UPDATE 30 Oct: As of yesterday, both chambers of Congress have agreed to restart the constituent process.
As an American, I often take for granted the basic rights and liberties that are protected by the Constitution of the United States, the Bill of Rights, and the amendments that followed. The document enshrines personal liberties, civil rights, due process, and the system of checks and balances that defines how Americans think about the relationship between the people and the state. I’ve attempted to write about Chile in a manner that is supported by evidence, but never will I claim to be unbiased: my opinions and beliefs are irrevocably colored by my allegiance to American conceptions of personal liberty and the separation of state powers.
On Saturday night, I went out with my wife to celebrate the end of a military curfew in Santiago. It is a simple act that we did frequently prior to the “State of Constitutional Exception,” which saw freedom of movement and assembly suspended. Martial law was imposed across the nation amidst a wave of vandalism touched off by turnstile jumping students protesting fare hikes on the metro. I am one of the lucky ones, to be able to return now to some semblance of normalcy. Hundreds of thousands of people across Santiago still lack access to basic necessities such as markets, banks, transport, or medical services. So far at least 17 have died in the unrest, at least four at the hands of internal security forces. Over a thousand have been seriously injured, 500 by gunfire, although these numbers are almost certain to grow as medical services struggle to keep up in the face of institutional obstruction and lack of support.
The standing government is rapidly backtracking from the combative tone it set one week ago, facing a historic approval low of 14% in the eyes of the public. Meanwhile, as the UN is scheduled to arrive to investigate abuses of human rights over the past week, the State of Constitutional Exception is being lifted and the question on everyone’s minds is: what now? While the lifting of the curfew and the withdrawal of troops from the streets addressed the most widely detested acts of the current government, the sense among many is that these measures are totally insufficient to address major structural issues still haunting Chilean society—in other words, why it is still even possible for the government to plunge the nation back into military rule at the flip of a switch.
Amidst the various grievances identified by protestors, which are to some extent common to other protests around the world, one stands out as distinctly Chilean: calls for an Asamblea Constituyente (Constituent Assembly); a specific course of action with the goal of fundamental constitutional reform.
Chileans do not have the safety that I, as an American, am afforded by my constitution. Instead, the Constitution of Chile—crafted under the dictatorship—exists in large part to preserve the power of the executive and the political class. Understanding the history of the document helps explain the growing chorus of voices demanding what is for many the only process by which the legacy of Chile’s military junta may be put to bed once and for all.
The current Political Constitution of Chile was written by the military junta headed by Augusto Pinochet
After the coup d’etat of 1973, General Augusto Pinochet explored different ways of maintaining and justifying his hold on power. Immediately after the coup, the junta—Pinochet (Army), José Toribio Merino (Navy), Gustavo Leigh (Air Force), and César Mendoza (Carabineros)—initiated the process of writing a new constitution, which would replace the Constitution of 1925 and provide legal basis for continued undemocratic rule. The original text of the Constitution of 1980 was drafted by a handpicked commission of civilians, although the final document was written and signed by the junta. Among the permanent provisions in the original constitution were a series of “transitory provisions” that, among other things, cemented the junta’s status as legislators and secured Pinochet’s presidency for the eight years following approval of the constitution.
To legitimize the process, approval of the constitution was subject to a plebiscite. The 1980 referendum is widely accepted as having been heavily manipulated by the military junta. In a declassified report from 1988 (PDF), the United States Central Intelligence Agency devotes an entire section to discussing irregularities of the process, in which
“The government left no stone unturned to ensure a favorable outcome in the plebiscite, resorting to extensive intimidation of opposition groups, arbitrary measures to undercut the efforts of those advocating a “no” vote, and at least some fraud during the balloting and...tabulation of votes”
Notably, the constitution established a term limit for the Presidency, and further amendments to the Constitution throughout the 80’s laid the groundwork for the transition of power from the dictatorship to democratic self rule.
Immediately following the plebiscite of 1988 wherein Pinochet was stripped of his mandate, significant amendments to the Constitution were proposed and subsequently approved in a plebiscite held the following year. These amendments included provisions that abolished some of the more egregious parts of the Constitution of 1980, such as the ban on Marxist political parties (Article 80) and the President’s power to dissolve the Chamber of Deputies (the lower house of Congress). However, many clauses favorable to the junta were maintained, such as those establishing the legislative power of the National Security Council and the legitimacy of unelected representatives (“designated” and “lifelong” Senators appointed to the upper house of Congress).
The transitional nature of constitutional reform meant that the political careers of Pinochet et al. did not end with the return to democracy. The Wall Street Journal has characterized the constitution as containing political “locks” that ensured the military and those associated with the dictatorship could maintain political influence. Pinochet remained the Commander in Chief of the Army until 1998; when he retired, per the constitution he then assumed the mantle of Senator for Life until 2002. “Designated senators”—handpicked by the President, the Supreme Court, and the National Security Council—also played a key role in assuring the right-wing coalition of the National Renovation and Independent Democratic Union parties maintained a majority in the Senate, preventing significant constitutional reform from the centre-left governments of Patricio Aylwin and Eduardo Frei Ruiz-Tagle (whom otherwise had majorities amongst the popularly-elected senators).
In 2005, Law 20.050 was passed, which made significant alterations to the Constitution. Among other amendments, the role of Designated Senator was eliminated, the National Security Council was changed to a purely advisory role, the President was given the power to remove the heads of the branches of the armed forces (including the Carabineros), and the presidential term was reduced from 6 to 4 years. The passage of Law 20.050 was widely hailed as marking Chile’s final return to democracy, and in some sense this was true: the most antidemocratic provisions of the “Pinochet constitution” were removed from the document, and Pinochet’s signature was replaced by that of then-President Ricardo Lagos.
Constitutional amendment versus constituent assembly
Furthermore, Article 44 of the Constitution states that an organic law will govern the details of the States of Constitutional Exception. Law 18.415—passed in 1985 and last modified prior to the return to democracy—grants near-unlimited power to the military officials charged with administering States of Siege or Emergency.
Rather than being Chile’s “end of history” moment, the 2005 reforms have not quelled calls for the Chilean Constitution to be torn down and rebuilt from the ground up. For many, a large number of pro-authoritarian provisions are leftover in the document. The constitution of 1980 was openly praised (PDF) during the dictatorship as an “economic constitution” departing significantly from the constitution of 1925 by providing extensive protections to business, a perspective that now is seen by some in a much different light. For others, the mere fact that the document was written under military rule by a commission allied to the dictatorship is sufficient to render illegitimate the Constitution.
A widely-held perspective (p. 20) echoes that articulated by the Wall Street Journal above, wherein the Constitution contains “locks” that ensure the continuation of policies enacted in the dictatorship: among others, the (now overturned) system of binomial voting, high quorums necessary to pass laws in Congress, the strong role of the partisan Constitutional Court in reviewing legislation, and the “meta-lock” of the high quorum (2/3) necessary to make changes to the constitution. Proponents of these systems claim that the “locks” are necessary checks and balances, used to provide stability and prevent mob rule. Critics claim that these mechanisms—in addition to being absent from the Constitution of 1925—give undue power to the (conservative) minority.
Michele Bachelet’s accession to the Presidency in 2014 was predicated on promises to produce a new constitution. Her response was to initiate a “Constituent Process” that would establish the basis for a new constitution. The seven-part process would include the following:
A nationwide series of privately-held “self-convened local meetings” (<<encuentros locales autoconvocados>>) to discuss topics to be addressed by a new Constitution;
A second tier of discussion in public “councils” (<<cabildos>>) to discuss topics identified by the self-convened local meetings;
The designation of a expert panel of observers to oversee the project;
The delivery of the government’s proposal for a new constitution to Congress;
The passage of amendments to the present constitution that may be necessary to establish the process of writing the new constitution;
The choice—by Congress—of a manner by which the new Fundamental Charter would be drafted (possibly by constituent assembly), as well as the actual drafting of the document;
A national plebiscite to ratify the constitution.
Bachelet’s second administration was almost immediately embroiled in a corruption scandal and her government lost its mandate before the process could be implemented beyond the fourth stage. One of her last acts in office was to present her proposed constitutional reforms, six days before the end of her term, with the naive or cynical objective of letting Piñera finish the job Bachelet could not. Unsurprisingly, under the new government, the proposal was left to wither on the vine.
Now, constitutional reform is a key demand. Broadly speaking, more than simple constitutional reform, many protesters are demanding a constituent assembly write the new constitution. What people can agree upon is that a constituent assembly would comprise a cross-section of the nation, representing various interests at all levels of society. The overwhelming view—at least ’from the left’—is that a constituent assembly is a necessary component of constitutional reform due to the persistent failures of the political class to represent the interests of the majority of Chileans.
The way forward is not clear at all, but must involve sweeping changes to the constitution
The exact method by which delegates to such an assembly would be chosen is not clear: ask a hundred people, and you’ll get a hundred different answers. There is an obvious constitutional problem, in that there is no mechanism in place to even call for a constituent assembly in the first place. It would likely have to begin in Congress, which poses an existential dilemma for the legislature in that the role of a constituent assembly—to determine the contents of the constitution—is also the stated role of Congress. Efforts towards the mere creation of a constituent assembly would be subject to challenges from the Constitutional Courts, as well as from the sitting government. There is also stiff ideological resistance from the business-minded to the very discussion of constitutional reform; the constituent assembly of Maduro’s Venezuela is often invoked as evidence for the threat posed by constitutional reform to the economic stability of Chile.
I travel mostly in university circles, which in Chile generally have a pronounced leftist take on most topics. Nonetheless, practically everyone with whom I’ve discussed politics who has even a basic grasp of current events, either before or after the start of the ongoing crisis, has identified the modern constitution as a major source of discontent, often as the fundamental cause of the major problems facing the country. Poll numbers back this up: while Bachelet was in office, the overwhelming majority of Chileans consistently expressed desire for a new constitution, with the percentage peaking at 81% as her mandate came to a close. No one, however, really believed a constitutional referendum would actually be possible within the Chilean political environment…until this past week, when that environment changed completely.
Already foreign economists on the exterior are sounding the alarm that constitutional reform would trigger years of financial instability. Few in Chile (outside the Communist Party) actively wish for the economy to decline. At the same time, there’s a generalized exasperation with foreign “experts” who have a very distorted perspective of the priorities of Chileans, and I feel the overall opinion on the street is that—even if Chile were poorer under a new constitution—at least the country would have at last rid itself of the most visible reminder of the hated dictatorship.
The fundamental lesson of the unrest, then, is not about inflated expectations, nor the failure of the “n-word.” It’s that no amount of economic success can erase or excuse the primal wound left by undemocratic rule. In Chile, the most prominent expression of this wound is a constitution left over from that bygone era. It is difficult to envision a future without a new one.