The Chilean Constituent Process: Take 2

After months of difficult negotiations, political parties in Chile agreed on the conditions for a new constituent process. This second attempt at drafting a new constitution for Chile looks radically different than the first process. While in the first process an elected Convention had the task to draft the new constitutional text, the draft that results from this second process will be produced by the interaction of three different organs: Council, Commission and Committee. Members of two of them, Commission and Committee, are not elected and have a rather “technical” character. Has legal expertise thus replaced political will in the second process?

While the design of the process and the organs involved in it differ greatly from the conditions of the first process, I claim that it would be a mistake to consider technical legal expertise as apolitical. Experts, appointed by political parties, will much rather present political arguments in the form and language of constitutional expertise. And that, precisely, might be something this process needs after the failed first attempt.

Back to Square One: Congress instead of the streets

After the rejection of the first constitutional draft on the 4 September referendum, the process to produce a new Chilean constitution has experienced a rebirth. At first glance, there are enormous differences between the first and the second processes: The first one was triggered by the estallido social, the social uprising the shook the country by the end of 2019. It was institutionally enabled by Congress, which amended the current constitution and introduced a legally regulated process for replacing it. One of the particularities of the process was that the Presidency, Congress and other institutional actors had very limited influence over the process after its foundations had been set. The Constitutional Convention saw itself largely as an instance of social self-constitution, along the lines of what has been described by Martin Loughlin; arguably, it didn’t have many other options, considering it completed its function in the context of a deep legitimacy crisis of the political realm, encompassing both state institutions and political parties.

The new process, in contrast, has been channeled through Congress through yet another amendment to the constitution. Only this time, Congress has kept the power of defining, to a large extent, the conditions under which the process will take place. This is certainly due to the fact that it has been the main locus of political negotiations that enabled this second process, but its influence reaches even beyond that.

Constituent Organs and Constitutional Expertise

The second attempt to draft a new constitution that will take place in 2023 will be carried out through the interaction of three different organs: Consejo Constitucional (Constitutional Council), Comisión Experta (Expert Commission), and Comité Técnico de Admisibilidad (Technical Admissibility Committee). As set forth in the new Art. 145, members of the Commission of Experts were appointed in the last week of January. It comprises 24 members, 12 men and women: half of them were appointed by the Chamber of Deputies and the other half by the Senate. Its core task will be to generate a preliminary constitutional draft, which will then be discussed by the Constitutional Council. The Council will have 50 members elected by popular vote. As the Commission of Experts, it will have an equal number of men and women and its main function will be to discuss and amend the preliminary draft produced by the Commission and deliver a final draft. Finally, the Committee, formed by 14 members in total and with an equal number of men and women, will called upon to decide whether rules contained in the draft, proposed either by the Commission or the Council, violate the boundaries set forth in the new Art. 154 – they include, among others: democratic principle and popular sovereignty, human rights as limits to sovereignty, unitary territorial organization, and separation of state powers into three branches with a bicameral legislature.

It should be noted that the Commission of Experts and the Technical Admissibility Committee have been consciously designed as instances in which legal expertise will play a relevant part: Members of the Commission of Experts are required to hold a university degree or academic title with a required duration of at least 8 semesters and proven academic or professional experience of at least 10 years. Requirements are even stricter for the members of the Technical Admissibility Committee: Only lawyers with at least 12 years of experience and an outstanding career can be appointed as members. Still, even if requirements for the Commission of Experts didn’t explicitly require a degree in Law, from the 24 experts appointed, only 3 of them are not lawyers (1 sociologist, 1 journalist, and 1 economist).

Legal Technique instead of Politics?

This dimension of legal expertise is one of the most salient features of the new constituent process that has just begun. Whatever the outcome of this new process, it will be the result of conscious use of legal expertise in drafting a new constitution; maybe even: of legal technical knowledge limiting the volitional dimension of the constituent will. This logic, one might think, stands in a particularly strong contrast to the previous process, in which the process was designed and expected to let the popular will shape the new constitutional framework with as little interference as only possible.

It might be that the contrast is less dramatic than it appears. The first process did not foresee many technical elements: Some members of the Constitutional Convention were, of course, renowned legal scholars, and technical instances of expert advice were made available for members or groups within it. But all those “technical” elements are probably better understood as subsidiary to the political substance that the Convention was producing or expressing. The fact that scholars were scholars might have been relevant for some but, in general terms, the election of members of the Constitutional Convention was mainly conceived in political terms: the distribution of votes occurred, at least to a large extent, based on ideological grounds. Representatives were not elected because they were scholars of constitutional law or lawyers but because they had expressed political positions, fundamentally, in support of a new constitution. Technical knowledge was an accessory element, not the essential one.

The situation, so it would seem, is completely different for the second process. But is it?

A potentially virtuous interplay between expertise and politics

As has been discussed above, legal technical knowledge plays an autonomous, relevant role in this new version of the process. But looking at the entire process and its dynamic, it would be naïve to believe that both the Commission of Experts and the Admissibility Committee are going to function as technical organs in the sense that a certain expert consensus will dominate the drafting of the new constitutional text. In the first place, there is a wide range of technical knowledge in the realm of constitutional law that reflects, expresses, or further develops politically contrasting positions. And there is, in principle, no reason to consider that any of those diverse theoretical options is any less “technical knowledge” than the rest of them. Technique can be used to express different political positions. In addition, that diversity will be very much at the heart of the “technical” organs in the context of the Chilean process, as has become evident after looking at the experts appointed last week. Unsurprisingly, each one of the parties in charge of the appointments – political parties represented in the Chilean Congress – selected experts close to their ideological lines. Technical expertise, then, is merely a qualifying element for political positions which, one might expect, will play the central role in this second constituent process – just like in the first one.

So, what difference does the “expertise” even make in the second process? I think it can be beneficial for the new process in three different ways. First, one of the elements that made the first Constitutional Convention unpopular were the scandals that it produced on a regular basis: Whether it was one of its members dressing up as Pikachu or another one insulting the Convention and its members on an open mic, the Convention was, at least at times, unable to transmit seriousness an rigor while performing its task. The forms and language of legal expertise, with its solemnity and occasional Latin expressions, might be able to convey just that. Second, and closely related to the first dimension: Internally, those very forms and language might be instrumental to less polarized discourses and negotiations within the technical organs. The schedule for the process won’t allow unnecessary delays anyway: The Commission of Experts has three months to produce its preliminary draft; the Council has four months to discuss it and generate a final draft. The Commission of Experts still has the chance to propose amendments to the final draft after they are delivered by the Council. Thirdly, the direct involvement by political parties in the process and presumably significant influence on the final draft might make the campaign for a new constitution easier. While the first draft, product of a process detached from ordinary national politics, had to rely on an act of recognition of its inherent fairness and hope for approval, as Somek has put it, “by virtue of reason alone”, the second draft might have a significant political apparatus at its disposal. Will that be enough? Only time will tell. But the new process seems designed to address some of the main issues identified during the first process.