1.- What is the Technical Commission?
The Technical Commission is a group responsible for determining all the “indispensable aspects” for implementing the Agreement for Social Peace and the New Constitution.
It comprises attorneys and political scientists with knowledge and expertise in public and constitutional law, and is composed equally of members of the ruling and opposition parties.
2.- Role of the Technical Commission
The Technical Commission is tasked with regulating the indispensable aspects that are necessary to materialize and implement the Agreement in a manner that will define in the best possible way how the constituent body that is democratically elected by the citizens will operate.
In order to perform this role and task, the Technical Commission does not have a specific set timeframe.
3.- Main Subject Matters to be Determined by the Technical Commission
Among the matters to be determined by the Technical Commission, so far we know that these will include, among others, the following:
- Determine the mechanisms through which voting will take place and under which agreements will be established by the constituent body.
- Establish the time periods within which the constituent body must be definitively constituted once its members have been elected, as of which moment the term for it to begin operating will begin.
- Determine the requirements for candidates applying to the constituent body (e.g., age, nationality, no criminal convictions, etc.).
- Determine the possible public funding mechanisms under which candidacies for the constituent body will be run.
On the other hand, the commission could potentially discuss and make proposals on:
- The possibility of establishing gender equity quotas or in favor of indigenous peoples for candidates running for a seat on the constituent body.
- The way in which the constituent body should convene, either through the formation of specific commissions, or whether it should act in plenary session and the respective quorums thereof.
- Compulsory voting in the initial referendum for the constituent process.
- The possibility for people under 18, as well as for Chileans residing outside the national territory, to participate in the initial and confirmation referendums.
- The possibility of forming lists or other electoral mechanisms that allow for independent candidates to participate in the candidacies for the constituent body.
4.- Members of the Technical Commission
- Pamela Figueroa, Professor of History and Political Scientist. Master of Arts in Latin American Studies, with a specialization in government, from Georgetown University.
- María Cristina Escudero, PhD in Political Science from Universidad Católica de Chile. Master of Arts in Latin American Studies, Georgetown University. Master in Political Science, Universidad Católica de Chile. Attorney from Universidad de Chile.
- Emilio Oñate, Attorney [MF1] from Universidad Central de Chile, Master in Management and Public Policy from Universidad Adolfo Ibáñez, and a Master in Administrative Law from Universidad Católica de Valparaíso.
- Gabriel Osorio, Attorney, Master of Laws with specialization in Public Law from Universidad de Chile.
- Alejandra Zuñiga, Attorney from Universidad Diego Portales, and PhD in Law from Universidad Autónoma de Madrid.
- Sebastián Aylwin, Attroney from Universidad de Chile and a Master of Science in Governance of Risk and Resources of the Universität Heidelberg.
- Claudia Heiss, PhD in Political Science, New School for Social Research, United States. Master of Arts in Political Science, Columbia University, United States. Journalist graduated from Universidad de Chile. 2001-2002 Fulbright Scholarship.
- Gastón Gómez, Attorney from Universidad de Chile. Professor of Constitutional Law and of the Master in Public Law and Constitutional Litigation at Universidad Diego Portales.
- Sebastián Soto, PhD in Law, Universidad de Chile. LLM, Columbia University, United States. Graduated with a law degree from Pontificia Universidad Católica de Chile.
- David Huina, Attorney, Diploma in Probity and transparency in Public Duties, and a Master in Public Law from Universidad Finis Terrae.
- Ernesto Silva, Attorney from Pontificia Universidad Católica and PhD in Political Science from Universidad Autónoma de Madrid.
- Arturo Fermandois, Attorney from Pontificia Universidad Católica and Master in Government and Public Policy from Harvard University.
- Isabel Aninat, Attorney from Pontificia Universidad Católica and LLM, Columbia University.
- José Francisco García, Attorney from Pontificia Universidad Católica, JSD from the University of Chicago. Professor of Constitutional Law at Pontificia Universidad Católica.
For more information on the members of the Technical Commission click here (Source: El Mercurio).
5.- Broadcasting of the Technical Commission’s Sessions
To stream the Technical Commission’s sessions or view former sessions from previous days, click here.
6.- Reform Proposal
On December 6, 2019, the Technical Commission announced a proposal for constitutional reform to Chapter XV of the current Constitution (the “Proposal”), in order to make the necessary mechanisms of Plebiscites and Convention legally possible for the development of the constituent process.
I.- Analysis of the main points contained in the Proposal.
- Incorporation of the National Plebiscite mechanism.
The Technical Commission has proposed incorporating a new article 130 in the Constitution, which states that the President of the Republic must call for a national plebiscite by April 26, 2020.
In this referendum, citizens must answer two questions: (i) Do you want a New Constitution? To which a vote of “Approve” or “Rejection” may be expressed; and (ii) What kind of body should draft the New Constitution? To which citizens can vote for a “Constitutional Mixed Convention”, which will indicate that it is is conformed of congresspersons and citizens in equal parts, or a “Constitutional Convention” composed exclusively of members elected by popular election.
This plebiscite will be governed by the current legislation of the Chilean electoral system. It will require a simple majority of votes validly cast (that is, more than 50% of the votes cast without considering blank or null votes). The voting process will be monitored by the Election Qualification Tribunal and must include an electoral broadcast space (franja electoral) on television channels.
If the option to create a New Constitution is approved, the election of the members of the Convention will take place on October 25, 2020, in conjunction with the municipal elections.
In the event that the Convention approves a proposal for a new constitutional text, the President of the Republic must call for a second national referendum for the approval or rejection by the citizens of the proposed New Constitution drafted by the Convention. The referendum vote will be compulsory and shall be held 60 days after publication in the Official Gazette of the call for a referendum by the President of the Republic.
If the new text is approved through the second referendum, the President of the Republic must convene the Plenary Congress to carry out, through a public and solemn act, the promulgation of the New Political Constitution of the Republic. The text of the New Constitution will enter into force since its publication in the Official Gazzette, upon which the current Constitution will be repealed.
However, in the event that the second referendum rejects the New Constitution, the current constitution will remain in force.
- Creation of the Convention and oversight of its members
A Convention will be assembled, and it will be regulated in a similar manner regardless of whether voters choose a Constitutional Mixed Convention (also “Mixed Convention”) or a Constitutional Convention. Its members will be called “Constitutional Constituents”.
The Mixed Convention will consist of 172 members: 86 congresspersons chosen by the Plenary Congress from among the deputies and senators in office, and 86 citizens elected by popular election. For its part, the Constitutional Convention will be conformed by 155 members chosen through popular elections. In both cases, the district system used for the elections of the Chamber of Deputies will be used for the election of the Constitutional Constituents, but with a different number of members chosen by the citizens, depending on whether it is a Constitutional Convention or a Mixed Convention.
Candidates for Constitutional Constituents will need to be Chileans who meet the requirements of article 13 of the current Constitution, that is, be over 18 years of age and have not been convicted to a prison sentence greater than 3 years.
Candidates who are members of the Judiciary, the Public Administration, the Armed Forces and Public Security, the Central Bank, the Comptroller General’s Office of the Republic, the Public Prosecutor’s Office, among other public bodies, will cease to hold office at the time of the registration of their candidacies before the Electoral Service. The foregoing shall apply to Senators and Deputies only in the event that citizens have voted in favor of a Constitutional Convention. In the case of a Mixed Convention, congresspersons will remain in their positions and will be exempted from the obligation to attend the National Congress. For their part, union or community leaders will be suspended from their duties upon registration of their candidacies.
The Conventional Constituents will be subject to the norms of probity in the public function and prevention of conflicts of interest of Law No. 20,880, in accordance with the rules applicable to Deputies, and Law No. 20,730 on Lobby regulation. In relation to their remuneration, they will receive a salary of 50 UTM plus the allocations included in the regulations of the Convention, which will be administered by an external committee as defined in said regulation.
- Operation of the Constituent Convention
The Convention will start functioning within 15 days following the decree of the President of the Republic calling for its installation. The President’s decree must be issued within 3 days of receiving the results of the election of its members.
In its first session, the Convention will elect a President and Vice President by an absolute majority of its members in office. In addition, in its first sessions it will have to approve a regulation of voting and of operation by a quorum of 2/3 of its members. The norms of the proposal of the text for the New Constitution will have to be approved by the same 2/3 quorum. In relation to the foregoing, the Proposal makes it clear that the Convention may not modify its quorum of voting and / or operation.
The Convention must also form a technical secretariat for persons of recognized academic or professional suitability. The President of the Republic must provide the administrative and financial support necessary for the operation of the Convention.
The Convention may not exercise functions or powers granted to other authorities and bodies established in the current Constitution or in the laws, nor may it arrogate the exercise of national sovereignty. In addition, in exercising its function, the Convention must respect the character of Republic of the State of Chile, its democratic regime, final and uncontestable judicial rulings and international treaties ratified by Chile.
The term for the operation of the Convention will be of 9 months, extendable for an additional 3 months at the request of its Presidency or by a third of its members. Once the text of the New Constitution has been drafted and approved by the Convention, or the deadline for its extension has expired, the Convention will be dissolved ipso iure.
- Claim of breach of the procedural rules of the Convention
The Proposal also includes a complaint mechanism in case of possible breaches of the procedural norms of the Convention. This claim may not be brought against the content of the texts being prepared by the Convention.
Claims of breaches of the procedural norms must be supported by at least 1/4 of the members in office of the Convention and will be brought before the Supreme Court, which will hear the matter through 5 of its members drawn for such purposes. The procedure for this claim will be set by a[MF1] Supreme Court ruling (Auto Acordado) that will be exempt from the control of constitutionality by the Constitutional Court. The ruling of the Supreme Court may only annul the act found contrary to the procedural norms of the Convention and it shall admit no recourse. Likewise, the Proposal clearly states that no authority or court may hear actions or claims related to the work of the Convention except for this claim to be heard by the Supreme Court.
II.- Observations regarding the Constitutional Reform Proposal
There are points that were not addressed in the Proposal, so its definition would have remained for debate in Congress on the Constitutional Reform Proposal. Among the points that were not addressed are: the incorporation of gender parity mechanisms; the possibility of allocating reserved quotas or seats for the integration of indigenous peoples in the Convention; setting forth mechanisms to encourage the participation of independent candidates, such as the creation of lists or the granting of special financing.
Although these points have not been contemplated in the Proposal, it is possible that they will be incorporated through the discussion that takes place during the legislative process in the National Congress. Therefore, the future modification of the Proposal cannot be discarded, although it nevertheless constitutes an significant step-forward in the constituent process.
7.- Legislative Procedure of the Proposal on Constitutional Reform
I.- Constitutional Committee of the Chamber of Deputies
On December 16, 2019, the Committee on Constitution, Legislation, Justice and Regulations of the Chamber of Deputies approved the text of the Constitutional Reform Proposal. Among the main points incorporated by said commission, are the following:
a) Gender parity
A joint allocation of seats was approved, by requiring a 50% representation of women in the constitutional convention. For this, the following distribution system was established:
- Districts with an even number of seats: Fifty percent men and fifty percent women should be elected.
- Districts with an odd number of seats: In districts with 3 seats, a maximum of 2 seats will be assigned to constituent delegates of the same gender; in 5-seat districts a maximum of 3 seats will be assigned to constituent delegates of the same gender; and in 7-seat districts, a maximum of 4 seats will be assigned to constituent delegates of the same gender.
- Lists choosing more than one seat: The seats must be alternately assigned to the most voted candidates, women or men, within the same list.
- Lists of political parties or independents choosing only one seat: The seat shall be assigned to the candidate who received the most votes corresponding to the gender remaining to ensure parity. This mechanism will be applied to the lists of parties or independents that received fewer votes and so forth.
b) Participation of independents:
Independent candidates may agree on electoral pacts, applicable to the electoral district in which they run their candidacy. For registration, each independent candidate will require the sponsorship of a number of independent citizens equal to or greater than 0.4 percent of those who have voted in the electoral district in the prior periodic election of Deputies. In all the rest, the general rules on electoral lists will be applicable, including matters on transparency and electoral expenditure.
c) Indigenous peoples
The following seats are reserved for indigenous peoples:
- The Constitutional Convention will include 18 seats for the representation of the Aymara, Quechua, Atacameño or Likan Antay, Diaguita, Colla, Rapa Nui, Kawésqar, Yagán and Mapuche indigenous peoples.
- The Constitutional Mixed Convention will include 21 seats for the representation of the Aymara, Quechua, Atacameño or Likan Antay, Diaguita, Colla, Rapa Nui, Kawésqar, Yagán and Mapuche indigenous peoples.
For the election of these seats, there will be a single electoral district comprised by the national territory. In order to register, candidates must be a member of and be sponsored by an indigenous community registered in the Indigenous Development Corporation. People who identify themselves with belonging to a recognized indigenous people, but do not have the aforementioned accreditation, may petition the National Corporation for Indigenous Development for the expedited issuance of a special certificate.
d) Citizen Participation
Finally, it was established that the regulations to be drafted by the Constitutional Convention, once its operation has begun, must include a citizen participation mechanism for its entire functioning period including consultations, councils, public hearings and other forms of constitutional citizen dialogues.
The Chamber of Deputies must vote on this draft of the Constitutional Reform Proposal which was approved by the Committee on Constitution, Legislation, Justice and Regulation. If approved, it will proceed to the next legislative proceeding in the Senate.
II. Voting in the Chamber of Deputies
On 18 December 2019, the Chamber of Deputies approved the Constitutional Reform Proposal prepared by the Technical Commission by 127 votes to 18, with 5 abstentions.
The Chamber rejected the proposals for gender parity, seats reserved for indigenous peoples, participation by independent candidates and citizen participation in the constituent convention, since it did not have the necessary quorum to approve them.
III. Voting in the Senate Chamber
On December 19, 2019, the Senate Chamber approved by 38 votes in favor and 3 votes against the Constitutional Reform Proposal, according to the text approved by the Chamber of Deputies.
Thus, the proposed constitutional reform to Chapter XV of our current Political Constitution of the Republic is completely approved in its legislative discussion, maintaining the text originally prepared by the Technical Commission on November 16, 2019.
The project was promulgated by President Sebastián Piñera and published in the Official Gazette on December 24, 2019 through Law 21,200.
IV. New discussion in the Chamber of Deputies
The Chamber of Deputies legislated on two bills approved by the Commission of Constitution of that body, which once again incorporate the establishment of seats reserved for indigenous peoples, the possibility of drawing up lists of independents and rules on gender equity in the constituent body.
a) Gender equity project and participation of independents in the constituent body.
This project was approved in general and in particular by a vote of the Chamber of Deputies on 19th of December 2019.
The bill then went to the Senate for its second constitutional procedure. The project was approved in general by the Senate on January 21, day on which it was also given several indications. The following day, the chamber voted again and the bill was approved in particular with these modifications. After that, the bill was sent to the Chamber of Deputies, where the modifications were voted on and rejected on January 30th of 2020.
Thus, the bill passed to its Third Constitutional Step through the formation of a Joint Commission, which reached an agreement on the bill. This agreement was voted and approved by both Chambers on March 4, 2020, so it is fully processed and will become a law of the republic.
The project was promulgated by President Sebastián Piñera and published in the Official Gazette on March 24, 2020 through Law 21.216.
The approval of this bill means, in practicality, that gender parity will be ensured both in the composition of the lists and in the final result of elected members in each electoral district.
Thus, we find that, on the one hand, the project establishes that all lists of political parties or independents must be integrated by an equal number of members of each sex, in the case of a district with an even number of seats, or with a maximum difference of one between members of different sex, in the case of a district with an odd number of seats. In addition, it is provided that all lists must be head by a woman, and then the candidates are ordered alternately by sex, i.e., woman, man, woman, man, etc.
On the other hand, the project establishes that the same electoral system that exists for the parliamentary elections will also be applied, which means that the winners are determined based on the proportional system, with the difference that the project includes a correction once the electoral result has been produced to ensure parity.
In this way, once the results are obtained for each electoral district, it will be reviewed that there is indeed an equal distribution of seats, which requires the same number of members of each sex, if the number of seats is even, or a difference of maximum one, if the number of seats is odd.
If parity results are not naturally achieved, the candidates of the over-represented sex will be ranked according to their voting percentages, and the candidate among them who has had the least number of votes will have to give up his or her seat to the candidate of his or her political party who follows him or her in number of votes and who belongs to the under-represented sex. If there is no such candidate within their party, the seat will go to the candidate of the underrepresented sex who has the largest number of votes and who is part of their electoral pact.
It is important to mention that no reallocation will be made with regard to those independents who are elected and who are not part of a list. However, they will be considered for the purpose of establishing the compliance with the minimum parity or difference between sexes established by law.
Finally, the determination of what would happen if the Joint Convention option were to win is still pending, since it has not yet been established how the parliamentarians would be integrated into the constituent convention.
b) With regard to the bill on reserved seats for indigenous peoples in the constituent body.
This bill was approved in general and in particular by a vote in the Chamber of Deputies on 19 December 2019
It is currently in the Senate Constitution Committee, awaiting its second constitutional procedure.
V. Enactment and publication of the Constitutional Reform Proposal.
On December 24, 2019, Law No. 21,200 was published in the Official Gazette, which “Modifies Chapter XV of the Political Constitution of the Republic” after being promulgated by the President of the Republic on December 23.
With the above, the Proposal of Constitutional Reform was transformed into a Law of the Republic whose effects introduce the modifications that were required in our current Constitution in order to carry out the plebiscite of entry in April 2020 and eventually the realization of the rest of the constituent process, in case the idea of a New Constitution is approved. In addition, with the approval of the bill establishing gender equity, it has been established that, should the approval option win, parity in the constituent body is guaranteed.
Finally, it remains to wait for the discussions and votes in Congress on the bill establishing seats reserved for indigenous peoples, in order to determine whether that mechanism would be incorporated into the eventual constituent convention.
VI. Date of the plebiscite.
Originally the plebiscite on a New Constitution was going to be held on April 26th, 2020, but due to the health crisis the country is going through as a result of the COVID-19, on March 24th the Congress approved in a final instance the bill that postpones the date of the plebiscite. In this manner, October 25, 2020 was established as the definitive date for the plebiscite.