—Francisco Soto Barrientos, Professor, and Benjamín Alemparte, Researcher, University of Chile
[Editor’s Note: Professor Soto is a member of the Expert Commission, while Mr. Alemparte is serving as his advisor.]
The remarkable level of almost unanimous consent in the approval of a new constitution’s draft by Chile’s Expert Commission is an unprecedented case in the country’s constitution-making history. In these polarized times, it is hard to find opportunities where such broad agreement aligns with the preferred choices of constitutional designers with diverse ideological backgrounds.
Since its installment on March 6, the Expert Commission, one of the constitutional bodies in charge of drafting the new constitution’s proposal has worked against the clock for delivering a preliminary draft constitution to the Constitutional Council. On June 7 the Council of fifty elected members will begin their deliberations over the draft with the authority to approve amendments with a 3/5 quorum. This is also when a stage of public participation is organized to include public hearings and popular initiatives, among other mechanisms. Although the members of the Expert Commission will join the Council with the right to speak but not to vote, in October after the last version of the constitutional text is approved by the Council there is an opportunity for the Commission to formulate observations. The Council will then vote on whether to approve or reject these observations, requiring a 3/5 majority or a 2/3 majority, respectively. After this process, the citizens will ultimately vote on the final constitutional proposal in a national plebiscite scheduled for December 17.
So far, the Commission’s effort of consensus-building represents a noteworthy achievement. In just three months, the 24 experts designated by Congress and nominated by the political parties with congressional representation achieved a landmark agreement and approved a preliminary constitutional project. What is outstanding is that despite requiring a 3/5 quorum for the approval of each constitutional norm, the Commission divided into 4 sub-commissions and working on plenary sessions voted almost unanimously on the entire project. From the ascending far-right Republicanos, who in the recent elections gained with the center-right a majority of the seats in the Council, to the Communist Party currently in alliance with the Government, the Commission managed to find common ground on a wide range of topics.
The draft ratified by the Commission introduced promising elements such as defining the country as organized in a Social and Democratic State of Law or recognizing for the first time in its constitutional history the indigenous population. The draft also introduced two new chapters new to the country’s constitutional tradition: one dedicated to representation and political participation, and another on environmental protection and sustainability.
Today Chile is characterized by a shifting political landscape in the common narrative of a “constitutional pendulum.”[1] If the center-right was a minority in last year’s Constitutional Convention without gaining even a third of its composition, after the widespread rejection of the draft written by the Convention in September 2022, the right now is in a pole position to dictate the lineaments of the constitutional text. However, abusing its dominant position would be a big mistake as the right attempts to show its capacity to become the future Government. In this sense, supporting the acceptance of the new constitution without considering the interests of other parties could undermine the legitimacy of the document.
In this blog post, we examine some of the most important features of the work of sub-commission 1 dedicated to the political system, constitutional reform, and form of state. An advantage of this group of commissioners was that they reached a common understanding when talking about the diagnosis. They soon agreed that the current high level of fragmentation of political parties made governance extremely difficult when translating the public urgent demands into effective policies and laws. In this regard, innovative approaches needed to be created within the electoral system, the party structure, the law-making process and particularly in the context of the relations between Congress and the President.
But how to constitutionally discipline parties under a common political coalition and governmental program? Some commentators in Chile have suggested that this problem had only two alternative solutions: empowering the president in an authoritarian fashion or transitioning to a change of political regime through parliamentarianism. Yet, there was a third alternative, focusing attention on the regulation of political parties and electoral rules, along with introducing innovative mechanisms that could empower the legislative agenda of the President and foster citizens’ participation in the law-making process. In many ways, these innovations had taken the shape of real “constitutional transplants” drawing from the best comparative experience.[2] In this context, if Roberto Gargarella has notoriously portrayed Latin American constitutionalism as one characterized by a trend towards the expansion of fundamental rights but preserving executive dominance in “the engine room of the constitution”[3], the Expert’s draft contradicts in many ways this assertion by introducing innovative elements from a constitutional design approach.
Unlike the 1980s Pinochet Constitution in its original version and the failed constitutional proposal of the Convention in 2022, the draft does not distrust political parties. It does not ignore the parties in its regulation. On the contrary, it understands that long-term good governance largely depends on the success of representative political parties committed to democratic principles. Therefore, inspired by the German and Spanish electoral system, it has been decided that only parties that reach a minimum threshold of five percent of the national votes, will have the right to participate in the allocation of seats in Congress. Although an exception and a certain progressiveness in its implementation have also been included, estimations show that this measure would lower the number of parties from the current twenty-one to a figure closer to ten, reducing today’s fragmentation and the transaction costs related to negotiating with a larger number of stakeholders.
Additionally, regulations were included for improving party discipline and internal democracy. For example, party orders, although at an exceptional level, were regulated, and unlike the current norms, it was established that a parliamentarian who resigns or is expelled from the party will lose his or her seat. However, these more extraordinary powers granted to the parties were also complemented by necessary checks and balances. Thus, rules were implemented to improve the internal democracy of these institutions, including requirements for electoral primaries, promoting equal participation between men and women, and establishing duties and prohibitions regarding financing, integrity, and transparency. Lastly, the public autonomous electoral regulatory body and the electoral court were given a relevant role in the administration and qualification of parties’ internal elections.
On the other hand, closely following the proven comparative constitutional experience of countries like Colombia, Uruguay, and a large part of Europe, participatory mechanisms such as the popular legislative initiative and the derogatory initiative of law, among others, were introduced. The former allows a group of people to present a popular initiative of law to any of the branches of Congress. The latter, enables people to present, after an admissibility check by the Constitutional Court, an initiative for the total or partial repeal of a law to be voted on in a referendum. These tools were designed not to work as shortcuts to the existing institutions or to function as an institutional “bypass” to representatives in Congress. On the contrary, they seek to serve as mechanisms that provide renewed legitimacy and improve the work of elected representatives and governmental authorities. They are different from the ones approved in the past two decades in the Latin American region and from the rejected draft of the Constitutional Convention. They are designed to permeate the political regime, the law-making process, and the management of the administration at its different levels. Likewise, they are not part of a process of citizenship disconnected from politics, nor do they intend to operate in parallel through social movements but seek to recompose and promote the relationship between parties as intermediaries of the citizenry, civil society, and representative institutions. In both types of initiatives, although the citizenry is allowed to organize and influence the law-making process, it is ultimately the representative institutions that have the last word.
As anticipated, the proposal is based on the idea of improving coordination and rebalancing relations between the Government and Congress. It is an attempt to allow a government that has been largely supported by the citizenry to fulfill its political and legislative program. At the same time, it represents an effort to have a Congress with new institutional capacities in its role of co-legislator and supervisor of the Administration. From this perspective, closely following a practice that has worked in France, it has been established that the parliamentary election will coincide with the ballotage or second round of presidential elections, which is intended to give more political strength and parliamentary support to the newly elected government.
Consistent with this measure and inspired by the privileged special legislative procedure that the budget bill has each year, two new legislative mechanisms have been introduced. On the one hand, the figure of a “priority legislative agenda” was created as a new power of the President to define once a year in his annual presidential address to the country on June 1 up to three bills that Congress must process and vote on within a maximum term of a year since their introduction. The purpose of this mechanism is to make a reality the central elements of a governmental program that was supported by a majority of citizens.
Second, a new procedure known as the legislative “fast track” was included for periodic bills such as setting minimum wages or the remuneration of Public Administration personnel, as well as codification projects. In these cases, the projects will be informed by a bicameral commission and voted on according to a different expedited procedure that will be detailed by law. Also, in the spirit of making this institution more flexible, it is allowed that after an agreement of two-thirds of the chamber of origin, a message of easy dispatch or manifest urgency can also follow this expedited procedure. Both new mechanisms aim to empower the government’s legislative agenda and facilitate the approval of certain legislation. Moreover, another legislative innovation occurred at the level of the presidential power to grant “urgency” to a distinct bill, where sanctions are now established for non-compliance, including pecuniary ones.
Furthermore, the draft contemplates a mechanism to improve pre-legislative work inspired by the parliamentary experience of Ireland. With the purpose of making relations between Congress and the Government more flexible, this mechanism allows a minister to submit for consideration to the respective committees of both Chambers the main ideas of a presidential legislative initiative that has not yet been officially submitted to Congress. The commissions will then prepare a joint report that must make recommendations, within a period of sixty days and including public hearings. The procedure aims to improve the pre-legislative scrutiny at the level of the central Government to be a device that not only works for receiving feedback from Congress but also to generate further parliamentary support. Consequently, this mechanism is in turn complementary to other innovations introduced in the text, such as the possibility that the presidential message of a bill can be signed by parliamentarians who originally supported the main ideas of the project and that, in turn, they participate afterward in the signing of the decree promulgating the law.
On the topic of empowering Congress, in line with the international recommendations, the draft consolidates the creation of a Parliamentary Office of Public Finance and Regulatory Impact, as an independent technical support body. As its name indicates, this office will be responsible for the analysis of the financial and regulatory impact of bills, as well as the necessary analysis of the budget law and the monitoring of its execution and the results of its programs. It is in this ex-post stage of evaluation where the greatest gap exists in our budgetary system. In this way, the consecration of this office seeks to reduce the current asymmetry that exists between the Government and Congress in terms of technical capacities when analyzing the financial and budgetary dimensions of different legislative initiatives proposed by the President.[4]
Along these same lines, we want to highlight the approved constitutional norms on issues such as the state’s modernization. The draft recognizes that the state’s administration in its duty to promote the general interest is at the service of individuals and society and by virtue of this it must approve, execute, and control public policies that guarantee the provision of public services. Moreover, the draft includes a direct mandate for the state’s administration bodies to promote the modernization of their processes and organization, utilizing new technologies to ensure universal access. They are also expected to prioritize the effectiveness and regulatory coherence of the regulations issued within the framework of their powers.[5]
These are only some of the many institutional innovations introduced by the draft constitution.
We would like to end with one reflection on the process. The Expert Commission, through its collaborative decision-making effort, has shown that not every topic can be resolved today. It demonstrates that a new democratic constitution can be achieved when long-term agreements are prioritized over short-term calculus or interests. It also reveals that some especially contentious topics should be left to the democratic process for future deliberation. As Rosalind Dixon and Tom Ginsburg have put it in their article “Deciding not to decide,”[6] legislative deferral in constitution-making can be a wise technique to avoid becoming trapped with controversial clauses such as the detail of particular social rights or the specifics of the electoral system. This strategy has not only proved to be a good method to unlock complex negotiations but can also show in the future the Constitutional Council’s commitment to democracy and deference to democratic law-making. A constitution that enables more democracy and embraces a plurality of views is also consistent with a real commitment to democratic constitutionalism.
The Expert Commission has looked for a careful balance between continuity and transformation. In the following months, it is expected that the experts will defend with a persuasive attitude this consensus. All that is known today is that replacing Pinochet’s 1980 Constitution has proved not to be an easy task, and the writing of a constitution in a democracy still represents a unique challenge.
As the past rejection of the constitutional proposal drafted by the Convention shows, Chile’s constitutional history is marked by moments of political frustration–—as well as moments of genuine courage. The audacity of the Expert Commission is one of those. Will the right-wing dominated Constitutional Council continue this path? Although only time will answer the question, the work of the Expert Commission is a promising start.
Suggested citation: Francisco Soto Barrientos and Benjamín Alemparte, The Audacity of the Expert Commission in Chile, Int’l J. Const. L. Blog, May 31, 2023, at: http://www.iconnectblog.com/the-audacity-of-the-expert-commission-in-chile/
[1] See https://www.economist.com/the-americas/2023/05/11/conservatives-dominate-chiles-constitutional-assembly-this-time-around
[2] See e.g. American legal historian important essay: Morton J. Horwitz, Constitutional Transplants, 10 Theoretical Inquiries L. 535 (2009).
[3] See Roberto Gargarella, Latin American Constitutionalism (1810-2010): The Engine Room of the Constitution, Oxford University Press (2013). Although the metaphor comparing the political regime to the functioning of an engine is old, for instance, in Chile, Diego Portales in the first half of the nineteenth century referred to the presidential institution as “the mainspring of the machine.”
[4] The need for an office of these characteristics as a technical counterweight to the executive’s budget office (DIPRES) has been recommended in the last two OECD reports (from 2004 and 2017) analyzing the Chilean budgetary system: https://www.oecd-ilibrary.org/governance/budgeting-in-chile_budget-16-5jfw22b3c0r3
[5] These innovations are in line with the recommendations of the most recent report on regulatory policy in Chile carried out by the OECD in 2016: https://www.oecd-ilibrary.org/governance/regulatory-policy-in-chile_9789264254596-en
[6] See Rosalind Dixon & Tom Ginsburg, Deciding not to decide: Deferral in constitutional design, International Journal of Constitutional Law, Volume 9, Issue 3-4, October 2011, Pages 636–672, https://doi.org/10.1093/icon/mor041
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