Practical guide with everything you need to know about the Constitutional Process

May 18, 2023

The Expert Commission was installed on March 6, 2023 and the preliminary draft of the new Constitution must be submitted to the Constitutional Council no later than June 6, 2023.

On Sunday, May 7, 2023, the voting was held to elect the candidates that will integrate the Constitutional Council, the body that must discuss a text proposal with the purpose of establishing a procedure for the elaboration and approval of a new Political Constitution.

The political parties to which the 50 elected members of the Constitutional Council belong are: Republican Party – 23 elected councilors -; Chile Seguro List – 11 elected councilors and, Unity for Chile List – 16 councilors. Additionally, Alihuen Antileo, a candidate of Mapuche origin, will be the 51st councilor of the Constitutional Council.

The bodies that make up the Constitutional Process

In addition to the Constitutional Council, there are two other bodies that make up the constitutional process: the Expert Commission and the Technical Admissibility Council.

The Expert Commission is made up of 24 persons – 12 nominated by the Senate and 12 by the Chamber of Deputies – with equal numbers of women and men. Its objective is to propose to the Constitutional Council a draft proposal for a new Political Constitution of the Republic of Chile, which will subsequently be discussed by the 50 members elected by popular vote. It will also play a collaborative role in the harmonization of the final text and the drafting of the transitory norms.

The Expert Commission was installed on March 6, 2023 and the preliminary draft of the new Constitution must be submitted to the Constitutional Council no later than June 6, 2023.

The third body that makes up the constitutional process is the Technical Committee of Admissibility, composed of 14 people, which will be in charge of resolving the requirements that are filed against those proposed rules approved by a Commission or by the plenary of the Constitutional Council, or by the Expert Commission, that contravene the provisions of Article 154, that is, the institutional and fundamental bases that were previously approved by the Congress in Law No. 21,533 that modified the Political Constitution.

Basis for the proposed new Constitution

Pursuant to Law No. 21,533, in order to establish a procedure for the drafting and approval of a new Political Constitution of the Republic, the institutional and fundamental bases of the proposal must adhere to the following principles:

  • Chile is a democratic Republic.
  • The State of Chile is unitary and decentralized.
  • Sovereignty is limited by the dignity of the person and human rights.
  • The Constitution recognizes indigenous peoples as part of the nation.
  • Chile is a social and democratic state.
  • The national emblems of Chile are the flag, the coat of arms and the national anthem.
  • Chile has three separate and independent powers: (a) Executive Power, with exclusive initiative in the presentation of bills that directly affect public spending; (b) Judicial Power; and, (c) bicameral Legislative Power.
  • The constitutional establishment of autonomous bodies: Central Bank, Electoral Justice, Public Prosecutor’s Office and 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 right and duty of families to choose the education of their children, among others.
  • Chile constitutionally enshrines the existence of the Armed Forces and the Forces of Order and Security, with express mention of the Carabineros de Chile and the Investigative Police of Chile, with subordination to civilian power.

 

Next steps in the Constitutional Process in Chile and general guidelines

Due to the composition of the elected Constitutional Council, the current opposition of the Government, composed of the Republican Party and the Chile Seguro List, have the 2/3 of the votes necessary to be able to modify and/or reject the proposals contained in the preliminary draft submitted by the Expert Commission.

The sectors that represent 2/3 of the Constitutional Council have already announced that they will sponsor a text that will promote legal certainty, investment attraction and improvements in the political system.

 

Constitutional Council schedule and date of the Exit Plebiscite

Once the Constitutional Council is installed, this body will have a term of 4 months to approve, approve with modifications or incorporate new rules to the preliminary draft of the new Constitution submitted by the Expert Commission by a quorum of three fifths of its members in office, in accordance with the provisions of Article 80 of the Regulations, which states “The Constitutional Council must submit to the Expert Commission the proposed text of the new Constitution within four months following its installation”.

Once the proposal for a new Constitution has been submitted by the Constitutional Council within the aforementioned term, the Expert Commission will have 5 days to formulate observations to improve the text. The Expert Commission will include its observations in a report to be submitted to the Constitutional Council on the day following the day of its adoption.

The proposals shall be heard by the Constitutional Council and shall be voted upon according to the following rules:

(a) Each proposal contained in the report shall be understood to be adopted by a quorum of three-fifths of the members in office of the Constitutional Council.

b) Each proposal contained in the report shall be deemed to be rejected by a quorum of two-thirds of the members in office of the Constitutional Council.

Observations reaching three-fifths in favor of the members in office of the Constitutional Council shall be deemed approved. The observations that reach two thirds of negative votes of the members in exercise of the Constitutional Council shall be considered rejected.

The observations that do not reach the quorum of three fifths to be approved, nor two thirds to be rejected, shall be analyzed by the Joint Commission, a body composed of six members of the Constitutional Council and six members of the Expert Commission, which may propose solutions with the vote of three fifths of its members in office.

The agreements reached by the Joint Commission must be approved by the Constitutional Council, as a whole, in a single vote, with the vote in favor of three fifths of its members in office. If the proposal does not reach this quorum, it will be understood to be definitively rejected.

Finally, according to Article 91 of the Rules of Procedure, “Once the voting of all the norms that will form part of the proposal for the new Constitution has been completed, the Presiding Officers of the Constitutional Council will call a session, not before seventy-two hours, to vote on the whole text, in a single vote, for whose approval three fifths of its members in office will be required”.

Thus, once the President has been notified of the proposed new constitutional text approved, he must call a National Constitutional Plebiscite within three days following such notification, by means of an exempt supreme decree, so that the electorate may pronounce itself on the proposal. This plebiscite shall be held on December 17, 2023.

For more information on the progress of the constitutional process, please contact our Public Law and Regulated Markets group:

Ariela Agosin | Partner | aagosin@az.cl

Antonio Rubilar | Director Public Law and Regulated Markets Group | arubilar@az.cl

Alejandro Montt | Director Energy and Natural Resources | amontt@az.cl

Lucas Norambuena | Associate | lnorambuena@az.cl

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