- The proposed rules included in the draft of the new Constitution modify the political bodies involved in the law-making process and their respective powers in this area.
- Although the position of President of the Republic is maintained, there are relevant differences in relation to the powers the President holds under the current Constitution.
- The new Chamber of Deputies (Congress) would concentrate most of the legislative powers, while the Senate would be replaced by the Chamber of Regions, whose legislative powers are significantly limited.
Before going into the details of the legislative process included in the proposed draft of the new Constitution, we provide a comparison between the powers of each of the political bodies involved in the law-making process in the proposed new Constitution, against the powers provided for in the current Constitution.
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Powers that are maintained | |
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Powers that are amended |
Presidency of the Republic
| Constitution currently in force | Proposal for a new Constitution |
| Participate in the formation of laws and enacting them | |
| Summon, stating its reasons, a session of any of the branches of the Legislative Power | |
| To issue, after delegation of powers by the Congress, decrees with force of law | |
| Calling a plebiscite in certain cases | |
| Declare a state of constitutional emergency | |
| Exercise the power to issue regulations | |
| Appointing the Comptroller General of the Republic | |
| Appointing and removing officials of his or her exclusive confidence | |
| Appointing and removing Ministers, Under-Secretaries and other relevant officials | |
| Conducting foreign relations, and signing and ratifying international treaties, conventions or agreements | |
| To oversee the collection of public revenues and to decree their investment in accordance with the law, and to decree payments not authorized by law in certain cases. | |
| Exclusive initiative for proposing laws in certain matters | Mandatory support of the President for the approval of laws in certain matters |
| Assume, in the event of war, the supreme command of the Armed Forces | Exercising permanent supreme command of the armed forces and public security forces |
| Overseeing the ministerial conduct of judges and other employees of the Judiciary | |
| Declare war, subject to prior authorization by law, with a record of having heard the National Security Council | |
| To dispose of, organize and deploy air, sea and land forces in accordance with the needs of national security. | |
Congress of Deputies
| Constitution currently in force | Proposal for a new Constitution |
| Participate in the formation of laws | |
| Overseeing government actions | |
| Declare constitutional charges (impeachment) to be admissible or inadmissible | |
| To declare, when the President submits his/her resignation, whether or not the reasons for his/her resignation are well-founded and, consequently, to admit or reject it. | |
| Approve for the President to be absent from the country for more than thirty days | |
| Decide on certain appointments provided under the Constitution | |
Chamber of Regions
| Constitution currently in force (Senate) | Proposal for a new Constitution (Chamber of Regions) |
| Deciding constitutional charges (impeachment) as a jury | |
| Participate in the formation of all laws | Participate in the formation of laws of regional agreement.1 |
| Approve the appointment of the ministers and judicial prosecutors of the Supreme Court and the National Prosecutor. | Decide on appropriate appointments in joint session with the Congress of Deputies. |
| Decide whether or not to take legal action against a Minister of State. | |
| To hear disputes of jurisdiction between political or administrative authorities and the higher courts of justice. | |
| Granting citizenship rehabilitation | |
| Agree that the President can be absent from the country for more than thirty days | |
| To declare whether or not the reasons for the resignation of the President are well-founded and, consequently, to accept or reject the resignation. | |
| To approve the regional statutes approved by a Regional Assembly. | |
| To hear proposals for the creation of regional-owned companies made by one or more Regional Assemblies. | |
| To hear requests for delegation of legislative powers made by the Regional Assemblies. | |
Legislative procedure
DIAGRAM N° 1: PROCESSING OF LAWS
DIAGRAM N° 2: PROCESSING OF REGIONAL AGREEMENT LAWS AND JOINT COMMISSION
Before going into the details of the stages of the legislative process described above, it is important to consider that, unlike the current Constitution, the proposed new Constitution does not establish an exhaustive list of matters that may be regulated through the exercise of the legislative power.
Consequently, the proposed new Constitution could allow Congress to regulate other matters, other than those currently foreseen, unlike what is established in the current Constitution, where matters outside the specific list provided in the Constitution can only be regulated through the exercise of the regulatory power of the President of the Republic.
A. Initiation of the law-making process
Draft bills may be proposed by presidential initiative, parliamentary initiative by motion of deputies and regional representatives, by popular initiative2, by indigenous initiative3, or by initiative of regional assemblies (with sponsorship by the Chamber of Regions). Whatever the form of origin, once submitted all bills will begin the law-making process in the Congress of Deputies.
In contrast to the current Constitution, the proposed new Constitution expands the possibility of submitting draft bills by establishing the popular initiative and the indigenous initiative, although the latter is not regulated in detail.
However, although the possibility of the President of the Republic being able to initiate the legislative process by means of a presidential message is maintained, the proposal for the new Constitution eliminates the rule providing that certain matters of law require a bill presented by the President (exclusive presidential initiative). Instead, it only establishes that certain matters of law will require the sponsorship or support of the President (presidential concurrence).
Laws requiring presidential concurrence may originate in a presidential message or in a motion. They can only be approved if the President provides his or her support during the law-making process, otherwise the bill will be deemed to have been rejected and cannot be insisted on for further processing
| Exclusive initiative laws | Necessary presidential concurrence laws |
| Those altering the political or administrative division of the country | |
| Those related to the financial or budgetary administration of the State, including amendments to the Budget Law. | |
| Those imposing, eliminating, reducing or condoning taxes of any kind or nature, establishing exemptions or modifying existing taxes, and determining their form, proportionality or progression | |
| To contract loans or enter into any other type of operation that may compromise the credit or financial responsibility of the State, semi-fiscal, autonomous, regional governments or municipalities, and to forgive, reduce or modify obligations, interest or other financial obligations of any nature established in favor of the Treasury or the aforementioned bodies or entities. | Those that provide or authorize the contracting of loans or the entering into any other type of operation that may compromise the financial responsibility of the State, semi-fiscal or autonomous entities and forgive, reduce or modify obligations, interest or other financial obligations of any nature established in favor of the Treasury or the aforementioned bodies or entities. |
| Those providing the air, sea and land forces to be kept in place in time of peace or war, and the rules for allowing foreign troops to enter the country or national troops to leave the country. | Those that provide, organize or distribute the Armed Forces for their development and use. |
| Those that create new public services or paid jobs, whether fiscal, semi-fiscal, autonomous or State-owned companies; abolish them and determine their functions or attributions. | |
| Those related to remunerations, pensions, annuities, and any other kind of loans or benefits to serving or retired personnel (and to the beneficiaries of annuities, if any) of the Public Administration; and those related to the determination of the minimum remunerations of the private sector, the mandatory increase of remunerations and other economic benefits, or that alter the bases used to determine them. | |
| Those that establish the modalities and procedures for labor collective bargaining, and that determine the cases in which collective bargaining may not take place. | |
| Establishing or amending rules on or affecting social security in both the public and private sector | |
| Those laying down rules on the disposal, leasing or concession of State or municipal assets | |
| Those directly causing costs to the State. | |
B. Legislative discussion
The proposed new Constitution provides that, as a general rule and except in cases where the Constitution provides otherwise4, the Congress of Deputies and the Chamber of Regions shall pass bills by a majority of its members present in a meeting5.
In the case of a law of regional agreement, the Congress of Deputies will send the bill previously approved by it to the Chamber of Regions, which can approve or reject it.
- If approved, the bill will be sent to Congress, for it to dispatch the bill to the President for its enactment as law.
- If it is rejected, the Chamber of Regions may propose amendments to the Congress of Deputies. If the Congress rejects one or more amendments, a joint commission (made up of an equal number of deputies and regional representatives) will be convened and will propose new amendments to resolve the discrepancy. These will be voted on first by the Chamber of Regions and then by the Congress of Deputies.
C. Enactment and veto of the President of the Republic
Once the bill has been approved, if the President approves the bill, he shall enact it.
If the President partially rejects the bill, his remarks may be approved by a majority of the Congress. Alternately, by the same quorum, the Congress may insist on the original bill. However, if the President rejects the bill in its entirety, Congress must discard the bill, unless it insists on the bill with a quorum of three-fifths of its members. Note that under the current Constitution, Congress can only insist on a vetoed bill with a quorum of two-thirds of its members, on both chambers (Senate and Chamber of Deputies).
Enactment must always take place within 10 days, and publication of the approved law must be made within 5 business days following its enactment.
Legislation through Decrees with Force of Law
The proposed new Constitution, like the current Constitution, establishes that the President of the Republic has the power to issue decrees with the force of law, after delegation by Congress of its legislative powers, for a period of no more than one year on matters that need to be regulated through a law. We include below a comparison between the current and new Constitution on this matter:
| Constitution currently in force | Proposal for a new Constitution | |
| Matters for which delegation is not possible | Constitutional protections or fundamental rights | |
| Nationality and citizenship | ||
| Elections and plebiscites | ||
| Powers affecting the organization, powers and status of officials of the Judiciary/Justice System, the National Congress/Congress and the Chamber of Regions, the Constitutional Court/Constitutional Court and the Comptroller’s Office. | ||
| Matters that are subject to organic constitutional laws or qualified quorum laws | ||
| Control | Comptroller’s Office | |
| Nature of the delegatory act | Law | Regional Agreement Act |
Transition to the proposed political system
As of the date of publication of this bulletin, the Transitional Rules Commission is discussing the proposals for transitional rules of the new Constitution, so as of this date it is unclear which transitional regime will be incorporated into the proposed new Constitution.
Contacts
Footnotes
1 Laws of regional agreement are those that refer to any of the following 18 matters: (1) amendment of the Constitution; (2) regulation of the organization, attributions and functioning of the justice systems, of the legislative power and of the constitutional autonomous bodies; (3) regulation of constitutional states of exception; (4) creation, modification or suppression of taxes or exemptions and determination of their progression and proportionality; (5) those laws that directly causing expenses for the State whose execution corresponds to the territorial entities; (6) those implementing the right to health, the right to education and the right to housing; (7) the Budget Law; (8) those approving the Regional Statute; (9) regulation of the election, designation, competencies, powers and procedures of the organs and authorities of the territorial entities; (10) those establishing or altering the political-administrative division of the country; (11) those establishing the mechanisms of fiscal and budgetary distribution, and other mechanisms of economic compensation between the different territorial entities; (12) those authorizing operations that compromise the financial responsibility of the territorial entities; (13) those authorizing territorial authorities to form state-owned companies; (14) those delegating legislative powers; (15) regulation of territorial and urban planning and its execution; (16) regulation of environmental protection;(17) those regulating popular votes; and (18) those regulating political organizations.
2 Popular initiative may not refer to taxation, alter the budgetary administration of the State or restrict fundamental rights.
3 This type of initiative, unlike the popular initiative for a law, is not regulated in detail in the proposed new Constitution. Its requirements and effects are unknown.
4 In order for the Chamber of Deputies to meet, at least 1/3 of its members in office are required.
5 The favorable vote of the majority of the members in office shall be required to approve laws referring to the organization, functioning and procedures of the Legislative Power and of the Justice Systems, to electoral and plebiscite processes, and to the regulation of states of constitutional exception and of political organizations.
