The Convention has already closed the constitutional debate of its permanent norms and delivered its first draft of 499 items. Within those regulations is the mechanism proposed by the Convention to reform the new Constitution, in case it wins the Approval in the plebiscite of September 4.
This method was as follows: general rule to reform the Magna Carta will be only with a majority of the parliamentarians in office after that the past may 13th the plenary session of the Convention reject one of the articles included in the report of the Justice System Commission. This proposed a quorum of 4/7 of the members of the Congress of Deputies and the Chamber of Regions to approve a reform.
However, if the constitutional change implies a “substantial” modification in certain matters -such as the political regime, the design of the new Legislative Power, the DD.FF. and the chapter on reform and replacement of the Constitution – the matter will also require a ratifying referendum or that the reform be approved by two thirds of the Legislative Power.
The issue raised a debate about how easy it will be to reform the new Constitution, if it is approved. the conventional Andrew Cruz (Socialist Collective), for example, indicated that the Convention’s proposal is a Magna Carta that is easy to reform. “It is not ideal that a constitutional reform can be implemented by the absolute majority of the members in office of the Congress of Deputies and the Chamber of the Regions (…) We would be in the category of what we could call a flexible Constitution or semi-flexible.
While the conventional Amaya Alvez (FA) held that although “it has been suggested that Article 447 of the consolidated proposal does not establish a specific quorum, but rather refers to the procedure for formation of the law (…), articles 35 and 36 of the draft (on the quorum for the formation of law) they distinguish between a majority of the members present for the law in general and a majority in office when the law falls on certain matters of importance established in that article”, and emphasizes that “the quorum for constitutional reform is a majority of members in office”.
The issue has been the subject of criticism. One of them was made by the constitutional lawyer Jorge Correa. “(A large part) of the constitutional text is, substantively, a law and can be modified just like a law. In other words, all the cost that we have made of this long process leads us to end up with very few constitutional norms and the rest will be legal norms”, he said on Monday in interview with the third.
Regardless of the questions, this point opened another debate that aroused the interest of the current deputies and senators. If the rules for modifying the new Constitution -as proposed by the government through the Segpres- take effect “in actum”, that is, immediately, then will the current Congress be able to begin to reform the new Constitution only with a majority? of parliamentarians in office?
Cruz argued that the current Congress could begin to reform the Constitution. “The proposal must govern in actum if there is no transitory provision that is introduced by the plenary session. We cannot introduce substantial modifications by way of Harmonization, we do not have attributions in that sense. The rule was expressly rejected by the plenary. Nor do I believe that by way of transitory provisions it is convenient to maintain the quorum of the current Constitution in force. This opens the opportunity to adjust the text to the requirements or needs that are seen in the democratic debate that is aired in Congress”, Cruz added.
The matter of the general rule to reform the new Constitution does not leave all the constituents calm. For the same reason, some have already slipped what their cards will be and the first plays point to the possibility that this will be fixed in the commissions of Temporary Rules or in that of Harmonization, with the aim of preventing the current Congress from making changes.
“The multiple interpretations about what the constitutional reform quorum is make it clear that in the last votes there was a general inconsistency regarding the quorum system that will have to be discussed by the Harmonization Commission, in order to tend to the coherence of this system. It makes no sense that, for example, autonomous bodies are legislated with an absolute majority, but these can be reformed by a simple majority, if that is the interpretation that prevails over the quorums that result from the drafting”, said the conventional Manuela Royo (Social movements).
Royo added that the debate on whether these rules apply in actum and whether or not Congress will have the power to reform the new Constitution should be “subject to transitory provisions.” considered the same Christian Viera (FA): “It is very premature to say whether the rules for reform apply in actum. It is necessary to wait for the work of the Transitional Standards Commission. It would not be strange, as has happened in Chilean constitutional history, for a vacancy period to be established, that is, for the reform of the Constitution it is necessary to wait a while”.
The right is aware of this option. “The regulation prevents the Harmonization Commission from filling gaps, interpreting or altering standards already approved. Our attributions are merely formal”, assured the conventional Ruggero Cozzi (RN).
However, there is a part of the plenary that considers that the general rule of reform of the Constitution has nothing pending. “Here there is nothing to solve in Harmonization, that was the intention of the plenary”, he added Árise.
An element that will also be considered in the debate is that the past May 10, the Political System Commission approved in general a transitory norm presented by the right and the Approval Collective, which indicates that the future constitutional reforms made by the current Congress would require the approval vote of four-sevenths of the deputies and sitting senators. In this way, the current Congress could reform the Constitution by four sevenths until March 2026.
If the current Congress can amend the new Constitution, the preamble is a part that would be more at risk of being reformed. In the UDI they say that if the simple majority is maintained for constitutional reforms, the preamble has no impact on other legal and constitutional norms, so its elimination does not require further legal analysis.
According to the discussion that exists in other groups, the transitory norms and several provisions of the fundamental text could also be modified, as long as the strategic issues are not “substantially altered”.
Even the interpretation of what would be a “substantial” change could be the subject of discussion. For example, a name change, such as move from the concept of “Chamber of Regions” to the old name of “Senate”, could be understood as a change that does not “substantially” alter the Legislative Power. Who would interpret that? According to the regulations of Congress, which would remain in force with the new Constitution, the table and the rooms of the Chamber or the Senate are in charge of resolving that discussion.
In the opinion of the socialist deputy Leonard Soto, what was approved was a “mistake, because by definition a Constitution is a mother norm that establishes principles for a long time. Therefore, if you put an approval quorum so low, it is an invitation to modify it at each political moment. That creates uncertainty.”
The deputy of Evópoli Francisco Undurraga it maintained that this demonstrates the lack of “industry” with which the Convention worked. “Frankly, it is a lack of rigor how they built the quorums,” he said, while the president of the RN, Francisco Chahuanstated that “surely the conventionalists will say that it is part of a legislative vacuum, but although it allows for adjustments and improvements to the text in Congress, it generates enormous instability, because circumstantial majorities can change the functioning of institutions.”
However, the DR senator John Ignatius Latorre He does not see the problem as delicate, since, in his opinion, the Harmonization and Transitory Norms commissions “can resolve things that have remained ambiguous or diffuse.”
In the government they do not see the matter as something negative either, since in the face of the fears of sectors of the ruling party, the possibility of making adjustments to the future Constitution becomes a “hook” to facilitate adherence to the Approval.