus, we can securely speculate that new regulations will be included in a future constitution.

In the face of the devastating effects of the climate crisis, the persistent droughts in the country and the pollution resulting from resources exploitation, and by the persistent ways Chilean people have been demanding a more sustainable future for decades, there are reasons to believe that Chilean people hope for a social contract that would take care of the future and nature.

Critical to the neoliberal model that the 1980’s Constitution enshrined was placing the responsibility for people’s wellbeing on the individual and their families. The emphasis is placed on state–citizen relations, with no other social fabric than the family. This is aligned with the shrinking of fiscal resources, the privatisation of natural resources – such as water and minerals – and the commercialisation of public services. This whole phenomenon was crowned by the introduction of the subsidiarity principle which privileged the action of private actors to the detriment of the public, leaving the state to act only when the privates could not or would not intervene.

The Conventional text is a paradigm shift in this regard. It enshrines several provisions that recognised new forms of social solidarity. These novel forms of collectiveness and partnership between individuals and institutions to produce general benefits^[64] are evidenced in several articles such as the recognition of a welfare state,^[65] the solidarity principle^[66] and one that places the protection and guarantee of collective human rights as the foundation of the state and its activity.^[67] It also shows in the provision that enables the collective exercise of fundamental rights,^[68] the right to unionisation,^[69] the collective right to the city,^[70] the right to sport^[71] and the right to collectively participate in public decisions.^[72] Finally, solidarity can also be found as a guiding principle of the nation’s foreign affairs,^[73] the education system,^[74] the health system,^[75] the social security system,^[76] the care system,^[77] the development of scientifical research,^[78] the protection of nature and the environment,^[79] the tax system^[80] and the participation of the state in the economy.^[81]

At first sight, the inclusion of new forms of solidarity which derive from the welfare state are not being disputed. Even after the exit referendum, political parties that called for the rejection have expressed their agreement with the idea of moving to a social democratic state. Thus, it is possible to conclude that there is great consensus on the definition of Chile as such a state, which until a few years ago was unthinkable.^[82] However, it is still to be seen to what degree are Chilean people committed to sacrifice their own personal realities towards the construction of a solidary constitutional system, or if, conversely, neoliberalism is still very settled on the epistemes and minds of the country inhabitants.

On 4 September Chilean people had to vote in favour of the approval or rejection of the Conventional text. As decided by political parties in the Agreement for Social Peace and the New Constitution, ^[83] for this ‘exit referendum’ the vote was mandatory and the electoral registry automatic (all Chileans 18 years old and older were obliged to vote. ^[84] Thus, this has been the Chilean election in which the most voters have ever participated^[85] The results were overwhelming: 61.86% of voters rejected the new text. ^[86] As a consequence, the Pinochet-era constitution continues. This raised an important question: does the rejection of the text proposed by the Constitutional Convention imply that Chilean people reject the idea of a new social contract?

Many elements intertwine in this answer. Below, we identify several factors that could have been behind the exit referendum outcome. While these are all important factors, we consider that they do not delegitimise the demands of a new social contract. On the contrary, we believe that the political aftermath of the elections and the challenges Chile faces reinforce the evidence that a new social contract is needed, and that Chileans are still eager to have a new constitutional text despite the rejection of this particular one.

From the start of the constitutional process severe deficiencies could be spotted. The Constitutional Convention was established without adequate support, financing, communications and technological tools for its proper functioning.^[87] But most of all, the time constraints set by the so-called Agreement for Social Peace and the New Constitution^[88] set the tone of the outcome. Through this political agreement, the Constitutional Convention was given nine months extendable for three more to fulfil its task. This time proved to be too short. Time constraints not only limited the space for building consensus and negotiating a better text within the Constitutional Convention, ithey also prevented the popular comprehension of the work of the constitutional body, the maturation of the proposals presented and limited the time for debate and to build support for it.

The great majority of voters in the entry referendum decided that the text should be written by members elected by popular vote. Most of those elected to the Constitutional Convention were not constitutional ‘experts’ nor politicians or public figures. If voters were resentful of traditional political parties and politicians and wanted the constitution to be written by common people, the composition of the Convention achieved this aim. It reflected the diversity of the country much more closely than Congress and the great majority of its members were not from the traditional elites. ^[89] They were people without much political exposure who wanted to be active participants of a historical process triggered by social demands.^[90] However, the inexperience and bad judgement of some of the members ended up being critical factors for the rejection of the proposed text.^[91]

From the moment the members of the Constitutional Convention were invested in their authority, public scandal was the order of the day. The investiture ceremony had to be suspended for hours because of protests in which some Convention delegates also participated.^[92] Soon after the work had started, a polemic was uncovered around one delegate who faked a serious illness to build his campaign and access his post.^[93] All of this added to several episodes of non-traditional indigenous ceremonies,^[94] cleansing rites and amulets,^[95] delegates casting votes from the shower^[96] and delegates disguised as dinosaurs and fictional characters during the sessions^[97] helped take the seriousness out of the work of the Convention. In a country like Chile, where forms and representations are extremely important – sometimes even more important than contents – these scenes could not be forgiven easily, impacting on the institution’s legitimacy and credibility.

The ways in which some of the members of the Constitutional Convention acted could have made the public perceive them as politicians undermining their legitimacy. In any case, it is fair to say that the scandals involved just a few members of the Convention, whose mistakes were amplified and portrayed by the media as failures or positions involving the whole body. Moreover, the very fact that common people were in charge of writing the new constitution proved to be very difficult to accept by the status quo. Even some intellectuals and political figures who over the years had opposed the 1980’s Constitution appeared to resent not being active participants of this historical process and despise the work of the Constitutional Convention. Some of them are now calling for a committee of ‘experts’ or of ‘wise people’ as a way forward to write a new constitution. Some men have even spontaneously proposed themselves as potential members of such a body. ^[98]

Although a good text, the Conventional text seems to have taken care of too many demands at once. Indigenous peoples, decentralisation movements, women, animalists, environmental defenders and even firefighters are among the many groups who came to be represented in the text. The constitution is the sum of its parts, and there were some parts which were considered problematic. For example, the provisions on plurinational state,^[99] abortion, indigenous justice systems and the suppression of the Senate have been considered among the main decision factors of the broad rejection vote.^[100]

While we think that some of the parts might have been problematic for the Chilean tradition of institutional design and practice, such as the change in the political system – in particular the suppression of the Senate, others just posed an epistemic challenge to the Chilean population and required small adjustments, such as the indigenous autonomies. Others, such as abortion and plurinationality, were a demonstration of how far we still are from recognising international human rights standards.

In any case, the options at the referendum were to adopt or reject the whole text. Thus, if a voter felt strongly against a specific content, she was forced to reject. Considering that the text also introduced several innovations to the Chilean constitutional tradition, the scepticisms or the rejection to specific provision might have also come from a lack of better understanding. In a country where the population has been deprived of civic education for years, this was the perfect recipe for a failed process.

This political climate was also the best scenario for the dissemination of disinformation, manipulation and fake news.^[101] As in recent elections in other countries,^[102] there was an evident strategy designed to influence or manipulate voters in favour of rejection. From social media messages that asserted that under the proposed constitution you could have your house or pension taken away by the government to WhatsApp messages in rural areas saying that the use of animals would be forbidden in agriculture, there was an abundance of fake news on social media. Moreover, information outlets of all kinds (television, radio and social media) were heavy replicators of disinformation. For example, when a Senator falsely claimed that the proposed text allowed abortion up to the ninth month of pregnancy, media outlets did nothing to investigate the veracity or falseness of the claim. The high level of disinformation produced fear for some, who preferred to stay with a bad constitutional text (‘better the devil you know than the devil you don’t’).

Chile, as well as the rest of the world, is living in complex times. The high level of inflation, the increase in the cost of living, the perception of insecurity, the impact of the Covid-19 pandemic on already poor mental health, the decrease of social trust and fabric and the slowdown of economy are all factors that impact enormously on the population and the outcomes of any election. The approval rate of the actual government has also decreased. Thus, it is likely that some voters saw the exit referendum as an evaluation of the government’s performance or a way to express their dissatisfaction with their current economic and social circumstances.

**

All the above-mentioned factors played a role in the outcome of the exit referendum. However, we consider that the overwhelming rejection of the proposed text should not be interpreted as Chilean people rejecting the idea to move to a new social contract. In our view, the electorate has delivered three clear mandates. First, in the entry referendum (in October 2020), when the constitutional process started, the majority (78.31% of voters)103 expressed that they wanted the writing of a new constitution. Second, that the constitution should be drafted by citizens elected by popular vote (79% of voters). Third, that the text should not be the one proposed by the Constitutional Convention (September 2022).

The so-called ‘social uprising’ of October 2019 was a culmination of a series of social mobilisations in the country that made evident that the existing social contract was broken and in need of reform. Political authorities were right in their diagnosis at the time, considering that it was possible to channel the crisis through an institutional process to reform the 1980’s Constitution, which embodied the broken contract. The fact that people rejected the material outcome of the process: the text of a new constitution, does not change the fact that there are still overlapping economic, social, political and ecological crises in the country that make a new eco-social contract essential.The fact that Chilean people still want a new social contract expressed in the form of a new constitution has been endorsed more recently, and after the referendum. In September 2022, polls show that 69% of the population is in favour of initiating a new constitutional process.^[104] These results, which are still uncontested, give a strong starting point to believe there is still the will to update the codification of the social contract.

We cannot responsibly assert how fast or deep this process should be – and less so amid the advocacy of a loud minority that equates stability to status quo and therefore sees any intention of change as a menace to stability. Yet, as we traced in the previous sections, there are tokens of agreement that show that although the Conventional text certainly needs to be reformed, whatever follows should not depart from a blank page but instead from the learnings and mistakes of the recently failed constitutional process. The failure of the processes that culminated in the exit referendum should be considered as part of a continuum for building a new social contract. The process fostered a range of deliberative processes at different levels: from the family all the way to a national debate. Beyond the Constitutional Convention, there were plenty of processes from cabildos (town hall forums), assemblies and neighbourhood discussions to student meetings in which different sectors of society and various stakeholders arrived at shared visions. Although these processes occurred in a relatively short period of time, they have assisted the country in identifying elements of a new social contract that the society considers desirable. They have also assisted in identifying those elements which require more time to be grounded, accepted and understood by some big and small sections of the population.

As society changes, the social contract reflected in any constitution must change along with the people it is intended to serve. As Minouche Shafik puts it, ‘[b]ecause it is so important and because most people cannot easily leave their societies, the social contract requires the consent of the majority and periodic renegotiation as circumstances change’.105 A new social contract in Chile requires broad participation, dialogue and consensus building. Thus, Chile would need to ensure a process which enables broader participation at all stages of the process. A new social contract should be constructed incrementally, step by step across sectors and issues at a different level, local and national.

If a text of a new constitution is to unite the country, we believe that the demands for a new economic model, the demands for sustainability and for the respect, protection and fulfilment of human rights, including the essential levels of ESC rights, must be included because they are the common denominator of social demands. The legitimate demands for gender equality, women’s rights and the inclusion of historically excluded groups are also shared by important sectors of the Chilean society. The specific content and how far to go with these provisions depend highly on political factors, such as the resources invested in the process to ensure appropriate functioning, the length of it and the measures taken to ensure a fair discussion of ideas and mechanisms to build consensus.

Ideally, in a new constitutional process there should be time to understand, process and evolve the alternatives by the population, thus enabling a fully informed decision on their country’s future. However, time is of the essence. The continuation of the status quo, which only benefits a few, caused the social uprising. The constitutional text in force does not incorporate institutional mechanisms to adapt relatively quickly to the changing social circumstances leaving society exposed to new waves of protest. In the meantime, social variables such as the position of women in society, the ageing population and the depletion of the environment will continue to put pressure on the outdated economic and social paradigms represented in the 1980’s Constitution.^[106]

Although the heated political discussions – both during and after the Constitutional Convention’s work – reveal innumerable differences between the various political factions, there seems to be agreement on the elements that today form the social pact in Chile: human rights for all, gender justice, addressing historical injustices, a contract with nature and the recognition of new forms of solidarity. The remaining question is how this broad basis of agreement could look in a new text; a question that for the moment requires more field and substantive research.

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‘Álvaro Elizalde y Plebiscito: “Necesitamos un nuevo pacto social, sanar heridas”’, Alejandro Rodriguez, Publimetro, 5 August 2022, www.publimetro.cl/noticias/2022/08/05/alvaro-elizalde-y-plebiscito-necesitamos-un-nuevo-pacto-social-sanar-heridas

Evidencia científica y cambio climático en Chile: Resumen para tomadores de decisiones, Paulina Aldunce, Sebastián Vicuña, Laura Farías et al (editors), Santiago: Comité Científico COP25; Ministerio de Ciencia, Tecnología, Conocimiento e Innovación, 2019, https://cambioclimatico.mma.gob.cl/wp-content/uploads/2020/04/Evidencia-cientifica-y-cambio-climatico-en-Chile-Resumen.pdf

Resultados Preliminares Servel. Votación Plebiscito Constitucional, SERVEL, 2022, https://preliminares.servelelecciones.cl/#/votacion/elecciones_constitucion/global/19001

‘‘Chile Woke Up’: Dictatorship’s Legacy of Inequality Triggers Mass Protests’, Alejandro Tapia, The New York Times, 18 November 2019, www.nytimes.com/2019/11/03/world/americas/chile-protests.html

‘A constitutional convention in Chile could forge a new social contract’, The Economist, 18 March 2021, www.economist.com/the-americas/2021/03/18/a-constitutional-convention-in-chile-could-forge-a-new-social-contract

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[1] Panorama Social 2019, Economic Commission for Latin America and the Caribbean (ECLAC), Santiago December 2019.

[2] See OECD Income (IDD) and Wealth (WDD) Distribution Databases, www.oecd.org/social/income-distribution-database.htm

[3] Desiguales. Orígenes, Cambios Y Desafíos De La Brecha Social En Chile, Santiago, Programa de las Naciones Unidas para el Desarrollo (PNUD), June 2017.

[4] ¿Cómo vemos el proceso constituyente? Miradas a un Momento Histórico. Informe N°1 - Indagación cualitativa, IPSOS and Espacio Público, 2021, www.ipsos.com/sites/default/files/ct/news/documents/2021-03/ppt-bhp-informe-n1-final.pdf

[5] This was an agreement between 10 political parties made amid the social uprising. To institutionally conduct the popular discontent, it led to a parliamentary constitutional reform that enabled the realisation of the constitutional process which was encoded in a new chapter of the current constitution (articles 130 to 143). This agreement determined the time frame for the process (later postponed due to Covid-19), as well as the conditions for ‘entry’ and ‘exit referendums. Cfr., ‘Acuerdo por la Paz Social y la Nueva Constitución, F Chahín et al’, 15 November 2019, https://obtienearchivo.bcn.cl/obtienearchivo?id=documentos/10221.1/76280/1/Acuerdo_por_la_Paz.pdf and ‘Desde el FA a la UDI: Congreso logra histórico acuerdo para construir nueva constitución’, Jonathan Flores, Biobiochile.cl, 15 November 2019, www.biobiochile.cl/noticias/nacional/chile/2019/11/15/desde-el-fa-a-la-udi-oficialismo-y-oposicion-logran-acuerdo-para-avanzar-hacia-nueva-constitucion.shtml

[6] With an average age of 45 years, the Constitutional Convention was the first Chilean institution to include women as the majority of its members (77 in total). Also, a very interesting feature was that most delegates came from state-funded (49) or subsidised schools (40) depicting a much more real-life-like picture than any other political conglomerate in the history of Chile. Finally, among the most common delegate occupations were lawyers or law graduates (59) and teachers or academics (19). Cfr., ‘Así piensa la nueva Convención: 10 claves sobre las posturas de los elegidos para escribir la Constitución’, La Tercera, 18 May 2021, www.latercera.com/investigacion-y-datos/asi-piensa-la-nueva-convencion

[7] Cfr, Propuesta Constitución Política de la República de Chile, Convención Constitucional de Chile, 2022, www.chileconvencion.cl/wp-content/uploads/2022/07/Texto-Definitivo-CPR-2022-Tapas.pdf

[8] What we owe each other, Minouche Shafik, Princeton; Oxford: Princeton University Press, 2021, p2.

[9] ‘«Hasta que la dignidad se haga costumbre»: Cómo surgió la frase emblema del estallido social chileno’, CHV Noticias, 22 October 2019, www.chvnoticias.cl/nacional/hasta-que-la-dignidad-se-haga-costumbre-frase-historia_20191022

[10] Desiguales. Orígenes, Cambios Y Desafíos De La Brecha Social En Chile, Santiago, Programa de las Naciones Unidas para el Desarrollo (PNUD), June 2017.

[11] Cfr, ‘¿En qué están hoy los jóvenes en Chile?: Quieren cambios graduales, libre mercado y estabilidad’, Alejandro Tapia, La Tercera Sábado, 3 December 2021, www.latercera.com/la-tercera-sabado/noticia/en-que-estan-hoy-los-jovenes-en-chile-quieren-cambios-graduales-libre-mercado-y-estabilidad/6HV53Z2F3NB5DHRKP3GLZB3Q4Y

[12] Evidencia científica y cambio climático en Chile: resumen para tomadores de decisions, Maisa Rojas et al, 2019, https://cambioclimatico.mma.gob.cl/wp-content/uploads/2020/04/Evidencia-cientifica-y-cambio-climatico-en-Chile-Resumen.pdf

[13] In this section we take guidance from the UN Research Institute for Social Development (UNRISD) guidelines: A New Eco-Social Contract. Vital to deliver the 2030 Agenda for Sustainable Development. UN Research Institute for Social Development (UNRISD), Issue brief 11 March 2021.

[14] Cfr., Decreto 100. Fija el texto refundido, coordinado y sistematizado de la Constitución Política de la República de Chile, 2022, https://bcn.cl/2f6sk

[15] Cfr., article 19 N. 16 on the liberty to work and its protection and article 19 N. 11 on the liberty of education.

[16] Article 1.

[17] Cfr., article 19 N. 18 on the right to social security.

[18] Cfr., article 19 N. 10 on the right to education.

[19] Article 20.

[20] Propuesta Constitución Política de la República de Chile, Convención Constitucional de Chile, 2022, www.chileconvencion.cl/wp-content/uploads/2022/07/Texto-Definitivo-CPR-2022-Tapas.pdf

[21] Article 17.1.

[22] Article 20.

[23] Article 22.

[24] Article 24.5.

[25] Articles 57 and 58.

[26] Article 51.

[27] Article 52.

[28] Articles 54, 55 and 56.

[29] Article 59.

[30] Article 176.

[31] Article 185.

[32] Article 119.

[33] What we owe each other, Minouche Shafik, Princeton; Oxford: Princeton University Press, 2021, p21.

[34] What we owe each other, Minouche Shafik, Princeton; Oxford: Princeton University Press, 2021, p21.

[35] Article 50.

[36] Article 61.

[37] Article 25.

[38] Article 6.1.

[39] Article 6.2, 6.3 and 6.4.

[40] Article 27.

[41] Article 312.

[42] Article 40.

[43] Article 64.1.

[44] Article 10.

[45] See for example, the results of the Criteria and Labcon poll (https://labconstitucional.udp.cl/cms/wp-content/uploads/2022/10/CRITERIA-UDP-FINAL-OCT.pdf), where 77% of the people surveyed believe that a new constitution-drafting institution must incorporate parity. Also, the Congress proposals for a new constitution incorporate parity within their terms (www.cnnchile.com/pais/oficialismo-y-la-dc-presentan-acuerdo-organo-nuevo-proceso-constituyente_20221014).

[46] ‘Chapter Seven: Atomism’, Charles Taylor, in Philosophy and the Human Sciences, Charles Taylor, Cambridge: Cambridge University Press, 1985, p205.

[47] Article 26.

[48] Article 28.

[49] Article 29.

[50] Articles 30, 31 and 32.

[51] Article 33.

[52] Articles 5, 12, 13, 14, 18, 25.4, 34, 36.5, 44.2, 44.6, 54.3, 55, 58, 65, 66, 79, 96.3, 102, 114.3, 119.9, 162.1, 162.2, 187.2, 309, 383.1, 387,1, among others.

[53] What we owe each other, Minouche Shafik, Princeton; Oxford: Princeton University Press, 2021, p25.

[54] Article 104.

[55] Articles 127 to 150.

[56] Article 127.

[57] Article 129.

[58] Article 131.

[59] Articles 134 to 139.

[60] Articles 140 to 144.

[61] Articles 145 to 147.

[62] Articles 148 to 150.

[63] ‘12 puntos conforman el borrador del acuerdo constitucional hasta el momento: se incluye un Estado social de derechos y reconocimiento a pueblos originarios’, Nelson Quiroz, ADN Radio, 11 October 2022, www.adnradio.cl/politica/2022/10/11/12-puntos-conforman-el-borrador-del-acuerdo-constitucional-hasta-el-momento-se-incluye-un-estado-social-de-derechos-y-reconocimiento-a-pueblos-originarios.html?amp=1

[64] What we owe each other, Minouche Shafik, Princeton; Oxford: Princeton University Press, 2021, p10.

[65] Article 1.1.

[66] Article 1.2.

[67] Article 1.3.

[68] Article 18.

[69] Article 47.

[70] Article 52.

[71] Article 60.

[72] Article 191.1.

[73] Article 14.

[74] Article 35.4.

[75] Article 44.5.

[76] Article 45.1.

[77] Article 50.2.

[78] Article 98.

[79] Article 128.1.

[80] Article 185.1.

[81] Article 182.1.

[82] ‘El largo y pedregoso camino hacia la nueva Constitución de Chile’, Tomás Jordán, El Mostrador, 26 September 2022, www.elmostrador.cl/destacado/2022/09/26/el-largo-y-pedregoso-camino-hacia-la-nueva-constitucion-de-chile

[83] See note 5.

[84] This mechanism was set in 2019 by point 8 of the so-called ‘Agreement for Social Peace and the New Constitution’.

[85] A total of 13,019,278 people voted in the exit referendum, which represents 85.7% of the total list of 15,173,857 voters (Cfr. www.bcn.cl/portal/noticias?id=historica-participacion-plebiscito-2022).

[86] Plebiscito Nacional 2020, Servicio Electoral de Chile (SERVEL), 2022, https://historico.servel.cl/servel/app/index.php?r=EleccionesGenerico&id=10

[87] ‘Convención pide nuevos recursos al Gobierno por más de 2 mil millones de pesos: Loncon dice que fue un "trabajo transversal" y “el presupuesto era deficiente”’, El Mostrador, 2 September 2021, www.elmostrador.cl/nueva-constitucion/2021/09/02/convencion-pide-nuevos-recursos-al-gobierno-por-mas-de-2-mil-millones-de-pesos-loncon-dice-que-fue-un-trabajo-transversal-y-el-presupuesto-era-deficiente

[88] See note 5.

[89] See note 6.

[90] Any Chilean citizen aged at least 18 years old could become a candidate for the Constitutional Convention, as a representative of a political party, or independently. Independent candidates were required to gather 300 signatures for individual candidacies and 500 for lists of independents. According to the Electoral Service of Chile (Servel), there were 3,382 applications, of which 2,213 corresponded to independents and 199 to representatives of the original peoples.

[91] According a post-exit-referendum poll, a key reason for voting rejection was that the process was carried out in a very bad way by the members of the Constitutional Convention (40%), See ‘67% está de acuerdo con que Chile tenga una nueva Constitución…’, CADEM, 11 September 2022

[92] ‘Los disturbios y la violencia frenan el inicio de la Asamblea Constituyente en Chile’, Sebastián Fest, El Mundo, 4 July 2021, www.elmundo.es/internacional/2021/07/04/60e1e929e4d4d864068b460a.html

[93] ‘Rodrigo Rojas Vade: el escándalo en Chile después de que el constituyente reconociera que mintió sobre su diagnóstico de cáncer’, BBC News Mundo, 6 September 2021, www.bbc.com/mundo/noticias-america-latina-58464987

[94] ‘Ceremonia indígena de la Convención Constituyente de Chile al mes de su formación’, Euronews en español, 5 August 2021, https://es.euronews.com/2021/08/05/ceremonia-indigena-de-la-convencion-constituyente-de-chile-al-mes-de-su-formacion

[95] ‘Con amuletos y ritos, convencionales enfrentan el proceso constituyente’, Equipo de Crónica Constitucional, EMOL, 30 April 2022, www.emol.com/noticias/Nacional/2022/04/30/1059496/cronica-constitucional.html

[96] ‘Convencional Nicolás Núñez realizó votación en la Comisión de Medio Ambiente mientras se tomaba una ducha’, Mesa de noticias de El Mostrador, 3 May 2022, www.elmostrador.cl/noticias/multimedia/2022/05/03/convencional-nicolas-nunez-realizo-votacion-en-la-comision-de-medio-ambiente-mientras-se-tomaba-una-ducha

[97] ‘Constituyente llegó con disfraz de dinosaurio a la Convención junto a la Tía Pikachu: exigió que se “liberen las aguas”’, The Clinic, 29 July 2021, www.theclinic.cl/2021/07/29/constituyente-llego-con-disfraz-de-dinosaurio-a-la-convencion-junto-a-la-tia-pikachu-exige-que-se-liberen-las-aguas

[98] This is the case, for example, of former socialist President Ricardo Lagos. See, e.g. ‘“Yo quiero a Chile”: Ricardo Lagos se ofrece como experto para redactar nueva Constitución’, Publimetro, 7 September 2022, www.publimetro.cl/noticias/2022/09/07/yo-quiero-a-chile-ricardo-lagos-se-ofrece-como-experto-para-redactar-nueva-constitucion

[99] For an explanation of the concept, see: www.americasquarterly.org/article/chile-could-become-plurinational-what-does-that-mean

[100] Cfr., See CADEM, 11 September 2022 (see note 89); ‘120 residentes de 12 comunas populares de la Región Metropolitana explican por qué votaron Rechazo’. CIPER, 8 September 2022, www.ciperchile.cl/wp-content/uploads/Razones-para-rechazar.xlsx-Hoja-1-1.pdf; and ‘Chile constitution: Voters overwhelmingly reject radical change’, Vanessa Buschschlüter, BBC News, 5 September 2022, www.bbc.com/news/world-latin-america-62792025

[101] ‘Misinformation abounds as Chile prepares to vote on new constitution’, John Bartlett, The Guardian, 31 August 2022, www.theguardian.com/world/2022/aug/31/chile-new-constitution-vote-misinformation

[102] For example, Brexit vote, USA Presidential Elections in 2016, and the Brazilian election in 2018.

[103] Plebiscito Nacional 2020, Servicio Electoral de Chile (SERVEL), 2022, https://historico.servel.cl/servel/app/index.php?r=EleccionesGenerico&id=10

[104] ‘Cadem: 69% está de acuerdo con que se inicie un nuevo proceso constituyente’, CNN Chile, 26 September 2022, www.cnnchile.com/pais/cadem-acuerdo-inicie-nuevo-proceso-constituyente_20220926

[105] What we owe each other, Minouche Shafik, Princeton; Oxford: Princeton University Press, 2021, p2.

[106] What we owe each other, Minouche Shafik, Princeton; Oxford: Princeton University Press, 2021, p26.