—Benjamin Alemparte, Duke University School of Law
These are times of constitutional change in Chile. On October 25, the referendum’s approval option for drafting a new Constitution won with close to 80% of the general vote, the most significant electoral gap in the country’s history. Notably, more than 50% of the registered electorate went to vote, resulting in the highest turnout since the return to democracy in 1990. The Chilean people voted for a fully democratic elected constituent convention of 155 members to be chosen in April with the only task of writing a new Constitution. It will also be the first of its kind gender-balanced convention, and efforts have been made to include independent candidates and other historically marginalized groups. Currently, Congress is discussing reserving seats in the convention for the indigenous population. This is not trivial; Chile and Uruguay are the only Latin-American countries not constitutionally recognizing their indigenous peoples.
But how did we get here? Although the replacement of Chile’s 1980 Constitution enacted under the Pinochet dictatorship (1973-1990) has been a historical project of the left, it is only in recent years that the idea of a new Constitution became a possible reality. This article examines the changing institutional dynamics that have governed Chile’s recent constitution-making process. As Karl Loewenstein would note, a political regime’s character can be deduced from how institutional actors apply different constitutional reform techniques. In this context, constituent conventions, like the one to be elected in Chile, commonly have an external creator that introduces different types of procedural and substantive constraints before starting to deliberate. Jon Elster referred to the concept of institutional interest, which exists when an institutional actor participating in the design of a constitution-making process reserves for itself an important role within the process and eventually in the new Constitution. Thus, for instance, a process designed predominantly by the President would promote a stronger presidency, or one led by Congress would privilege its role over the President. Similarly, political parties would have a primary interest in the constitutionalization of electoral legislation and the government machinery. In what follows, I will review these ideas considering the recent Chilean experience.
Michelle Bachelet’s constitution-making process (2014-2018) failed among other reasons, because it was institutionally captured by her presidency, without introducing power-sharing arrangements with other institutional actors. In 2015, an initial participatory stage based on public consultations and cabildos––although innovative––was highly imperfect. The board of observers appointed for the process did not have the time and capacity to systematize the initial public participation known as the citizen bases. Also, the government largely excluded the political parties from its coalition in the design of the process and was far from giving the necessary guarantees to the opposition in Congress to obtain the two-thirds quorum required to modify the constitutional reform chapter XV of the Constitution. Bachelet’s failure in Congress was twofold. First, the bill introduced by her government, which sought to reform chapter XV which would allow Congress to call a constitutional convention and thus draft a new Constitution, could not even pass its first constitutional procedure, despite government insistence. In this case, the President’s institutional interest was manifest because the government reserved for itself the legal initiative of an organic constitutional law that would regulate essential areas of the eventual convention. Second, another bill containing a new constitutional project––which reached the same fate and was presented just days after handing over the government to Sebastian Piñera––would not mean any major variation to the Chilean hyper presidential regime. Various sectors questioned this bill as the government secretly produced it for more than a year after the citizen bases were handed over. Ultimately, the process would be too dependent on Bachelet’s popularity. Thus, once her government fell in approval, her entire constitutional change plan faded away. Despite this bleak picture, more than 200,000 people participated in the initial stage of the process.
In contrast, Piñera came to the presidency in 2018 without an agenda towards a new Constitution. However, the October 2019 social outbreak, or what would later be known as estallido, marked a turning point in his Administration. Weeks of the most massive manifestations since the return to democracy, against decades of perceived abuses and inequality, left Piñera’s government on the brink of collapse. In this context, mayors from across the political spectrum started organizing a nationwide municipal consultation for a new Constitution. Faced with this situation, Piñera’s government was forced to announce a constitutional change process without giving any further details. Days later, political parties in the opposition through a public statement would explicitly call for a new Constitution through a constituent assembly. The Agreement for social peace and the new Constitution signed on November 15 by most political parties will establish the current constituent process’s main guidelines. Ironically or not, the same political parties were the worst evaluated by a public opinion poll with a 2% public trust, even behind government (5%) and Congress (3%). Thus, in some way, the agreement was a negotiated political settlement, a political solution used to unlock the social outbreak, which still represents a more profound problem of legitimacy. Like South Africa in the 1990s, the political forces negotiated a constitution-making process to bring peace to the country and as a mechanism to secure their position in the new institutional order.
The terms and conditions of this political agreement––executed through a major constitutional reform to chapter XV––represented the institutional interest of the political parties. In other words, through the design of this constitution-making process, the parties negotiated the constraints of the future constituent convention. This included the constitution-making itinerary, the substantive and procedural limits imposed on the convention’s functioning, and its members’ mode of election. Particularly, the October 25 referendum regulation, the electoral system by which the members of the convention will be elected, and its operating time of up to twelve months all confirmed Elster’s idea that the parties have a primary concern in the electoral system’s regulation. The parties have also had a preferential treatment in the space they had in the recent electoral campaign. Likewise, the parties have taken certain institutional safeguards that will allow them to guarantee continuity with the constitutional system and, more importantly, with their current power position. Among other institutional features of the agreement, the proportional electoral system currently used by Congress has been chosen to elect the convention members. Strategically, this will let parties organize their forces in each congressional district under their political domain. A two-thirds majority––the maximum constitutional quorum currently used for constitutional reforms––will be required to approve each norm of the new Constitution. Moreover, the convention will be forbidden to assume the original constituent power. It must respect Chile’s republican and democratic character, the court’s final judgments, and the international treaties ratified and currently in force. Finally, the convention may also not terminate the popularly elected authorities in advance unless their institutions are eliminated or substantially modified.
What are the challenges for the near future? The approval of a gender-balanced constituent convention with the eventual inclusion of the indigenous population are big first steps. But these are not enough. After the election of the convention’s members in April, the traditional elite-led bargaining that will represent political parties’ institutional interest should be carefully observed by an empowered citizenship. The regulation of the convention should be designed introducing efficient public participation mechanisms and with the aim to foster agreements between coalitions. Only if the constitutional norms approved by the convention embody the constitutional vision that has been expressed by social movements and public demonstrations, the convention’s work will become legitimized by the people in the future referendum completing the process. This is the constitutional vision that has pushed the status quo institutions to risk their current positions of power.
Suggested citation: Benjamin Alemparte, The Institutional Interest of Political Parties in Chile’s Constitution-Making Process, Int’l J. Const. L. Blog, Nov. 17, 2020, at: http://www.iconnectblog.com/2020/11/the-institutional-interest-of-political-parties-in-chiles-constitution-making-process/
 See José Francisco García and Sergio Verdugo, Introduction: Symposium on Chile’s Constitution-Making Process, Int’l J. Const. L. Blog, Oct. 31, 2020, at: http://www.iconnectblog.com/2020/10/introduction-symposium-on-chiles-constitution-making-process/
 Karl Loewenstein, Teoría de la Constitución, Editorial Ariel, (1979) 172.
 Jon Elster, Forces and Mechanisms in the Constitution-Making Process, 45 Duke Law Journal 364-396 (1995)
 Centro de Estudios Públicos, Estudio Nacional de Opinión Pública Nº 84, Diciembre 2019, available at: https://www.cepchile.cl/cep/site/docs/20200116/20200116081636/encuestacep_diciembre2019.pdf
 See Hassen Ebrahim, The Soul of a Nation: Constitution-Making in South Africa, Oxford University Press (1998).