Abstract
This paper explores the political awakening of the Chilean people that began in October 2019. It puts forward an alternative reading of the people’s claim for a new constitution. The first section briefly describes the October outcry and provides some context with regards to the nature of the social movement at its root. The two following sections examine two periods in Chilean recent history, the Pinochet regime and the period that has come after its overturn, focusing on two elements: the neoliberal model set up by the dictatorship and the Constitution of 1980, which was designed to block the people’s political agency for the purpose of protecting the model. The final section works with these two elements in order to provide an alternative scheme by which to examine Chile’s awakening, the central question being: what does the claim for a new constitution mean? And critical for these purposes: what constitution is being overturned? Pinochet’s political project distorted constitutional ideas in such a way that only by clarifying the conceptual horizon is it possible to visualize how the concept of constitution and its relationship with the idea of a constituent power of the people can be of help to understand Chile’s constitutional awakening.
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Notes
The subway ticket in the rush hour would go from 800 to 830 clp (Chilean Pesos). This increase—approximately 0,04 usd (US Dollars)—and its impact on peoples’ lives should be considered in context: Chile is the Latin-American country charging the highest fees for public transportation vis-à-vis its minimum wage. It is illustrative to consider that between 2007 and 2018, the subway fee presented a sustained increase of more than 80 per cent. Garrido (2019).
The translation is ours. Hereafter, all translations of non-English sources are ours.
On 23 October, the Inter-American Commission on Human Rights (IACHR) issued a press release that condemned the ‘excessive use of force’ by the Chilean Armed Forces as well as the Police, and urged the Chilean government and the involved parties to engage in an ‘effective and inclusive dialogue’ to address ‘the legitimate demands of the population’. CIDH (2019).
According to the information received by the IACHR, 29 persons have died in the context of the social protests, and the emergency medical services treated 13,046 injured persons between 18 October and 18 December. As of 15 January 2020, the National Institute of Human Rights directly verified 3649 injured persons in hospitals in the context of the protests, of which 1624 were injured by shotgun shots. Moreover, 405 persons have been victims of ocular trauma. CIDH (2020). Although to the present day three impeachment indictments have been submitted to Congress, only the one directed against (former) Minister of Internal Affairs, Andrés Chadwick, resulted in a conviction. The indictment against President Piñera was found inadmissible by the House of Deputies; while the metropolitan region intendant, Felipe Guevara, was found innocent by the Senate.
The ‘front line’ is basically ‘the space where protesters of different types, men, women, sexual dissidents, young and not so young, face the police by barricading and throwing stones, mainly to prevent their access to the sector where the rest of the protesters are gathered’. Fernández (2020).
Moreover, it prompted Piñera to announce a cabinet recast on 26 October. The change involved the removal of some of his closest collaborators—most importantly, Andrés Chadwick. Nonetheless, it was seen more as an attempt to shift the government’s optics, than as the major renewal for which the situation called. See Rollano (2019).
Although neither the facts nor the circumstance that they constituted a grave infraction of electoral rules has been disputed, legal actions pursued against politicians failed. Not unimportantly, these were only prosecuted as tax criminal offences. The exceedingly brief prescription periods established for electoral law infractions impeded their prosecution as such, whilst their criminal responsibility for bribery was not pursued for strategical reasons. Engel and Riego (2018).
Bachelet’s path towards a new constitution comprised the following stages: (i) a training stage (constitutional education courses); (ii) citizen dialogues at the local, regional and national levels; (iii) gathering the conclusions of the dialogues; (iv) intervention of a Citizen Council of Observers made up by citizens designated by the President who would summarize and assess conclusions; (v) the drafting of a new constitutional text on the basis of the citizen dialogues and the work of the Council; (vi) the elaboration of a constitutional amendment bill establishing the mechanism by which the draft was to be discussed; (vii) finally, a binding referendum to ratify the final draft.
Hereafter, constitución tramposa will be translated as ‘cheating constitution’, and the individual antidemocratic devices (trampas) as ‘cheats’. The Spanish adjective tramposa and the noun trampas convey the idea of deceitfulness (deceitful; deceits), and so the words ‘cheating’ and ‘cheats’ were chosen because they point to that meaning. However, the noun trampa may also refer to a device designed to catch animals (or people) and prevent their escape: in English, a trap. For that reason, we have maintained the use of that word when we speak of ‘Guzman’s trap’ (a metaphor referring to the cheating constitution as a snare set up by Jaime Guzmán).
After obtaining a tight relative majority in September 1970 (36.6 per cent of the validly cast votes, versus the 34.9 per cent and 27.8 per cent obtained by the other two candidates), Allende took office in November 1970, following a pivotal decision by the full body of Congress.
Thus, we will not understand the notion of subsidiarity as requiring state retreat or denial (a canonical understanding among Chilean scholars), but rather state and society’s subservience to the market.
The ‘Chicago Boys’ were loyal followers of Friedman and the doctrines of the Chicago School of Economics. Most of them obtained advanced degrees there under a collaboration scheme funded by the US government and US foundations. Klein (2007, p. 73).
This further round of privatizations sold several profitable and strategic sectors. According to Fischer (2009, p. 333), ‘everything was sold except for the remaining state copper firm and the state petroleum company’.
‘Foreign control over key sectors of the Chilean economy increased substantially. Most central to this were the debt-for-equity swaps used to reduce the now-crushing foreign debt burden. Chilean external debt notes could be used to purchase the companies privatised after 1985.’ Kurtz (1999, p. 422).
A body composed of the Commanders in Chief of each of the three branches of the Armed Forces and the General Director of the Police.
Congress had been closed down three days after the coup by means of Bando 29.
DL 1064. Most of the members of this Commission, popularly known as ‘Ortúzar Commission’ (in reference to its President, Enrique Ortúzar) were professors at the Faculty of Law of Pontificia Universidad Católica de Chile and therefore no profound ideological dissent existed among them as they were all quite right-wing. Viera (2011, p. 154). Some years earlier the same Faculty of Law—presently, the best ranked in Chile—had witnessed the emergence of the gremialista movement, whose ideological project put forward corporatist ideas grounded in ultraconservative Catholicism. Its founder was none other than Jaime Guzmán (a student at that time), who would later become a professor at the same Faculty and a leading legal intellectual during the dictatorship. According to Fischer (2009, pp. 311–312), the gremialista movement ‘became a gathering point for teachers and students, who claimed to rescue the university and society as a whole from the “Christian-Marxist clutch”’, and it ultimately provided ‘an essential recruitment base for the pro-coup coalition’. In this context, ‘the battleground at the university brought together the returning Chicago economists, who began to occupy leading positions in student and university bodies at the Catholic University, and the gremialistas. Many of the economists who designed the socioeconomic reforms of the post-coup period actively participated in the gremialista movement’.
The State Council was created in 1976 by DL 1319, for the purpose of advising Pinochet on political and administrative matters. It was made up mostly of former authorities from both the civilian and the military spheres (notably among them, former Presidents of the Republic).
DLs 3464; 3465. As inconsistent as it sounds, citizens were meant to ratify a document that had already been approved by the self-proclaimed holder of the constituent power. Moreover, its effects if the voters rejected it were unclear. A public statement signed by a group of professors from the Faculty of Law of Pontificia Universidad Católica de Chile—including Jaime Guzmán and Andrés Chadwick—explained the consequences of the plebiscite as follows: ‘If the constitutional text is not approved, the Honorable Governing Junta will not lose its originary constituent power, in the exercise of which it will proceed formally in the manner it deems most appropriate to provide the country, in short, with a new institutional framework (…)’. El Mercurio (1980).
This notion of protected democracy ‘is a historical adaptation whose reference is the political system of Hayek, for which the supreme rationality is found in liberal capitalism. That is why the 1980 Constitution preserves, by adapting it to historical conditions of possibility, a decision-making system designed to ensure the reproducibility of the rational goals embodied in the socioeconomic structure created during the Pinochet dictatorship’. Moulian (1997, p. 48).
Atria (2013, pp. 45–46). ‘But protected from what? The answer is: protected from the people’; the idea was to make it impossible for the regime’s project to be affected by democratic decisions, except when they involved reforms approved by the dictatorship’s heirs.
For a brief historical and comparative analysis, see Verdugo (2018).
Atria (2013, pp. 61–62) argues that according to the original formula, the OCSs were an abuse of the constitutional form ‘so transparent and straightforward’ as the constitution itself. This is due to the fact that ‘in addition to the constitution, [they created] a whole category of statutes that were difficult to modify (…). The original plan was for the Chilean constitution (the set of norms difficult to modify) to be not only the text of DL 3464 [which enacted the 1980 Constitution], but also the sum of all OCSs. To achieve this purpose, of course, OCSs had to be enacted while they had the power (which they would later lose), i.e., during the dictatorship. And they did it brazenly.’
The following are all the OCS-matters—and the respective statute’s enactment date—addressed by Pinochet’s legislation before the end of his government on 11 March 1990 (no surprise that this set of OCSs has been sometimes referred to as ‘mooring statutes’): Crime Investigation Police (9 January 1979), Constitutional Court (12 May 1981), Mining Concessions (7 January 1982), Electoral Court (4 November 1985), Electoral Roll and Electoral Service (11 September 1986), Electoral Service’s Staff (4 December 1986), General Foundations of Public Administration (5 December 1986), Political Parties (11 March 1987), Regional Councils for Development (26 March 1987), Regional Government and Administration (6 April 1987), Municipalities (31 March 1988), Popular Voting and Ballot Scrutiny (19 April 1988), Central Bank (4 October 1989), States of Exception [reform] (24 January 1990), National Congress (26 January 1990), Armed Forces (22 February 1990), Police (27 February 1990) and Education (10 March 1990!). Fuentes (2010, p. 54).
Atria wonders whether the OCSs would still be cheats if their quorum did not perform the role of protecting Pinochet’s legislation, and concludes that ‘such a category of statutes would not perform the function of a constitutional cheat, although it would still be institutionally objectionable’. Atria (2013, p. 49). For an overview of the debate on the democratic (in)adequacy of the OCSs, see Verdugo (2018).
These are their words as registered in the proceedings of the Ortúzar Commission. Atria (2013, p. 53).
Although as time passed, it became apparent that it also favoured the centre-left coalition, as it guaranteed its place as the only relevant force ‘opposing’ the right-wing. Moreover, this electoral system would impose a ‘binomial political culture’. See Atria (2018, p. 140).
Aldunate (2009, p. 456) has drawn attention to cases where ‘under the pretext of applying the constitution, [the Constitutional Court] incorporates normative elements that are completely absent in it’. Elsewhere, Aldunate (2001, pp. 25–27) pointed to the interaction between scholarly literature and the Court’s case-law as the source of many unsound assumptions attributing alien elements to the constitutional document; e.g. the idea of a ‘public economic order’.
For a comprehensive analysis of the ‘rationalisation’ by way of ‘technification’ during the Pinochet regime, see Silva (2008).
The more so since, even if an administration managed to overcome the cheats, the weakening of alternative discourses to neoliberalism and its capacity to ‘seduce and attract or, in a more passive way, to present itself as the only possible horizon of those who previously affirmed other ideological perspectives but have opted for realism’ have foreclosed alternatives to the model. Moulian (1997, p. 54).
Likewise, the importance of the preventive review carried out with regards to international conventions—as of 2005, including the mandatory review of conventions regulating OCS-matters—must be noted in the context of an ever-growing internationalization of the legal order.
For a demonstration of the Court’s recent performance, see Aróstica et al. (2019), the first of whom held the position of President of the Court until very recently.
Atria (2013, p. 55) could already foresee that the binomial system was about to be replaced: it was an ‘already burnt cheat’ and the right-wing strategy had consistently been to ‘offer a cheat already burnt in order to save those that are alive’. He would later (2018, p. 140) argue that a ‘binomial political culture (…) that will survive the binomial system itself by far’ had been successfully established after so many years under its rule.
To date, the implementation of the new electoral system has not been completed, as the Senate is still partially made up by parliamentarians elected under the binomial system.
The first published commentaries on the 1980 Constitution also played a decisive role in the development of this standard constitutional acquis. Written mostly by supporters of Pinochet’s legacy, they based much of their reasoning on the proceedings of the Ortúzar Commission; see Aldunate (2001). Bassa (2018, pp. 31–32) has specified a number of works that indeed contributed to present the 1980 arrangement as ‘an ahistorical constitutional norm’ resulting from ‘the maxims of constitutional reason’; in which the Faculty of Law of Pontificia Universidad Católica de Chile proved to be crucial once again. All this against the backdrop of a fuzzy hermeneutical approach to the constitution that has not precisely done much for the advancement of a democratizing interpretation. See Aldunate (2010).
It might also be possible to ‘reset’ scholarly approaches, replacing the current (ideological) standard acquis referred to in footnote 37.
These excluded matters say much about how political elites have ‘echoed’ the popular clamour. Feminists have been a leading force within the movement (their mobilizing ability most visibly displayed through the famous intervention ‘A Rapist in your Path’). The historical claim of Indigenous Peoples has also been central to the movement (a key consciousness-raising factor having been the scandalous murder of young Mapuche Camilo Catrillanca by the Chilean Police in 2018). Moreover, the social movement is being led by local organizations, citizen councils, unions, resident associations, and other groups outside the political-party system; but failing to improve independent candidacies’ stance regarding the October 2020 election will end up largely excluding them from the process. [Update: On 4 March 2020, a constitutional amendment ensuring gender parity in the Convention was passed by Congress.].
As is well known, the distinction between constitution and constitutional laws is commonplace in Schmitt (2008, pp. 67–74).
For Atria, understanding legal concepts politically is to understand them ‘backwards’. For an explanation of this quite Schmittian-approach, see Atria (2013, pp. 16–29).
Böckenförde (2017a, p. 173), who is credited with democratizing many of Schmitt’s authoritarian theories, argues that ‘conceptually, the constituent power is the constituent power of the people’.
Cf. the positive concept of constitution in Schmitt (2008, pp. 75–82).
Consequently, the author suggests that a ‘new constitution’—or better said: a proper one—can only be achieved if the cheats are removed. However, he does not only refer to the current cheats that work in favour of the right-wing but argues that a new—proper—constitution would have to be free of any cheats, even those that might work in favour of the left (Atria 2013, p. 90). Thus, on the one hand, Atria argues that the democratic shortfall of the current arrangement has less to do with its dictatorial origin than with the way it blocks the people’s agency (p. 64); and on the other hand, he offers a standard for assessing any—complete or partial—constitutional amendment in the future: if the result comes with any of the cheats, the novelty would be nothing but an illusion.
For Schmitt (2008, p. 89), a concept of constitution is ideal when ‘constitution’ is understood ‘in an exemplary sense (…) because of a certain content’. He explains that ‘a consequence of the manner of speaking typical of political conflict is that every struggling party recognizes as a true constitution only the constitution corresponding to their political demands’.
When considering the consequences of globalization, as well as the political phenomena referred to as individualization and Europeanization, Böckenförde (2017b, pp. 327–328) reflects on the chances of statehood (a democratic statehood, desirably) to endure ‘under the sign of’ those three specific circumstances, which may well become the spirits summoned by the sorcerer’s apprentice that eventually escape his control and end up ruling over him.
According to Schiera (2013, pp. 41–42), ‘The real problem is identifying the subjects that participate in the establishment of this new governance in process of globalization: individuals, private institutions, companies, states or other public institutions? … It does not seem easy to me to find them without a new imagination that probably needs to go beyond the perspective of public law and even of law tout-court or, better said, beyond the legal science developed over the last two centuries or so’. All this in order to properly grasp ‘the innumerable facets of the deus ex machina of our “contemporary post-modern” world, that is still referred to with the old term market’. See also Capella (2008, pp. 304–315).
As noted by Moulian (1997, p. 105), consumerism’s double face should be considered: it is a mechanism of domestication; but it is also connected to pleasure. Thus, ‘a flexible market is combined with extremely limited powers of the trade union locked up in the company, and a credit expansion, which operates as the most efficient way to approach the dream of comfort. Credit, much more than the union, appears as the instrument of progress. The individual strategy of financial purity is considered much more profitable than the associative strategy’.
In this sense, Moulian (1997, p. 78) seems almost prophetic: ‘Even if global historicity appears frozen, underneath lies a dark and slow work of reconstruction of the social fabric, of constitution of subjects. It can even be said that the weight of the current historical fog indicates the need to seek a space of molecular re-historization at the local level’.
Lassalle (1942, p. 31) puts it this way: ‘Wherever the written constitution corresponds to the actually existing relation of forces, it will not occur to any party to take as its special battle-cry, ‘clinging’ to it. When such a cry is heard, it is a certain and incontrovertible sign that it is a cry of terror; in other words, it is proof that there is something in the written constitution which contradicts the real constitution, the existing relation of forces. And wherever such a contradiction exists, the written constitution is inevitably doomed—neither God nor shrieks can help!’.
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Acknowledgements
Both authors' research is being funded by state grants under the following scheme: CONICYT-PCHA/Doctorado Nacional/2015-21151564 and 2015-21151085. We are grateful to the Legal Theory Group at the University of Glasgow for their invitation to take part in their academic community as visiting scholars, as most of this paper was written during our time there. Furthermore, this paper would not have been possible without the help and encouragement of Emilios Christodoulidis. We are also grateful for the comments of Sebastián Chandía, Rocío Parra, Simone Franca and Andrea Villalobos.
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Ansaldi, O., Pardo-Vergara, M. What Constitution? On Chile’s Constitutional Awakening. Law Critique 31, 7–39 (2020). https://doi.org/10.1007/s10978-020-09260-0
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DOI: https://doi.org/10.1007/s10978-020-09260-0