Is citizen participation in the entire constituent process mandatory?
So far, only the confirmation referendum to ratify the New Constitution is mandatory. In the confirmation referendum, citizens will need to decide on whether to approve or reject the text of the New Constitution.
As such, to date, no compulsory participation in the other constituent stages has been defined which is why, unless there are other changes made, the general rule for voting in our country should apply, which dictates that participation is voluntary.
What does “clean slate” mean?
One of the most debated issues in relation to the Agreement is the so-called “hoja en blanco” or clean slate. This term refers to the fact that the constituent body’s work would start “from scratch” and would not use the current Constitution as a basis. The so-called “clean slate” would be provided for in No. 7 of the Agreement and indicates that once the New Constitution enters into force the current constitution would be organically repealed.
Who may be elected as members of the constituent body?
Until now, it has been mentioned that congresspersons and citizens in general may form part of the relevant constituent convention. However, it remains to be defined whether these members will have to meet certain requirements such as, for example, those established for holding public office, having Chilean citizenship, etc.
Are there quotas reserved for a specific group within the constituent body?
Yes, there will be quotas reserved for indigenous peoples within the final composition of the constituent body itself.
Indeed, on December 23rd 2020, Law 21,298 was published in the Official Gazette, which amends the Constitution to reserve seats for representatives of indigenous peoples in the Constitutional Convention and to safeguard and promote the participation of persons with disabilities in the election of the constituent conventions.
Accordingly, this law establishes that the Constitutional Convention will include, within its 155 original seats, 17 reserved seats for the indigenous peoples recognized in Law No. 19,253 at the time of publication of the reform.
These peoples are the following: (i) Aimara; (ii) Mapuche; (iii) Rapa Nui; (iv) Quechua; (v) Lican Antay or Atacameño; (vi) Diaguita; (vii) Colla; (viii) Chango; (ix) Kawashkar; and (x) Yagan or Yamana.
Also, in order to guarantee gender parity, it is established that each candidacy must be registered by designating an alternative gender parity candidate who meets the same requirements as the candidate he or she must eventually replace for reasons of parity.
On the other hand, by the Electoral Bureau determined the seventeen seats reserved for indigenous peoples on December 26, by discounting those seats from the electoral districts with the highest proportion of people over 18 years of age declared indigenous in relation to their general population in the last Census of 2017, until completing the established number of seats. To that end, according to the reform, only one seat per district could be discounted, and no seat could be discounted for those electoral districts that choose three conventional constituents.
In this way, one seat was discounted, in order to reserve it for indigenous peoples, in the following districts:
- District 3 of the Region of Antofagasta
- District 4 of Region of Atacama
- District 5 of the Region of Coquimbo
- District 7 of the Region of Valparaiso (including Easter Island and Juan Fernandez)
- Districts 8, 9, 10, 12, 13 and 14 of the Metropolitan Region
- Districts 20 and 21 of the Region of Biobío
- Districts 22 and 23 of the Region of La Araucanía
- District 24 of the Region of Los Rios
- Districts 25 and 26 of the Region of Los Lagos
Finally, the 17 seats will be distributed as follows: (i) 7 seats for the Mapuche people; (ii) 2 seats for the Aimara people; (iii) 1 seat for each of the other peoples. This distribution will be made for each indigenous people based on the regions determined by the law.
How will elections for candidates to the constituent body be held?
According to No. 4 of the Agreement, regardless of whether the constituent body is ultimately a mixed convention or a constitutional convention, in both cases the members of the constituent body shall be democratically chosen by elections, using the same system established for the Chamber of Deputies.
This means that the body will, in principle, be made up of 155 members (the current number of deputies in Chile), whose election will be based on the distribution of territorial constituencies established for the elections of the Chamber of Deputies.
What does the 2/3 quorum required by the Agreement for the constituent body mean in practice?
In practical terms, this means that the members of the constituent body must reach an agreement with 66.6% of the votes to approve the subject matters that will be included in the New Constitution.
What will happen to those that currently hold public office and decide to run as a candidate to become a member of the constituent body?
In that case, and in order to avoid possible conflicts of interest, the Agreement states that any person holding public or popularly elected offices will cease, by sole operation of law (i.e., immediately), to hold their office as soon as they submit their candidacy to the Electoral Bureau.
This would preclude them from remaining in office while the candidacies are underway. It should also be noted that the Agreement provides that those who are elected as members of the constituent body shall be disqualified from being candidates for elective offices for a period of one year from the termination of the constituent body.
How will the Agreement materialize if the current constitution does not provide for the possibility of holding constitutional referendums or conventions?
In order to enforce the Agreement within our country’s legal framework, the political parties have committed their votes to drafting a constitutional reform law that amends Chapter XV of the current constitution, which regulates constitutional reforms. This would allow enacting a new constitution through a constituent body.
Likewise, an amendment of current Article 15 of the Constitution will be required in connection with scheduling a referendum, in order to open up the possibility of holding the initial referendum and the confirmation referendum to ratify the new constitution.
Along with the foregoing, supplementary laws may be needed to regulate the aforementioned referendums and the election of members to the constituent body, among other relevant matters.