—Lucas MacClure, Boston College
The Chilean Constitutional Convention has begun the work that will lead, one hopes, to the replacement of Pinochet’s 1980 constitution. In this piece, I summarize the Convention’s first week and highlight themes we comparativists often discuss under the banner of the optimal design of constituent assemblies.
The first week of the Convention began on Sunday, July 4th, 2021, when its 155 delegates met for the first time as a collective decision-making body. The next day, the delegates of the Convention attempted to hold a new session. It was abruptly cancelled and postponed for two days due to logistical problems discussed below. The delegates resumed their work on Wednesday, July 7th, and Thursday, July 8th.
In this short week, the Convention accomplished the following five official acts: First, the delegates inaugurated the Convention. Second, the delegates elected Elisa Loncon as president and Jaime Bassa as vice-president. Third, the delegates decided they will add seven members to the Board of the Convention, for a total of nine. Fourth, the delegates agreed to create a committee in charge of proposing rules to govern the proceedings of the Convention; they also agreed on a committee of budgeting and administration and an ethics committee. Fifth, the delegates approved a declaration that asked Congress and the President to transform how the criminal justice system handles protesters indicted for involvement in the often-violent 2019 demonstrations that originated the constitution-making process.
Different observers will highlight different aspects of the Convention’s first week. I will focus here on five. Highlighting them can help us anticipate how the Convention will develop and draw lessons for other countries.
First, this week showed how the location of the Convention makes it vulnerable to disruption.
The Convention met in Santiago, Chile’s capital and most populous city, a traditional location for mass protests. While the Convention was being inaugurated, several protesters approached its building and clashed with the police. While many delegates were singing the national anthem, several delegates shouted over the music, requesting to stop the session. They wanted to monitor the police’s use of force toward protesters outside the building. The session was suspended for almost two hours. Deputies ran to the streets to become impromptu human rights observers. The scene was chaotic—a tumultuous start to the Convention.
“[T]he presence of crowds may be necessary to overcome an ancien régime”, writes Jon Elster. But, as he also notes, their presence makes assemblies vulnerable to threats and other forms of pressure. A remedy is “to locate the assembly in a small town removed from any major urban agglomerations.” In Chile, the public official in charge of selecting the Convention’s location—President Sebastián Piñera—selected the capital, home to more than six million people. Having Santiago be the location of the Convention potentially invites trouble.
Second, this week showcased the Convention’s diversity and inclusiveness.
The electoral rules used to select delegates were designed to produce gender parity and reserved seats for indigenous groups. In a country whose political institutions are dominated by upper-class white men, it was refreshing to see that 77 of the 155 delegates are women, and 17 are indigenous delegates representing their ethnic groups.
Moreover, the Convention chose as its president Elisa Loncon, a Mapuche women of modest origins and university professor specializing in the Mapuche language and culture. Dressed in traditional Mapuche clothes, she began her first speech addressing indigenous groups in her native language. The Convention’s decision to widen the number of Board members can also be cast as an attempt to infuse its leadership with diversity.
Third, this week also showed how other branches of government can help or hinder a constituent assembly.
According to the 2019 constitutional amendment that created the design of the Convention, the President, or a delegated public body, must provide the Convention with the “technical, administrative and financial support needed for its inauguration and functioning.” To fulfill this role, President Piñera created the Administrative Secretariat of the Constitutional Convention in January 2021.
However, when the delegates arrived at the building of the Convention on Monday, July 5th, they discovered that the Secretariat had failed to prepare the space. The rooms for deliberation and voting lacked the equipment needed for communication between rooms—TV screens, microphones, etc. This set up was mandatory because of COVID-19 distancing requirements. As a result, the Convention’s president and vice-president were forced to cancel Monday’s session. Eventually, the Secretariat’s failure to provide basic technical support was remediated—not only by the Secretariat, but also by career public officials and civil society organizations that volunteered help. The Convention resumed its work on July 7th.
It is unclear why or how the Secretariat failed to do its part. President Piñera’s representatives acknowledged the Secretariat had failed to provide technical support. A few days after the embarrassment, President Piñera accepted the resignation of the head of the Secretariat and named another. But nobody has provided a full explanation for the failure.
Fourth, this week began to test the powers of the Convention vis-à-vis the branches of government.
In the 2019 constitutional amendment, Congress and the President designed the Convention as a “pure” constituent assembly. The Convention’s task is to produce a draft of a new constitution—no more, no less. The amendment explicitly says that the Convention cannot “intervene nor exercise any function or power of any other public bodies or authorities.” The very name of this constituent assembly displays its narrow mandate.
In the first week of the Convention, 105 of the 155 delegates voted for and passed a declaration that told two branches of government what to do with their powers. The Convention requested Congress and the President to pass amnesty bills, amend an executive order, and stop criminal justice actions, all to protect and offer reparations to protesters of the 2019 demonstrations—many of them political prisoners, according to the declaration. The declaration also asked for more lenient policies toward indigenous groups that have been prosecuted for violence in the south of Chile.
Delegates who opposed the declaration said the Convention has no formal power to issue it. The declaration addressed this objection by making a distinction: between “taking over” the powers of other bodies, which it said it did not purport to do, and “speaking out” about “situations” that contravene the purpose (“spirit”) of the Convention. This purpose was defined as “building a road of peace and social justice for all the inhabitants of our political community.”
In the coming months, the Convention will continue to interpret the constitutional rules about its powers and procedure. Will the Convention defy those rules? In addition to limiting the power of the Convention vis-à-vis the branches of government, the 2019 amendment also created a two-thirds majority requirement for approving the draft of the new constitution, and placed substantive limits on the Assembly such as a ban on changes to international treaties ratified by Chile. A month before its first session, a group of 34 deputies said the Convention should not be bound by the 2019 amendment. They invoked the notion of constituent power, just as other constituent assemblies around the world have done to exceed their formal powers. If the Convention eventually defies its limits, we may look back to the Convention’s first declaration as a precedent. If it does not, we will know that the delegates meant what they said when the declaration recognized the Convention’s narrow mandate.
Fifth, and finally, the first week of the Convention showed us the procedural nightmare that the opening days of a constituent assembly can be.
The Convention started its work with almost no rules of procedure. Its first deliberations and votes were unruly, particularly in its first full session after inauguration. The Board recognized this after the fact. Fortunately, the Convention quickly decided to create a committee to propose a procedure. Several groups of delegates and think tanks have already proposed procedural rules. These resources should expedite the committee’s work.
In eighteenth-century France, the Estates-General spent its first six weeks debating a procedural issue. This inaction of the assembly contributed to the social turmoil that led to the French revolution and its excesses. The Chilean assembly has the opportunity to lead a more civilized transformational process. Such a process may benefit from a quick definition of the rules of the game.
It was an eventful week, even if the assembly only met successfully three days. The Convention’s location, diversity, relationships with other branches of government, and lack of procedure were notable. No doubt, other analysis will tell us more about the beginning of the Chilean Constitutional Convention and the weeks and months to come.
Suggested Citation:Lucas MacClure, The First Week of the Chilean Constitutional Convention, Int’l J. Const. L. Blog, July 15, 2021, at http://www.iconnectblog.com/2021/07/the-first-week-of-the-chilean-constitutional-convention/
 See generally Jon Elster, Securities against Misrule: Juries, Assemblies, Elections (New York: Cambridge University Press, 2013), chap. 4.
 Id., 219.
 Id., 216.
 Constitution, article 133.
 This had not been fully noted on the day of inauguration, probably because this session was held outside of the building.
 The Convention was also empowered to regulate some aspects of its internal procedure. See Constitution, article 133.
 Constitution, article 135. The 2019 amendment created a legal remedy for potential infractions to this and other procedural rules. See Constitution, article 136.
 See Elster, Securities against Misrule, 2016 (calling pure assemblies “conventions”); Gabriel L. Negretto, “Constituent Assemblies in Democratic Regimes: The Problem of a Legally Limited Convention,” in Constituent Assemblies, ed. Jon Elster et al. (Cambridge: Cambridge University Press, 2018), 31–56 (same).
 Convención Constitucional, “Declaración No1 Convención Constitucional: Acerca de Las Personas Privadas de Libertad Con Ocasión de La Revuelta Social y de La Judicialización Del Conflicto Político y Social Que Mantiene El Estado Con La Nación Mapuche,” July 9, 2021, https://www.chileconvencion.cl/news_cconstitucional/primera-declaracion-de-la-convencion-constitucional/.
 See Constitution, articles 133 and 135
 See El Mostrador, “Constituyentes forman ‘Vocería de los pueblos’ y plantean seis garantías democráticas para el desarrollo de la Convención,” El Mostrador, June 8, 2021, sec. El Día, https://www.elmostrador.cl/dia/2021/06/08/constituyentes-forman-voceria-de-los-pueblos-y-plantean-seis-garantias-democraticas-para-el-desarrollo-de-la-convencion/.
 See Jon Elster, “The Night of August 4, 1789. A Study of Social Interaction in Collective Decision-Making,” Revue Européenne Des Sciences Sociales. European Journal of Social Sciences, no. XLV–136 (2007): 75.