A new Constitution for Chile: The proposed draft enters its final review process

After ten months of work, in a symbolic ceremony held on May 16th, 2022, the Chilean Constitutional Convention officially delivered the draft of its proposal for the country’s new Constitution.

Established as a result of the social unrest of October 2019, the Convention has produced a draft for the new constitution[1] that incorporates profound institutional and systemic changes, in comparison to what was established in the existing Constitution, enacted during General Pinochet’s Regime in the 1980s. The new draft contains 499 permanent articles[2], at the moment, all agreed by, least, 2/3 of the Convention[3], making it one of the most extensive and detailed constitutional experiments worldwide, and which now enters the final review process. 

Amongst the most relevant and noteworthy proposals, are:

• Presidential regime, with an asymmetrical, bicameral legislative system. Even though the Convention agreed to maintain a presidential system, with a bicameral (two chamber) legislature, the powers to be had by each of the legislative chambers, currently equal, have been changed. A ‘Congress of Deputies’ (“Congreso de Diputadas y Diputados”) will remain with at least 155 elected members[4], but the current Senate has been replaced by a ‘Chamber of the Regions’ (“Cámara de las Regiones”), with fewer powers[5]. The figure of the President has been also maintained, yet this time with fewer requirements to run for office, and also allowing an immediate presidential re-election, should the draft Constitution be approved[6].

• Regional, Plurinational and Intercultural State. Additionally, the new draft declares the country to be a Regional, Plurinational and Intercultural State "made up of autonomous territorial entities", politically, administratively and financially[7]. This declaration aims, in the first place, to leave behind the current Chilean legal form of a "Unitary State", which now will be organized territorially in autonomous regions, broadly similar to the approach taken in Spain, that will have legal personality and their own assets, as well as powers to govern themselves[8].

• Additionally, it also recognizes "the coexistence of various nations and peoples within the framework of the unity of the State"[9][10], adding that the State must guarantee the effective participation of indigenous peoples in the exercise and distribution of power, incorporating their representation into its structure.

• Social and Democratic State. Next, the new draft also redefines the Chilean State as of being of a ‘social and democratic nature’ (“Estado social y democrático de derecho”)[11]. With this new definition, the Convention proposes to abandon the subsidiarity principle contained in the current Constitution, thus evolving into a State that is in charge of providing the basic social rights recognized in it (‘welfare state’ model).

• Gender parity. If the new draft is approved, Chile will have a constitutionally recognized ‘parity democracy’ (“democracia paritaria”)[12]. By way of this, all State and governmental organizations and institutions (that is, from the Executive, Legislative and Judicial branches, the State Administration, public and semi-public companies and autonomous bodies) will have to be conformed, at least 50%, by women, and must incorporate the ‘gender approach’ (“enfoque de género”) when executing their functions.

• Environment. With regards to environmental issues, the new draft recognizes the current global ‘climate and ecological crisis’ and holds the State responsible for adopting actions of prevention, adaptation, and mitigation of risks, vulnerabilities and effects produced by climate change[13]. It also declares that water, the territorial sea, the beaches and the air are ‘inappropiable’ goods[14], and holds the State responsible for its protection, as well as for managing water democratically, and guaranteeing access and the balance of ecosystems[15].

• With regards to mining activity, it declares that "the State has absolute, exclusive, inalienable and imprescriptible control of all mines and mineral substances (...) without prejudice to ownership of the land on which they are situated"[16]. In relation to its exploration and exploitation, it states that both will be subject to regulation[17]. In this regard, the text does not prohibit the granting of concessions to private persons, and thus falls short of some of the calls for the wholesale nationalisation of mining. In addition, glaciers and protected areas will be excluded from all mining activity[18].

• Fundamental Rights. Finally, the new constitutional text incorporates an array of additional fundamental rights, to be guaranteed by the State (i.e. access to water, housing, decent employment, amongst others)[19]. The draft text also continues recognizing pre-existing rights like the right to property and free enterprise, but in a lesser degree in the first case (specifically in relation to the right of property, given that the regulation of the expropriation mechanism has now been given to the law[20], and, thus, could be subject to more frequent changes, depending on the conformation of the legislative body). 

“The Chilean constitutional process is a modern attempt to address some of the ESG issues currently being discussed globally. Regardless, the approval of the text is still to be defined, as well as the way in which local laws and regulations will be adapted in order to assure its application in practice.” - Lee Bacon (Partner Clyde & Co.)

With regards to its final review process, from May 16^th, 2022 to June 17^th, 2022[21], at the latest, three specialized commissions, within the Convention itself, will be in operation, primarily to ensure the overall coherence and applicability of the text: the Preamble Commission (“Comisión de Preámbulo”), the Transitory Articles Commission (“Comisión de Normas Transitorias”) and the Harmonization Commission (“Comisión de Armonización”). While the Preamble Commission will be in charge of writing the introduction for the proposed draft[22], the Transitory Articles Commission will seek to define the transitory provisions that will regulate the transition between the current Constitution, to the complete establishment of the new one[23].

Finally, the Harmonization Commission will structure the text, ensuring the coherence of the final document,[24] identifying gaps or contradictions between the approved articles and correcting linguistic and syntax issues that may exist. In any case, it will not be able to alter, modify or replace an approved constitutional norm, but only make changes that prevent and avoid future contradictions[25].

Once the review work has been completed, the Convention will deliver the final proposal to the President of the Republic, who will then convene a new referendum (“Plebiscito de Salida”), through which Chilean citizens will now decide whether to approve or reject the new text[26]. This second referendum will be held on Sunday, September 4, 2022[27], and voting on it will be mandatory for all of those authorized to vote.

“During these weeks, we will be looking at the work of the Harmonization and the Transitory Articles Commissions with great attention, as they will produce the final draft to be voted on the National Referendum to be held on 4 September 2022. Although the latest polls show a tendency favoring the rejection of the final text, we are expecting a very tight victory for the winning option.” – Franco Acchiardo (Partner Grasty Quintana Majlis – In association with Clyde & Co.)