The Chilean Constituent Process: A Long and Winding Road

—Alberto Coddou Mc Manus, Diego Portales University & University College of London

Nowadays, Chile is undergoing a unique constituent process. A longstanding aim of several social movements, the idea of a new constitution now dominates the agenda, and is one of the main commitments of the current government. The commitment to replace the Constitution of 1980 stems partly, but not exclusively, from its origin in dictatorship. In an era where structural reforms have been at the forefront of centre-left governments around the region, various constraints put in place by the 1980 constitution have assumed a central place in the Chilean political public sphere. It seems that Chileans have to discuss, design and implement every policy under the shadow of Pinochet’s constitution, which was carefully crafted to preclude the institutional articulation of progressive political projects. Several critiques against the current constitutional arrangements have emerged: the powers of the Constitutional Court, which has emerged as a threat to strike down major reform packages; super-majoritarian laws that regulate fundamental issues (like education, local government, or the organization of the armed forces), which were mostly enacted during the dictatorship and to which any reform can be blocked by a congressional minority of 3/7ths; and, echoing a problem that is widespread in the region, a hyper-presidentialism that relegates Congress to a secondary role.

In this scenario, and under the pressure of social movements that during the last presidential election called on people to mark their ballots in order to support a Constituent Assembly, President Bachelet committed her political forces to launch a constitutional process that would comply with three standards: respect for the current institutional arrangements, in order to motivate the participation of sceptical sectors of the political establishment; active participation of the citizenry, that for the first time in the Chilean history has been invited to be the main actor of this process; and inclusiveness, which implies being aware of different groups that have been historically and structurally excluded from political debates. What was drafted in general terms in her political manifesto is now being implemented, and the precise articulation and design of the constituent process is something that may attract the interest of broader regional or global audiences. Three features of the current constituent process should be highlighted.

First, and in contrast with the traditional statement that constitutional moments take place during crisis, Chile could show to the world the possibility of debating a new constitutional arrangement under more or less normal times. Although Chile is not free of a global crisis that has revealed the corrupt relations between wealthy individuals or corporations and political power, there is a fair level of institutional integrity. The possibility of democratically debating constitutional issues during healthy institutional times could provide interesting lessons for broader audiences. Indeed, in a region that has been unjustifiably labelled as the ‘mausoleum of modernities,’ where elites are subject to the constant renovation of external modernization processes, the Chilean case may be a turning point.

The second feature of the constituent process is the challenge of being seen as ‘institutional’. Some literature argues that Chilean legal culture is highly institutional, so that any challenge to the status quo without institutional means could be very costly for advocates of major reforms. Even progressive interpretations of current institutional arrangements are viewed with suspicion by the establishment. For that reason, the current government decided to focus on the debate in the public sphere, even before any discussion on traditional institutional venues.

In concrete, the coalition in power launched a program of political participation that included individual platforms and a set of local meetings and cabildos (citizens’ assemblies) in order to hear popular views about fundamental constitutional issues. As an expression of the Chilean institutional culture, President Bachelet created a special Committee of Citizens in order to monitor the process, including persons from different political and social backgrounds. The zealous work of the committee has triggered a constant dialogue with government agencies in charge of the first stages of the constituent process.

The local meetings are self-convened and need only a few formal requirements to happen. The idea is to convene different groups to discuss three axes of debate about the constitutional order that were proposed by the government and agreed to by the Committee of Citizens – rights and duties; values and principles; and institutions. Discussions around the mechanism for creating a new constitution were excluded from the proposed issues, but the meetings will have a space to debate open issues. Furthermore, as participation does not involve the exercise of the franchise, nothing prevents inmates, teenagers over 14 or Chileans living abroad from organising these meetings.

Subsequently, several citizens’ assemblies will take place according to the administrative and geographical division of the country. Although state institutions will need to provide the proper infrastructure, a group of monitors (including legal experts and professionals with skills in local participation), elected by the Committee of Citizens, will be in charge of channelling the discussion according to an agreed methodology. These assemblies should discuss issues raised in the local meetings. After these assemblies are held, a group of professionals will systematize the issues, agreements and disagreements, including as well information received through individual platforms of participation. It is still not clear how that process of systematization will be operationalized, but there is agreement that the team should enjoy impartiality.

From all of this information, the president will create a document labelled “Citizens’ Foundations for a New Constitution.” In parallel to that, the current Congress should enact a constitutional amendment allowing the future Congress, to be elected at the end of next year with a new, proportional electoral system and under more transparent and democratic campaign financing rules, to decide on the concrete mechanism for creating a new constitution.

The Executive Power, with low approval ratings and heading a broad coalition that ranges from the Communist Party to the Christian Democrats, cannot control what will happen in Congress. However, the presidential team made a clever strategic move: it is pushing the public sphere to influence what will happen in the formal political venues. Even the timetable set by the presidency is designed around that idea: the next political elections at the end of 2017 will take place with the constitutional debate in mind. We may expect that no candidate will campaign without a clear political stance on these issues. In that way, president Bachelet may be able to achieve the high thresholds that are required for constitutional amendments. Also, by marshalling popular support around the idea of constitutional replacement, the potential role of the Constitutional Court as a veto player will be diminished.

A third interesting feature is the idea, endorsed by President Bachelet, of enabling dialogues between the current debates and the best readings of the Chilean constitutional tradition. Accepting this challenge, sectors of the academia are making interesting contributions, questioning what would have happened without Pinochet´s coup, that is, if the Constitution of 1925 were still in force (@ProyectoPuentes). Thus, the current constituent process will not only pay due regard to the Chilean ‘institutional’ mindset, but also to an interpretation of the best moments of its republican constitutional history.

Currently, we do not know how this process will end. There are several stages that imply the activity and interests of different public actors, but the features highlighted here offer us some hope for success. A new constitution will be the consolidation of a ‘long and winding road,’ a road that includes ‘bridges’ with the historical tradition, political and institutional ‘roundabouts’, and several popular ‘checkpoints.’ Only politics, that is, the ongoing activity of citizens coming together, will determine the outcome of this process.

Suggested citation: Alberto Coddou Mc Manus, The Chilean Constituent Process: A Long and Winding Road, Int’l J. Const. L. Blog, May 4, 2016, at: http://www.iconnectblog.com/2016/05/the-chilean-constituent-process-a-long-and-winding-road/