Chile: Political parties agree on mechanism to restart constitutional process

• New charter to be written by an elected convention with support from an expert committee
• Process to contain rail guards to prevent radical institutional reform proposals
• Expert committee to prepare first non-binding draft from January
• Delegate election scheduled for April, constitution proposal to be ready by October, final referendum scheduled for November
• We see minimalistic constitution without big institutional reforms as most likely outcome

Congress representatives from Chile's main political parties reached an agreement late Mon. on the mechanism and schedule that will be used in the?second try?to write a new constitution, according to a statement. The new process will have an elected constitutional convention of 50 members, a committee of 24 experts designated by Congress, a basis for core articles in the new constitution already decided by Congress, and a referee committee to ensure that the base established by Congress is not violated. The agreement will be reflected in a constitutional reform bill that will be approved by Congress in December, allowing for the new constitutional process to begin anew in January. The new constitution proposal will be submitted to a referendum scheduled for Nov 26 of 2023.

This second process incorporates some of the lessons learned from the failed constitutional convention of 2021-22. The main changes are that the elected convention will not start from a blank page and will be forced to interact with a committee of experts. The experts and Congress will provide a base for the convention to work from, including a set of rules that must be included in the new constitution, and the experts will have some powers to correct any excesses that the convention may incur. Other important changes are that independents will not be able to run for the convention if they are not sponsored by parties and that the elected convention will be smaller in size. The second convention should be more balanced in terms of political representation, candidates will be vetted by parties, and there will be a few mechanisms in place to prevent radical ideas from getting to the final constitutional draft, all of which should lead to a relatively minimalistic and moderate proposal for a new constitution.

SCHEDULE

Assuming the constitutional reform bill needed to restart the process is approved in both chambers of Congress in December, the schedule will be the following:

BASE SET BY CONGRESS

Political parties agreed on a set of 12 principles that must be explicitly included in the new constitution proposal. Many of these principles look to address some of the controversies created by the first constitutional convention, which attempted to reform some foundational aspects of how Chile is defined as a state. The principles are the following:

For the most part, these principles look to safeguard the status quo on the way the Chilean state is defined and the structure of its main institutions. The principles leave room for the convention to reform how the institutions work if there is a broad enough agreement, but all the main current institutions will still exist in terms of name and degree of autonomy granted by the constitution.

BODIES INVOLVED IN THE CONSTITUTIONAL PROCESS

The new constitution will be mostly written through an interaction between an elected constitutional council of 50 delegates and an expert committee of 24 members. There is a third body named the admissibility committee that will settle any prospective complaints about articles that come in conflict with the principles submitted by Congress.

Constitutional Council/Convention

The constitutional council will be the body with the most power to write the new constitution. The council will contain 50 delegates to be chosen in a popular mandatory election using the 16 senatorial districts and the d'Hondt method. This means there will be 12 delegates picked in six districts that elect two each, 18 delegates picked in six districts that elect three each, and 20 delegates picked in four districts that elect five each. There could be extra seats reserved for representatives of indigenous people depending on their effective voting numbers.

The delegates will settle on a workflow once the council is formed, but Congress has already established that any article proposal coming from delegates will need the support of 3/5 of the council to be included in the final draft. This is a lower threshold than the majority of 2/3 that was required to approve articles in the first constitutional convention, but this time around there will be other rail guards that allow for the reduced approval requirements.

A priori, the election system favors the right because it usually competes in a single alliance while the majority left-wing vote gets split among different factions. The conservative right getting at least one representative from the ten districts that elect more than two delegates is almost a given. Even in a scenario of consolidation of the left-wing parties, the right should get close to the 2/5 of seats needed for a blocking position in the convention. The right getting to 2/5 of the seats would force the convention to achieve a very broad consensus on every article.

Expert Committee

The expert committee will be formed by 24 members, with 12 of them to be chosen by the Chamber of Deputies and the other 12 by the Senate. The initial selection aims to respect party representation in the current Congress, but any proposed expert needs to be ratified by 4/7 of the corresponding chamber of Congress.

The expert committee will be the first constitutional body to begin to work because it will be tasked with preparing an initial constitution draft to help guide the work of the elected convention. This draft will not bind the elected convention's work according to the rules, but it is likely to impact how the public sees the constitutional process and the evaluation of any prospective change made by the elected convention. Any decision taken by the expert committee as a whole, such as the approval of articles to be included in the initial draft, require the approval of 3/5 of its members.

The expert committee will be allowed to attend every session of the elected convention and to issue an opinion on every topic that gets discussed, but the experts will not be allowed to vote alongside delegates. However, the expert committee could play a key role after the elected convention delivers its own first draft of the new constitution. The rules will let the expert committee formulate proposals to improve the writing of the text approved by the elected convention, and the convention will then need 3/5 majorities to adopt the proposed changes or 2/3 majorities to reject them. The rules say that the experts can make proposals to improve wording with the aim of assisting the comprehension of the rules, but we see this mechanism as a potential source of conflict between the two main writing bodies.

If the improvements proposed by the expert committee don't get 3/5 of support but are also not rejected by 2/3, the two bodies would form a mixed committee of 12 members tasked with resolving the controversy. Any resolution proposed by this mixed committee will require that each body approves it by 3/5.

Admissibility Committee

The admissibility committee will be formed by 14 jurors chosen by the Senate from a pool of candidates nominated by the Chamber of Deputies. Both the inclusion of members to the pool and the selection from the pool will require majorities of 4/7 from the corresponding house of Congress.

This committee will revise articles approved by the other two bodies to determine if there is a conflict between what was approved and the 12 principles established by Congress. If the admissibility committee rules that there is a conflict, the articles approved by the other two constitutional bodies will be voided. The admissibility committee will only review articles if 1/5 of the elected convention or 2/5 of the expert committee asks for an assessment. The admissibility committee will rule through absolute majorities.

CONCLUSION

This second attempt to write a new constitution through an elected convention will contain a lot of rail guards and force political parties to seek broad agreements on every topic. The design should ensure a minimalistic new constitution without significant reforms to the current institutional status quo, unless the election of delegates to the convention turns out to be imbalanced and hands left-wing parties a controlling majority. Considering this, it will be important to look at whether the delegate elections scheduled for April deliver a balanced convention. In our view, the risk of negative institutional change emanating from the constitutional process should be considered low, even if the conservative right fails to get a blocking position at the convention. In fact, we believe the bigger risk is that the new constitution ends up changing too little and leads to a revival of the social unrest seen at the end of 2019. However, we also consider the probability of a revival of social unrest at the scale of the 2019 protests to be low.