Constitutional Transition and Transitional Constitution : Regarding Chile’s 2019-2023 Constitution-Making Procedure

In October 2019, Chile's capital city of Santiago went through a series of mass protests led by the slogan “30 years, not 30 pesos”. The series of protests turned into a call for the complete replacement of Pinochet's 1980 constitution, which had survived several constitutional amendments since Chile’s democratization. The political establishment has accepted this call and Chile embarked on a four-year experiment, from 2019 to 2023, to create a new constitution which amounted to two arduous constitution making procedures. Although the experiment did not come to fruition with a new constitution, as the two different constitutional proposals were rejected in corresponding referendums, the attempt to create a constitution that reflects the diverse experiences of the world constitutionalism was more than sufficient to attract world wide attention. In a modern constitutionalist legal system where not only a valid written constitution exists, but also its normative force is institutionally guaranteed through constitutional review, the enactment of a new constitution is difficult to capture and explain from the perspective of conventional constitutional theory. This is because constitution-making is often understood as a political and factual event that creates a new legal order in a normative vacuum rather than as a normatively regulated phenomenon. However, Chile's 2019-2023 constitutional process is precisely such a case: an attempt to replace a constitution in a functioning constitutional state through the enactment of a new constitution, rather than an amendment to an existing one. It was characterized by the use of an interim constitution, designed for a specific purpose, to govern the period of constitutional transition in which the attempt to make a new constitution was made. These features merit serious analysis from a constitutional theory perspective. Chile's four-year constitutional-making process provides us with a valuable comparative constitutional learning opportunity. Military coups, dictatorships, and the transition to democracy are not unfamiliar problems that Korean constitutionalism has also had to face. In addition, Chile's experience with constitutionalism is instructive in light of the current situation in Korea, where debates over constitutional reform periodically come up. Central issues that Chile’s experience pose are, among others, the significant questions of whether it is possible to constitutionally regulate the constitution-making process, what are the implications and effectiveness of such process, and what conditions must be met for a constitutional process to be successful in today's polarized political and social environment. This article attempts to introduce and analyze Chile's experience in light of these questions.