The New Chilean Constitutional Project in Comparative Perspective

—David Landau, Florida State University College of Law[1]

The new Chilean constitutional text was delivered by the Constitutional Convention to President Gabriel Boric in a ceremony on July 4, 2022. This ended the year-long Constitutional Convention, itself sparked in large part by a set of massive social protests in 2019.

The next step is the referendum to approve or reject the new text, to be held on September 4, 2022. In the interim there will be a grueling, difficult campaign. While comparative data shows that referendums to ratify new constitutions are approved 94 percent of the time (usually by a large margin), this data is drawn from a wide range of contexts. Evidence suggests a difficult environment in the Chilean case. Approval is polling underwater. The Chilean right and center-right, marginalized from the Convention, will lead an aggressive campaign for the no vote. Some voices in the old Concertación coalition have expressed varying degrees of concern with the new draft. In the past week, one ex-president (Eduardo Frei) has come out in favor of rejection; another (Ricardo Lagos) has stated that both the new draft and the 1980 constitution do not currently reflect a social “consensus.” 

In this post, I reflect on two interlinked questions: What is one to make of the text from a comparative perspective? And what is at stake in the exit referendum?

The Text in Comparative Perspective

The impression that I share with other international observers is that the new constitutional text is reasonable. It contains some genuine and very important innovations. One of the most notable is gender parity, which was an element of the Convention itself that is now inscribed in the constitutional text, not just for Congress but also for other state institutions. This is to my knowledge the first constitution to create such a rule, and there is little question that the parity provisions in the Chilean constitution will be influential in future constitutions. The same seems true of the detailed and comprehensive environmental rights, and indeed the framing of the Chilean constitution as an ecological constitution.

The text reflects the tendencies of neo-constitutionalism in Latin America, but also, and to an underappreciated degree, global currents in constitutional design. This can be seen in the rights of indigenous or original peoples, environmental rights, robust and justiciable socioeconomic rights, the move towards a social state of law, and a thick set of autonomous institutions outside the traditional three-branch model. In comparative terms, most of these elements are found in many different countries, and are consistent with a wide range of political and economic models.

Roberto Gargarella has argued that the Convention advanced further in rights, but less in what he has called the “engine room” of the constitution. He is correct, but the new draft does make some very important structural changes. These include decentralization, which is a striking change from Chilean constitutional history. They also include efforts to make the Chilean political system more flexible than the counter-majoritarian 1980 constitution drafted during a military dictatorship, by removing most of the special quorums needed to pass some laws and by making the new constitution easier to amend. The new draft can be amended on most matters by a four-sevenths vote of Congress (in contrast to the two-thirds vote under the old constitution), although certain topics are specially protected by the need for a popular referendum – what Rosalind Dixon and I have called a “tiered” constitutional design.  As well, changes to representation, particularly the addition of gender parity and reserved seats of original peoples, will have lasting effects on legislative and other institutions.

With that said, let me note two tensions in the process and text that are worth drawing out. The first creates a problem, while the second may – optimistically – provide a solution to that problem.

Process Design and Outcome

The first tension is between the design of the process and its political results. One way in which the Chilean process deserves to prove influential for other cases is in its use of law to constrain constitution-making. Unlike several other recent cases in Latin America, where actors made strong claims of constituent power to avoid legal control, sometimes with authoritarian outcomes, the Chilean process is legalistic. The process was governed by rules stemming from a multi-party political agreement, which was then translated into a set of amendments to the existing constitution drafted by a technical commission. There are many interesting aspects of these rules, but the key one is a requirement of a two-thirds vote for approval of the norms in the new constitutional text.

A widely-held expectation was that because of the two-thirds voting rule, all major political forces – and particularly the right – would have power to shape the text. But the elections to the Convention did not work out that way, because of a combination of electoral rules and (more importantly) the political moment. The right fared poorly. The C22 project of the Centro de Estudios Públicos (CEP) shows that the two-thirds vote in the Convention fell to the left of the right-wing parties and even centrist elements of the prior Concertación, falling instead roughly in line with the Socialist party.

The institutionalized left, such as the Frente Amplio and the Socialist party, therefore negotiated laboriously with the large group of the independent left in the Convention, which included many of those elected from reserved seats, as well as activists drawn from issue areas and civil society groups. In his closing statement, one of the center-right delegates, Christian Monckeberg, said that the decision by center-left parties not to negotiate with the center right was a “historic error.” But because of the composition of the Assembly, it may have been more of a political imperative in order to produce a draft.

Should we be concerned about the relative exclusion of the right, center-right, and even parts of the center from the negotiating table?  Yes, irrespective of the fact that the text itself is reasonable and makes very important advances.  

Constitution-making is often as or more important for the “constitutional moment” or political context it creates, as it is for the text itself. And in Chile, the constitution has been completed in an environment of high polarization. The referendum campaign will be difficult. If “approve” wins, it will probably not be by a very large margin. That is the short-run problem. The longer run problem is the effect on popular and elite buy-in.

The Text and its Implementation

A second tension is between the constitutional text itself and its pathways for implementation. The text, as noted above, is very progressive, and suggests some significant changes in Chilean politics and society.

But the constitution, despite its detail, also contains a very large number of “by law” clauses, throwing major questions back to the legislature. This includes the design of the new social rights and systems envisioned by the new constitutional text, such as in health and education. These by-law clauses are typical of modern constitutions, but their numerosity in the Chilean text highlights how many key issues were deferred for legislative consideration.

Moreover, too little attention has been paid to the constitution’s transitional norms, which reflect a relatively conservative approach. The construction of most new institutions (with the notable exception of the Constitutional Court) will be gradual – the new legislative branch, for instance, will not come into being for about four years. In the meantime, the existing Congress will stay in place. This means that for some time, the current Congress, which is well to the right of the Convention, will be charged with implementation.

Further, the transitional norms create very few special procedures for passing new implementing laws, unlike some other regional experiences such as the 1991 Colombian constitution, where the president was given extensive decree power. Mostly, they rely on ordinary legislative procedure. The transitional norms do create timeframes for passing important laws, but generally without consequences if those timeframes are missed. The general rule in the meantime is that existing legislation will remain in place, unless and until struck down by the Constitutional Court.

There is a pessimistic and optimistic way to view this tension. The pessimistic way is to worry that implementation will be frustrated. Many members of Congress may be unenthusiastic about the new constitutional text and will be overwhelmed with a need to pass many new laws, including ones defining key state institutions. Implementation of issues close to the heart of the street protests that sparked the constitution-making process, particularly social rights, thus may not occur in a timely and robust fashion. There is also a risk that the Chilean judiciary, which has a largely conservative history and role conception, may do too little to implement the new text – a Colombian-style flourishing of social rights jurisprudence, for instance, seems unlikely.

Put starkly, the risk is that a new constitution is written (and approved), but then little changes. This seems like a much bigger risk to me than that (sometimes stated by right-leaning politicians or commentators) of radical changes to the economic model, never mind the absurd comparisons to authoritarian turns in contexts like Venezuela.

But there is also an optimistic way to view this tension. A gradual implementation, one reliant on the slow grind of normal politics, may end up playing a positive role, helping to resolve the tension identified above: the marginalization of some key political forces. The Convention, stemming from the difficult moment of the street protests, reflected key aspects of Chilean society that have long been underrepresented, but also underweighted important political sectors.

Constitution-making is not finished when the text is written, or even when and if it is approved. Political movements with too little voice in the Convention are likely to have more in the years ahead. When viewed through this broad sweep, over a long period of time that includes the crucial role of implementation, the Chilean constitution-making process may appear less singular and extraordinary, but also more balanced between different political forces and actors.

What is at Stake

This leads to a concluding point about the September referendum. Much commentary has focused on particular perceived flaws in the draft, without necessarily looking at the (lengthy) text as a whole or the broader context. Rejection would create a deep problem. Even many political actors on the right have conceded that the 1980 constitution is dead, killed by the 78 percent who voted in the 2020 plebiscite in favor of a Constitutional Convention.

But if the new text if rejected, what is the likely alternative?

One possibility would be a second constitutional convention. But would sufficient socio-political energy exist for such a process, after an exhausting several years? One can be skeptical.

Another possibility, now much discussed as part of a “third way,” would be for Congress itself to adopt amendments, perhaps picking up on some of the concepts elaborated by the Convention. A plan is afoot to lower the threshold needed for approving constitutional changes under the 1980 constitution, precisely to facilitate such a path. But after mass social protests reflecting discontent with, and even rejection of, traditional politics, would the Congress have sufficient legitimacy to elaborate the constitutional changes that Chile needs? Again, one can be skeptical.

I hope these questions need not be answered.

Suggested citation: David Landau, The New Chilean Constitutional Project in Comparative Perspective, Int’l J. Const. L. Blog, July 16, 2022, at: http://www.iconnectblog.com/07/16/the-new-chilean-constitutional-project-in-comparative-perspective/

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[1] A version of these remarks was presented at a webinar on “How does the Proposal of Chile’s New Constitution Look?” presented by the Academic Forum for the New Constitution in Chile, an initiative of the David Rockefeller Center for Latin American Studies (DRCLAS) at Harvard University, on July 13, 2022. The author would also like to thank the Fulbright Specialist program, Adolfo Ibáñez University, and the Centro de Estudios Publicos (CEP) for support for visits to Chile during the Constitutional Convention, in April, May, and June 2022. Thanks to João Vítor Cardoso and Jaclyn Neo for helpful comments on this post.