Examining Chile’s Constitutional Pathways Toward Political Decentralization

Chile’s ongoing effort to write a new constitution has created an opportunity for the country to create a more democratic, cohesive, and equal society. These core values guided the design behind each section of the proposed Chilean Constitution, from civil rights to government structure. The timing of this new constitution coincided with the decades-long legal movement to restructure power between the federal and regional governments; until then, Chile’s decentralization process had unfolded gradually through patchwork revisions to the current Constitution. [1] If ratified, the recently proposed constitution would have reconfigured the relationship between the federal and regional governments, distributing power locally through newly created political bodies that would have the resources to carry out their constitutional responsibilities. Even though the proposed constitution was rejected by Chileans in the 2022 plebiscite, understanding how its language would have changed power-sharing arrangements throughout the country allows us to visualize innovative legal methods for fostering and protecting local autonomy while still respecting the national political framework.

Chile’s current Constitution organizes the government into a highly-centralized system, in which most political and economic decisions are made in the capital city of Santiago and the nearby coastal city of Valparaíso. The concentration of power in these regions, however, has hindered economic development and undermined political autonomy in other areas. Unlike countries with federalist systems, regions in Chile do not have the power to act as sovereign states. Because of this, many Chileans living in diverse landscapes and conditions outside of the capital cities want to increase their political representation. [2] While constitutions do not control every aspect of government, they can be important tools for affecting fundamental changes on the national level. Thus, Chile’s effort to rewrite the Constitution reveals a desire to recognize local autonomy for all regions. The proposed constitution was rejected due to dissatisfaction with many different areas of the 170-page document that proposed liberal reforms—such as increasing indigenous autonomy and creating a system for universal healthcare. Political disinformation campaigns may have also played a role in the election’s outcome. [3]

Chile ratified its current Constitution in 1980, during a period of dictatorship and political centralization. Under this Constitution, the federal government had complete  jurisdiction over local politics across the country. The democratic transition in 1990 reinstituted electoral democracy, but it left unaltered the political structures apportioning decision-making powers between the head of state and Chile’s fifteen regions. [4] Protests calling for regional autonomy fueled the decentralization process as early as 2012, and in 2017, the Constitution was amended to include a provision for the creation of regional governments. Yet the federal government retained the power to decide how this territory should be divided and when regional borders are subject to shift. [5] The amended Constitution also states that each region should have a governor and a legislative assembly, whose job is to support policies that further social, cultural, and economic development; not every region, however, has formed a government. [6] Additionally, the Chilean president has the power to determine the specific powers and responsibilities handed down to regional governments, and each region must have a “Presidential Regional Delegation,” which would keep a direct line of communication with the Office of the President. [7] In practice, this delegation helps to ensure that regions communicate with one another and that these communications are channeled through a central authority. Finally, while the Constitution outlines the creation of regional governing bodies and their enforcement powers, it does not guarantee financial independence. Without codified revenue systems that are protected by constitutional principles, regional governments have a weakened capacity to create and implement policy, making this a de facto futile attempt towards devolution. 

In contrast, the proposed constitution granted the federal government the right to decide which powers to delegate to the regional and local levels, and that any transfer of powers would need to account for the financial resources necessary to execute these responsibilities. [8] In addition to receiving apportioned federal funds, the constitution emphasized the importance of territorial governments implementing their own systems of taxation. Through this provision, the proposed constitution would have created more robust governing bodies across the country that would function with a greater degree of independence from Santiago. Plans for funding the regional government would facilitate Chile’s political decentralization, and should be prioritized in future constitutional amendments.

Furthermore, the proposed constitution would have redesigned the structure of governing bodies across all divisional levels by guaranteeing of equitable regional development (Article 189), supporting cultural diversity, respecting the natural environment, protecting the self-determination of indigenous peoples (Article 190), and fostering the public’s participation in political decision-making (Article 191). [9] These principles are absent from the current Constitution, because they were not priorities at the time of its ratification; while the proposed constitution did not pass, such principles could be added through current amendment processes. Focusing too much on modern political trends may weaken political institutions, but amendment processes that respond with thoughtful, long-term vision to changing social values may strengthen them. This increases a government’s capacity to serve its people and makes the governance more effective. For instance, citizens are more likely to be involved in government when they perceive it as a local body rather than only a federal area of practice. [10] While certain political disagreements between conservatives and liberal reformers may prolong constitutional reform, the concrete legal steps to adopt an amendment are simple.

Following the assumption that local autonomy is strongest when communities feel most connected, the proposed constitution left open the possibility of reorganizing territorial borders, another radical change. [11] The current Constitution states that the nation’s territory is divided into geographic regions that are subject to federal jurisdiction. The creation of “territories” under the proposed constitution would instead be determined by historical, geographic, cultural, environmental and economic factors. Pre-existing borders would not be guaranteed, but would require a reevaluation to consider, for instance, a shared heritage, dialect or business activity. A constitutional focus on the various demands and factors would ensure that regions have internal social cohesion, strengthening the popular legitimacy of regional governments. 

Lastly, the proposed constitution would have not only allowed for a shift in borders and demographics, but also the structure of policy-making bodies. Instead of outlining the political structures of regional governments—by declaring that they must have a governor, council, or bureau of commerce, for instance—the proposed constitution held that they would be decided by future laws. [12]  Regional territories would not be allowed to draft their own constitutions, and territorial secession would be strictly unconstitutional. The main function of regional governments would be to implement policies in line with community objectives such as social cohesion, cultural appreciation, and the equal distribution of resources and services. The proposed constitution also stated that no exercise of territorial autonomy should threaten the executive power of the federal government. [13] Territories would have the political, administrative, and financial autonomy to govern according to their interests within the confines of federal law. Territorial sovereignty would mean that regional governments have the power to make and enforce laws within their borders as long as they are compatible with federal regulations. 

Overall, the proposed constitution valued local decision-making over federal decision-making, a change in the principles of power-sharing. By prioritizing the value of local control outside of Chile’s capital, the constitution would have endowed regional governments with greater popular legitimacy. The proposed constitution held that it would be the federal government’s responsibility to foster national cohesion and ensure lines of communication between regional governments. [14] To ensure this, the constitution proposed the creation of a “Chamber of Regions” tasked with policy-making for collaborative projects and shared interests. 

Additionally, at any level of government, whether federal, regional or local, the proposed constitution explicitly stated that it would be the responsibility of the Chilean nation to organize and develop the territory within its borders, not the responsibility of private corporate actors. [15] By articulating the principle of public, rather than private, control, the new constitution would have legally strengthened the de-privatization movement through the decentralization process. With less private control over Chile’s natural resources, local governments could claim the rights to govern resources such as forests and fresh water supplies for themselves. Given the amount of private influence in government, taking power out of federal hands does not mean that it would automatically flow to local leadership, making deprivatization a crucial part of decentralization. 

Although rejected, analyzing the proposed constitution’s language models democratic power-sharing between local, regional and national governments—aspects of which may be incorporated into the legal models established by the existing Constitution. While it would be difficult to redefine the underlying principles of the Constitution through reform alone, making adjustments to regional political structures is possible and has been achieved on numerous occasions, such as the 2017 amendment that created the position of regional governor. [16] One important legal reform would be the creation of mechanisms for resource allocation from the federal government and fund-sourcing from constituents. Additionally, the decentralization of power would be more effective if the current Constitution were to outline the federal government’s duty to ensure that local political bodies are adequately funded and able to comply with their responsibilities. The proposed Chilean constitution demonstrates how social principles can be written into legal frameworks and used to shape the structure of governing bodies. However, even if not explicitly stated, these principles—whether social, philosophical, or ethical–-may be deduced from the structure of the political bodies. If the function of these political bodies does not fit the needs of the nation they serve, it may be time to revisit the fundamentals. 

Edited by Andrea Ruiz

Sources:

[1] Osvaldo Henríquez Opazo, “Las leyes de descentralización en Chile: eje del cambio de la intergubernamentalidad pasando de la jerarquía a la negociación,” Revista iberoamericana de estudios municipales, no. 21 (2020): 5–28.

[2] Juan Fernandez, “Nueva Constitución, descentralización y equidad territorial,” El Mostrador, July 22, 2022,

https://www.elmostrador.cl/noticias/opinion/2022/07/22/nueva-constitucion-descentralizacion-y-equidad-territorial/.

[3] Jack Nicas, “Chile Says ‘No’ to Left-Leaning Constitution After 3 Years of Debate,” New York Times, September 4, 2022, https://www.nytimes.com/2022/09/04/world/americas/chile-constitution-no.html.

[4] Opazo, “Las leyes de descentralización,” 5–28.

[5] Chilean Const., art. CX. 

[6] Chilean Const., art. CXI. 

[7] Chilean Const., art. CXV. 

[8] Chilean Proposed Const., art. CXCVII, https://www.chileconvencion.cl/wp-content/uploads/2022/07/Texto-Definitivo-CPR-2022-Tapas.pdf.

[9] Chilean Proposed Const., art. CLXXXIX-CXCI. 

[10] OECD, Making Decentralization Work in Chile: Towards Stronger Municipalities, OECD Multi-level Governance Studies, OECD Publishing, Paris, 2017, https://doi.org/10.1787/9789264279049-en.

[11] Chilean Proposed Const., art. CLXXXVII. 

[12] Chilean Proposed Const., art. CXCVII. 

[13] Chilean Proposed Const., art. CLXXXVII.

[14] Chilean Proposed Const., art. CXCVIII.

[15] Chilean Proposed Const., art. CXCVII.

[16] Chilean Proposed Const., art. CXI.