Abstract

NEGRETTO, Gabriel Leonardo  and  SOTO BARRIENTOS, Francisco. How should a democratic constituent process be regulated? Reflections from the chilean experience. Bol. Mex. Der. Comp. [online]. 2022, vol.55, n.163, e17494.  Epub June 15, 2023. ISSN 2448-4873.  https://doi.org/10.22201/iij.24484873e.2022.163.17494.

Throughout history, constitutional replacements have been associated with independence processes or transitions from authoritarianism to democracy. However, in the last decades they have become more frequent in established democracies, particularly in Latin America. Constitutional replacements in democracy have political and normative consequences that have remained unnoticed or have not been properly analyzed in traditional constitutional theory. In this article, we argue that an anticipated legal regulation of a constituent process has clear advantages for democratic regimes when it aims to maintain a balance between continuity and change, facilitate consensus among political forces, and promote citizen participation. Nevertheless, the attempt to subject a constitutional replacement to a detailed and pre-established legal framework in the previous constitution has its limits in a context of representation crisis that makes it necessary the drafting of the new constitution by a special convention. To illustrate this point, we will examine the origins and content of the constitutional amendment that made possible the recently failed constitution-making process in Chile, the laws that complemented this reform, and the regulations adopted by the constitutional convention in this country.

Keywords : Constituent process; Chile; constitutional replacement; democracy; legal regulation; constitutional convention.