1.- What’s next?
Based on the provisions of the Agreement, the next steps for the constituent process are as follows:
- Appointment of the Technical Commission by the ruling and opposition parties. This commission must establish the technical guidelines for the composition of the constituent body and how it will function.
- The initial referendum, which will be held in October 25th 2020 (originally it was to be held in April 2020, but the date had to be changed due to the health crisis that our country is going through as a result of COVID-19), where citizens will decide on the possibility of replacing the current constitution with a new constitution and which body will be in charge of defining the content of the new constitution. The possible bodies are a mixed convention or a constitutional convention.
- Elections of members of the constituent body in April 11th 2021. These elections will be held subject to the same rules of proportionality established for the Chamber of Deputies.
- Subsequently, after these elections and from a date not yet defined, the constituent body will begin its assignment for a term of 9 months, extendable for another 3 additional months.
- Once the text of the New Constitution has been agreed upon, a ratifying confirmation referendum will be held in which citizens, by means of a compulsory and universal vote, will decide on whether to approve it.
- Finally, the New Constitution, if approved, will come into force upon its enactment by the President of the Republic and its publication in the Official Gazette, organically repealing the current Constitution.
2.- Frequently Asked Questions
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?
It has yet to be determined whether there will be reserved quotas, either for defining the candidates in the process for electing the constituent body’s members, or for the final composition of the constituent body itself.
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 Service.
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.