While the recent leak of financial records (“Pandora Papers”) continues to affect President Sebastian Pinera – and by extension the center-right presidential candidate Sebastian Sichel – Chile’s constitutional debate has deeper implications. Holding presidential and legislative elections while the constituent assembly is sitting was always going to be challenging. Voters will be determining who will govern for the next four years, while the constituent assembly will be laying down a legal architecture for political, social, and economic organization for the next 20-30 years. Most pointedly, the new president and legislature will assume their posts in March 2022 before the constituent assembly finishes drawing up the new constitution. This raises some important questions with both immediate implications for the November/December presidential elections and for the political system that emerges under the new constitution.
The potential for interlocking to occur between the two parallel processes was brought into relief recently by Jaime Bassa, the left-leaning Vice-President of the constituent assembly. Bassa said that a new constitution could involve a new electoral timetable being introduced; by way of example, he suggested that a new constitution could mandate fresh elections within a year so as to reset elected authorities within the new system. While this was only a suggestion, the point raises awkward questions. The next president will take office without a clear understanding of the basis of their power or exact clarity as to whether the political system that they head is presidential, parliamentary, a hybrid, or some sort of transitional regime. Now it appears that they could also serve a truncated term. If voters comprehend the implications, it could affect turnout in both the upcoming elections and the later referendum to ratify the new constitution, which would have implications for the legitimacy of both the next president and the new constitution.
There are other, more insidious risks. For example, if radical leftist and anti-status quo factions in the constituent assembly grow worried about the possibility of a victory of the center-right in the presidential election, it is not inconceivable that they might seek to shape political rules to deliberately weaken and constrain the new president and/or shorten the next presidential term. Conversely, if the leftist Gabriel Boric looks like a shoo- in for president by the time of the vote, there is a scenario under which the constituent assembly is more inclined to give the next president considerably more legal latitude under the new constitution, enabling Boric to move more boldly on his “correction” of the neo-liberal model.
The need to win public approval in a ratifying referendum (to be held once the re-write is complete) should act as a check on the most extreme impulses in the constituent assembly; if the new constitution is seen as either deliberately obstructive, unbalanced, or too radical, it risks being voted down. That scenario would leave the next president with a whole new crisis. However, it is far too early to speculate about this – the constituent assembly will only begin substantive debates from 18 October, having spent the last three months working out its internal rules and procedural matters. In those three months, it has become clear that anti-establishment forces are seeking deep change and will probe for any chink in the rules that allows them to achieve it, including the possible subordination of the next president.