Remembering History and Reaffirming Democracy: The Case of the Chilean Transition to Democracy

By Daniela Martinez

Daniela Martinez is a lawyer who graduated from Universidad de Chile. She holds a Master of Laws degree from Harvard University and is currently working toward a Master in Public Administration at the same university. She has worked in the Chilean government as an advisor to the Minister of Energy and at the environmental NGO Natural Resources Defense Council in Washington.

Abstract
This article advocates for the daily reaffirmation of democracy and protection of human rights in Latin America by politicians and civil society alike. Through the remembrance of the Chilean transition to democracy, the article highlights the tremendous costs that Chileans assumed to move Chile towards a consolidated democracy and the many years it has taken Chile to become one. In a year where Chileans have lost trust in politicians due to corruption scandals and where the world has watched human rights abuses in Venezuela, it is crucial to learn from our past and publicly reaffirm democracy and human rights every day.

We have said it before—and we repeat it today—the moral conscience of the nation requires truth about the disappearances of people, about the horrendous crimes and other grave human rights violations that occurred during the dictatorship.
Patricio Aylwin, 12 March 1990

The day someone touches one [of my men] the rule of law is over. I have said it once. I will not repeat it again. But they need to know it will be so.
Augusto Pinochet, 11 October 1989

It was 1987, and the opposition to Pinochet had a difficult decision to make. They had tried to get him out of power through different means: international pressure, peaceful protests, and some groups had tried violence—including a failed assassination attempt—but nothing had worked. And now, they were presented with a new option to get him out of power, but that option meant negotiating with him and making—to some—unthinkable compromises.

Seven years earlier, in 1980, the country was still under a dictatorship. Congress had been shut down, there was no independent judiciary, and repression was still high. During that year, Pinochet enacted a new constitution that was to become the economic and legal underpinning of his rule and of the transition. The Constitution considered a referendum for 1988 where the country would vote to keep Pinochet in power until 1997 or not. If the latter option prevailed, democratic elections would be conducted.

The opposition to Pinochet struggled to decide whether to participate in that referendum. Deciding not to meant that Pinochet would stay in power on his own terms, with no possibility of judging him and other members of the military and the secret police that had systematically tortured and killed thousands of Chileans. To participate, on the other hand, presented the opposition with a dilemma. If they trusted Pinochet to keep his word—and that was a big if—they had a chance of speaking out against Pinochet for the first time and peacefully ending the dictatorship. But a peaceful transition to democracy came at a high price. In order to participate in the referendum, the opposition had to agree to abide by Pinochet’s Constitution.

The Constitution was masterfully crafted to ensure that Pinochet would not be judged and that the right-wing parties that supported him would have enough power to prevent any relevant changes to the economic and legal model. First, the Constitution established that once Pinochet left power as President, he would become Commander in Chief of the Army and later senator for life, so he would have lifetime immunity from the courts. Second, the new electoral system, called the binominal system, was designed to create two coalitions where minorities—at that time the right-wing parties—were overrepresented. Third, the Constitution established that nine out of forty-six senators would not be democratically elected but designated. One of the designated senators would be Pinochet himself, as former Commander in Chief of the Army. Former Commanders in Chief of the Navy and the Air Force and former Directors of the Police would also have representation as designated senators.[1]

The electoral system plus the designation of senators meant that regardless of how successful the opposition was in the election, they would not have the votes in Congress to change the Constitution or any law. A particularly relevant one was the Amnesty Law established by Pinochet in 1978. This law granted amnesty for all the crimes committed from 11 September 1973—the day of the coup—to 10 March 1978, the worst period of the dictatorship’s repression.

The struggle within the opposition whether to take part in the referendum and accept Pinochet’s conditions was intense and took years.[2] Finally, the opposition parties decided to participate in the referendum and a new coalition was born—the Concertación.

The Beginning of the Compromises: The Referendum and Presidential Campaign

In October 1988, Pinochet was voted out of power with 54.7 percent of the votes. Although this was a safe majority, a not unimportant part of the population—43 percent of the votes—voted for Pinochet to stay in power.[3]

For the referendum, the Concertación carried out a campaign that focused on the future, on hope, and on freedom instead of highlighting the violation to human rights. The main slogan of the campaign was “Chile, happiness is coming.”

In the presidential campaign, however, the Concertación—through its candidate Patricio Aylwin—had a different narrative that highlighted two main ideas: one, the need for the recognition of human rights violations and justice and second, the maintenance of the existing economic and legal institutional framework.

Right from the beginning, Patricio Aylwin had to balance different views—within his own party and supportive citizens, as well as the views of right-wing parties, Pinochet himself, and the 43 percent of Chileans who had voted for Pinochet.

One situation exemplifies this balancing act. According to a longstanding tradition in Chilean politics, presidential candidates outline the measures they propose to carry out if they win. Under the heading “Truth and Justice,” Aylwin’s outline indicated that: “The democratic government will put forth its best efforts to establish the truth in the cases of violations of human rights . . . It will also procure the trial, according to the current criminal law, of human rights violations that represent horrendous crimes against life, freedom, and personal integrity.”[4]

Although the words and measures were insufficient for many, the right-wing parties as well as the military spoke out against them. Pinochet was very direct in his opposition: “The day someone touches one [of my men] the rule of law is over. I have said it once. I will not repeat it again. But they need to know it will be so.”[5]

 A Balancing Act: Patricio Aylwin’s Presidency

On 14 December 1989, Patricio Aylwin won the first democratic election in Chile since 1973 by 55.17 percent.[6] By virtue of the Constitution, Pinochet remained as Commander in Chief of the Army.

Congress was reopened. The Concertación won the majority in the Chamber of Deputies with 69 out of 120 members. It also won the majority among the elected senators with twenty-two senators as opposed to sixteen from the right-wing coalition.[7] Yet, because of the nine designated senators, it did not have the majority of the Senate, therefore it could not pass laws without compromising with the right-wing parties.

At the beginning of his presidency, Aylwin approached the right-wing parties to propose the creation of a nonpartisan commission that would investigate the human rights violations committed during Pinochet’s dictatorship, but he did not find support.[8]

Because of this, he decided to create a commission through an executive decree, for which he did not need the approval of Congress. He drafted a plan for the commission and approached people from the right to invite them to participate in it. No member of a right-wing party accepted, but some well-reputed conservatives did.[9] In April 1990, only a month after he took office, in a solemn and public act, Aylwin announced the creation of the “National Commission on Truth and Reconciliation,” also called the “Rettig Report” after its head Raúl Rettig.

The Commission was not welcomed by the right-wing parties, but it also created concern among human rights groups as its stated purpose was reconciliation and not justice. Human rights groups did not believe that a commission with such purpose could “develop an accurate historical record of conditions during the Pinochet period and fulfill the demands of truth and justice about human rights abuses.”[10] The Commission was also criticized because it had no power and a limited scope. Because the Commission was created through an executive decree and not through an act of Congress, it had no power to subpoena witnesses and compel their testimony or to prosecute any of the crimes.[11] Regarding the scope, the Commission was mandated to investigate only disappearances and deaths. It would not investigate all other forms of human rights abuses such as forced exile or torture.

After nine months of work, the Commission concluded that 2,279 people had been assassinated during the military dictatorship.[12] The report also recommended symbolic and monetary compensations for the families of the victims. This led two years later to the enactment by Congress of a law that granted compensation to the families of the victims acknowledged by the Commission and created the National Corporation for Reparations.

On 11 March 1990, President Aylwin presented the conclusions of the Commission to the country and asked the Chilean people for forgiveness in the name of the State. He also indicated that all the information about individual responsibility—that had not been included in the report made by the Commission—had been sent to the courts and “called upon the judiciary to carry out ‘extensive investigations’ for which ‘the current amnesty law cannot be an obstacle’.”[13]

Courts had been sympathetic to the military government and—invoking the Amnesty Law—refused to investigate cases presented to them. From the return of democracy onwards, the attitude of the courts towards human rights violations and the Amnesty Law began to shift as they started investigating human rights violations to establish criminal responsibility before applying amnesty. Although from 1993 onwards, the courts started convicting some of the perpetrators of human rights offenses, many criticized Aylwin for not trying more forcefully to get the Amnesty Law repealed.

As expected, the results of the Commission were not well received by the right-wing parties but especially not by Pinochet who denied all the facts. On 28 March 1991, Chile’s leading paper El Mercurio printed Pinochet’s opinion about the Commission as Commander in Chief of the Army: “The Chilean Army solemnly declares that it will not accept being placed as if on trial before the citizenry for having saved the freedom and sovereignty of the homeland at the insistence of the civilian population.”[14]

A situation that happened only twenty-eight days after the release of the Commission’s report exemplifies the conflicting and violent forces within the country at the time. On1 April 1991, Jaime Guzmán—a right-wing senator and the mastermind of the 1980 Constitution—was assassinated. Public attention shifted from the Commission to concerns about left-wing violence.[15]

In March 1994, Aylwin’s government ended and because of the Constitution, Aylwin could not vie for reelection. Elections were held, and the Concertación’s new candidate, Eduardo Frei, won by 57.98 percent.

 The Aftermath

In 2003, President Ricardo Lagos created a new commission to investigate the human rights violations that were not included in the Rettig Commission. The National Commission on Political Imprisonment and Torture, also named the Valech Commission after its head Sergio Valech, conducted investigations in 2003 and later in 2011. The Commission recognized that more than 40,000 people had been victims of human rights violations, and a total of 3,065 were assassinated or had disappeared.

Pinochet was never convicted for any human rights violation. From 1989 to March 1998, he was Commander in Chief of the Army. He then automatically became senator for life. In October 1998, Pinochet was arrested in London by the request of the Spanish judge Baltasar Garzón to face trial for crimes against humanity. He was in custody for fifteen months until the British government decided to deny Garzón’s request and return Pinochet to Chile. Days after his return, Pinochet’s immunity was lifted, and he had to declare before a Chilean judge about human rights violations. However, he was never tried for those crimes as the Supreme Court closed the case alleging that he could not stand trial due to incurable mental illness.[16] Later, new cases were brought to trial, but Pinochet died in December 2006 at the age of ninety-one without having been convicted of any human rights violations.

The 1978 Amnesty Law was never amended or annulled. In September 2013, forty years after the coup, more than 25,000 people signed a petition put out by Amnesty International to eliminate that law. The Amnesty International press release also indicated that in recent years the courts had not applied the Amnesty Law, that 262 people had been convicted of human rights violations, and that there were more than 1,100 trials pending.[17]

Chile still has Pinochet’s Constitution, but it has been amended on a number of occasions, most notably in 1989 after the referendum and in 2005 when the institution of designated senators was eliminated. In 2013, the then presidential candidate and today President of Chile, Michelle Bachelet, proposed replacing the current constitution as “the idea that runs through the current text, even with the amendments that have been made, is based on a mistrust of popular sovereignty.”[18]

Conclusion

Why is this piece of history relevant today? It reminds us of the terrible human rights violations of Pinochet’s authoritarian regime, but mainly, it highlights the tremendous costs that Chileans assumed to move Chile towards democracy.

The 2013 Polity IV index classifies Chile as one of the only two full democracies in South America[19] and the 2014 Freedom House index gives Chile almost a perfect score.[20] These indexes portray Chile as a consolidated democracy. What they fail to show are all the compromises—some terrible—that Chileans made for the sake of democracy. They also fail to show how many years it has taken Chile to move towards a more consolidated democracy. It took five years since the triumph of the “No” option for the courts to convict the first person for human rights abuses.[21] It took twelve years for a court to strip Pinochet of his immunity and initiate a trial against him.[22] It took seventeen years to eliminate the institution of designated senators, and this year, twenty-seven years later, Congress voted to replace the binominal electoral system.[23]

This history should compel both politicians and civil society to continually reaffirm the value of democracy and protection of human rights. It should not take a regime breakdown to compel them to do so; opportunities to reaffirm the commitment to democracy and human rights abound in everyday life.

Unfortunately, opportunities to weaken them also abound. Only last year, on 10 December 2014, a Congress member from the right-wing party Unión Demócrata Independiente (UDI) asked for a minute of silence in Congress to honor Pinochet on the anniversary of his death. Ironically, it was also the UN Human Rights Day. Although many Congress members left the chamber in protest, many right-wing members stayed behind to honor Pinochet. Regardless of the political opinion that right-wing parties have of Pinochet’s regime, there cannot be two interpretations. Pinochet’s regime killed and tortured thousands of Chileans, and because of that, Pinochet should never be honored in Congress.

Politicians are not the only ones that should continually reaffirm their commitment to democracy. Unlike what it did in the past, civil society needs to do so as well. Today in Chile, there is an increasing discontent with politicians. Comparing results from June–July 2005 to November 2014, there has been a nine percentage point increase in people that agree with the assertion that “most politicians are in politics solely due to the personal benefits that they can get out of it” and an eighteen percentage point decrease in people that agree with the assertion that “most of the time we can trust that people that work in government are doing the right thing.”[24] This trend could increase as in the first months of 2015 a series of corruption scandals have exploded, affecting the reputation of Chile’s two main political coalitions. It is important for civil society to develop a more nuanced narrative where they hold politicians accountable while at the same time reaffirming the value of democratic institutions such as Congress.

Finally, human rights protection and democracy should not be reaffirmed only within the domestic realm. In the 60s and 70s, most of Latin America went through a wave of authoritarian regimes. By 1978, all but three countries were under authoritarian rule. As a reaction to that era, Latin American countries put in place regional mechanisms to protect democracy. For example, in 1991 the Organization of American States (OAS) passed Resolution 1080 to legitimize OAS intervention in the case of a democratic breakdown. This resolution has been the basis for interventions in several cases. In 1992, OAS also approved the Washington Protocol to enable the General Assembly to suspend membership to a country that experiences a coup and to impose sanctions. Also, Mercosur countries—Brazil, Bolivia, Argentina, Uruguay, Paraguay, and Chile—agreed that a member would be expelled if democracy broke down.[25]

In the international realm, it should also not be necessary to wait for a regime breakdown to speak out. The narrative from Latin American politicians should be unequivocal for the protection of human rights, regardless of their ideological preference. For example, in 2014 many NGOs, among them Human Rights Watch (HRW), documented human rights abuses in Venezuela. The HRW May 2014 report indicates that “[w]hat we found during our in-country investigation and subsequent research is a pattern of serious abuse. In forty-five cases, we found strong evidence of serious human rights violations committed by Venezuelan security forces, which included violations of the right to life; the prohibition on torture and cruel, inhuman, and degrading treatment; the rights to bodily integrity, security, and liberty; and due process rights.”[26]

The situation in Venezuela has worsened since this report. Latin American presidents across the board must denounce human rights violations in Venezuela. We have come a long way as a region from the authoritarian 60s and 70s. But protecting and reaffirming democracy and human rights is a daily task that must be purposefully taken on, regardless of ideological affinity or political calculations.

[1] Claudio Fuentes Saavedra, El Pacto: Poder, Constitución, y Prácticas Políticas en Chile (1990–2010) (Santiago: Ediciones Universidad Diego Portales, 2012), 36–39.

[2] Ibid., 42–60.

[3] Pamela Constable and Arturo Valenzuela, A Nation of Enemies: Chile Under Pinochet (New York: W.W. Norton & Company, 1993), 310.

[4] Concertación de Partidos por la Democracia, “Programa de Gobierno,” La Epoca, 1989, 3.

[5] Constable and Valenzuela, A Nation of Enemies, 317.

[6] “Concertación de Partidos por la Democracia,” Historia Politica Legislativa del Congreso Nacional de Chile.

[7] Ibid.

[8] Jorge Correa Sutil, “The Political Setting for the Transition,” in Transitional Justice: How Emerging Democracies Reckon with Former Regimes, Volume II, Country Studies, ed. Neil J. Kritz (Washington, DC: United States Institute of Peace, 1995), 461.

[9] Ibid.

[10] David Weissbrodt and Paul W. Fraser, “Book Review: Report of the Chilean National Commission on Truth and Reconciliation,” in Transitional Justice: How Emerging Democracies Reckon with Former Regimes, Volume II, Country Studies, ed. Neil J. Kritz (Washington, DC: United States Institute of Peace, 1995), 462.

[11] Ibid., 465.

[12] Ibid, 471.

[13] Ibid.

[14] Ibid., 476.

[15] Ibid., 474.

[16] Fuentes, El Pacto, 81–82.

[17] “Chile: 40 Years On from Pinochet’s Coup, Impunity Must End,” Amnesty International, 10 September 2013.

[18] “Programa de Gobierno 2014–2018,” Michelle Bachelet.

[19] “Polity IV Individual Country Regime Trends, 1946–2013,” Center for Systemic Peace.

[20] “Freedom in the World 2014: Chile,” Freedom House.

[21] Karinna Fernández Neira, “Breve Análisis de la Jurisprudencia Chilena en Relación a las Graves Violaciones a los Derechos Humanos Cometidos Durante la Dictadura Militar,” Estudios Constitucionales Vol. 8, No. 1 (2010): 470.

[22] “Las causas que Pinochet debió enfrentar antes de su muerte,” Emol, 10 December 2006.

[23] “Senado aprueba reforma al sistema binominal en votación histórica,” BioBioChile, 14 January 2015.

[24] “Estudio Nacional de Opinión Pública No. 72,” Centro de Estudios Públicos, November 2014.

[25] Scott Mainwaring and Aníbal Pérez-Liñán, “Latin American Democratization Since 1978: Democratic Transitions, Breakdowns, and Erosions,” in The Third Wave of Democratization in Latin America: Advances and Setbacks, eds. Frances Hagopian and Scott P. Mainwaring (New York: Cambridge UP, 2005), 14–20, 38–47.

[26] “Punished for Protesting: Rights Violations in Venezuela’s Streets, Detention Centers, and Justice System,” Human Rights Watch, May 2014, 1.

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