Second time’s a charm? A new Constitutional process ensues again in Chile
Legal Development 25 July 2023 25 July 2023
"It will do our country good to close this chapter”.
On 7 June of this year, at 10:18 AM, in a publicly broadcasted ceremony, President Gabriel Boric addressed the 51 newly elected members of the Constitutional Council, as well as the Chilean nation.1
“We have all learned that Chile will not be rebuilt overnight, Chile does not start from scratch,” he said.2 After a previous constitutional process that spanned a total of 3 years, producing a draft that was finally rejected by almost 70% of the votes cast in a closing referendum3, the words of the President illustrated how much the moderate tone of this new process contrasts the mood of its predecessor.
In an intervention that did not extend more than 10 minutes, the President communicated his hopes of a new Magna Carta that would bring citizens closer to politics and would highlight the value of discussion among those who think differently. Before leaving, he mentioned that "a Constitution that delivers certainty and long-term stability" was needed.4
Constitutional Process of 2019 to 2022
In October 2019, Chile faced a period of unprecedented social unrest. The social claims that surrounded and underpinned the protests ranged from a demand for higher equality, better access to health, education, and housing, and recognition of diverse and marginalized groups, amongst others. A year later, in October 2020, a national referendum approved the idea of replacing the current Chilean Constitution of the Republic – which dates to 1980 and was enacted during General Pinochet’s Regime. From July 2021, 154 elected members organized under the Constitutional Convention (“Convención Constitucional”) worked on a Proposal which, after being submitted to a referendum with mandatory vote on September 4, 2022, was rejected by 61.86% of the votes validly cast.5
The Political Agreement for Chile
After the proposal of the Constitutional Convention was rejected on September 4, 2022, a significant proportion of Chilean political parties with Congress representation signed the Political Agreement for Chile (the “Acuerdo por Chile”) on 12 December 2022, through which they agreed to enable a new constituent process.
The new process now considers the work of two main bodies: the Expert Commission (“Comisión Experta”) and the Constitutional Council (“Consejo Constitucional”), which jointly will produce a final proposal to be voted by Chilean citizens.6 Additionally, this time around, the new process is subject to additional limits, and the new draft will have to contain 12 pre-agreed and mandatory institutional and fundamental elements.7 & 8
Furthermore, an additional body, the Technical Committee on Admissibility (“Comité Técnico de Admisibilidad”), will resolve any alleged contravention against the mandatory institutional and fundamental bases.9 & 10
The Expert Commission: Preparation of a Preliminary Draft
On 31 May of this year, after three months of work, the Expert Commission issued the preliminary constitutional proposal, to be reviewed by the Constitutional Council. The Commission is a body composed of 24 members elected by members of Congress, and is in charge of preparing a preliminary draft of the proposal of a new Constitution.12 & 13
Unlike the previous process, where the Constitutional Convention worked from scratch, the Council will work for five months based on this preliminary proposal, and will be able to approve, modify and even add new provisions.14
The current preliminary draft issued by the Commission differs from the proposal rejected in September 2022 in several areas, but mainly on:
- the coordination of the public and private sector;
- the structure of certain political institutions;
- the relationship between the President and Congress;
- the status of indigenous peoples;
- the catalogue of guaranteed rights; and
- the regulation of gender parity
One of the main differences between the current and the previous text is that, although the new proposal recognizes that Chile will be a social and democratic State governed by the rule of law (“Estado social y democrático de derecho”), where mostly the State will be in charge of providing the basic social rights recognized in the Constitution (‘welfare state’ model), it makes it much clearer that such provision will include the participation of the private sector.15
With regards to the structure of political institutions, specifically the Chilean Congress currently composed of two chambers, the Chamber of Representatives and the Senate, the previous proposal looked to demean the latter. It changed its name to ‘Chamber of the Regions’ (“Cámara de las Regiones”) and reduced its powers.16 The current project follows the Chilean constitutional tradition much more closely, considering a bicameral Congress, with chambers maintaining their names as well as their current composition and most of their powers.17
Additionally, in principle, experts believe that the new draft would be better geared to solve the current governability difficulties produced by the country’s highly fragmented Congress.18 In that sense, with the goal of having larger parties represented, to hold a seat in Congress the Expert Commission included a threshold of 5% of the votes cast in a parliamentary election.19
Furthermore, last year’s proposal had a very strong indigenist component, shown transversally in different sections of the text (territorial autonomies, pluri-nationality, reserved seats, indigenous justice, amongst others).20 Currently, even though the new draft includes explicit recognition of indigenous peoples and their collective rights, such recognition is not as all-encompassing as in the previous proposal.21
Finally, the current proposal includes a shorter catalogue of rights to be guaranteed to citizens.22 With regards to gender parity, the Expert Committee managed to negotiate a temporary electoral parity rule, for parliamentary elections, that establishes a gender balance where no one gender can exceed the 60-40% ratio.23 Additional legislation will have to be passed with relation to it, and it will cease to be applied either after two parliamentary elections or if said balance is achieved without the need of correcting the results, whichever happens first. This is a sharp change with what was included in the previous draft, where a ‘parity democracy’ standard (“democracia paritaria”) was established.24 & 25
As mentioned, this new preliminary draft is the one currently being reviewed by the Constitutional Council.
The Next Step: Review by the Constitutional Council
The next step in the process was initiated on June 7th of this year, when the elected members of the Constitutional Council officially took office.26 Composed of 51 members, its sole purpose is to discuss and approve the proposed text of a new constitution. 27 & 28
Subject to a parity system to ensure equal gender representation, Constitutional Councillors were elected on 7 May, via a direct, mandatory vote, in accordance with the electoral system applicable to the Senatorial districts.29 & 30
Additionally, their review and potential change of the preliminary draft will be carried out based on specific quora:31
- Proposed changes will be approved if voted in favour by 3/5 of the elected members of the Council;
- Proposed changes could be rejected by 2/3 of the elected members of the Council;
- If a proposed change does not reach any of the mentioned thresholds, it will be reviewed by a ‘Mixed Commission’ (“Comisión Mixta”), composed of 12 members designated amongst the members of the Expert Commission and the Constitutional Convention, in equal parts. The Mixed Commission shall resolve the matter by a vote of 3/5 of its members; and,
- If the Mixed Commission fails to resolve the discrepancy, the Expert Commission shall, within 5 days and with the vote by 3/5 of its members, submit a new proposal to the Constitutional Council, for a vote in accordance with the general rules.
As it happened in the previous constitutional process, Chilean citizens again were able to propose changes to the preliminary draft and participate in the discussion,32 process that was coordinated by the Executive Secretariat of Citizen Participation (“Secretaría Ejecutiva de Participación Ciudadana”).33, 34 & 35
Additionally, to predict the coming discussion within the Constitutional Council, the Diego Portales University (Universidad Diego Portales) analysed the main themes shown in the electoral campaigns associated to the recent 7 May election.36
It was concluded that, generally, there was a tendency towards issues of security, decentralization and the status and position of the ‘individual person’ in the campaigns of the Republican party Councillors, a far-right party which currently hold most of the Council seats.37 Next, the representatives of the leftist Unidad Por Chile coalition focused on social rights, the creation of a social state and also decentralization.38 The study also showed that the agenda of the right-wing Chile Seguro coalition mentioned security and general freedom of choice, but also incorporated some elements of a more ‘social’ agenda.39
“Chile’s endurance in its institutional path to address the social claims presented during the October 2019 riots is worth of applaud. Voters and the political class are embarked again in a process that, in December 2023, should provide a full-stop to the Constitutional review and allow the country to retake the path of stability and development initiated with the return to democracy”.
Franco Acchiardo, Managing Partner of Clyde Chile
“We await with interest the outcome of the review process, and the positive implications a settlement will have for the continued development of Chile’s burgeoning economy, known for its natural resources and infrastructure sectors in particular, which have a crucial role to play in the global transition to green energy.”
Lee Bacon, Partner
The general expectation was that the up-and-coming discussion would not considerably alter the proposal issued by the Expert Commission. Nevertheless, to date Councillors have presented more than 1000 amendment proposals to the preliminary text.40
The Constitutional Convention shall deliver a finalized draft of its reviewed proposal, to be voted by Chilean citizens in a mandatory election, by 7 November of this year.41 The ratifying referendum will be carried out approximately a month later, on 17 December 2023.42
4Presidente Boric en instalación del Consejo Constitucional
6Articles 144 and 145 of the Chilean Constitution, as modified by Law N° 21.533.
7Article 154 of the Chilean Constitution, as modified by Law N° 21.533.
8.1Chile is a democratic Republic, whose sovereignty resides in the people.
8.2The State of Chile is unitary and decentralised.
8.3Sovereignty is limited by the dignity of human beings and the human rights recognised in international treaties ratified by the State of Chile and which are in force. The Proposal for a New Constitution must recognize that terrorism, in any of its forms, is against human rights.
8.4The Constitution recognises indigenous peoples as part of the Chilean nation, which is one and indivisible. The State will respect and promote their rights and cultures.
8.5Chile is a social and democratic State governed by the rule of law, whose purpose is promoting the common good; recognising fundamental rights and freedoms; promoting the progressive development of social rights, subject to the principle of fiscal responsibility; and through state and private entities.
8.6National emblems of Chile are the flag, the coat of arms, and the national anthem.
8.7Chile has three separate and independent Branches of Government:
(1.) The Executive Branch, which will have exclusive initiative in matters of fiscal expenditure.
(2.) The Legislative Branch, which will be composed of a Senate and a Chamber of Representatives, notwithstanding their specific powers.
(3.) The Judicial Branch, which will have jurisdictional exclusivity and will respect final and enforceable judicial sentences.
8.8The following autonomous bodies shall be constitutionally recognised: the Central Bank, Electoral Tribunal, the Public Prosecutor, and the General Comptroller of the Republic.
8.9The following fundamental rights and freedoms shall be recognised: the right to life; equity before the law; property rights in their various manifestations; freedom of conscience and worship; the best interests of children and adolescents; freedom of education, and the preferential duty of families to choose the education of their children.
8.10The existence of the Armed Forces and the Forces of Order and Security, with express mention of the Carabineros of Chile and the Investigation Police, shall be enshrined in the Proposal for a New Constitution, with subordination to civilian power.
8.11The Proposal for a New Constitution shall establish at least four states of constitutional exception: state of assembly, state of siege, state of catastrophe, and state of emergency.
8.12Chile is constitutionally committed to care for and conserve nature and its biodiversity.
9Article 146 of the Chilean Constitution, as modified by Law N° 21.533.
10The Technical Committee of Admissibility is composed of 14 law academics and practitioners, with notable professional and/or academic careers, designated by the Senate (Senado) from a single proposal made by the Chamber of Representatives (Cámara de Diputados). The Committee’s resolutions will be agreed by the absolute majority of its members, and they will not be able to be appeal before any national or international body or tribunal. If the inadmissibility request is approved by the Committee, the challenged norm cannot be incorporated into the constitutional proposal.
12Article 145 of the Chilean Constitution, as modified by Law N° 21.533.
13Its members are recognized for their professional, technical and/or academic experience in constitutional matters, and, following a gender parity rule, were appointed in equal parts by the Chambers of Representatives and by the Senate, in proportion to the representation that each political party/coalition has in them. Following a confirmation of 4/7 of the members in office of the respective Chambers of Cong, the seats of the Commission were distributed as follows: /i/ 9 seats went to the right-wing Chile Vamos coalition; /ii/ 6 seats to the left-wing Democratic Socialism coalition; /iii/ 4 seats to the left-wing Apruebo Dignidad coalition; /iv/ 2 seats to the Christian Democratic party (originally, a center party); /v/ 1 seat to the right-wing Republican party and /vi/ 1 seat for an independent candidate, supported by a centre-right coalition.
14Article 144 of the Chilean Constitution, as modified by Law N° 21.533.
15Paragraph 2 of Article 1 of the Constitutional Proposal prepared by Expert Commission (June 2023)
16Articles 254 and 255 of the Proposal of a New Chilean Constitution (2022).
17Chapter IV of the Constitutional Proposal prepared by Expert Commission (June 2023).
19Paragraph 4 of Article 58 of the Constitutional Proposal prepared by Expert Commission (June 2023).
20Articles 5, 14, 18, 34, 58, 65, 66, 79, 162, 187, 190, 191, 234, 235, 307, 309, 322, 329 and 387 of the Proposal of a New Chilean Constitution (2022).
21Article 7 of the Constitutional Proposal prepared by Expert Commission (June 2023).
22Chapter II of the Constitutional Proposal prepared by Expert Commission (June 2023).
23Transitory Article 20 of the Constitutional Proposal prepared by Expert Commission (June 2023).
24All State and governmental organizations and institutions had to be conformed, at least half, by women, and had to incorporate the ‘gender approach’ (“enfoque de género”) when executing their policies and mandates.
25Articles 6, 161 and 163 of the Proposal of a New Chilean Constitution (2022).
27Article 144 of the Chilean Constitution, as modified by Law N° 21.533.
28The Council will work on the basis of the rules established in the current Constitution, the Regulation of the new constitutional process (Reglamento del nuevo proceso constitucional), enacted especially for this second process and the preliminary draft submitted by the Expert Commission.
29Article 144 of the Chilean Constitution, as modified by Law N° 21.533.
30The final seats were distributed amongst three main coalitions mainly: /i/ the right-wing Republican party elected 23 seats, holding the majority of the Council; /ii/ the left-wing coalition Unidad Por Chile, elected 16 seats; /iii/ the right-wing coalition Chile Seguro elected 11 Councillors; and /iv/ an additional seat was assigned to Mr. Alihuen Antileo Navarrete, representative of indigenous peoples.
31Article 79, 84 and 88 of the Regulation of the new constitutional process.
32Article 98 to Article 107 of the Regulation of the new constitutional process.
33Most importantly, citizens may propose to amend a provision contained in the preliminary draft, as long as they receive a backing of at least 10.000 people/signatures , coming from at least 4 different regions. Amendments seeking to delete or replace the entire preliminary draft or any of its chapters will not be admissible. Additionally, any person or group may also request to have a hearing with the Constitutional Council, to assert their point of view on a matter directly related to the preliminary draft prepared by the Expert Commission.
34From 7 June to 7 July, 1,309 citizen proposals were presented, of which just 31 exceeded the required 10,000 signatures.
41Article 80 of the Regulation of the new constitutional process.
42Article 159 of the Chilean Constitution, as modified by Law N° 21.533.