CHILE: Parties strike accord over new constitution
Thank you for reading LatinNews' chosen article from the Latin American Weekly Report, produced since 1967. The full report can be accessed here: Latin American Weekly Report - 15 December 2022
More than three months on from voters resoundingly rejecting a constitution drafted by delegates elected to a constitutional convention,?the bulk of Chile’s political parties have finally reached an agreement on how to proceed with the stalled process. The agreement will require approval by a four-sevenths majority in congress, but this should be a formality.
Ever since the referendum setback on 4 September, the government led by President Gabriel Boric has been scrambling to rescue the constitutional process, favouring something similar to before but with a different outcome. The political opposition, meanwhile, has determinedly resisted anything bearing a resemblance to the previous process so that elected delegates would not be able to start from scratch, tearing up basic inalienable constitutional principles, such as the indivisibility of the state. The resulting compromise will see a new body elected by universal suffrage but with real power vested in a commission of experts selected by congress.
“Once again in Chile, in spite of difficulties, we have decided to resolve the problems of democracy with more democracy rather than less,” President Boric said in a speech from the La Moneda presidential palace flanked by the presidents of the senate, álvaro Elizalde, and lower chamber of congress, Vlado Mirosevic, on 12 December. “The Chilean people have given us a second opportunity and we must be up to the task, learning from recent experiences,” Boric said. He said that the debate had been “intense and fiery at times” but the so-called ‘Agreement for Chile’ was “a necessary and hopefully decisive step to advance towards a social pact for a better democracy, with more freedoms and more social rights”. “Chile cannot keep waiting,” he added.
For his part, Elizalde celebrated “a new opportunity to forge a new future for our country and our people” after signing the agreement in the library of the old congress building in Santiago. Mirosevic said that the parties participating in the discussions from the governing left-wing Apruebo Dignidad and Socialismo Democrático alliance and the right-wing opposition Chile Vamos coalition had taken all the precautions not to commit the mistakes of the past and for this process to work well.
Boric did not dwell on these ‘precautions’ but rather the fact that the public would once again get to elect delegates to draft a new constitution and that the end result would be approved or rejected in a popular referendum, ensuring full democratic participation. A new constitutional council composed of 50 delegates will be elected in an obligatory vote in April (there will also be an undetermined number of seats awarded to representatives of indigenous peoples). This is less than a third of the size of the 155-member constitutional convention.
The elections to the constitutional council will follow the rules of elections to the senate, which also has 50 seats, directly elected using a party list proportional representation system. But fearful that unfettered democracy might produce a body akin to the constitutional convention that drafted a radical constitution roundly rejected by the public, Chile Vamos pushed for some kind of ‘quality control’.
Initially, Chile Vamos had argued in favour of a mixed body of 50 elected delegates and 50 experts designated by congress, while the government, and Boric himself, insisted that it be 100% elected. The parties eventually agreed on a compromise with delegates elected to the council “accompanied” by 24 experts designated by congress in a vote requiring a four-sevenths majority (12 appointed by the lower chamber and 12 by the senate in accordance with gender parity) commensurate with the legislative representation of individual parties. Despite the importance Boric attached to the election of delegates by popular vote, it is these 24 experts not the 50 delegates that will be the key appointments. They will wield the real power behind the scenes.
Boric said the experts would perform an advisory role. But they will do much more than that. Elected by congress at the tail end of December, they will start producing an initial draft of the constitution in January. By the time the delegates take their seats on the constitutional council on 21 May after April’s elections, the constitution will have been written and presented to them. The role of the delegates will go beyond merely rubberstamping this text but it will be circumscribed; they will certainly not have the plenipotentiary powers of the delegates who were elected to the constitutional convention.
The delegates elected to the constitutional council will not be able to approve any article that contradicts 12 ‘foundation stones’, which include, inter alia, the definition of Chile as “a unitary and decentralised state” and the recognition of the country’s indigenous peoples as “part of the Chilean nation, which is one and indivisible”. This precludes the possibility of the constitutional council characterising Chile as a plurinational state, which was one of the opposition’s principal criticisms of the constitution drawn up by the constitutional convention.
Individual articles and the final draft of the constitution will need to be approved by a three-fifths majority on the council after which the commission of experts will carry out a ‘harmonisation process’ and revision if necessary (to weed out anything too contentious), also by a three-fifths majority. If any article fails to clear the three-fifths hurdle then a mixed commission, composed of 12 people, equally drawn from the commission of experts and the constitutional council, will debate the matter and reach a resolution by its own three-fifths vote. The experts will draw up a new article if it still fails to clear this threshold.
The agreement stressed that drafting the constitution “requires a level of professionalism, counting on experts”, a thinly-veiled criticism of the constitutional convention. The word ‘expert’, however, is left somewhat vague. The requirement to be considered an expert is an “unimpeachable professional, technical and/or academic track record”. In practice, the parties in congress selecting the experts will be far more interested in their political ideology than their expertise, and it is unlikely they will advocate much in the way of political reform still less a radical overhaul of existing structures.
The agreement sets a deadline of 21 October 2023 for completing the new constitution. If this deadline is met then the draft constitution will then go to a national referendum, with obligatory voting, on 26 November.
Parties not signed up to agreement. Not all of Chile’s political parties were involved in the talks that led to the ‘Agreement for Chile’. The far-right Partido Republicano (PR) withdrew from talks to agree on a new constitutional process on 6 October. The PR favoured the idea of congress reforming the existing constitution drawn up during the military dictatorship in 1980 rather than convening another constituent body to draft a new magna carta, arguing that this approach had failed once already. The populist right-wing Partido de la Gente (PG) also pulled out of the talks.
Back-up body. Another body, Comité Técnico de Admisibilidad, will also be set up by congress. It will be comprised of 14 jurists elected by the senate from a list drawn up by the lower chamber of congress by a four-sevenths majority. It will function almost as an insurance policy should the commission of experts fail to purge the draft constitution of any article that might contradict the 12 ‘foundation stones’. If this committee deems any article in the draft constitution to be inadmissible, it will be removed.
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Thank you for reading LatinNews' chosen article from the Latin American Weekly Report, produced since 1967. The full report can be accessed here: Latin American Weekly Report - 15 December 2022
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