Reshaping the Chilean political regime: three acts and a funeral

♦ ♦ ♦ This article is part of a series where experts analyse issues related to the process and substance of Chile's Constitutional Convention. Read more. ♦ ♦ ♦

After intense debates and negotiations, the final draft of Chile’s proposed constitution proposes attenuated presidentialism and asymmetrical bicameralism (abolishing the Senate and replacing it with a Chamber of the Regions, a body of regional representation). It is challenging to find any politician or Constitutional Convention member who is completely satisfied with the outcome. But compromise was necessary, and we can glean many insights from the three stages of negotiations within the Political System Committee, which resulted in the final proposal on Chile’s new political system that will be put to referendum later this year – writes Professor José Francisco García

When Chileans voted “yes” in October 2020 to a completely elected Constitutional Convention to propose a new Constitution, it was highly connected to specific demands in areas like education, health, social security and housing: the basis of October 2019’s “social outbreak”. However, the protests that began in October 2019 also envisaged new arrangements relating to the distribution of political power, both vertically and horizontally. Thus, it was expected that the constitution-building process could provide an opportunity to revise the flawed presidential regime and provide social legitimacy to Chile’s political institutions.

In fact, it seemed that there was a clear connection between the institutional characteristics of the Chilean political system and the paralysis of social reforms in the last decades (with the exception of President Bachelet’s attempts to alter the status quo with different types of constitutional and legislative reforms). These characteristics included a strong presidential system, a weak Congress, excessive supermajority requirements to approve key legislation (e.g., 4/7 sitting deputies and senators for organic laws), a proportional electoral system, a powerful constitutional court with preemptive judicial review powers, and institutionally insignificant (as well as publicly discredited) political parties. Government after government the picture was the same: a President in a legislative minority (even double minority), political fragmentation, and legislative gridlock.

So, when the May 2021 elections for the Constitutional Convention delegates took place, there was an important consensus that a major social transformation, a new social deal, would require a responsive and effective government. The People wanted big changes and they did not want the existing ruling elites to lead them (reflected in the overwhelming rejection of establishment parties and the victory of the left and independents in the Convention elections). One of the most important challenges the Convention faced was to translate popular demands into constitutional provisions that could balance competitive democracy with a responsive political process, at the same time signaling a strong revitalization of state institutions. This big task was not made easier by the dynamics within the Convention, which was not only heavily left-leaning but also highly fragmented. The right did not have enough constitution-makers to veto proposals nor to file a complaint to the Supreme Court alleging any violation of the rules of procedure.

And while the independents could unite to increase the possibility of either blocking or passing a proposal, many remained divided. Added to this collective action problem, many delegates lacked political experience and did not act in a disciplined way, raising the negotiation costs to achieve the necessary 2/3 to approve new provisions. The problem was not the risk of an authoritarian takeover, but the challenge of having 103 delegates agree. This issue was visible in the plenary but also in crucial committees such as the Political System, Government, Legislative Power and Electoral System Committee, which was mandated to propose a new political regime for Chile. The following piece tracks the three stages of negotiations within the Political System Committee (and the intense debate and scrutiny outside the Committee), resulting in the final proposal on Chile’s new political system that will be put to referendum later this year.

First Act: The Pinochetism-communist coalition and unicameralism

Before the inauguration of the Constitutional Convention on 4 July 2021, an intriguing statistic was released: nearly 50% of the elected constituents favored a semi-presidential system. This number did not reflect a full understanding of the model either conceptually or in its institutional consequences, but basically an intuition: end the prevailing strong presidential regime, maintaining the traditional figure of the President, without moving to a parliamentary system (likely reflecting the bad reputation of the so called “parliamentary government era” that lasted from 1891 to 1925).

Expert testimonies framed the debate for the Political System Committee based on two points: the nature of the political system and whether the legislative branch would be unicameral or bicameral.

However, from the very first sessions of the Convention’s Political System Committee in October 2021, it was clear that the idea of maintaining the presidential system was alive and ready to fight back. In the following weeks, expert testimonies framed the debate for the Committee (and for the public and other political actors) on the basis of two points: the nature of the political system and whether the legislative branch would be unicameral or bicameral. After semi-presidentialism and parliamentarism were quickly discarded, a consensus emerged for a moderated or attenuated presidentialism, and an asymmetrical bicameral Congress that included keeping a revised form of the Senate as a second chamber.

Regarding the nature of the presidential system, political groups inside the Committee split along three alternatives: moderate or attenuated presidentialism, cooperative presidentialism, and coalitional presidentialism. However, these categories did not necessarily correlate with academic, technical understanding of these models, but were a matter of strategic branding and political tactics. The attenuated model was fiercely proposed by the right (UDI and Republicans, the main political heirs of the Pinochet regime) as well as by the communists and the radical left (perhaps influenced by the Neo-Bolivarian model). It was later supported by the others: the center, the soft-liners of the right coalition (who were initially skeptical of keeping the presidential model) and the socialists. They ended up agreeing to maintain a presidential regime, including the enormous legislative powers of the presidency, but with some innovations: a Vice-President and legislative elections that would take place simultaneously with the second round of the presidential elections (and not the first round, as the current Constitution established). The idea was to increase the chances of a President that could govern with the support of a legislative coalition controlling the majority of Congress.

On the other hand, cooperative presidentialism was the formula proposed by the center-left (Colectivo del Apruebo), based on a President head of state and government, that included a strong Secretary of Government appointed by the President who coordinated the cabinet but did not answer directly or indirectly to the lower house (only to the President). Finally, coalitional presidentialism was promoted by former supporters of a unicameral parliamentary system – mainly President Boric’s left coalition, the Frente Amplio. Frente Amplio’s proposal included a ceremonial President with some governmental powers, and a cabinet minister (functioning as a disguised prime minister) who coordinated the governmental cabinet, needed a vote of confidence and could be censured (resembling president-parliamentary semi-presidentialism). The attenuated proposal won by a big margin.

By the end of January, it seemed the 200-year-old Senate was facing extinction.

Regarding the structure of the legislative branch, a unicameral model, which won by a slight margin, was promoted by a coalition of communist/radical left/Frente Amplio and some moderate left-to-center delegates (Non-Neutral Independents). Thus, by the end of January, not only would the legislative branch be unicameral, but our 200-year-old Senate was facing extinction.

With this threat, the political atmosphere changed immediately. Several sitting and recently elected senators considered the provisions approved by the Committee a declaration of war. The immediate reaction: the President of the Senate, with the approval of a majority of senators, requested the Venice Commission to produce a report considering the implications of abolishing the Senate (the request also included other questions, for example, on the importance of judicial review and a specialized constitutional court, responding to proposals to eliminate the existing Constitutional Court).

This “first act” had another negative effect: the Frente Amplio, the socialists and the center-left Non-Neutral Independents, which together had a majority (though not two-thirds) and which had become the swing coalition and moderating force in the Convention, broke apart. Frente Amplio heavily criticized the last-minute turn of the socialists from a semi-presidential system to a conservative presidential proposal, as well as their strong stance on a bicameral legislature. The reason for this turn is still not clear, and may have to do with internal dynamics and negotiations between the Socialist Party, as represented in the Senate, and the Socialist Collective – the very autonomous constituent group of socialists and independents. While the Socialist Party supported a parliamentary system of government, they were perhaps only able to persuade the Socialist Collective to support a strong form of bicameralism.

Second Act: The “triumvirate” and asymmetrical bicameralism 1.0

February is the preferred month for Chileans to take their summer vacations. For the Constitutional Convention, and particularly for the Political System Committee, it meant hard work and political negotiations. Presidentialists had won big. Unicameralists had not. Presidentialists did not want to compromise on their preferred model (the so called attenuated model). Their strategy relied heavily on the Senate: it would put enough political pressure on party allies at the Convention to save both bicameralism and the Senate. Thus, the prisoner’s dilemma game had started. For the following weeks and until the end of February, negotiations seemed to have hit a dead end.

In March, the different left and center-left political groups reached an agreement to propose a strong President, a weak Vice-President and a Secretary of Government…

When the hot temperatures of February started to fall at the beginning of March, so did the heat inside the Political System Committee. At least by some degrees. The same week that the Venice Commission delegation was in Chile, the different left and center-left political groups, including socialists, reached an agreement to propose a strong President, a weak Vice-President (with gender parity for the ticket) and a Secretary of Government that resembled the disguised prime minister previously proposed by Frente Amplio. For example, the President would designate the Secretary of Government, with a confirmation vote on his/her investiture. The Secretary of Government would coordinate the cabinet of ministers, propose legislation under presidential oversight or delegation, and respond to parliamentary questions regarding the government’s policies and progress on legislation. 

Regarding the structure of the legislature, the proposed new first chamber resembled the existing one, although with more members (from 155 to at least 205), with gender parity, LGBTQ+ representation, and supernumerary reserved seats for indigenous people. The proposal eliminated the Senate and created a “Territorial Chamber” to promote state efforts towards decentralization. This was a consequence of the approved Regional State model (following Spain’s unique model of autonomous regions) developed in parallel by the committee in charge of proposing the form of the state and decentralization. Nonetheless, the “Territorial Chamber” initially had very limited legislative powers (revision powers of enumerated legislative bills with clear regional interest).    

When on 18 March the plenary of the Convention voted on the 95 articles proposed by the Political System Committee and only approved three of them, the Convention faced an earthquake (a Chilean specialty). The proposal was heavily criticized: it was considered a roman “triumvirate”, a copy of the failed Peruvian model, which was a political maneuver to associate it with the constant governing crises in Peru, which are covered daily in Chilean media. Also, the “Territorial Chamber” was criticized as creating a de facto unicameral parliament. The message was clear from the plenary: the Political System Committee needed to work harder. A compromise was necessary.

On the same day, the Venice Commission launched its report on Chile. Although very technical and diplomatically written, it fully and elegantly addressed ten highly contested issues (e.g., the second chamber and judicial review of legislation, but also the regulation of private property and consequences of withdrawal from free trade agreements). The Venice Commission sent a clear message: if Chile was maintaining a presidential regime, a strong second chamber was needed, both for proper checks and balances, but also as a necessary institution to facilitate Chile’s decentralization efforts.         

Final Act: Attenuated presidentialism, asymmetrical bicameralism 2.0, and the funeral of the 200-year-old Senate

In April, time was running out, and it was critical to achieve a consensus. Under the Convention’s Rules of Procedure, the Political System Committee had only one further opportunity to introduce a final proposal to the plenary (to be approved by 2/3 of the plenary for inclusion in the draft constitution). The Committee faced a tough question: what is a “real” attenuated presidential model? A Vice-President or a Secretary of Government figure was immediately cast aside. The Committee also needed to urgently compromise on the design of a functional and stronger second chamber.

It was clear that if the Committee failed to reach a workable solution, the Constitutional Convention as a whole would not have fulfilled its mandate: the Convention, and even the whole process, was on the line. Under this difficult scenario, the members of the Committee reached a compromise.

Regarding the structure of the legislative branch, the proposed asymmetrical bicameralism consists of a first chamber, the “Congress of Deputies” (Congreso de Diputadas y Diputados) and a second chamber. The latter is strictly a new institution, different from the Senate, and called the “Chamber of the Regions” (Cámara de las Regiones). The first chamber would be composed of no less than 155 deputies with gender parity (at least 50% women), LGBTQ+ representation, supernumerary reserved seats for indigenous people, and one reserved seat for afro-descendants. Its institutional roles are to oversee government, initiate impeachment, and to be the main legislative chamber. The Chamber of the Regions will have equal seats for regions (with a minimum of three for each of Chile’s 16 regions). It must consider gender parity and reserved seats for indigenous people, and its main mandate is to promote decentralization.   

Concerning the presidential system, the updated proposal focused on a new equilibrium among the legislative powers of the President vis à vis those of Congress.

Concerning the presidential system, the updated proposal focused on a new equilibrium among the legislative powers of the President vis à vis those of Congress. Thus, for example, the impressive, exclusive presidential legislative initiative powers in the existing Constitution would be replaced by necessary presidential concurrence bills. The latter permits Congress to introduce bills with significant institutional and economic consequences, for example, bills involving public expenditure, but with a presidential signature requirement.

Also, the presidential veto is severely limited: Congress can insist on the passage of ordinary legislation by simple majority. In the case of a total presidential rejection, the proposal raises Congress’s override to a 3/5 majority. Thus, the real presidential veto is limited to a total rejection of a proposed bill. This is important to highlight since the upper house has limited legislative revision powers. So in the future, passing legislation will mainly depend on whether the lower chamber can muster a 3/5 qualified majority to override the President’s veto. 

At the 6 May plenary session, the Convention approved most of the proposals mentioned above.

Conclusions

Maybe it is a good sign that today in Chile it is challenging to find any politician or Convention member who is completely satisfied with the outcome on the proposed new political system. Presidentialists, semi-presidentialists, parliamentarists, unicameralists, and bicameralists seem to be equally in a state of mourning and disappointment.

The general consensus among experts is that the objective of achieving a moderated or attenuated presidentialism and an asymmetrical bicameralism, with a reasonably strong second chamber (in terms of the Venice Commission report) had been accomplished. However, there are still criticisms. First, the Convention did not agree on whether the lower chamber will be able to override the upper chamber veto. Thus, the puzzle of the asymmetrical bicameral Congress is not solved. Second, some think that the weakness of the partial presidential veto (that can be overridden by a simple majority of Congress), and the fact that bills on certain topics, like social security, do not require the approval of the President, may reproduce the vote trading and agenda setting problems that existed in the pre-1970 Chilean constitutional system.

Lastly, in this final phase of the Convention, the importance of the committees on harmonization and transitional provisions must be highlighted. Both committees will have the final say, albeit approved by the plenary, and must tackle technical issues and design complexities to achieve a coherent draft constitution. They must further ensure a practical model of transition that can bring certainty throughout the incremental implementation of a new constitution.                                            

José Francisco García is Professor of Constitutional Law at Pontificia Universidad Católica de Chile and former member of the expert commission that transformed the 15N Agreement into a constitutional bill.

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Suggested citation: José Francisco García, ‘Reshaping the Chilean political regime: three acts and a funeral’, ConstitutionNet, International IDEA, 25 May 2022, https://constitutionnet.org/news/reshaping-chilean-political-regime-three-acts-and-funeral

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