Introduction: Symposium on Chile’s Constitution-Making Process

[Editor’s Note: I-CONnect is pleased to feature a five-part symposium on the recent Chilean referendum authorizing a new constitution-making process. The symposium was organized by Professors José Francisco García and Sergio Verdugo, who have written today’s introduction to the symposium.]

—José Francisco García, P. Universidad Católica de Chile and Sergio Verdugo, Universidad del Desarrollo^*

Last Sunday, 78.3% of Chilean voters decided to initiate a constitution-making process aimed at replacing the current Constitution—see the official electoral information clicking here. Also, 79% of the voters agreed that a wholly elected Constitutional Convention should enact the new constitution.

Although many provisions in the current text of the Chilean Constitution can be traced back to either older constitutional documents or the more than fifty amendments enacted during post-authoritarian times, Chile’s Constitution is mostly the result of a political process that was initiated when the Pinochet dictatorship drafted and imposed the 1980 Constitution. In 1980, the Constitution was approved in a plebiscite that lacked democratic credentials and that a scholar has described as a “fraud,” and its sin of origin has never been completely cleanse. Despite the major amendments of 1989 and 2005—the second of which was presented by former President Lagos as a “new Constitution”— and the reform to the electoral system in 2015, Chile’s Constitution divides Chileans and it still includes principles and institutions that can be associated with the legacy of the Pinochet regime—see, e.g., the work by Pablo Ruiz Tagle, among others. Scholars have suggested ways to replace the Constitution and some have even argued that Chile needs to recover its political tradition associated with the 1925 Constitution.

The “constitutional problem” in Chile has remained to the point that the current Constitution is relatively unable to help legitimize the democratic institutions that operate within its framework. The students’ protests of 2011, former President Bachelet’s failed attempt to replace the Constitution (2015-2017)—see an explanation on why that constitution-making process failed here—the protests associated with the feminist movement, and the manifestations demanding a change in the social security system, have influenced the current demand for a constitutional replacement. The protests that began in October of 2019 were connected to several demands that relate to social rights expansions and new arrangements regarding the distribution of political power, both vertically and horizontally. Although the constitutional recognition of social rights won’t be sufficient to satisfy the demands—after all, as one of us has argued, constitutions are not magic bullets—and that Chilean legislators must continue advancing social reforms, a constitutional replacement can provide an opportunity to revise a flawed Presidential regime and perhaps to provide the social legitimacy that Chilean political institutions need.

The bipartisan agreement of November 2019—see an English version of that agreement here—which established the most important norms of the constitution-making process, was the political parties’ response to those demands. This agreement was subsequently transformed into a constitutional bill drafted by a bipartisan expert’s commission and approved entirely by legislators on December 24, 2019—other rules were included later, such the one providing for gender parity in the composition of the Convention. That way, the main rules of the constitution-making process are now part of the current Constitution, included by the amendment Ley de Reforma Constitucional 21,200. With that reform, the parties sought to channel the protests within institutional procedures that promote a democratic and peaceful way to end the political crisis.

Therefore, the current Chilean constitution-making process has been described correctly as a democratic, institutional, and participatory process. Furthermore, the institutional component is very strong and must be highlighted, especially considering the existence of several substantive and procedural limits to the powers and functioning of the Constitutional Convention.  These limits show that this process will probably fit well with Andrew Arato’s post-sovereign theory—see here and here. In effect, the Convention’s power has been constrained in advance. It only has the authority to discuss and propose the text of a new Constitution; it has nine months to complete its purpose, with the possibility of a three-month extension. After this period, the Convention must dissolve. The Convention must approve its voting rules and the norms of the new constitution decisions by two-thirds majority. Although there is an important debate on how the voting procedure will operate, the two-third majority rule should not be altered according to the Convention’s rules contemplated in the constitutional reform. The rules also state that the new constitution must preserve the republican form of government, the democratic regime, guarantee compliance with final court rulings, as well as respect all ratified international treaties. The new constitutional text is to be ratified sixty days after its completion by means of another referendum—i.e. the “exit plebiscite”—and, if the “Approval” vote wins, then the new constitution will replace the current Constitution after the new document gets published in the Official Gazette. Finally, if no new constitutional text is adopted by the Convention within its period of functioning or because citizens “Reject” the Convention proposal on the “exit plebiscite”, the current constitution will remain in force.

Chile’s constitution-making process opens many relevant questions, not all of which have been sufficiently addressed by the literature. In this ICONnect symposium, we will be publishing five brief essays commenting on relevant aspects of the process. The purpose is to explore under-researched themes that have received little attention from the English-written scholarship.

We will open the symposium with Rodrigo Correa’s article. Professor Correa, a constitutional scholar from Universidad Adolfo Ibáñez, will discuss the political knot associated with the need for the Constitutional Convention to approve the norms of the new constitution using a “clean slate” (hoja en blanco) and the two-third majority rule required for approving its content. Although this topic has received little—if any—attention in the comparative constitutional literature, it is crucial for understanding one of the major peculiarities of the Chilean process. It has also become one of the most controversial aspects of the process among Chilean political forces and constitutional scholars.

Second, Juan Luis Ossa, a constitutional historian from the Centro de Estudios Públicos and the author of “Chile Constitucional,” will be writing about the Constitution’s legitimacy problem. He will argue that the 1980 Constitution broke with Chile’s constitutional tradition. That tradition conceived Chile’s constitutional instruments as institutional and historical mechanisms of gradualist reforms that succeeded to connect the constitutional moments of 1828, 1833, and 1925.

Third, Marcela Prieto, an Assistant Professor of Law at the University of Southern California, will offer some comments on how the Chilean constitutional debate has advanced and can promote what she calls “a feminist rethinking” of the Constitution. Chile will champion, for the first time in history, a Constitutional Convention composed of an equal number of women and men.

Fourth, Isabel Aninat, the dean of Universidad Adolfo Ibáñez School of Law, will engage with the need to constitutionally recognize the indigenous peoples in the new constitution and the alternatives that are available for constitution-makers. Latin America’s previous experiences offer a rich ground for exploring this theme, but Chile has so far failed to incorporate a constitutional provision recognizing indigenous peoples.

Finally, Patricio Zapata, who chaired the committee appointed by former President Bachelet to oversee the first attempt to replace the Chilean Constitution (2015-2017), author of “La Casa de Todos y Todas” and “Justicia Constitucional en Chile,” will offer a brief reflection inspired in Bob Dylan’s song and aimed to give a message to constitutional scholars committed to democracy.

Of course, we cannot offer all the possible themes available nor represent all the perspectives that are present in the Chilean debate, including insights such as the ones offered from political scientists like Claudia Heiss and Gabriel Negretto, legal scholars such as Roberto Gargarella and Verónica Undurraga, and from Chilean conservative scholars like Jaime Arancibia, for example. Nevertheless, we hope that the articles of this symposium will help to enrich the debate about Chile’s constitution-making process by providing accounts that have been underexplored and often neglected by the non-Spanish literature on Chile’s Constitution.

Suggested citation: José Francisco García and Sergio Verdugo, Introduction: Symposium on Chile’s Constitution-Making Process, Int’l J. Const. L. Blog, Oct. 31, 2020, at: http://www.iconnectblog.com/2020/10/introduction-symposium-on-chiles-constitution-making-process/

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* We thank Marcela Prieto for her helpful comments and suggestions to an earlier version of this Introduction.