Apuntes sobre el proceso constitucional de Chile. En principio, ¿qué aspectos debería cubrir una “etnogfaría a distancia” (!) del proceso constituyente?

  1. Drivers — qué motiva al momento, cómo es que llegamos aquí.
  2. Pacto pre-constituyente. En qué consistió / cómo se mueven los actores post pacto.
  3. Alternativas de proceso (reforma congresional, convención ad-hoc, reglas de elección) -> selección de un modelo.
  4. Camino a la elección (debates, representaciones cruzadas, lo que es / pudo ser)
  5. Convención—dilemas, principales desafíos
  6. Resultado

Negretto sobre la cuestión de las reglas internas de la Convención (los 2/3)

# Risks and challenges of Constitutional Reform [2021-04-07] - Evento LSE

Two risks and one opportunity (in partial reference to the Argentina experience, to wit, the 1994 reform)

Main conditions of reform

A tit-for-tat agreement between two major parties in an almost-bipartisan system (by the time of the election it was no longer the case). Re-election in exchange of reforms that fulfilled the agenda of one of the parties for “strengthening” democracy.

The process meant that there was an agreement on the basis and these had to be voted on in totum—that is, they had to be either approved altogether or rejected altogether. You could not pick what you wanted from that set of reforms: the goal was to prevent the majority from getting what they want and then closing debate.

Outcome?

Mixed.

  1. Things that worked

    a. Judicial Council b. Expansion of rights c. Constitutionalization of amparo

2. Things that didn’t

a. Restricting the executive 
b. Ombudsman 
c. Strengthening of federalism

Risks and Challenges

Risks

Two risks:

  1. Repeat mistakes / fail to learn from experience

    a. Focus on rights expansion as oppossed to dealing with the levers of power (Gargarella) b. Fail to de-concentrate power on the executive department. E.g., in the case of Argentina, where several de facto powers that had been recognized as legit by courts were “regulated” in a way that failed to curb them in any meaningful way. Better alternative? Really restrict concentration of power.

  2. Fail to adequately diagnose the “current” crisis of democracy

    a. This is much more difficult because we do not have a “clear blueprint” to deal with the current crisis b. We know that representative institutions are under stress and—probably—there are limited space to improve the system as it is (based on political parties, on periodic elections). But at the same time alternatives for other kinds of representation—as the ones Helen studies and argues for—have not yet reached the status of “proven blueprints”

     i. We do not yet know the conditions for the success of e.g. systems based on lot and deliberation
 ii. We have seen them only partially to succeed in constitutional processes (track record is mixed, at best)
 iii. We do not yet see them as part of the political proces (but we can see the lot working in the judiciary)

    c. The perils of this lack of clarity has to do with two possible outcomes:

     i. Draft a CN that is old from the very beginning 
 ii. Draft a CN that will leave you with institutions that (a) do not work or (b) work in unexpected / unforseeble ways.

Challenges

To reach constitutional legitimacy at the end of the process.

One huge opportunity: to restore the value of the Constitution in the political process. Thinkin about Chile, this means rather small things:

  1. To have a CN that The People Themselves feel as theirs — this must be achieved through inclusion, e.g. in Argentina a third of the seats in the mid-terms of 1993.

  2. To have a CN that is accepted by all political sectors

  3. To have a CN that allows for an open political process with fewest possible restrictions — make your problems political problems, not constitutional problems

This is where other experiences cease to “really” provide good advice because the local conditions are essential. But if I would have to summarize what the main lesson is, from the processes that I more or less know, is the following: (a) decide on a mode of deliberation that all parties agree on beforehand and (b) aim at a text that all parties can agree to while at the same time (c) securing the support of an overwhelming majority of citizens. I think that’s the key to success.