Written by Ian Cardenas, Paralegal
On 12 December 2022, the different political factions in Chile reached an agreement outlining a roadmap for a new constitutional process. This marked a significant milestone in the democratic process as compromise was reached across political sectors for the benefit of the country.
This procedure differs from the previous constitutional process both in its social and political context and in its institutional design. It can be seen as a response to the rejection of the previously proposed constitutional text presented by the Constituent Convention in 2022, and in the context of an unresolved constitutional problem.
Who will draft the new constitution?
Unlike the constitutional convention, in this new process more public institutions will be involved and fewer people will be elected to draft the new Constitution. These are:
- Constitutional Council: Its main function will be to discuss and approve the text of the proposed new Constitution. It is the only body whose members will be democratically elected. It will be composed of 50 members.
- Expert Commission: its task is to propose to the Constitutional Council a preliminary draft of a new Constitution. It will be composed of 24 persons, also on a parity basis, but they will be appointed by the National Congress.
- Technical Committee on admissibility: the sole purpose of this body is to resolve the requirements of the proposals of the other two bodies, which contravene the constitutional bases of the Agreement for Chile.
What are the constitutional bases?
The draft constitution shall contain at least the following institutional and fundamental bases:
- Chile is a democratic Republic, whose sovereignty resides in the people.
- The State of Chile is unitary and decentralised.
- Sovereignty is limited by the dignity of the human person and the human rights recognized in the international treaties ratified by the State of Chile and which are in force. The Constitution shall establish that terrorism, in any of its forms, is in essence contrary to human rights.
- The Constitution recognizes indigenous peoples as part of the Chilean nation, which is one and indivisible. The State shall respect and promote their rights and cultures.
- Chile is a social and democratic State governed by the rule of law, whose purpose is to promote the common good; which recognizes fundamental rights and freedoms; and which promotes the progressive development of social rights, subject to the principle of fiscal responsibility; and through state and private institutions.
- The national emblems of Chile are the flag, the coat of arms and the national anthem.
- Chile has three separate and independent powers:
- Executive power: with a head of government with exclusive initiative in public spending.
- Judicial power: with jurisdictional unity and full respect for final and enforceable judicial sentences.
- A bicameral legislative power: composed of a Senate and a Chamber of Deputies, without prejudice to its powers and competencies in particular.
- Chile constitutionally enshrines, among others, the following autonomous bodies: the Central Bank, electoral justice, the Public Prosecutor’s Office and the Comptroller General of the Republic.
- Chile protects and guarantees fundamental rights and freedoms such as the right to life; equality before the law; the right to property in its various manifestations; freedom of conscience and worship; the best interests of children and adolescents; freedom of education and the preferential duty of families to choose the education of their children; among others.
- Chile constitutionally establishes the existence of the Armed Forces, with subordination to civilian power, and the Law and Order and Security Forces, with express mention of the Carabineros de Chile and the Investigative Police.
- The Constitution establishes at least four constitutional states of exception: state of assembly, state of siege, state of catastrophe and state of emergency.
- Chile is constitutionally committed to the care and conservation of nature and its biodiversity.
What are the key aspects of the process?
- 50 members convention 100% elected: the formula considers a 50-member convention, elected by the citizenry under the same rules as the election of senators. This means that they must be elected in a direct vote by senatorial constituencies.
- Committee of 24 experts: this group will be appointed by the Congress and will have the task of drawing up a preliminary draft, which will be submitted to the future convention for discussion. They will be people with undisputed professional, technical and/or academic backgrounds.
- Veto power: if the document emanating from the Convention members is not in line with the preliminary draft, the experts will have the power to veto it.
- Recourse to insistence: if the proposed document is vetoed, the convention may insist on its proposal and, in order to be approved, it shall require a quorum of 3/5 of the members.
- Mixed commission: if the convention text does not succeed, it will be passed to a mixed commission made up of both convention members and experts, to define a final proposal that will be put to a plebiscite before the citizens.
- Timeframe: the work of the new Constitutional Council should not exceed 6 months.
- Election date: the election of Convention members should take place before 18 April 2023.
How will the proposal for a Constitution be ratified?
The final proposal for a new Constitution must be approved by 3/5 of the incumbent councillors. This is notwithstanding any dispute between the Report on Improvements presented by the Expert Commission.
Subsequently, the proposal for a New Constitution must be ratified or rejected by the citizens through a plebiscite with a mandatory vote.
What is the overall timeline?
The constitutional reform bill will be introduced as soon as possible, by means of a parliamentary motion to be presented in the Chamber of Deputies, and the Executive will be asked to discuss it immediately so that the proposed itinerary is feasible:
- January 2023: Installation of the Expert Commission.
- April 2023: Election of Constitutional Councillors, with mandatory vote.
- 21 May 2023: Installation of the Constitutional Council.
- 21 October 2023: Submission of the draft Constitution of the Republic of Chile.
- 26 November 2023: Ratifying plebiscite with obligatory vote.