“We’re going wrong”
Human rights and constitutionalism after 50 years of Chile’s coup d’État
by Jorge Contesse
Published on 22 December 2023
Chile has commemorated 50 years of the coup d’état that overthrew the Popular Unity government led by Salvador Allende, in a very different atmosphere from what would have been thought not so long ago. For those who defend the most elementary tenets of respect for democracy, constitutionalism, and human rights, it was difficult to conceive just a few years ago that fifty years after the tragic date, the consensus on these issues, which seemed settled, would be weaker than in the past. Chile faces a social and political crisis that erupted violently in the streets in October 2019. The country has since been trying to channel the crisis through the adoption of a new Constitution to replace the 1980 Constitution, imposed by the dictatorship of Augusto Pinochet. But things are far from what was thought to be the way to finally bury the institutional and political legacy of the dictatorship. Although the valuation of democracy remains high, justification for authoritarianism is also on the rise. In this social and political context, those elected to draft the latest constitutional proposal —a proposal that Chileans ultimately rejected— were mainly adherents of a political project that vindicates the figure of Augusto Pinochet. We are going wrong.
After the coup d’état of September 1973, the military dictatorship set itself the goal of reforming the law through the adoption of a new Constitution. The Chilean Constitution of 1980, ratified in a fraudulent plebiscite, laid the foundations for a markedly neoliberal model which, as then British Prime Minister Margaret Thatcher recognized at the time, could only be implemented within the framework of an authoritarian regime, such as the Pinochet dictatorship. Such an experiment would not be possible under the rules of democratic deliberation, and this is precisely what we experience forty years later: Chile continues to largely live under rules imposed without democratic deliberation. Worryingly, the opportunity to deliberate about changing those rules has failed not once, but twice. In September 2022, electors rejected a left-leaning, progressive constitutional proposal; in December 2023, the same electorate rejected a new, right-leaning, conservative proposal drafted. Chile became the first country in the world to reject two consecutive constitutional proposals.
In the area of human rights, which is the focus of this commentary, in response to the massive and systematic violation of human rights during the years of General Pinochet, human rights law became of paramount importance. Within the framework of a package of constitutional reforms approved in 1989, political leaders agreed to enhance the constitutional protection of human rights in an attempt to send a signal of commitment to human rights. Despite this constitutional change, the development of human rights law jurisprudence was at least timid. In Latin America, international human rights law is largely part of states’ domestic law, as national constitutions internalize international law in ways that are not commonly seen in other jurisdictions. In Chile, however, courts did not systematically use international human rights law to justify domestic law decisions…
…. until the rrest of General Pinochet in London.
In October 1998, in compliance with an international arrest warrant issued by a Spanish judge, Scotland Yard officers arrested the former Chilean dictator, who was in London to undergo a medical operation. The arrest generated an immense commotion in Chile and around the world, heralding nothing less than the adoption of a new doctrine of international law, known as ‘universal jurisdiction’, whereby no place could serve as a refuge for perpetrators of serious and massive human rights violations.
Pinochet was held for long months in the United Kingdom and was finally released on humanitarian grounds. It was said that he was not physically fit to stand trial. On arrival in Chile, however, he defied everyone, rising from his wheelchair and showing himself fully capable of holding his own, embarrassing the UK government and slapping down Chilean victims who, once again, saw the dictator get away with it.
Although Pinochet was not tried, the courts in Chile began to open up to the use of international human rights law to address domestic issues. It was difficult, but some, very little, progress was made.
In the political field, in 2005 came a second major constitutional reform. In the words of then president Ricardo Lagos —the first socialist to hold office since Salvador Allende— the reform gave rise to a truly new Constitution, leaving behind the authoritarian enclaves of the military 1980 Constitution. But the following year, under the first government of the also socialist Michelle Bachelet, social protests by high school students erupted. The idea that the ‘new’ 2005 Constitution might not be as new as expected began to take shape. The protests became even more intense in 2011 under the first government of the right-wing billionaire Sebastián Piñera, and in 2013 Bachelet returned to La Moneda with a clear promise: to adopt a new Constitution. President Bachelet did her best to carry out that promise, setting up a highly participatory procedure, but ultimately failed, paving the way for Piñera’s return in a succession of governments unprecedented in Chilean constitutional history.
Piñera returned and the desire for a new Constitution was buried. A few days after taking office, his closest minister—and cousin—announced before a summit of businessmen that Bachelet’s project for a new Constitution was not in the government’s plans.
Until October 2019, when the country exploded.
Massive protests, violence in the streets and the feeling of social discontent that had been accumulating for years, if not decades, manifested themselves as never before. The revolt generated a social and political crisis that triggered a constituent process that would seek to totally replace the Pinochet Constitution with one adopted by a constituent assembly. The demands for better pensions, better health, better education, that is, for the recognition of social rights, seemed to finally take shape in the face of a process where the citizens would be the protagonists, and not the political elites that had administered Chile’s neoliberal model, leading the country to an unprecedented crisis.
A Constitutional Convention was formed in July 2022 and just over a year later, after a tumultuous deliberative process, citizens widely rejected the proposal for a new Constitution. This was the first time in a decade that voting was mandatory, which drove many ‘new voters’, usually uninterested in politics, to vote. The proposal, described by many as ‘the most progressive Constitution in the world’, advanced in many matters more than—it is said—the people were willing, even leading President Boric to state that ‘being ahead of your time is a way of being wrong’. The rejection was widely capitalized by the extreme right, which effectively presented itself as an alternative to the institutional and political disorder that was being experienced in the country. In May 2023, Chileans again elected delegates to draft a new Constitution, following the appointment by Congress of a committee of experts. In the May 2023 election, the extreme right won the majority and the constituent process was left in the hands of those who had always opposed the adoption of a new constitution, as they were declared supporters of the dictatorship’s constitutional project.
In this context, Chile commemorated the fiftieth anniversary of the coup: with right–wing intellectuals revisiting the figure of Salvador Allende as had never happened before and a left unable to articulate a coherent response to the conservative wave that has materialized in the rejection of the 2022 constitutional proposal and the delegate elections of May 2023. Moreover, the atmosphere in which the coup’s fiftieth anniversary was commemorated showed a Chilean society not only divided, but also an elite with a marked distance to what seemed to be minimum ethical consensuses on the value of democracy and respect for human rights. To give a few examples: an ultra-right deputy questioned a communist deputy for wearing a photo on her lapel of her husband who was executed by the dictatorship; another ultra-right deputy referred to sexual violence during the dictatorship as an ‘urban legend’, despite official documents and judicial sentences that accredit it; another deputy openly pointed out justifying the coup; in an act that many described as a ‘provocation’, right-wing deputies reread the Declaration of Chile’s Chamber of Deputies of 22 August 1973, which declared the illegitimacy of Salvador Allende’s government and which many take as a justifying antecedent of the coup of September 1973. Finally, it is worth recalling that the leader of the ultra-right Republican Party and presidential hopeful, published a photo of Pinochet on 11 September 1973, with the phrase “Chile chooses freedom”.
This atmosphere clashed with the progress that, with difficulties but persistently, Chile had been trying to make in recent years. When Allende addressed the United Nations’ General Assembly in 1972, and delivered a speech that received a standing ovation, he addressed many of the issues that are still relevant today, both domestically and internationally. Allende spoke of the challenges facing countries in the developing world, imperialism, geopolitical inequality, the principle of non-intervention, and the need to ensure a system of rule of law, both national and international, that makes possible the fulfilment of peoples and individuals. At a time when that system is threatened by the flagrant violation of international law and the impossibility of carrying out the promises that constitutional democracy makes to citizens around the globe, Allende’s impetus and commitment to ensure equal dignity and consideration becomes perhaps even more urgent. Otherwise, it is not clear where we are headed, especially considering the erosion of democracy and the return of authoritarianism. We have done something wrong to be where we are, and we are bound to renew our efforts to ensure the equal protection that the human rights project affords to all people before it’s too late.
Remembering to Reimagine: A Symposium on Salvador Allende, Unfulfilled Promise, and the Future of International Law will soon be available in Spanish at the Agenda Estado de Derecho blog.