Constitutional Change without a Constitutional Text: The Chilean Transition to Democracy

Like Brazil, Chile also endured years of military dictatorship and its transition to democracy was characterised by strategies to control it until the very end. Yet, unlike Brazil, Chile is a paramount example of a country whose transition to democracy did not correspond to drafting a new constitution.

This committee, which was appointed in the immediate aftermath of the coup^[697] and gained momentum in 1977,^[698] would be responsible for designing a constitu­tional system which would be sustained even after Chile's transition to democracy. A constitutional text strategically drafted during a dictatorship that would lay the groundwork for a controlled democracy is in some ways profoundly paradoxical, but Chile reveals how founding moments, such as its transition to democracy in 1989, are also very much still the ‘past'.

Many authoritarian legacies would be inscribed in its text, with disruptive effects on the new democracy, such as an exclusionary electoral system through proportional representation, in which minorities would have little say, life-tenured senators, the judicial system, a National Security Council responsible for over­seeing matters of national security and a very rigid mechanism of constitutional change, especially for those provisions that would affect some entrenched interests. Following a common path of Latin American constitutions,^[699] the 1980 Constitu­tion would also concentrate excessive powers on the President,^[700] bestow many privileges on the military and its role of overseeing the state,^[701] undermine much of the role of Parliament and the possibility of reaching majorities,^[702] and limit mechanisms of civilian participation as a way to ‘prevent the reemergence of the dynamics of polarization and instability of the early 1970s'^[703] and also safeguard the positive economic legacy of the authoritarian period.^[704] Rather than a frag­mented and divided society and party system^[705] that could lead to the emergence of populist leaders, the constitutional framework would transform any reform into compromised and moderate solutions, and thus foster what scholars call a ‘protected democracy’,^[706] as did Guzman,^[707] or ‘defensive constitutionalism’.^[708] The constitutional architecture was thereby designed to prevent the reach of quali­fied majorities that could unleash its potential to change the core structure of the constitution, even after the return of democracy.^[709]

Still, beneath all this strategic design, General Augusto Pinochet, as the Presi­dent and Commander-in-Chief during most of the authoritarian years, played a significant role, as his steps were aimed at concentrating more power and curb­ing any opposition to his actions.^[710] When Pinochet was convinced that a new constitution and a transition to democracy was necessary, even though this would be a controlled, ‘protected, and even ‘authoritarian’ one,^[711] many of his ideas prevailed.^[712] Some of them were negotiated in less extreme ways,^[713] but he could, after a series of comings and goings, establish 29 temporary constitutional provi­sions, many with clear authoritarian content,^[714] which suspended the application of many permanent provisions.^[715] Among them, the thirteenth transitory provi­sion provided that the ‘presidential term which will commence to govern from the entry into force of this Constitution will last [for] the time which Article 25 estab­lishes’, while the following one explicitly indicated that ‘during the term indicated in the preceding provision, the current President, General of the Army, Augusto Pinochet Ugarte, will continue as President of the Republic, [and] will remain in the position until the end of said term’.

Because of his popularity, Pinochet really believed that he could win this plebiscite.^[717] In fact, the 1980 Constitution, with its permanent and transitory provisions, was itself the subject of a plebiscite on 11 September 1980, thereby indicating that Pinochet had some popular support and presumably provid­ing some legitimacy to its text, although the credibility of the results was highly contested.^[718] From this moment on, the 1980 Constitution became a strategic argument for Pinochet’s authoritarian actions. In a sort of paradoxical symbiosis, both authoritarianism and ‘protected’ democracy would be combined into the constitutional text. Pinochet was defeated in the national plebiscite on 5 October 1988 and, unlike the previous plebiscite the 1980, the Constitutional Court played a relevant role in overseeing the regularity of the electoral procedures and defending it against attempts by the government to apply the previous electoral framework and other tactics that would jeopardise the participation of the oppo­sition and other safeguards.^[719] A strong popular mobilisation took place and the ‘no’ campaign gained momentum, demonstrating that there would be no better opportunity to topple Pinochet’s authoritarian regime.

However, the process that would culminate in the transition to democracy was quite distinct from what happened in Brazil. Instead of the impetus for transforming the democratic transition into a constitutional transition, the 1980 Chilean Constitu­tion became a key element of an achieved consensus for the new democratic model, although it required some structural changes.^[720] Since the 1980 Constitution was an instrument of the military rule but already provided some democratic achieve­ments, the negotiation led to the conclusion that in order to prevent Pinochet from any attempt to regain power, there was no better alternative than maintaining it and bringing about some reforms.

However, according to the twenty-first transitory provision then in force, any amendment to the constitutional text needed to be made by the Govern­ment Junta, which exerted legislative and constituent powers, and be approved by a plebiscite.^[721] Such a procedure would nonetheless possibly strengthen even further the opposition and maybe encourage a constitutional replacement, which was unacceptable to the right-wing parties and the military.^[722] On the other hand, the very procedure for constitutional amendment, when combined with the electoral rules, provided an excessively rigid framework^[723] and gave substantial powers to the President,^[724] which made negotiations during the transition period more complex. While the left-wing parties were growing in strength but needed to control their more radical impulses, the right-wing parties needed to participate in some changes or they would be accused of still being at Pinochet’s behest.

As a ‘protected democracy, the constitutional designers made every effort to avoid changes in such circumstances, and their framework proved to be very successful. Yet, there was no formal obstacle to change the very system of constitutional amendment, which could lead to a revamp of the Constitution by circumventing the original rules. This scenario of multiple possibilities over the constitutional text prompted a series of negotiations and bargains in which both the left-wing and right-wing parties - above all, Concertacion and Renovacion Nacional - attempted to find solutions that would not lead to an uncontrolled reform procedure, but could bring some democratic elements into the constitu­tional text, such as a four-year term for presidents and a substantial overhaul of Chapter XIV, which addresses the rules for constitutional amendment.^[725] However, the military still received a good amount of benefits and retained much of their tutelary role^[726] of the state, some senators could still be appointed by the President, and the electoral system, although slightly changed, remained largely exclusionary.

The new government of Patricio Aylwin was initiated in this environment where the military, still under Pinochet’s command, exerted a strong influence on national affairs, while Parliament was regulated by electoral rules that were strong enough to hinder the achievement of majorities for change. In other words, while ‘Augusto Pinochet simply packed his desk at La Moneda (the presidential palace) and moved across Santiago’s main street to the Ministry of Defense’,^[728] the government could not promote more structural reforms because of its incapacity, according to the electoral rules, to achieve a qualified majority in Congress. In a more structural view, the transition to democracy was so linked to the purpose of assuring a peaceful future, perpetuating the rules of the game already crafted, and maintaining the same economic model^[729] that a new democratic model needed much greater involvement of the citizenship to effectively overcome the authori­tarian enclaves^[730] of the Pinochet era.

Yet, Chile has endured this reality with relative stability^[731] and has raised inter­esting discussions on how to re-signify that ‘past’, progressively reforming some norms of that authoritarian period. Moreover, some provisions drafted during Pinochet’s regime, despite their original authoritarian intent, proved to be a major factor in Chile’s stability, especially in terms of how the political coalitions are formed.^[732] Informal institutions^[733] have also exerted a relevant role in relation to how the political system manages its differences,^[734] transforming the cumber­some institutional framework into an example of success in Latin America despite its strong presidentialism and multiparty system.^[735] As Siavelis points out, ‘these institutions, in turn, have facilitated the functioning of other formal and infor­mal institutions, underwritten the stability of Chile’s coalitional configuration, mitigated the most negative characteristics of exaggerated presidentialism, and contributed to the success of Chilean democracy’.^[736]

Based on these practices sustained both by formal and informal institu­tions, the following governments have pushed some progressive agendas aimed at further democratising the institutions and practices, although some more struc­tural changes could not take place, either because of political compromises^[737] or obstructions created by the right-wing parties.^[738] By the same token, the judiciary has progressively evaluated that past with less complacent eyes.

Chile, like Brazil, faces this ongoing struggle between the ‘past' and the aim to consolidate itself as a new future. This ‘protected democracy' or ‘defensive constitutionalism', although bringing about stability both by formal and infor­mal institutions, still represents a stain upon a history that seems somehow incomplete.^[742] True, a ‘transformational authoritarian constitution'^[743] like the Chilean Constitution does not necessarily mean that democracy under such a document is doomed to fail - indeed, as Tom Ginsburg mentions, 56 per cent of all current constitutions were drafted under dictatorial regimes,^[744] and Chile, as we have seen, is regarded as one of the most successful cases of democratisation in Latin America^[745] - but, at least symbolically, there is a call for change. As Alberto Coddou Mc Manus puts it, ‘it seems that Chileans have to discuss, design and implement every policy under the shadow of Pinochet's constitution'.^[746]

These words show the symbolic power of those authoritarian vestiges and how they affect the very perception of the role of constitutionalism, still marked by an undemocratic founding moment. Even if relative progress has come about from some aspects of this awkward constitutional design that created a hyper-presidential system with few checks and a weak Parliament, the act of founding - and when and how it is founded - transcends the idea that a simple learning democratic process could over time legitimise a constitution. The connection of the concept of the found­ing moment with that of citizenship, a feature that has gained strength in Chile^[747] (like what happened in Brazil during the Constituent Assembly of 1987/1988), is at the root of also transforming Chiles democratic transition into a constitutional transition.

However, the remaining question is how strong the ability of the citizenship is to craft a constitution in times of relative normality,^[748] even if Pinochet’s ghost might paradoxically be one of the reasons for such an outcome. It is a normality that still reproduces the ‘past’ and uses many tools of this ‘past’, but it is at the same time ashamed of this ‘past’. It is also one that, while strongly believing in its insti­tutional arrangements, still places the citizenship in an inferior position, thereby forgetting its own people.^[749]

In this regard, the constitutional moment which, during Michelle Bachelet’s pres­idency, seemed to lead to a constitutional replacement was visibly aimed at placing the citizenship at the forefront through distinct mechanisms of popular participation.^[750] However, this ‘past’ is still very much entrenched in Chilean constitutionalism and it is no wonder that it would adopt all possible tactics to unsettle a more partici­patory constitution-making process that would affect some of its privileges and benefits. Sergio Verdugo and Jorge Contesse were, in this regard, very precise when they called this process ‘the rise and fall of a constitution moment, ^[751] arguing that a more pragmatic approach to constitution-making is needed to emerge from that shadow. As they said, ‘so far, political consensus without public participation had been the norm for constitutional change in Chile. Bachelet aimed to change it, but the pendulum swung too far. The challenge for successful constitution-making while keeping the legitimating elements of public participation remains’^[752] Chile is indeed a paradox: it has become one of the most democratic countries in the region based on a constitution that fears more democracy. It is a shadow that may have worked quite well so far, but the legitimacy gap is increasingly challenging the ghost that has stubbornly managed to control Chile’s future.

IV.