Source: Prensa Latina.
When Gabriel Boric takes office as president of Chile on March 11, he will do so amidst the most challenging of times. He will face a country still living through a pandemic and still dealing with its economic consequences. It is a country facing a migration crisis in the north and continuing rule-of-law challenges in the south. A country that has not quite left behind the political upheaval of the October 2019 protests—they were just interrupted by the pandemic. Public opinion remains weary and demands results on a wide range of issues. There is an assembly drafting a new constitution, which, if approved, will redraw Chile’s political institutions and possibly even its social structure. And then there’s the matter of that war in Europe.
Gabriel Boric’s election was, together with the constitutional process, an important part of the political, social, and generational change that was demanded on the streets. In word and deed, Boric embodies change. But this does not guarantee success. The new president’s legacy will be determined in large measure by how he handles the constitution. Here, he faces at least three difficult scenarios.
The first is that the constitutional convention redesigns the Chilean political system to such an extent that either the Congress, or Boric himself, end up being replaced. Article 138 of the Chilean constitution, which governs the constituent assembly, states that if the existing institutions are “substantially” modified, new elections may be held. At the moment, it certainly seems like the Congress—especially the Senate—will be changed to such a degree that at least some will call for implementation of Article 138. One imagines that Boric would seek to avoid this fate. Chilean history is full of presidential mandates cut short by the winds of political change.
The second difficult scenario for Boric is that the new constitution ends up being rejected by voters. After the constitutional convention drafts a new document, Chileans must vote on whether or not to approve it in a referendum, likely to be held in September. It is hard to predict today how this might play out. It depends not only on the proposed text (How many voters take the time to read an entire constitution?), but also on the campaign itself. Colombia’s peace process and Brexit are two examples of how these plebiscites can sometimes have surprising results. Moreover, the referendum will have mandatory voting, which means that the 50 percent or so of the electorate who did not participate in previous votes will now, presumably, do so. We have no idea how they feel.
If the constitution is rejected, the law states that Chile’s current constitution, imposed by the Pinochet dictatorship, will remain in place. It is likely that a good proportion of the Chilean population would express their dissatisfaction at this result, in different ways. One of President Boric’s most urgent tasks, then, is to guide events to ensure that the assembly produces a satisfactory result, but without appearing to interfere with the work of the convention. At the same time, he might be well advised to consider a Plan B, to avoid the status quo that would result from a No vote; perhaps the prospect of a new, different, process.
Finally, the scenario that is most likely, but no less fraught with problems, is that Boric simply implements the new constitution. If current trends continue, the sloppy language and fuzzy legal concepts that are emerging from the convention will provide a major headache for Boric. Foremost among these so far are the haphazard efforts at decentralization (Few are willing to use the F-word: federalism.), the balkanized judicial system, and the debilitated upper chamber in Congress. Multiple mandates imposed on many institutions (plurinational, feminist, environmental, Indigenous, and regional perspectives on practically everything) will lead to lack of clarity, redundancy, and inefficiency. Although a country’s constitution should be the foundation on which the legal structure is built, Chile may have to do it the other way round: construct a legal architecture that manages to make sense of the noble aspirations and multiple demands that Chile’s constitutional experiment has cobbled together.
It’s a good thing that Boric studied law.
Robert Funk is an academic, columnist and consultant based at the Instituto de Asuntos Públicos at the Universidad de Chile, where he teaches political science.