Managing Deadlines: Constitution making in Chile 2021-22

When a fixed period of time is set for a constitution making process, how should that time be organised, to prevent it running out before a constitution is agreed? Are there phases in a constitution making process that can be identified, however tentatively, for the purposes of devising a timeline? What are the options, if what appears to be the final deadline approaches and there is still a lot of work to do?

These are the questions that CTN  has recently been considering, in a productive collaboration with colleagues at Pontificia Universidad Católica de Chile. Since June 2021, CTN has been collaborating with a small team of academics at the Pontifical Catholic University (PUC), led by Prof Francisco Urbina from the PUC Law Faculty. The Law Faculty team is part of a  bigger PUC team working to provide expert inputs to the Convention.

In October 2020, an overwhelming majority of Chileans voted in favour of rewriting the national constitution in a referendum, held as a result of mass street demonstrations across the country a year earlier. In  May  2021, elections were held to elect the members of the 155-person Constitutional Convention that would be responsible for drafting the text. All proposals will require two-thirds approval by the members of the Constitutional Convention. Independent candidates secured 48 seats, the left 28, the centre-left 25, and the right-wing coalition 37. Seventeen seats were set aside for representatives of indigenous groups, who are not mentioned in the existing charter.  The  Convention is the first in the world to stipulate parity between male and female members.

The Constitutional Convention of Chile was inaugurated on 4 July 2021. In accordance with an amendment to the Chilean Constitution in 2019, from which the Convention derives its mandate, it has 9 months to complete its work, with the possibility of a further 3 month extension, which cannot be sought until 5-15 days before the initial 9 months expires. An extension beyond 12 months would require further constitutional change and cannot be guaranteed, not least because congressional elections will take place in the interim and the makeup of the new Congress is unknown. In any event, there are advantages in finalizing a draft constitution within the allocated time, to take advantage of the commitment and enthusiasm of delegates and people.

Some guidance on these issues can be drawn from constitution making processes elsewhere, including the cautionary tale of Nepal, where the first Constituent Assembly ultimately expired before a constitution was approved.  In the end, however, each process, including that of Chile, is distinctive. Unlike many other constitution making processes, the Chilean Convention is charged solely with making a constitution and has no broader governance role. It has a manageable number of 155 elected delegates, but these represent a diverse range of interests and there are no obvious leaders to assist with consensus outcomes. The movement for a new constitution reflects repudiation of the existing constitution, with its roots in the Pinochet era, so that a great deal is up for grabs, at least in principle. The constitutional framework for the Convention appears to require individual clauses to be adopted by a 2/3 majority, further complicating the already complicated question of how committees and the plenary will interrelate. All these factors, and more, affect the design and operation of a timeline.

This collaboration reflects CTN’s core mission of working with experts and practitioners in a wide range of states worldwide to provide practical assistance with, and better understand, constitutional and political reform. Our work seeks to draw on the extensive comparative constitutional expertise within the team, while paying close attention to the particularities of each context, in identifying priority issues and constitutional design options.

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The Report, ‘The Path Towards a New Constitution: Managing the Deadlines of the Chilean Constitutional Convention’ was launched at a joint event co-organised by the Centro de Justicia Constitucional at Universidad del Desarollo, the Constitution Transformation Network at University of Melbourne, and the Foro Constitucional at Universidad Católica de Chile on 21 March 2022.  This event also marked the launch of Assessing the Challenges and Politics of the Chilean Constitution-Making Process, a special issue of the Hague Journal on the Rule of Law.

CTN Convenors Tom Daly and Cheryl Saunders joined Alexandrea Huneeus, Sergio Verdugo, Gabriel Negretto, Francisco Urbina, Gonzalo Candia, Isabel Aninat and Raúl Sánchez-Urribarri to discuss the challenges facing Chile’s constitution makers, and the lessons can be found in comparative experiences worldwide.

Watch the discussion