Constitutional Process NATIONAL

Chile’s Constitutional History

Chile has gone through numerous constitutional processes. Most of these have taken place during moments of political instability and were started behind closed doors. Considering this history, the current process represents a unique juncture.

Since the beginning of its independence process in 1810, Chile has had numerous constitutions. The Spanish colonies’ provisional agreements were replaced, creating citizens and exposing them to new ideas.

Generally, constitutions were created by politicians or military leaders who had gained the upper hand in civil conflicts. They were never truly representative of the wider society’s needs and aspirations. In that context, the current process toward a potentially new Constitution represents a break with the past.

Provisional Agreements by the Colonies

In 1808, the French empire, led by Napoleon Bonaparte, invaded Spain, imprisoned King Fernando VII, and set up a puppet government. When news got to then governor of Chile, Mateo de Toro-Zambrano, he summoned elites from across the territory to Santiago.

Meeting on Sep. 18, this first governmental junta declared its support for Fernando VII and approved the creation of a provisional government that would lead until the rightful King regained his powers. But on Aug. 14, 1811 the provisional congress passed the regulations for provisional executive authority, which could count as a constitutional precursor.

However, on Nov. 4 José Miguel Carrera led a coup d’état against the provisional government and established a more progressive Magna Carta with the help of his followers and US consul Robert Poinsett. 

On Oct. 26, 1812 Carrera presented the first provisional constitutional regulation of the people, establishing the Executive as representative of the King of Spain, who would remain the rightful leader but not the government’s highest authority.

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This Constitution helped define the powers of government; the Executive consisted of three members, who would serve three-year terms. The legislative branch was unicameral and consisted of seven elected members, two from Coquimbo, two from Concepción, and three from Santiago, they each held office for three years. Lastly, it created the judicial branch and established the right to fair trial and due process.

In 1814, Fernando VII regained his throne and began a military campaign to recapture the colonies. During one battle, José Miguel Carrera was captured by the Spaniards, who forced the provisional government to choose Francisco de la Lastra as replacement.

In the middle of a war, de la Lastra also ordered the creation of a constitutional document, which introduced the position of supreme director, who led the Executive and oversaw the military while choosing congressional representatives. These changes were meant to ease bureaucracy and facilitate the fight against the Spanish forces.

But they failed because the Spanish defeated the Chilean military in 1814. The Spanish abolished all constitutional documents while José Miguel Carrera escaped prison and fled to Argentina along with the rest of the provisional government.

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Constitutional Experiments

Three years later, the Spanish forces were expelled, and Chile declared its independence from Jan. 1, 1818. Following a power struggle, Bernardo O’Higgins became supreme director as he had become the leader of the revolution after leading the army against the Spaniards as a brigadier. 

O’Higgins presented a project to create an official Constitution. This was the first document to propose the separation of the three branches of government. But the endeavor failed. The position of supreme director endured while the legislative branch’s five members were chosen by the Executive. Most politicians opposed the project because they felt it gave too much power to the Executive.

In 1822, O’Higgins called for a constitutional convention under which 32 representatives drafted a new document. It was presented on Oct. 23 and contained 248 articles. As a novelty, the document established individual rights and equality before the law. It also deepened the separation of powers by creating a bicameral congress. Elected representatives were to govern in the lower chamber and political, religious, and cultural elites in the upper chamber.

When O’Higgins resigned in 1823, his successor created yet another constitutional commission to draft the replacement. Known as the Moralist Constitution, this document included a moral code citizens were to follow.

But this Constitution also introduced term limits for the supreme director and established a third legislative chamber which would meet in the event of an Executive veto. Still, this constitution turned out highly unpopular due to its lengthy legislative process and the moralist code.

By 1826, Congress began proceedings to draft a new Constitution that was to substitute the supreme director position with that of a president and vice-president and turn Chile into a Federal Republic. Although this draft never turned into a Magna Carta proper, it served as the basis for the 1828 Constitution.

Liberals dominated the constitutional commission, establishing freedom of expression, right to property and voting while limiting presidential and vice-presidential powers. They also strengthened the two-chamber legislative branch. The lower chamber would have one representative for every 7,000 to 15,000 people, while the Senate would have two senators from each province.

This Constitution would last until 1829 when quarrels over an electoral law led to a disagreement over the winner of the presidential election, triggering a civil war between the conservatives and liberals.

Longread: the Irish in Chile – O´Higgins and the Independence War

The Longest Serving Constitution

Conservative victory in 1830 brought a new constitutional convention, consisting of 36 members, 30 of which were active members of Congress. In 1833, the convention presented a draft to President José Joaquín Prieto, who approved it.

Consisting of 168 articles, this Constitution established Chile as a Republic governed by a central government in Santiago. It also abolished the position of vice-president. The legislative branch contained a chamber for representatives and one for senators. The Executive was also given power over the Legislative, an authoritarian move that caused unease among some politicians.

Many also opposed the strict voting laws it created. Single citizens gained the right to vote after reaching the age of 25 while married citizens could vote once they turned 21. The right to vote was also conditional on the ability to read and write and own land or invest in industries, which excluded most citizens from the political process.

This Constitution would become the longest active one in Chilean history, lasting 91 years. Because of its long-standing nature, the document was amended and reformed numerous times. Most changes came after 1860, when the liberals defeated the conservatives after over 30 years of government control.

A key change, circumventing the president’s power in favor of the Legislative, was implemented in the aftermath of the 1891 civil war.

The Presidential Republic

In the early 20th century, parliament had become notorious for gridlock. In this context, Arturo Alessandri was elected president on the promise of improving conditions for the working and marginalized classes. However, Congress obstructed Alessandri’s agenda by stalling his bills and dispose of his ministers.

On Sep. 11, 1924, the army led a coup and dissolved Congress. But shortly after General Carlos Ibáñez del Campo overthrew the junta and reinstalled Alessandri as president.

Alessandri’s first order was to oversee the drafting of a new Constitution for which he created a commission of 122 members. Once the draft was approved, it was to be ratified via national referendum on Aug. 30, 1925 and went into effect on Sep. 18.

Consisting of 110 articles, this constitution ended the parliamentary system and placed the Executive above the Legislative. It also separated the Church from the state for the first time while establishing the state as key agent to manage social progress. This development gathered steam in the 1950s, when the government adopted progressive ideals on workers’ rights, social security and industry development.

The document remained in force until the 1973 coup.

Memories of Chile’s Coup d’État

Pinochet’s Constitution

On Sep. 24, 1973, the junta created the Ortúzar Commission, led by Jaime Guzmán, to draft a new constitution. It took the commission five years before presenting a first draft.

In 1978, another commission was created, comprising former right-wing presidents and hand-picked politicians. It presented a second draft in 1980, which was approved by the military and ratified via plebiscite on Sep. 11, 1980.

But the plebiscite took place during a period of state repression and was boycotted by key organizations opposed to the dictatorship. While the constitution was ratified with 65.71% of the votes, it’s legitimacy has remained in question, given low popular participation in the plebiscite.

Consisting of 120 articles, many of its sections were controversial, like designating Chile a “Protected Democracy,” which enabled the prohibition of political parties. 

It established Pinochet as the president for eight years and placed the Executive above the Legislative, which at the time was led by the National Security Council since there was no Congress. Lastly, the Constitution rested on the idea of a subsidiary state, meaning the government had to be at the service of the economy.

In 1988, Pinochet lost a plebiscite on his stay in power. 

30 Years of Chilean Democracy

While his Constitution remained in place, it underwent modifications on 22 occasions, with the biggest one taking place in 2005 under President Ricardo Lagos, who replaced Pinochet’s signature with his own. Most of these amendments address allowing Chileans abroad to vote and changing term limits.

Even with the various changes, many citizens dislike the current Constitution, mainly due to its originating in the dictatorship. President Michelle Bachelet tried to replace it in 2015. Her administration organized small citizen councils to discuss the contents of the document. By 2016, over 204,000 Chileans had participated in these events, including over 17,000 indigenous leaders.

When Sebastián Piñera was elected to his second term in 2016, he terminated the process though. Then-Interior Minister Andrés Chadwick said, “we don’t want the project for a new Constitution to advance any further.”

When the social protests began on Oct. 18, 2019 a new Constitution was among the key demands. On Nov. 15, Congress announced a plebiscite for April 25 this year, which was postponed to Oct. 25 due to the pandemic. Chileans will vote if they want to keep the Constitution or start creating a new one.

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