Abstract
This chapter draws on literature about courts, constitutionalism, and legal mobilisation in and around authoritarian regimes. It adopts both the notion of the continuing importance of constitutional ‘moments’, and the concept of legal mobilisation as one form of contestation and resistance, to explain and explore some of the particular meanings that law, lawyers, and legal activism acquired before, during and beyond the Chilean transition of 1990. Interpreting legal mobilisation against the backdrop of prevailing legal-cultural traditions, the chapter contends both that the authoritarian regime´s constitution-making moment of 1980 should be viewed as—to date—the foundational critical juncture of Chile’s past four decades; and that subsequent ‘rights talk’ in Chile was hamstrung for many years by its obeisance to conceptions of legality that hark back to this phase of the dictatorship. The constitution-making process triggered by a late 2020 plebiscite however offered at least the promise of transformation of these self-limiting habits, won as it was in the street rather than the courtroom or even the legislature.
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Notes
- 1.
Although Aguilar and Rios Figueroa (2014) rightly point out that while the relationships between authoritarianism and institutions, and between authoritarianism and judicial politics, have been studied, these studies too rarely dialogue with one another.
- 2.
“[L]egal revocation is not social revocation” (De Sousa Santos 1987: 282). In cases such as the one that concerns us, Chile, transition moreover did not trigger either type of revocation.
- 3.
See, in general, ´new institutionalist´ approaches and the ‘law and development’ movement as characterised, and critiqued, in Moustafa op. cit. 21–25 and Chapter 7.
- 4.
- 5.
Dezalay and Garth (op.cit.), like Angell (2006), Huneeus (2007) and many others, have pointed out that while Chile is often cited as the classic or a particularly extreme example of the twinning of authoritarian politics and neoliberal conversion, neoliberal precepts were fully installed only towards the end of the 1970s, as the regime cast around for an economic policy direction and more traditional contenders lost the dispute for influence. A banking collapse and generalised economic crisis in 1983–1985 was moreover dealt with in ways that departed substantially from neoliberal precepts.
- 6.
Thus the dictatorship—in many ways the instigator of the most profound and radical cultural transformation of Chile’s republican history—claimed legitimation, and calmed fears, by conjuring associations with stability rather than rupture. Pinochet, for example, missed no opportunity to evoke associations with figures from Chile’s pantheon of national ‘heroes’, mostly military strongmen associated with independence or with C19 statebuilding: see Joignant (2007, 2013). However see also Loveman and Lira (1999, 2000), for strands of genuine continuity in authoritarian repression and legal toleration of it.
- 7.
For the purposes of what follows, ‘transitional justice’ challenges are defined as those arising from direct or indirect connection with the truth, justice, reparations, and guarantees of non-repetition legacies of dictatorship-era human rights violations. For Chile’s 2020 constitutional moment as a ‘transitional justice moment’, see Collins et al. (2020) and Accatino (2020).
- 8.
Post-transitional regionalising reforms seeking greater devolution or autonomy have gained little purchase, and there seems to be little appetite for legal pluralism. Chile is for example one of few remaining countries in the region not to enshrine any form of indigenous identity rights or self-determination rights, having made substantive and unilateral reservations to ILO 169 provisions that have elsewhere underwritten such developments. It remains to be seen whether constitution making in 2021 and 2022 will redress or reverse this neglect, although this would require a significant step change away from the militarized, confrontational and repressive attitude to indigenous mobilization in the south of the country that has prevailed since 1990 under all shades of government.
- 9.
Portales was one of the historical figures for whom Pinochet repeatedly professed public and fervent admiration.
- 10.
Including the emblematic nationalisation of the copper industry, plus various types and tranches of land and other asset expropriation.
- 11.
Previously only a small number of highly traditional law faculties produced the lion’s share of the country’s elite lawyers, a pattern which to some extent still persists.
- 12.
The fact that the criminal justice system was a magistrate-driven inquisitorial system, with judges rather than prosecutors or police formally directing investigations from the start, accentuates this point.
- 13.
Policzer (2009) discusses in detail how the regime continually monitored and rebalanced its containment strategies, alternately targeting intra-regime actors, semi-autonomous entities such as the courts, and extra-regime actors including the Catholic Church and the press. The decision as to whether to control, coerce, or persuade into acquiescence could vary over time, inter alia according to the real and perceived costs of each alternative.
- 14.
This is the period into which over 90% of the 3,000-plus deaths and disappearances caused by the regime were concentrated. See Collins (2010).
- 15.
These benefits included the opportunity to use the appearance of liberal legality as a fig leaf on the international stage, given the prevailing Cold War context.
- 16.
As regards coercion, there was an early purge of magistrate and judicial employees, whose magnitude is often underestimated or simply overlooked: see Gallardo Silva (2003).
- 17.
One additional hidden cost of thus allowing the civilian courts to feign genuine ignorance of the full implications of repression was adverted to early on, when the regime’s (civilian) justice minister warned the military junta, in the early 1970s, that allowing the Supreme Court to formally abdicate its oversight over courts martial would lead to “blame falling solely on the armed forces”. Letter to the junta, cited in Huneeus (2007: 55).
- 18.
Thus for example Oscar Bonilla, a general killed in a helicopter crash in the early period of the regime, is widely rumoured to have been assassinated due to his principled opposition to the murderous tactics of the DINA secret police. Constitutionalist Air Force General Alberto Bachelet, father of the outgoing Chilean president Michelle Bachelet (2006–2010 and 2014–2018), died in prison as a result of torture inflicted by his own former comrades in arms, as did numerous armed forces personnel who remained loyal to the deposed government, or simply questioned the deployment of repressive violence, after 1973.
- 19.
Bando (Edict) No. 5, issued by the military junta in September 1973.
- 20.
Thus even loyal supporters were not to be trusted, or allowed, to form actual political parties again until many years hence.
- 21.
The judicial profession in Chile had long been, and remains, a specific career choice with its own basic level training. To be a judge, even a senior one, is accordingly not necessarily associated with selection from the higher echelons of successful or elite legal practice, as is commonly the case in, for instance, the UK.
- 22.
It is no coincidence that when it became so—i.e. when the 1980 Constitution was crafted, inter alia in an effort to provide a forum for containing and resolving differences of vision and emphasis within the newly-configured civil-military elite—the pre-existing Constitutional Tribunal (TC, in Spanish) was reshaped, via changes to composition and powers, to play this role of loyal rebalancing (See, for a general study of the Tribunal Bascuñan 1993). This Tribunal has recently (since mid-2017) been drawn into the present accountability case universe, playing an ultra- conservative role. The contrast between the Chilean TC’s unremittingly anti-progressive, anti-activist stance and the actions of, for example, its Colombian counterpart is striking, raising the question of whether Chile’s imminent constitutional transformation may help to effect, in future, transformation along similar lines.
- 23.
In the early years some refused to supply defence lawyers to the stacked and essentially meaningless ‘show trials’ of civilians by courts martial, arguing that to do so was to give the instances a veneer of legitimacy. Others however thought it worthwhile attempting to have sentences made more lenient or commuted, seeking and sometimes obtaining penalties such as enforced exile instead of life imprisonment or worse.
- 24.
The Vicaría was formed from an earlier ecumenical organisation, the ‘Peace Committee’ (Comité Pro Paz) after Pinochet ordered the latter to be dissolved. The working practices of both were similar.
- 25.
For more detail, including names, see Fuentes op cit.
- 26.
McEvoy and Rebouche (2007) point out that methodologically speaking, the attitudes of such collective professional bodies are key to understanding the behaviour of key sectors.
- 27.
They included Enrique Silva Cimma, who went on to be foreign minister to Patricio Aylwin, the country’s first elected president after transition (1990–1994); Francisco Cumplido, made minister of justice in 1990, and Jorge Correa Sutil. Correa Sutil, then a recent law graduate, would go on to become Dean of the UDP Law School, Secretary of the Rettig Commission, undersecretary of the Interior, and judge on the Constitutional Tribunal.
- 28.
After 1985, members of the recently-opened law faculty of the Universidad Diego Portales, UDP, joined colleagues from a centrist (Christian Democrat)-led think tank to form the innocuously-named Corporation for University Promotion. They discussed future legal reforms, focused on the judicial branch. The group included Jorge Correa Sutil, author of an influential account of Chile’s protracted judicial reform process (Correa Sutil 1999).
- 29.
- 30.
González had been justice minister in the elected Christian Democrat administration (1964–1970) that had immediately preceded Allende’s socialist government. He reported, inter alia, the bemusement of a former friend and Supreme Court judge who took him aside and asked how much longer he intended to ‘go on about’ these ‘supposed’ disappearances. The bemused appeal to former camaraderie was, said González, apparent throughout his tenure and worked both ways: he himself often traded on it to coax some semblance of a correct response in cases he was representing. Author’s interview with Alejandro González, Santiago, 14 January 2003, parts of which are cited in Collins 2010.
- 31.
Cerda was president of the Santiago Appeals Court during the 1998 ‘Pinochet cases’ in Chile, and later personally investigated financial fraud and corruption charges that proved extremely harmful to the dictator’s image amongst right wing politicians and sympathisers. Juica and Munoz both investigated emblematic episodes of human rights violations before and after transition, and both serve or have served on the Supreme Court criminal bench that today sees all such cases that go to the final stage of appeal. Munoz has twice served as the Supreme Court’s designated coordinator for human rights-related dictatorship-era cases, most recently in 2016.
- 32.
Remarks made at a Universidad de Chile conference in 2016, and at a range of events held at the Instituto de Estudios Judiciales, IEJ, Santiago, Chile between 2010 and 2013 at the instigation of the Observatorio de Justicia Transicional of which this author is the Director. Reports of some events can be found online via www.derechoshumanos.udp.cl ; others were held under a version of the Chatham House rule and notes are on file with the author.
- 33.
The date at which the first of Chile’s (now) over 1,900 ongoing and completed dictatorship-era accountability cases resulted in successful criminal conviction and imprisonment.
- 34.
- 35.
- 36.
The Constitution dictated the timing and terms of the 1988 plebiscite. Though Pinochet wanted to disregard the results when he lost, his subordinates and political allies refused to allow him to do so.
- 37.
An honour which was due to him under the terms of his own 1980 Constitution.
- 38.
The long-running ‘Poblete-Cordoba’ case had become largely a personal crusade for ex Vicaría lawyer Sergio Concha, who had continued to work the case as a matter of conscience even after the victim’s last close relative had died.
- 39.
- 40.
See Collins et al., Informe Anual de Derechos Humanos en Chile, Universidad Diego Portales, editions 2010–2020 inclusive, chapter one, for cumulative qualitative and quantitative analysis of this caseload. Until 2009, all such cases were triggered privately by relatives or survivors. After 2009, the state also began to initiate investigations, although solely in respect of disappeared or executed victims.
- 41.
For a full development of the concept see Sarat and Scheingold (1998).
- 42.
There is no equivalent in Chile of the class action suit, while prevailing legal interpretative consensus is conservative in limiting the broader applicability of any particular case verdict. As far as the transitional justice case universe is concerned, a continued focus on individual violations of the right to life has not been accompanied by the same kind of broadening to collective and economic rights agendas, and to private firms and economic interests as perpetrators and accomplices, as in neighbouring Argentina and other settings. See Bohoslavsky et al. (2019) for one of few treatments of this issue.
- 43.
See Hilbink (2007); Huneeus (2010); Collins (2010a, b, 2013b). Attitudes to the regional human rights system nonetheless hardened under a second (non-consecutive) right-wing administration from 2018. In April 2019, Chile joined four other conservative governments from the region in sending a letter widely interpreted as an attack on the Inter-American Commission on Human Rights. Collins et al. (2019).
- 44.
See INDH Annual Reports, available on the institution’s website at www.indh.cl and the Public Opinion Survey of the Universidad Diego Portales, available at www.encuesta.udp.cl.
- 45.
See inter alia Collins et al. (2020) and other chapters of the Annual Human Rights Report in which it appears. See also reports and statistics at the website of the National Human Rights Institute, www.indh.cl.
- 46.
This assertion is based in part on the author´s decade-long experience as a lecturer in the country’s higher education sector, including the directorship of a human rights research project which is open to student participation. It also draws on broader empirical evidence such as a 2012 consultation meeting between academics and the UN Working Group on Enforced Disappearances, at which the consensus was that only five or six law schools in the country at that time offered any substantive human rights training, mostly as optional courses. There were almost no course offerings outside law schools. The country’s first dedicated Masters programme in human rights was created as recently as 2014, in the Universidad Diego Portales, and there are still few such programmes nationwide.
- 47.
The centre-left Concertación held the presidency in unbroken succession between the beginning of transition (1990) and 2010, when the right wing candidate Sebastian Piñera was elected to replace Michelle Bachelet (2006–2010). Since then, Bachelet and Piñera have once again alternated in the presidency (2014–2018 and 2018–, respectively), with Bachelet representing a slightly modified coalition named the ‘Nueva Mayoría’ in her second term.
- 48.
Although officialdom considered changes significant enough, by 2009, for then-president Ricardo Lagos to replace Pinochet’s signature—reproduced on all official copies of the Constitution—with his own, much of the core conservative, anti-popular, and pro-market vision remained intact.
- 49.
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Collins, C. (2021). Legitimation Narratives, Resistance, and Legal Cultures in Authoritarian and Post-authoritarian Chile: Lawyers and Judges in the (Post)-Transition. In: Paixão, C., Meccarelli, M. (eds) Comparing Transitions to Democracy. Law and Justice in South America and Europe. Studies in the History of Law and Justice, vol 18. Springer, Cham. https://doi.org/10.1007/978-3-030-67502-8_9
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