Chileans Finally Have a Chance to Scrap Pinochet’s Constitution

Fernando Atria

A year after mass protests erupted in Chile last October, a historic referendum on the Pinochet dictatorship’s 1980 constitution will take place on Sunday. Three decades after the transition to democracy, Chileans now have an opportunity to break with the legacy of violence and dispossession that the constitution has upheld.

A woman in Santiago wears a mask that reads "Apruebo" indicating her support for the drafting of a new constitution. (Marcelo Hernandez / Getty Images)

Interview by
Miriam Pensack

In a year now notorious for the dismal pandemic that has gripped the globe, as well as the far-right authoritarianism that has blossomed in its midst, a remarkable opportunity is facing Chile. Some three decades after the right-wing dictator Augusto Pinochet left power by way of a national plebiscite, more than a million Chileans took to the streets on October 18 of last year to demonstrate the stark neoliberal policies that his government wove into the very foundations of Chilean society.

Despite the transition to civilian rule that took place in 1990, the country’s 1980 constitution — forged during the height of Pinochet’s violent dictatorship — remained in place. That constitution has helped maintain much of the privatization and power the Chilean right wielded during the seventeen-year dictatorship. Consequently, despite Chile’s reputation as a thriving democracy and economic success story in the region, it ranks among Latin America’s highest rates of inequality.

At the height of last year’s protests, now referred to as el estallido — the explosion — the country’s billionaire president, Sebastián Piñera, declared a state of emergency, claiming the country was “at war” with an internal enemy. Chile’s Carabineros, the nation’s armed police force infamous for its participation in the torture and disappearance of thousands of Chileans during Pinochet’s rule, took to the streets, embracing violent repression and human rights abuses that alarmed the world and harkened back to a political climate many Chileans thought the country would never see again.

But the collective action of so many Chileans bore fruit: a national referendum to draft a new constitution was decided upon, and with it, the nation now faces a chance to break with a legacy of violence and dispossession that its constitution upheld. The referendum, originally slated for April of this year, was of course delayed due to the previously unimaginable COVID-19 pandemic and is now set to take place on October 25.

To capture what is at stake in this moment of rather extraordinary historical possibility, I spoke to Fernando Atria, a constitutional scholar who teaches at the Universidad de Chile. Atria has been advocating for a new constitution since the late aughts and was a member of the commission established during former president Michelle Bachelet’s presidential campaign to devise a constituent proposal.

Without the movement that flooded Chile’s streets last year, he told me, a constituent process like the one Chile now faces would have been unthinkable. Now, Chileans are preparing to vote for or against  — Apruebo or Rechazo — the drafting of a new constitution, and with it, may do away with Pinochet’s charter for good.

Miriam Pensack

How has the tone of institutional and popular politics changed since October 18 of last year?

Fernando Atria

With el estallido, we saw the tone of public discourse change almost 180 degrees. When the current right-wing coalition came to power, it interpreted its unusually clear win — Piñera received an unexpectedly high vote — as a popular rejection of his predecessor Michelle Bachelet’s reformist program. It operated on the presumption that Chile need not reform, but rather reinforce the basic neoliberal tenets that the Bachelet administration had called into question.

Piñera and his administration believed they had a clear popular mandate to double down on the neoliberal model, which they did through tax reform, education reform, labor law reform, and so on. Of course, October 18 and its aftermath have shown that such a presumption was spectacularly mistaken.

At the popular level, institutional power is suffering a crisis of enormous proportions. The majority of Chileans radically reject all political parties. This crisis of legitimation is rooted in failed attempts at significant transformation over the last two decades, which led people to consider their democratic participation irrelevant. The trajectory of the Bachelet administration reinforced this: Bachelet was elected with a clear mandate to deliver transformations and failed to do so.

That disillusionment led some pundits to argue that in Chile, neoliberalism has entered the very subjectivity of Chileans — that we are now all to some extent neoliberals, that we are a depoliticized nation. But October 18 proved that wrong as well. People have realized that collective action is not irrelevant. And regardless of the result of the referendum, which I believe will pass, Chile has already changed as a direct consequence of collective action.

Such an experience was not part of life for younger Chileans. I was the youngest of those who voted in 1988 for the Pinochet referendum. For all those who came after me, the notion that through collective action Chile might be made different was an idea, but not a reality, not a lived experience. Those involved in this movement are living through just such a moment, and it will shape Chile’s future.

This movement shows that apathy is not a consequence of neoliberalism. It is not a consequence of people internalizing neoliberalism, as some have said is the case in Chile. Apathy is a consequence of hopelessness. The institution enshrined in the constitution made the idea of achieving change seem pointless. This movement shows that, through collective action, there is a point.

Moreover, the posturing of the Chilean right wing suggests they believe that the Apruebo is going to win and the process of replacing the constitution will begin. At present, they are strategizing to contain the negative impact a clear Apruebo win would have for them. Among the clearest examples of this is Pablo Longueira, a leading figure from the Unión Demócrata Independiente (UDI), the most pro-Pincohet party in Chile. He has now said he plans to vote Apruebo.

To me, this is because he hopes to liquidate the referendum, to make it politically irrelevant. The idea is that if the right-wing parties vote Apruebo on the night of October 25, the Right will then have grounds to celebrate. What’s crucial here is that no one expects the Rechazo to win. I would say that the possibility of the Apruebo winning is much bigger than it was in April, and that is a consequence of the pandemic’s exacerbation of the hardships so many Chileans were already facing.

Miriam Pensack

To what extent is the Piñera government’s response to el estallido part of a longer narrative of repression, state violence, and human rights abuses in Chile?

Fernando Atria

In the immediate aftermath of October 18, we saw things we thought we would never see again in Chile, particularly in terms of human rights abuses. This is, to me, a consequence of the government’s total disorientation vis-à-vis popular discontent. During el estallido, the government used what it had, that which is most in its nature, and its nature is to repress the people when they take to the streets.

Piñera’s state of emergency and declaration of war against the populace has caused damage for the Carabineros that will be hard to repair in the future. And the human rights abuses that have occurred will absolutely be a legacy of this government. For those of us who lived through the democratic transition, we held this belief of nunca mas, never again. And we’ve lived thirty years believing that we made serious advances in the name of nunca mas. We thought repression like this was not going to happen again in Chile, and we were wrong in that regard.

Of course, the mass protests and the repression we saw this time last year has been dramatically altered due to the pandemic. People left the streets, so the popular process that was present from last October until February effectively disappeared. In that sense, the pandemic was a solution for the government, a remarkably effective mitigating factor against demonstrations.

Miriam Pensack

Has the large-scale unrest found organization or leadership since the massive protests in October? And how do Chilean political parties factor into the protest movement?

Fernando Atria

Political parties have been totally unable to connect to the movement that began last October, because that movement rejects current institutional politics in the most radical way. What we have is a social movement with no political articulation. No one person or organization is entitled to speak for the movement.

Of course, one need not wield forms of political articulation to protest, to go in the street and demonstrate, to say no. But you do need political articulation when you want to move beyond the moment in which you say no. You want to move to the moment in which we say, “This is the kind of constitution we want.” That is the challenge this movement is facing now, and that’s what the referendum is fundamentally about: offering political articulation to the discontent so many Chileans feel.

Miriam Pensack

What are the terms or goals of the April referendum, and how do you see the pandemic affecting the voting process?

Fernando Atria

The referendum is going to ask two questions. One is, “Do you want a new constitution?” And the answer to that is either “Approve” or “Reject.” It should have been “Yes” or “No,” but I suppose they didn’t want to use the same language as the referendum to end Pinochet’s rule; the very gesture of voting “Yes” or “No” has a historically charged connotation rooted in the dictatorship.

The second question will ask what type of body should convene to decide the new constitution, either a “mixed constitutional convention” or simply a “constitutional convention.” The “mixed constitutional convention” is 50 percent composed of members appointed by parliament, and 50 percent of citizens elected to that effect. And the constitutional convention is 100 percent composed of members elected in a general election to that effect.

Regarding the pandemic, the government is at present trying to push the idea that the worst has already happened and that things are slowly returning to normal. That diminishes the impact on voter turnout, one imagines. And in Chile, there is no absentee vote, one must go to the poles in person. Of course, if there is another uptick in cases, that could have a negative impact on voter turnout.

Voter turnout will be a critical fact for the referendum and could negatively affect the process — but I don’t think that will happen. To the contrary, I think we’re seeing an eagerness to participate, all the more thanks to the government’s response to the pandemic. Unsurprisingly, that response has acted to protect big businesses even at the price of aggravating labor and unemployment. From the point of view of the neoliberal critique that first produced the movement on October 18, the pandemic has only further fueled its logic.

Miriam Pensack

In the event that a new constitution is drafted, what are some of the desired political and social reforms this potential constitution might enshrine?

Fernando Atria

The most significant demands are linked to what we could generally call social rights: education, health care, and social security. Women’s equality and indigenous rights have also been hugely important in recent years. At present, we have neoliberalism and privatization built into each of these aspects of Chilean governance by virtue of the settlement imposed by Pinochet.

Miriam Pensack

How has the 1980 constitution enabled the continuation of Pinochet-era governance? And how has it also promoted ongoing neoliberalism as an economic system?

Fernando Atria

Constitutions outline fundamental decisions about who gets to have, keep, and lose political power. They determine the forms political power takes, how it can be used, and to what limits. The 1980 constitution was a solution to a problem the dictatorship faced.

The problem was this: because the Junta possessed such exceptional power, it was able to do things that are unthinkable in less extreme political circumstances. It operated under the presumption that it could change the pension system from one week to the next; abrogate all labor legislation and pass new labor legislation; reorganize the entire education and health care systems; or establish new rules for mining and water. Such is the nature of absolute power, which they used to implement a neoliberal scheme. But the dictatorship also sought to ensure the survival of these neoliberal institutions once it lost power, and the 1980 constitution was a solution to that.

The constitution was not really crafted for Pinochet’s tenure, but rather was intended for a future transition to democracy; the constitution was for the democracy that was to come. The idea was to establish fundamental configurations of political power that would limit democratic politics after the transition to ensure that the government was unable to make major changes. Chile has changed significantly in the last thirty years, but if you look for cases in which politics have been able to identify a significant problem that required a transformational effective solution, you would find one or two at most. Chilean politics is a politics that is unable to act with efficacy in producing political change.

That is how Pinochet’s constitution protected the neoliberal model — by neutralizing politics. In the beginning, this neutralization was pretty obvious. Until the mid-1990s, the National Security Council, Supreme Court, and other key institutions consisted of jurists Pinochet had appointed himself. To give you another example, the Concertación — the center-left coalition that was in opposition to Pinochet — won all elections at all levels between 1989 and 2005. In those fifteen years, they never had a majority in both chambers of Congress because a third of the Senate’s membership was not elected, but rather appointed by predecessors who were loyal to Pinochet.

All of the political bodies who appointed these senators during the democratic transition were of course filled by Pinochet’s people. When the first term of the appointed senators ended in 1997 and new appointed senators were selected for a subsequent eight-year term, some of the allegiances within the appointing bodies had changed, and the political affiliations amongst the appointed senators were somewhat more heterogenous.

Even so, there was still a right-wing majority among the appointed senators. The appointment of senators carried out during those fifteen years meant that even though the Concertación had won all elections, they couldn’t pass any piece of legislation without seeking and obtaining the agreement of right-wing parties. This appointment mechanism was eliminated in 2005, but it was one of the most obvious ways the Pinochet constitution protected the neoliberal model.

Since 2005, this appointment process has disappeared, but its very existence exemplifies how the constitution was used to protect Pinochet-era governance. And this in turn created an impact, which was to render politics irrelevant. It didn’t matter who won elections during the nineties and up until 2005 because even if the center-left parties won, they couldn’t do anything.

Miriam Pensack

Chile has a peculiar and somewhat circuitous democratic system — could you explain how it functions, and why some argue that Chile is not a true democracy?

Fernando Atria

The constitutional commission that drafted the original version of the constitution between 1973 and 1979 of course had no real commitment to democracy; it was comprised of jurists Pinochet appointed himself. The mastermind behind the constitution, Jaime Guzmán, saw that the constitution needed to give political power some democratic form — so the president is elected by universal suffrage, there is a parliament and members of the lower chamber, all of whom are elected, and so on.

Nevertheless, the document was drafted with the intention of preventing meaningful systemic change. Guzmán’s solution was to give power a democratic form, but with no democratic content. That is to say, the constitution prohibits democratically elected officials from carrying out any democratic mandate.

I’m not suggesting that nothing important happened when the dictatorship ended and democracy began. Checks on power ensured a new respect for rule of law and an embrace of human rights. The problem is, when a foreigner came and saw what was happening in Chile, he saw an elected president; he saw an elected Congress, albeit with a third of senators who were appointed; he saw an independent judiciary and general freedom of the press. But if you looked more carefully, you could see that the possibility of democratic politics was seriously curtailed by the constitution.

Miriam Pensack

Given the shortcomings of electoral politics in Chile, as well as the economic hardships facing much of the population, how did Chile come to garner its international reputation as a bastion of economic stability and a democratic success story following the end of the dictatorship?

Fernando Atria

This is the narrative that neoliberal institutions hold so dear. It was crucial to international neoliberal institutions to show Chile as a success story. The country had an impressive economic performance during the 1990s, but that ended with the Asian crisis at the end of the twentieth century.

After that, Chile’s success was due, fundamentally, to the hyper-cycle of commodities. The price of copper went through the roof, and that meant that Chile became a more affluent country not because of the performance of its neoliberalized economy, but because the price of natural resources that were integral to Chile’s production underwent an extraordinary rise in price.

Copper makes up a significant percentage of Chile’s exports, so when the price of copper exploded, it meant that Chile became significantly wealthier. But that wealth was not a consequence of the way that Chile’s economy developed domestically; it was a result of external forces.

The end of Chile’s economic performance in the 1990s was essentially erased from the narrative of the country’s success story. As the economic boom ended, the consequences of neutralized politics were becoming increasingly palpable by the greater population. This, in turn, led to student movements in 2006 and 2011, to a women’s movement in 2017–18, and to the current explosion.

Miriam Pensack

Was the democratic transition in 1990 a missed opportunity? What could have gone differently?

Fernando Atria

Of course now we say that we should have pushed for a new constitution in the early 1990s. Then again, at that moment in time, we were afraid of sliding back into dictatorship, and democracy was still extremely weak at that point. It was a highly unusual situation, to say the least — a transition to democracy that is done under the prior dictatorship’s constitution. Inevitably there are consequences to that.

Was it possible to do otherwise? This is a counterfactual, but that likely would have required a higher intensity of conflict at the time of the transition, conflict against an army that was monolithically behind Pinochet. I can see the point of those who say we had no other choice. To my mind, the possibility of a regression to dictatorship was exaggerated. This is of course neither here nor there, insofar as the transition unfolded in 1990 as it did.

But the crisis that we are living through now follows from the decisions made in the 1990s, and those consequences were never addressed. They were denied and ignored. And consequently, we have been telling ourselves this story about Chilean democracy flowing from dictatorship. We’ve told ourselves this narrative in order to ignore the issues we inherited through our strange path to democracy. When such issues are not tackled, they don’t just go away. They explode, and indeed they have exploded.