Chile’s New Constitutional Proposal: A Balance Between Change and Continuity?

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Drafted by an Expert Commission, Chile's preliminary draft constitution aims to strike a balance between change and continuity after the rejection of the 2022 draft constitution. The proposal makes changes to the appointment of judges, creates autonomous institutions, and addresses social and economic rights, political party strengthening, and electoral system reforms. While the preliminary draft is not radical, it offers something for everyone. Nevertheless, the rightwing parties’ domination in the elected Constitutional Council, which will now consider the draft, makes the final outcome of the rebooted constitution-making process unpredictable – writes Professor Sergio Verdugo

Introduction

Following the rejection of the draft constitution proposed by Chile’s Constitutional Convention in the 2022 referendum, mainstream political parties agreed to launch a new process to replace the Constitution. The design of the new process was partly a response to the key factors that may have explained why the 2022 constitutional proposal did not convince most Chilean voters. While the 2021-2022 Convention was comprised of a majority of left-leaning members, many of whom were independents, and had minimal procedural and substantive limitations to enact their proposal, the new constitution-making process ensured that political parties would have more control over the new process. The parties agreed on shared and binding “principles” that the future constitutional proposal must respect. Those principles provided something of value to each political sector. For example, while the promoters of strong social rights celebrated the inclusion of a clause securing the establishment of a “social state”, skeptics of the plurinational and legal pluralist ideas that dominated during the 2021-2022 Constitutional Convention could be appeased by the recognition of a singular and indivisible Chilean nation, despite the explicit recognition of Indigenous peoples and of interculturalism.

Interaction between the Expert Commission and Constitutional Council

The new constitution-making process also set up a 24-member expert drafting committee with members handpicked by political parties represented in Congress. From 6 March 2023 to 6 June 2023, this Expert Commission put together a preliminary draft constitution that will now be reviewed by the Constitutional Council, which was elected in May 2023 and is dominated by the rightwing political parties,. Within the right, the strongest party is the Partido Republicano, a new far-right party led by José Antonio Kast. It won 23 out of 51 seats in the Constitutional Council. The Expert Commission was appointed by a more balanced Congress and, in contrast to the Council, has a balanced right-left composition. It is mostly comprised of lawyers – though not all of them are lawyers – that understand constitutional matters, some of whom are legal scholars or lawyers connected to think tanks with experience in policy-making or constitutional matters. Even though those members had a mandate from the political parties that appointed them, they achieved a compromise that tried to meet most of the demands of every significant Chilean political sector. A technocratically inspired but politically controlled process was a good solution if the aim was to identify common grounds for a more extensive political compromise in the context of high polarization.

Of course, there is no guarantee that the Expert Commission’s preliminary draft will remain as it is.

Of course, there is no guarantee that the Expert Commission’s preliminary draft will remain as it is. The Constitutional Council, which will now review the preliminary draft, has a different political balance. In contrast to the elections for the 155-member Constitutional Convention in the previous process, in the current process there were no election rules benefiting independent candidates, reserved seats for Indigenous peoples were reduced to a minimum, and the electoral system resembled the Senate’s electoral process. The Senate rules typically produce malapportionment, but it has historically succeeded in benefiting the larger parties, electing more experienced politicians, and producing a collective body that has served as the forum for significant multiparty compromises. An example of this is the great agreement that led to the multiparty 2005 constitutional reform, which removed most of the Constitution’s authoritarian enclaves.

In this case, however, the elected Constitutional Council is dominated by the rightwing political parties.  The rightwing agenda that the Partido Republicano will advocate for in the final constitutional proposal, including as per their campaign both conservative and law and order demands, makes the final outcome of the constitution-making process unpredictable. They have already showed skepticism against a number of provisions, and will probably try to amend the text, for example, to make sure that the new proposal protects the private insurers and providers of the current healthcare and social security systems. Even though it is too early to predict what the final constitutional proposal will include, the Expert Commission’s preliminary draft, explored below, will serve as the starting point for future negotiations.

The new draft: a balance between change and continuity

The proposal produced by the Expert Commission offers a balance between change and continuity. For example, while it includes new mechanisms for direct participation of citizens, it also establishes high thresholds for these procedures to actually take place (see Articles 46-52). Fundamental aspects like Chile’s presidential regime and bicameral Congress remain –  notwithstanding specific updates and improvements that try to ameliorate fragmentation in Congress and strengthen the powers of the President (see, e.g., Articles 60, 80, 90, 102(r), 122, 169(e)) – thus, avoiding a system of government change or a more radical aim such as replacing the Senate. However, other things change in meaningful ways. Examples include the new appointment mechanism for the justices of the Constitutional Court (Article 166) and the creation of four autonomous institutions that will perform the judiciary’s non-judicial functions, an unprecedented change from a comparative perspective as well (Articles 157-159). In comparison to the proposal drafted by the 2021-2022 Constitutional Convention, the new draft includes some critical innovations but is on average less radical on most of these issues.

The preliminary draft is also less receptive to demands connected to identity politics compared to the failed 2022 constitutional draft.

The preliminary draft is also less receptive to demands connected to identity politics compared to the failed 2022 constitutional draft. Indigenous peoples are recognized (Article 7) and their political participation encouraged (see, e.g., Article 53), but no provisions establish legal pluralism, fewer Indigenous rights explicitly appear in the Constitution, and the preliminary draft establishes that the Chilean nation is “one and indivisible” (Article 7(1)). Women’s rights are also recognized (see, e.g., Article 4(1), Article 16(3) and (25), and Article 45(3)), though some of those provisions already exist in the current Constitution, and there are no provisions that could be interpreted as leading to unrestricted abortion (Chile currently allows legal abortion only in limited circumstances). There are no rules securing gender parity, even though the Expert Commission approved a temporary mechanism securing that no sex can be represented above 60% in the elections of legislators. The mechanism has a sunset clause, and it will expire after two Congress elections (Transitional Provision 20). Members of the Partido Republicano have already said that they dislike this rule.

On the other side, the preliminary draft does not currently include a constitutional provision protecting the life of the unborn. Conservatives may complain that the unborn is not sufficiently protected, and progressives may challenge the preliminary draft for not adequately recognizing women’s rights, but both sides can find arguments for future constitutional litigation and lawmaking processes. Vagueness or contradictions can be considered a poor constitutional drafting technique if one is looking for predictable outcomes and legal consistency. However, these techniques are often helpful in making a constitutional text pass. The Constitutional Council will decide whether to keep the text as it is or use the conservative majority to add constitutional protection for the life of the unborn.

The proposed version provides more arguments to promote more social rights litigation, but it also includes softer language to avoid excessive judicial activism . . .

The economic aspects of the preliminary draft are also more balanced compared to the 2022 proposal. Property rights remain strong, and there does not seem to be room for interpretation regarding conflicts over compensation for taking private property (Article 16(34)). Furthermore, the scope for the state to create new public companies remains limited in ways that are not very different from the current Constitution (Article 16(31), and Article 76(j)). Nevertheless, progressives also receive some concessions. Social rights are explicitly recognized (see, e.g., Article 1(2)) – with additional rights introduced – and their judicial enforcement is clearly established (Article 26). Even though the Supreme Court had advanced in previous years on the judicialization of social rights (for which it has been accused of activism), the current version of the Constitution is often blamed for inhibiting the expansion of social rights (see, e.g., criticisms on the right to healthcare, here). The proposed version provides more arguments to promote more social rights litigation. However, it also includes softer language to avoid excessive judicial activism and adds certain clauses that seek to restrain social rights enforcement, for example, by establishing the need for “fiscal responsibility” (Article 24(e)) and explicitly prohibiting judges from designing public policies in their judgments (Article 25).   

But those who favor allowing market-based solutions to satisfy those rights do not need to be scared, as they will find more justifications in the new proposal than in the 2022 failed draft. For example, the new right to “adequate housing” explicitly allows the state to operate via public or private institutions and promotes policies that prioritize access to the individual’s own housing (Article 16(28)), an approach aligning with solutions establishing property rights that rightwing politicians have long promoted (see also Article 24(f)).

Provisions related to political parties and the electoral system

One of the themes that is unlikely to change much in the final constitutional proposal is strengthening the political party system. Prior to the start of the dictatorship in 1973, Chile had a competitive multiparty system that had severe problems of gridlock and rent-seeking legislation due to extreme logrolling and omnibus bills. The 1980 Constitution managed those problems by establishing a strong presidency and a political party system highly influenced by the authoritarian enclaves, forcing the formation of two stable and disciplined coalitions.

Subsequent political reforms made by the governments in the post-authoritarian era incrementally weakened the major parties by establishing an electoral system that stimulated the fragmentation of the Congress and the rise of multiple small parties. In addition to these, other reforms, such as changes to the electoral timetable and a shortened presidential term with no immediate reelection, has resulted in presidents that cannot build disciplined governing coalitions and promote political pacts beyond short-term election cycles.

Citizens distrust political parties, and the anti-party narrative significantly influenced the design and the performance of the 2021-2022 Constitutional Convention, which then constituted one of the reasons the Convention failed. Indeed, that Convention did nothing to strengthen the party system and even endorsed provisions that could have encouraged social movements to enter the political arena, potentially leading to further fragmentation. The Expert Commission of the new process had the opposite agenda. While it proposes institutional arrangements aimed at rejuvenating Chilean politics – e.g., the possibility of convoking citizens’ assemblies and allowing popular legislative initiatives – it also attempts to strengthen the party system. Unlike the 2022 Convention’s proposal, it does not mention social movements, but it establishes a set of norms for the parties (Articles 42-45), including rules permitting parties to issue exceptional orders to their members and discipline their members through sanctions.

While the preliminary draft still proposes term limits for legislators (Article 57(3)), which decreases the power of political parties, it also establishes a set of electoral rules that benefit the parties. For example, it prohibits pacts among independent candidates competing against party lists (Article 58(2)), showing a rejection of the electoral system used to elect the 2021-2022 Constitutional Convention. It further privileges larger parties by establishing that, as a general rule, only those parties or coalitions that achieve a total of 5 per cent of the votes at a national level can secure seats in Congress (Article 58(4)). This rule seems a reasonable proposal in the context of a proportional representation (PR) electoral system. Even though a PR system makes more sense within a parliamentary regime, the new rule may still contribute to reducing the levels of political fragmentation in Chile. The preliminary draft also changes the timetable of the elections by establishing that the parliamentary elections will take place simultaneously with the runoff presidential elections instead of the first round. It is not easy to predict the consequences that this change may trigger, but it is expected to encourage presidential candidates to build broad governmental coalitions.

The question remains whether the preliminary draft has gone too far in its provisions to strengthen the major parties.

The question remains whether the preliminary draft has gone too far in its provisions to strengthen the major parties. After all, parties remain highly unpopular, and there are reasonable democratic concerns about whether these provisions would improve the levels of political representation. These proposals may lend additional support to the criticisms suggesting that the proposal is too elitist. Unlike the 2022 proposal, which was drafted in a Convention that sidelined major parties and voted against these parties’ interests in many areas, the new proposal seems to do exactly the opposite.

Conclusion

The examples discussed above illustrate a pattern that we can find in the preliminary draft. There is something for everyone – including the right and the left – and it would be hard to identify provisions radical enough to alienate both the right and the left – except, perhaps, in a couple of areas such as the electoral and party rules. Of course, this assessment is conditioned on how the Partido Republicano will behave. This party is newly formed and situates itself on the right of the mainstream rightwing parties. They were not part of Sebastián Piñera’s administration, they did not endorse the agreement for a new constitution-making process in 2019 and 2022, and some of its members still admire General Pinochet. Whether the party will behave in exclusionary ways is yet to be seen. Optimistic views suggest that the party’s ambition to win the next presidential election may be a moderating factor because of the need to appeal to the median voter. But skeptics argue that the electoral victories of today are achieved by radical proposals in areas such as immigration and public security.

Sergio Verdugo is an Assistant Professor of Law at the IE University Law School, Spain

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Suggested citation: Sergio Verdugo, ‘Chile’s New Constitutional Proposal: A Balance Between Change and Continuity?’, ConstitutionNet, International IDEA, 30 June 2023, https://constitutionnet.org/news/chiles-new-constitutional-proposal-balance-between-change-and-continuity

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