Special Series: Perspectives from Law Students
J.D. Student Contribution
–William Skewes-Cox, 3L, Georgetown University Law Center
On April 10th and 11th, 2021, Chile will hold elections to select the 155 members of the Constitutional Convention that will write the country’s new constitution. Chileans will vote across twenty-eight electoral districts, each with between three and eight seats depending on population, for a total of 138 seats. Winners will be determined by proportional representation based on total votes by party list. The remaining seventeen seats are reserved exclusively for winners of elections among indigenous peoples.
There are three main lists competing for seats that mirror current coalitions in the Congress. The right-wing unified to form the “Vamos por Chile” coalition. The left-wing opposition in Congress, which holds a combined majority in both houses, divided into two coalitions: the center-left parties formed “Lista del Apruebo” while the hard left came together in “Apruebo Dignidad.” Each electoral list is required by law to present alternating male and female candidates. The Chilean constitution will be the first ever written by an equal number of men and women.
Because no current office holder may run as a candidate for the Constitutional Convention, new national leaders are likely to emerge following the election. The first leadership contest will be over the selection of the President and Vice President of the Constitutional Convention by the newly elected members. While in all likelihood the center-left and hard left coalitions will win a combined majority of the seats, the right-wing coalition will win more than one-third of the seats. Given that the rules of the Convention require two-thirds approval for any article to enter the constitution, writing the new constitution will require broad compromise. There are several issues up for debate in the coming April elections that will also carry on once the Constitutional Convention begins to meet.
1. Social Rights
The most important debate over the new constitution is the degree to which social and economic rights should be universally guaranteed. The social explosion of 2019 that provided the impulse for Chile’s constitutional moment raised issues of inequality and uneven social services. Chile’s current constitution makes few substantive promises. For many on the left, then, the Constitutional Convention is an opportunity to enshrine the right to healthcare, education, pensions, and housing, among others, in the country’s founding document. Public polling shows that the Chilean people expect the constitution to include social rights. If Chile were to do so, it would join many neighboring South American countries which in recent decades have adopted aspirational constitutions promising a plethora of positive rights. The problem for resource constrained Latin American countries resides in implementing these promises. But the legal recognition of social and economic at least provides direction for public policy and can lay the groundwork for the judicialization of social struggles.
2. Congressional Quotas
As seen in the gender parity and indigenous representation rules applying to the elections for the Constitutional Convention, Chileans are debating the inclusion of similar permanent rules for the national congress. Already election lists for congressional seats require a minimum percentage of candidates for each sex, but the Chilean Congress still has never reached gender parity. The rule requiring an even division of male and females seats for the Constitutional Convention marks a step towards greater gender parity in representation. The Constitutional Convention may very well apply the same rule for all future elections under the new constitution.
The reservation of seats in the Constitutional Convention for indigenous peoples is without precedent. For years the issue has been debated in Chilean politics but the election of this April marks the first time that Chile will grant representation based on membership in an indigenous group. The rule has been criticized for granting outsized influence to some small indigenous groups, which leaves open the possibility for reform. The Constitutional Convention will have to decide if it wants to reserve seats for indigenous peoples in the new constitution. A related question has to do with the actual naming of the country. While it has traditionally been the Republic of Chile, the Constitutional Convention may look to neighbors such as Bolivia which has explicitly adopted naming conventions that recognize the presence of multiple peoples, i.e. the Plurinational State of Bolivia.
3. Constitutionality Review
Constitutionality review by the judicial branch has faced criticism from the hard left in Chile, who see an anti-democratic principle in the ability of courts to overturn legislation passed by popularly elected officials. Under the current constitution, the Constitutional Tribunal can review the constitutionality of legislation before the new law enters into effect. Opponents of constitutionality review point to advanced democracies such as Canada and the Netherlands that have circumscribed roles for courts in constitutionality review. Related to this issue is the formation of the highest courts of the judicial power in Chile, which is currently split between the Constitutional Tribunal and the Supreme Court. The Constitutional Convention faces the dilemma not only of the proper scope of constitutionality review but also of the possibility of consolidating the country’s two highest courts.
4. Unicameral or Bicameral Legislature
Chile currently has a lower and an upper house in the Chamber of Deputies and the Senate. The Senate originally had reserved seats for members of the military, seats designated by the Supreme Court and the president, and lifetime membership for ex-presidents. All these features were removed during the years of democratic transition and now the Senate is a representative body with popularly elected members from larger electoral districts who serve eight-year terms compared to the four years for congressional deputies. The Senate has been criticized for being unnecessarily duplicitous and generally more conservative than the Congress of Deputies. As a result, there has been a proposal to consolidate the legislative power into a single body. However, this has provoked fears of democratic backsliding due to Venezuela’s history of eliminating its upper house of Congress under President Hugo Chavez.
5. Centralization or Regionalization
The Chilean state has traditionally been heavily centralized and focused in and on Santiago. For decades citizens outside of Santiago in the country’s far-flung regions have complained of neglect and inattention by the central government. There has been a slow move to grant more autonomy and power to the regional governments. As an example, regional governors will be popularly elected for the first time this year. Previously the regional governors were all appointed by and served at the pleasure of the president. But the regional governments still lack independent powers and their own legislative assemblies. All police power responds solely to President. The Constitutional Convention will have to examine what powers it wants to devolve to the regions without risking a deterioration in the quality of public administration. The power most often demanded by regional and municipal authorities is the ability to raise local tax revenues, as seen in the debate over the Port of Valparaiso.
6. The Role of the President
A not identical but tangential issue is the type of government the Constitutional Convention will choose for Chile. The country has a history of strong presidential power with a more diminished role for the Congress. Chile has directly elected its presidents for fixed terms and the president has significant control over Congress’s legislative agenda. The Constitutional Convention could choose to grant more power to the legislature. However, Chile is unlikely to go so far as to adopt a European-style parliamentary system led by a prime minister. That style of government is alien to the country’s political traditions and would make Chile unique in Latin America, which is a region that has traditionally utilized strong presidential systems of government. The Constitutional Convention could create a presidential recall mechanism, which does not exist under the current constitution. The Convention could also create a mechanism for more frequent national referendums. Historically speaking, Chile has not frequently employed mechanisms of direct democracy but the 2019 social explosion and subsequent 2020 constitutional referendum might end up marking the beginning of a new period of more direct participation by the citizenry.
These issues, among several others, will come to define the political debate in Chile over the next years as the country goes through its constitutional reform process. How the Constitutional Convention ends up deciding each issue will largely depend upon the results of the April elections. Whatever the outcome, the Chilean Constitutional Convention stands to generate significant discussion on constitutional law as a prominent contemporary case study. Those interested in comparative constitutional law should pay close attention to the document the Chilean people end up adopting or rejecting.
Suggested Citation: William Skewes-Cox, Special Undergraduate Series–Six Issues for Debate in Chile’s Upcoming Elections for the Constitutional Convention, Int’l J. Const. L. Blog, Mar. 18, 2021, at: http://www.iconnectblog.com/2021/03/special-undergraduate-series–six-issues-for-debate-in-chiles-upcoming-elections-for-the-constitutional-convention
William Skewes-Cox is a third-year law student at Georgetown University specializing in international and constitutional law. He also holds a master’s degree in Global Politics from the London School of Economics. Prior to law school, he studied and worked in Chile for five years as a teacher and journalist. He maintains permanent residency in the country, voted in the 2020 constitutional referendum, and will return to Chile to vote in the April 2021 elections for the Constitutional Convention.