Why do Constitution-Making Processes Fail?

The Case of Chile

Prof. Verdugo addressed the reasons behind the failures of constitution-making processes, based on the analysis of the recent unsuccessful attempt of enacting a constitution in Chile. The discussion, moderated by Prof. Elisa Bertolini (Bocconi University) was further expanded to the other participants of the event, such as Prof.s Marta Cartabia, Graziella Romeo and Justin Orlando Frosini (Bocconi University) as well as to the lively audience. 

Prof. Verdugo firstly addressed the audience with a general but hard question: “How can the constitution-making process fail?”. In recent times, stories about successful constitutional-making processes, such as the South African case, have become widely known. These attempts were considered positive outcomes because they produced a constitution that was widely accepted, and eventually relatively stable democracies were created. Nevertheless, very few studies have been carried out concerning failed constitutional-making processes. Although even processes leading to undemocratic constitutions might be considered a failure, the novelty of this approach lies in the study of those constitutions that were not able to pass. 

Overall, such a negative result is generally produced when an agreement is not achieved among those who compete for power. In order to avoid this outcome, political parties must become a relevant component of the constitution-making process through the conclusion of multi-party agreements. Political parties, indeed, lower transaction costs and improve substantive representation, giving a sense of institutional continuity to the constitution-making process. The same does not happen when the spotlight is taken over by activists from single-issue matters, since they usually only aggregate preferences. If this were the case, the constitutional-making process would not likely produce a good constitution, which is what happened in Chile.  

The recent history of Chile can provide the background information for understanding more contemporary events. In this regard, the first thing to consider is that the current Constitution was enacted in 1980 during the Pinochet dictatorship. General Pinochet reached this position through a violent coup-d’état, governing with a Junta made of conservative generals. The Constitution, approved by the people in a referendum, embodied several conservative ideals, for instance the prohibition of abortion, and the idea of a “protected democracy”, namely an illiberal democracy supervised by the army. After the dictatorship came to a conclusion, the Constitution remained. Overall, the transition to democracy in Chile was arguably consensual since it came along with the participation of parties from the opposition. Instead of being replaced, this Constitution was heavily amended through a slow transition: more than 60 amendments were approved over the years. Many themes were changed, including the praxis of politics and courts. Specifically, a multi-party system was established, changing the previous system composed of two major coalitions. A relevant constitutional review and justiciable social rights were also introduced, something unheard of before in the Chilean political landscape. 

However, such a copious amount of amendments was not enough in order to have a well-functioning democratic system. On the contrary, the concept of a “Cheating Constitution” became widespread, since the right wing had veto powers in key areas, such as constitutional amendments. This was indeed a system originally established in order to protect the political project of Pinochet.

After several attempts to replace the Constitution, a new constitutional-making process started between 2019 and 2022, in a time of severe social outbreaks aggravated by the pandemic. The claims of the protesters were wide and different, ranging from demands about a better healthcare system and security, to requests concerning environmental and family reforms. One important element to consider is that these groups were not backing the idea of changing the Constitution. However, as the situation grew increasingly chaotic, politicians agreed to open a new constitution-making process, in order to placate the protests. Rising expectations about a new Constitution were then ignited, but the task at hand was far from being a simple one. Indeed, not only the constitutional text had to be changed, but also the production of long-term social reforms was needed. 

In November 2019, the parties agreed on a constitution-making process that would foster their interests in finding an intermediate solution, but they were disagreeing on vital issues. The agreement was initially claimed to lack legitimacy, and more demands were made for the inclusion of gender parity, special rules for independents and reserved seats for indigenous people. Shortly after, a plebiscite was held, containing two questions: the first concerning the agreement to draft a new constitution, and the second concerning what body should draft it (i.e., either an elected convention or a mixed convention composed also by sitting legislators). The majority of the people voted for an entirely elected convention to draft the new Constitution. After the election, a balanced composition was reached, and the right wing lost its veto power. In addition, many social movements representatives and independents advocating for single-issue matters became part of this body, including those whose political slogan was to kill the current President of Chile. 

Over time, the expectations of the Chilean people changed due to the inefficient functioning of the committees within the Convention, the political scandals that occurred, and the unreasonable proposals that were made. The Convention began thus to lose credibility as a legislative body.  Moreover, after the right-wing split, it was excluded altogether from the constitutional-making process. This made the Convention’s efforts even more controversial, given that the right-wing represented more than 40% of the population. At the end, the final constitutional proposal was still too far left leaning for the interests of the population. In this regard, many have also argued that the Convention created a new political regime, while failing to fix the main problem of Chile: the party system. As a matter of fact, in the body of the draft the words “political party” were avoided. In September 2022 Chile saw its highest turnout in the so-called exit plebiscite, where 61% of voters rejected the text. Arguably, this event can be considered the result of the disregarded expectations of the population towards that specific text.

From Prof. Verdugo’s perspective, the failed Chilean constitutional attempt represents an opportunity to reflect on the important role of political parties. The Convention was not approached as an opportunity to fix the party system, and thus it lost control of the constitution-making process. Moreover, the possibility of broad multiparty agreements was rejected by the Convention. Overall, the Chilean Convention was turned into a unilateral body that excluded important sectors of society - generally represented by political parties – and whose outcome corresponded to a proposal far away from the preferences of the median voter.

Several interventions took place after Prof. Verdugo’s speech. Prof. Cartabia highlighted the importance of time in enacting successful constitutional reforms. Indeed, enacting a constitution in a time of crisis, such as the end of Pinochet’s dictatorship, might have achieved a more successful outcome.  Prof. Frosini stressed on the importance of maintaining a high level of transparency during the constitution-making process especially considering that certain decisions must be taken regardless of the voters’ opinion. Prof. Romeo brought up the experience of the “Conference on the future of Europe”, which represented an essential constituent moment characterized by a bottom-up process. As a matter of fact, it included the creation of panels of citizens and had no clear constitutional mandate. On the other side, Prof. Verdugo argued that a group of people alone cannot undertake a constitutional-making process: political parties are fundamental in this sense, because they represent certain positions in society.