Chile’s Constitutional Original Sin Unlikely Redeemed?

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By pushing through populist and conservative constitutional provisions on immigration and abortion, the populist right-wing Partido Republicano appears to be utilizing its majority in Chile’s Constitutional Council to preach to its constituency. The preliminary draft, Chile’s third attempt at a new constitution, also includes proposals to reduce political fragmentation, strengthen party discipline, and reinforce the powers of the President vis-à-vis Congress. Nevertheless, even if the draft is approved via popular referendum (which, according to polls, appears unlikely), it will not resolve the underlying issues and weaknesses in Chile's political institutions. Meanwhile, the attempts to replace Pinochet’s Constitution may have had the unlikely effect of redeeming it from its original sin – writes Professor Rodrigo P. Correa G.

Background

Chile’s third attempt in ten years to replace its constitution is approaching its final stages. This time, the process started in January 2023, when a committee of 24 experts was entrusted with preparing a preliminary draft. The experts were appointed by both chambers of Congress, which had been renewed after the general elections of 21 November 2021. The Committee thus reflects the political balance in Congress, with almost one-half sympathetic to the left-wing government, and the other half representing the right-wing opposition. The Committee of Experts produced a preliminary draft according to schedule, and remarkably almost unanimously, which was in stark contrast to the polarization seen in the proceedings of the previous Constitutional Convention.

The preliminary draft provided the starting point for deliberation at the Constitutional Council, made up of fifty delegates who were popularly elected on 7 May 2023. The outcome of the election resulted in a distribution of political forces utterly in contrast to Congress and the Committee of Experts (and even more distinct than the 2021 Constitutional Convention). The newly formed Partido Republicano, a populist right-wing party with only one expert in the Committee of Experts, has 22 delegates in the Council. Since three-fifths of the Council are needed to approve provisions, the Partido Republicano has in effect a veto over every corner of the text. Furthermore, traditional right-wing parties have 11 delegates in the Council. Together, right-wing forces control what will be presented to the people in the upcoming referendum on 17 December 2023. The Partido Republicano is noteworthy for initially opposing the attempts to replace the 1980 Constitution. Their constitutional program can thus be characterized as follows: first, maintain as much of the current constitutional arrangement as possible; second, constitutionally entrench certain (mostly conservative) policies that as of today are the province of ordinary legislation. Distinguishing between a constitutional programme, on the one hand, and a governmental one, on the other, requires a self-restraint that is scarce in democratic politics, and inexistent in politicians of the populist kind. In the case of the members of the Partido Republicano, this is enhanced by their expectation to win the general elections of 2025. Furthermore, if the proposed constitution would be rejected by the people no matter its content, as polls consistently show, why not use the process to preach to your own constituency?

Key provisions from the preliminary draft

The Committee’s preliminary draft did not deviate too much from the present constitution, so the Council was not aggressively opposed to it and adopted many of its provisions, while rejecting others and introducing new ones. Though the Council often acted unanimously, the most relevant departures from the Committee’s preliminary draft were typically approved by 30 to 33 votes, all from the right-wing parties. The following provisions from the preliminary draft are worth mentioning.

Addressing Political Fragmentation

Similar to other states, Chile’s main constitutional problem is the breakdown of political representation. The Committee’s preliminary draft addressed this problem by offering proposals to reduce political fragmentation in the lower chamber of Congress, strengthen party discipline, and reinforce the powers of the President vis-à-vis Congress. One of the central proposals was the introduction of a five per cent electoral threshold for the lower chamber of Congress, unless a political party had at least eight representatives from elected deputies and remaining senators (since the Senate renews in halves). The Council retained this proposal unanimously, only slightly changing the exception formulation to include elected deputies and both elected and remaining senators (Article 58).

To understand the potential impact of this threshold, one needs only to consider that in the last general election 21 parties won seats in the lower chamber. Of these, 15 would not have met the threshold (two of them would have met the exception in either the Committee’s or the Council’s version). To allow parties time to adjust to the change, the Committee proposed a transitional rule for the 2025 election, setting the threshold at four per cent (11 parties in Congress did not meet that threshold in 2021) and the exception of four elected deputies or remaining senators (five parties in the 2021 election would have met the exception). The Council adopted this transitional rule with the same change applied to the exception, including both elected deputies as well as the elected and remaining senators. More importantly, it added new transitory exceptions to the 2025 election by allowing parties to pass the threshold by fusing with other parties in the same electoral list after the election. This new exception, adopted with 33 votes of the right-wing delegates only, effectively eliminates the threshold for the 2025 election.

Political Party Discipline

To strengthen party discipline, the Committee put forward several proposals. Firstly, it proposed that where the principles or program of a party are at stake, the law could authorize the party to issue voting orders to their members of Congress. It also proposed that Congress members would lose their seat if they voluntarily left the party or were expelled. The Council rejected most of these proposals, keeping only the least disciplining one: the possibility of losing a congressional seat in case of resignation from a party (Article 72).

Powers of the President

In Chile, the President, as the directly elected chief of the executive, often faces the challenge of lacking majority support in Congress. This clash between presidential and congressional representation tends to block government action and engenders popular disaffection with democracy. The Committee of Experts chose to maintain the presidential system and discarded the parliamentary option. To mitigate governmental paralysis, the Committee proposed aligning general congressional elections with the second round of the presidential election, with the expectation that this would return a less fragmented Congress. However, the Council preferred to keep the current system of holding the congressional elections on the same day of the first round of the presidential election (Article 57), so it rejected the proposal of the Committee.

The Committee of Experts chose to maintain the presidential system and discarded the parliamentary option.

The Committee of Experts also proposed to reinforce the exclusive prerogative of the President to introduce bills on certain subject matters. This would involve both requiring a vote of four-sevenths of the floor to overrule the chairperson’s decision that a parliamentary bill is inadmissible for overstepping the powers of the President, and explicitly empowering the Constitutional Court to declare if a bill belongs in the presidential realm (Article 80). The Council accepted these proposals.

Furthermore, the Committee proposed enhancing the powers of the President to control the agenda of Congress in two ways. The first proposal allows the legislature to impose sanctions on the chair of the floor or congressional committee if they fail to include a bill on the agenda that the President has deemed urgent. The second proposal authorizes the President to flag up to three bills annually to make up the priority legislative agenda, in which case Congress must complete legislative processing within a year, along with a procedure for non-compliance. Both proposals were adopted by the Council (Articles 89 and 90).

Public Participation

The Committee also sought to address the breakdown of political representation by introducing some mechanisms of direct popular participation. First, it proposed that the legislature establish mechanisms of citizens’ participation in the congressional deliberation on bills. This proposal was endorsed by the Council (Article 46). The Committee also proposed allowing the popular presentation of bills to Congress, and the popular repeal of a statute via referendum. The Council accepted with minor modifications the proposal for the popular presentation of bills (Article 47) but rejected the popular repeal of statutes.

Powers of the Constitutional Court

Turning to the defense of the constitution, the Committee proposed limiting the power of the Constitutional Court to quash as unconstitutional legislation under consideration by Congress or by the President, and hence before the bill is adopted, which has been the focus of criticism for years. Only deviations in the constitutional procedure to pass a statute, or an ultra vires bill, would justify quashing the bill or the particular provisions affected by the vice. Issues of material constitutionality would only be the subject of a non-binding report by the Court. Furthermore, the Committee proposed changing the name of the Constitutional Tribunal to the Constitutional Court to symbolically mark a departure from the current system. However, the Council rejected both proposals and maintained the Constitutional Tribunal’s power of ex ante review over bills under consideration in Congress (Article 169).

Populist and conservative provisions

None of these constitutional issues have garnered much attention from the public, which has been distracted by the constitutional entrenchment of highly contentious and debated issues. The first is abortion. The Committee’s preliminary draft was silent on the matter, but the Council introduced a provision that resembles, with a slight grammatical change, a provision of the current constitution. The provision states, ‘The law protects the life of he or she (quien) who is to be born’ (Article 16). The change aims to emphasize a status before birth, using the gender-neutral pronoun “quien” instead of the current “el que”, which does not evoke personhood as strongly. With this, the Council seeks to make clear that a person is recognized as such by the constitution before being born.

The Council has also put forward populist proposals concerning property taxes, immigration, and security.

The Council has also put forward populist proposals concerning property taxes, immigration, and security. Under the right to adequate housing, the Council introduced a rule exempting the primary residence of a family from property taxes (Article 28(c)). As most houses are already exempt from property taxes because of their low value, this constitutional exemption only benefits the wealthy. Nevertheless, those who do pay property taxes, even if extremely low, may perceive this exemption as a real benefit.

Massive immigration is a relatively recent phenomenon in Chile, but it has gained visibility and become difficult to manage. The Council introduced a provision for the immediate deportation of immigrants coming into the country through non-official border crossings (Article 16(4)(b)). Such a rule exists today in statutory law, but its implementation has been difficult. Entrenching it in the constitution will not make it more effective, but it might prove popular.

Additionally, the Council responded to the growing perception that the state is losing control of organized crime by introducing a new chapter on “Public Security.” However, most of the provisions included in this chapter were taken from different chapters of the Committee’s preliminary draft, so this is mostly a cosmetic change.

Conclusion

The Council’s draft was returned to the Committee for observations. On this occasion, the Committee no longer acted unanimously and was only able to approve limited observations to the Council’s draft. These observations will be subject to further proceedings, and will ultimately also require approval by three-fifths of the Council’s delegates. Therefore, even though the text is not finalized yet, it is unlikely that significant changes will occur.

The Chilean constitutional adventure has proceeded on the assumption that the current constitution, no matter how much transformed by amendments, cannot be redeemed from its dark origins in Pinochet’s dictatorship. Under that assumption, the legitimacy of the political system depends on the democratic origins of the constitution, not on its actual content. If this assumption is correct, and the new constitution gets popularly approved on December 17, the Chilean constitutional problem would have been solved.

The weaknesses and strengths of the Chilean political system are a function of its constitutional institutions and political practices . . . 

That assumption is manifestly false. The weaknesses and strengths of the Chilean political system are a function of its constitutional institutions and political practices. The Council’s draft does not improve those institutions, since it creates very little incentives to reduce political fragmentation and create party discipline. Its most promising proposal, the five per cent threshold for representation in Congress, is in effect delayed till 2029. And by entrenching certain policies and maintaining the ample competences of the Constitutional Court, it further weakens the Presidency and Congress as actors of change. Its eventual approval in December would not solve the shortcomings of the Chilean political system.

Public opinion seems to have already been formed before the final text is finished. Two months before the referendum, polls show a clear and consistent tendency to reject the proposal. Whether the right-wing forces will be able to revert this tendency, is yet to be seen. If the referendum is lost, it seems unlikely that Chile will embark on yet another effort to replace its constitution. The “original sin” assumption will probably be dead by then and the President and Congress will have to put their hopes on limited constitutional amendments.

Rodrigo P. Correa G is law professor at Universidad Adolfo Ibáñez, in Chile, where he teaches constitutional law and public international law. He holds law degrees from Universidad de Chile (Lic. Cs. Jur. y Soc.) and Yale Law School (Ll.M. and J.S.D.). He was a subrogate judge at the Chilean Supreme Court from March 2015 to February 2018. He is an arbitrator in civil, commercial and public works cases.

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Suggested citation: Rodrigo P. Correa G, ‘Chile’s Constitutional Original Sin Unlikely Redeemed?’, ConstitutionNet, International IDEA, 23 October 2023, https://constitutionnet.org/news/chiles-constitutional-original-sin-unlikely-redeemed

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