Shapinga constitution presents a country with an exceptional opportunity to create a shared vision of the future. It represents a chance to lay the foundations for a strong democracy, government stability, and the protection of fundamental rights. Initiation of the current constitutional reform process in Chile was met with remarkable citizen support following the outcome of a referendum that took place in October 2020. That process has set democratic Chile on a new, promising path.

Constitutions provide the essential framework that governs (and delineates) a nation’s political life, protecting crucial elements of a stable and thriving democracy, such as the separation of powers and the protection of fundamental rights. They also bring together the core values, national identity and collective vision for the future of a particular society, and ground citizens’ trust in government. In the context of the Chilean journey towards its new constitution, this report brings together lessons derived from constitutional frameworks across the OECD Membership, offering a range of design options to serve as background for the Constitutional Convention deliberations throughout 2021-22.

This introductory chapter presents the highlights of the relationship between Chile and the OECD. It considers the role of constitutions in modern democracies and the importance of the drafting process to foster inclusiveness and ownership of the text. Finally, it provides readers with an overview of the structure, methodology and definitions used throughout this report.

This chapter provides an overview of a number of basic aspects of the constitution that will need to be taken into consideration by constitutional drafters regardless of the institutional choices they make. It begins by outlining the key elements usually regulated in constitutions, and how they are often an instrument of national self-expression. It goes on to discuss key elements of the frame of government, including its territorial structure (which is further elaborated in Chapter 4) and the three powers (the executive, legislative and judiciary). It concludes by providing an overview of the most common mechanisms included in OECD member countries’ constitutions for constitutional amendment and stability.

This chapter examines the constitutional inclusion of economic, social and new types of emerging rights, drawing from experience in OECD countries. After briefly outlining their prevalence in contemporary constitutions, the first sections present the debates regarding the advisability of their constitutionalisation, the “strength” they ought to be accorded, and the impact of differences between constitutional ideals and reality. It discusses particular economic, social, cultural, and new rights, including health, education, employment, environmental, privacy and digital rights, making reference to existing patterns of entrenchment. Issues pertaining to accessibility and enforcement as well as the potential contribution of human rights commissions are noted. Finally, some cautionary concerns are raised about the specificity of rights language, progressive realisation and deference to the elected branches.

Constitutions create a framework for government that enables a country’s stability, inclusiveness, and co-operation among branches of power. Chapter 4 draws some practical lessons for promoting those values by providing an overview of presidential, parliamentary, and semi-presidential systems and benchmarking the existing institutional framework in selected OECD constitutional democracies. In particular, it describes the main types of governance arrangements between the executive and legislative powers. It explores how the executive and legislature interact, the patterns of separation of powers between the two and which are the most likely outcomes of the political system resulting from those interactions, with mentions of other important aspects such as the electoral and party systems. It also highlights elements of direct citizen participation.

This chapter considers a comparative assessment of constitutional provisions for the relative responsibilities of central and subnational government and how they interact, or “multi-level governance”, in selected OECD countries. It aims to identify how countries have included arrangements for multi-level governance and territorial organisation in their constitutions, and highlights that they vary greatly across constitutions. First, the chapter introduces the different categories of multi-level governance in the selected countries. Second, it presents a cross-country comparison of six foundational themes and related sub-themes through which multi-level governance arrangements and territorial organisation can be determined constitutionally. These themes are territorial organisation, structure of sub-national government, division of powers and responsibilities, finance mechanisms, impact on central state decision-making, and co-ordination mechanisms. In doing so, it provides specific examples of how benchmarked countries have included provisions regarding these themes and subthemes in their constitutions.

Chapter 6 deals with the various forms for assessing the constitutionality of the actions and decisions of governments, parliaments, and other authorities, collectively referred to as constitutional review. It highlights that constitutions often put in place provisions to this end on whom should be entrusted with the responsibility of interpreting and enforcing the constitution, and how this responsibility should be allocated. The chapter provides an overview of the different forms and models of constitutional review, and offers several considerations for striking the right balance among different values, including the protection of democracy, upholding the rule of law and the superiority of the constitution, but also the insulation of the courts from political influences, the protection of minorities’ representation and individual human rights.

This chapter describes how OECD countries have incorporated fiscal management issues in their constitutions, studying the regulation of areas such as budget scope and timing, fiscal rules, legislative procedures, and independent fiscal institutions. It highlights how certain provisions can help ensure governments’ adherence to high-level principles of financial prudence, transparency, and accountability. It analyses the potential benefits of enshrining such matters in constitutional terms, such as immutable standards by which the electorate can hold successive governments accountable, lower borrowing costs from reassuring financial markets of commitments to fiscal sustainability, and a more informed legislature to scrutinise fiscal policy. It also assesses the drawbacks, in particular, the fact that they can reduce a government's flexibility to respond to unexpected developments and to adapt the rules to new state-of-the-art practices.

This chapter outlines the importance of central banks in ensuring price stability and thus contributing to economic development and financial stability. It provides an overview of how the central bank can be institutionalised through the constitution. It shows that central bank legal frameworks vary across countries, reflecting differences in history and legal systems, and that while in some countries the central bank's role and responsibilities are referred to in the constitution, in most countries they are set out in detail in primary legislation in the form of a specific central bank law. This chapter stresses that, irrespective of the legal framework and specific arrangements, central bank independence requires legal guarantees of operational autonomy combined with accountability and transparency requirements.