IM - CHILE HOW AUTHORITARIAN IS PINOCHET'S CONSTITUTION?

Created: 5/17/1988

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Preeldent Pinochet end numerous senior officials hsve repeatedly sseerted in recent months that they are committed to restoring "safe" and "protected" democretie rule in Chile, end they hsve cherged that foreign critics at beet are misinformed about the systematic process tho regime Is following toward this end. When confronted with calls for liberalizing Chile's political eyetem. auch se by irect presidential election for the sing!'? candidete plebiscite in lete Chileanve defended the pleblacltcegitimate electoralprovided for in0 Constitution, which itself was approved overwhelmingly by popular vote. They have also maintained that in hie next term. Pinochet will be conatrslned by constitutional limitations on his suthorlty--such ss having to share power with bicameral nationalthat he will have io adhereirm timetable leadingull transition to civilian rule by the end of his next termefsmB

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u Lonn cant limitations on hisransition to a teprcnei.

To tha contrary, tho tution was formulated, the'wny'in which r* approvlnq It was manipulated, the |of Its Transitory Provisions, and th* basic 'of the charter'a otharrticles, all hatfPinochet would face few meaningful reatralnts on his power should he be re-elected. Moreover, the record is clear that Pinochet's underlying purpoae--he will be 73 intoonstitutional framework that would severely inhibit tho power of future civilian presidents and the Influence of traditional political parties and civilian pressure groups, as wall as perpetuate military tutelage over the polltlcsl process.

Formulation of the Constitution

The leaders of the mllitery coup againat Socialist President Sslvador Allende In3 announced that they planned eventually to restore civilian rule in Chile. Piret, however, they proceeded to abolish tha Constitution ofS. ban political partlas, burn the national electoral registry, snd rsstructure univsraities, local and regionalnd the trade union movement. Then tho military juntaommittee of well-known conoervstlve jurists to drawew constitution. Several members resigned, however, when they realised that Pinochet was determined to control Che pace and content of the conatltution drafting effort.

As time passed. Pinochet snd other regime figures continued to apeak of the need toew lnstitutlonallty to replace the "vlcss" of the previous democratic system, but it was only7 thst heimetableossible return to clvlllsn rule. He promised to begin tha transition with th* adoptionew constitutional frsmework in followed in

by psrtlal congressional elections and selection of the neat

S Conetltution was adopted at th* insistence of progressive-minded young military officers, who favored a series of basic social and political reformatrengthening of presidential power* over Congress, which had dominated governments of tho previous three docadea.

statute, .aiMi;lections L* r7 Pinochet so lraan of the Junto- appoi tiona on some IS he constitutions! draf

pysstdeii tVd lull nee 11

lhe committee produced thewhich compiled closely with Pinochet'sexample, by including articles that magnified the powersexecutive co-pared to thencorporatedof structural reforms and "constitutional acts" adoptedeince the coup. The committee's draft was made publicsubmitted for formal review to the advisory Council This body, under the chairmanship of formerAlessandri. presentedsubstsntislly revised draft toinoning down some of the executive's powersout in the committee's version and calling fortransition period with an appointed congrsseat which point open presidential andwould be held.

the public debste on the proposed newultipsrty opposition group formulated en alternative constitutional draft that called for shsrply reducing theowsra ond shortening the tcsnaitlon period, but these points end those of the Alesssndrl group were ignored by the regime. esult, Alessandri reelgned from the Council end publicly protested against Pinochet's srbitrarincss. ow verelon that Pinochet pereonelly reworked was prostulgated by the Junta onaking the transition period even longer-specifying that Pinochet would be eligible for reelectionnd further Increasing the powers of the presidency.* At the earns time, Pinochet announced thet this version would be submittedftotB^ot*lebiscite one month leter on September

Msnlpuiating. ihe__PlebJ eel te

The government left no stone unturned toavorable outcome In the plebiscite, resorting to extensive Intimidation of opposition groups, arbitrary measures to undercut the efforts of

plebiscite with onlye. nents off balance. refuBl y, whichide range of ting the activities of opposition free flow of information. According to

several acadomic studies, theirect, often physical, intimidation in much of the countryside and smaller cities.

mounting an intensive and coatly publicity csmpaign depicting the Constitution sa an aaaentlsl instrument tonew Institutional system" that would facilitate tho evolutionnew democracy" in Chile. Pinochet even announced at one point that he would notandidate for reelection8 At the same time, the government denied accees to television to moderate opposition parties, ehsrply restricted their media advertisements callingno" vote, cenoored moat press coverage of opposition activities, and denied permleaion for all but one opposition rally.

announcing that all blank bsllots would be counted aa "yes" votes, to undercut efforts by the well-organlied. illegal Communist Party to persuade moderate opposition groups to unite with it in urging massive voter rejection of the plebleclte.

decreeing. In the absence ot an electoral registry, that voting was obligatory for all cltlaenseetsbllehing procedures for the voting to be controlled entirely by government supporters snd, in many Instances, public officials Several opposition parties appointed observers to try to monitor the balloting in major cities, but they were permitted to observe the process onlyletence and did not have the right to co-went on Irregularities they noted.

dividing the country Into electorsl districts, which wsre subdivided into voting precincts, sndotsl number of voters, but not nsmes. for esch precinct. No provision wss msde for an electors] in Chllo--to review the voting rules, supervise ballot counting, snd act on complaints. The government printed and distributed the ballots, which voters received only upon preeentlng persons! ldsntlty cards at voting plscee. In urban areas the bsllotlng was secret, but In many rural areas peasants were required to fill out their

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votes from each precli tabulating the national t

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"nterior--in both cases wJHthS'rid1 independent* to press>^accounts. Theannounced that ercent had voted In favorpercent opposed, with the remainder abstaining. It has never made public a final tally, reakdownvote totals by lndivldusl polling places. Opposition spokesmen pointed out that this was because inignificant number of cases voting precincts recorded ji higher number of votes than the government's total of eligible voters for each locality. The obvioue reason, according to the spokesmen, is that release of these data would have quickly reveeled how much falsification of balloting took place. The spokesmen also questioned the government's claimlniecule abstention rate, noting that traditionally inJ^cf^ori_abs tent ion rates ercent. BaaamBaammmBBmBmB

Ever elnce the plebiscite, the regime has insisted that It waa conducted In an entirely honest way, reading vociferoualy to domestic and foreign questioning of ite legitimacy, and touting the oetensibleercent vote for the Constitutioneflection of the overwhelming popular approval of the Pinochet government and Its efforts to restructure the Chlleen political systemermanent basle. For their pert, opposition spokesmen have perelstently denounced the plebiscite aa fraudulent and unrepresentative. Such criticism until recently received little proon play in Chile because of censorship and often brought government reprisals--for instance, the head of the Christian Democratic Party was exiled shortly after the plebleclte when he told the foreign press thst it was fraudulent. Nsverthelese, as the moderate opposition's campaign for the "no" vote In8 plebiscite has gathered support, ite spokesmen have repestedly scored publicity points with press interviews detailing the government's fraudulent and intimidation tactics during the0 plebiscite. The effect, in our view, hae been to undercut the assurances frequently offered by the government that Ita conduct In8 plebiscite will be above reproach.

ImPW_of_the_Transitory. Provisions

litical process. r

c st >id ion in on nonce,to that in effect at least March Marchmanycontaining feature ct sevaial of tha1 Provisions confusing way In which they arc written .opponents claim wan deliberate on Pinochet'she wanted to keep aa many Chlleana aa possible in about his real intentions.

Tranaitory Provisions4 spell out which of tha baalc srtlcles of the Constitution are suspended, id. range of measures affecting individual rights, s. And elactoral processes effjaaaaaVaaVaBamV

ay out the powers of tha Prealdant and of ths Junta once the ConetituUen entered into effect In They specify that Pinochet not only remains as President until9 but that h. I- aligjbl. for reelectionew. term ending in Provisiontates thst Pinochet, who continues as commander-in-chief of the Army, shall no longer form part of th* Junta, but that he willcan remove at anynext ranking Army General toaa hia peraonal representative opposite the commanders-in-chief of the havy. Air Force, and Carabineroa.

Several of those Provisions describe tho divloion of powers between the President snd tha Junta in s to make it appear that they are nearly coequal,lose reeding revests that In sllew areas ultimate authority resta with the former. For lnatance. Provision ta*en that the Junta exercises the legislative power, but Provisionimits this responsibility to those matters that the Constitution does not assign exclusively to theincludes moat subjects. Moreover, ell decisions adopted by th* Junta must be unanimoua. which glvee Pinochet veto power through hie peraonal representative on that body. Similarly, Provlalons nday that the Junta exorcises constituent power exclualvely and

can laaue laws to interpret the Constitution and alao amend it.

Neverthaleaa. this authority Is Impaired by the unanimity requirement and by the fact that propoaala to amend the

Constitution must be approved by plebiscite, which only the

President can convoke.

. are to; boof death resWnr.ptfB,ntlt<vP. twice changed the

Many Chile watchere single out Provision 24 containing soke of the most sweeping powers sssusted by Pinochet under the Conetltutlon. It provides that he has sole authority to declsre. in response to unspecified acts of violence, hreat to internal order exists and,onsequence, toide renge of measures curtailing individual rights and normal political activities. These measures may include orders for extended arrests of persons suspected of terrorist acta, censoring or closing publications, restricting the right of anaenbly. prohibiting entry of into the country or permitting the exiling of anyone deemed harmful to internal peace, e -of Judicial review for any of the:

Pinochet made liberal use of Provisioneqlswj opponents ranging from the far left to the we

yearsm of Chile's human rights prsctlces hss influenced him to resort much less frequently to this est of extreordinsry powers. Nevertheless, he continues to decree states of exception, which keep in place most of the asme types of erbltrary powers. For Instance, since November he hae twicetate of eiege--for which he needed the Junta's approval--and. when that lapsed, he continued in effect

. Comptrollernder' the basic articles of th* Constitution is designed to institutionalize the direct tutelary role of tha armed forres in sny future, civilian government, has two major functions during the period embraced by the Tranaltory Provlalons. namely to participate in selecting Pinochet'sha dies or becomes in nominating the candidate in the plebiscite to be held later this year. It would participate in either of these choices, however, only If thet* iaeadlock In

and 23 lay down tha procedurea toin tha event of Pinochat'a death or escribe the iroceeethe candidate for8 plebiscite,elections innd what happens ifs csndldat* falls toajority of thein the presidential plebiscite.

l*v* that the most noteworthy aspects of theseth* context of documenting Pinochet's prlmscy underma of the Transitory Provlsions--are the following:

Heechanism to ensure that If h* diea, Che military will retain control over the government and pick from within lta ranks his successor.

Helract role In nominating the candidate for8 plebtaclte. and there la little doubt that he lntenda to be that candidate.

Should he lose the plebiscite. Pinochet is entitled to remain In office for an sddltlonsl year, toward the end of which he la obligated not only to convoke congraaalonal elections but to call for dlract presidential elections In accordance with the basic srtlcles of ths Constitution.

d) Nevertheless, moot Chilean constitutional experts agree that If Pinochet la defeated in tho plebiscite he would be

to in tho 9 open pteatdenti'

Undo ttm Transitory Provisions. Pinochet appears to have several options to continue exerting effective control over the government from behind the scenes even if he loses the plebiscite. tates that office In9 cannot be romov by orderuture presidentrobably eight, years. Although non-Army Junta members have pros commander-in-chief of the Army bye find nothing in the Constitution that makes him Ineligible to continue In that post for the next eight years. As such, he wouldember of the National Security Council and represent the senior. J more powerful, service in dealings with s future elected civilian government In addition, the Constitution grants him authority to appoint, or indirectly designate, up to nineof themember Senate, and also to beember for lire of that body.

Thp_Pffrnam-nt Articles

The permanent articles of0 Constitution provide for the eatabllahment of s future political system in Chile that is to be fundamentally different from thst of thers. arge part ofrticles ars intended to perpetuate bnnlc features of the governmental snd political processes put in place

Constitution begins by defining in somerticles the "new" Inetltutlonsllty end individual rights and duties thereunder. Considerable specs is devoted to the doctrine of natlonsl eecurlty, controlled snd Interpreted by the armed foreea, ee the permanent guiding principle of national life. eyis Articlehich outlaws of ell cJoctrlnesBte'dvocsting violence or class struggle government he's'rSVor ted to this article on several occ recent months'ithe erreet snd prosecution'of Journsllsts snd fsr left polltlcsl Isaders accusedf offenses, including harboring subversive thoughts.

Other articles declare sll psrtleo or groupo supporting subversive doctrines to be unconst1tutlonsl. and impose severe restrictions on the right of persons who espouse Marxist and other unscceptable ideas to nbtsin employment. Typical of the arbitrary nsturo of moot ports of thi* section is Articlehich spells out the rights of those individuals who do not act contrary to moral standards, public nrder ond the security of the

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State wliil* imposing sharp restraint? on violators of these precept*. It also contain* detailed restriction* en political parties, labor union*, and educational institutions and prescribe* Strict Units on freedom of expression by the siedla. the theater,ariety of associations. Other articles emphasise the preeminence of the economic philosophy of Pinochet regime, malting clear that the state should playimited role in tha economy. Special emphasis is placed on the right of private property. In what constitutional experts interpret as an effort to preclude the poasibllityuture government might espouse any type of sgrsrlan rsform.

The next three chapters of the Constitution (throughet forth the powers of the presidency and of the congress. The presidency emerges with grestly Increased powers even compsred toS Constitution, snd it Is clearly dominant over the legislature, especially the Chamber of Deputies. For instance, the president can dissolve the Chamber and decree certain type* of legislation without congraaalonal approval.ower over the budget Ismay not increaa* stat*lta power to restrict the president'* recourse to atatee of exception la vary limited. The prealdant appolnta all local and regional officiate, as wellide number of nationaldeparture fromractices when most offlclala were either elected or appointed mireuant to congressional review. J

The Chamber of Deputies'embera are to be elected directly for four year terma--but the reglm* has already enacted legislation rigidly controlling the Internal processes by which political partlea select candidates and prohibiting elected representatives from being responsive to party directorate*. Th* Senste will havaopularly elected membera who will serve eight year tens, but at laaat nine other membera are to be appointed directly or, probably, indirectly by the President. The feet that the prealdant presumably willhird ol the Senate'sey ingredient In any effort to amend tha Constitutionuture government. Inasmuch as approval by tnreeaif if the of the members of each

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The next four'chapter* (througheal wi Judicial eyatem and tha Office of the Comptroller General, end here again the power and Independence of these bodies In relation to the presidency is considerably curtailed In comparison with theeriod, according to academic studies. For instance, three of the aeven juetlces of the Constitutional Tribunal are selected by the president and the National Security Council, and one la to be elected by an absolute majority of tha Ssnste. Moreover, the courts lack Jurisdiction In cases where the prseident. acting, for example, under the authority Article 6

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affords lilii. niispnnds qua: individual

tight*. Pnihapr. tho mont fuii'lamenta I potential limitation on tho future independence of the coiut system is thet tho National Security Council ia empowered to objectobviously Insist on reversal net by any branch of government that considers to operate against national security.

Two brief chapters) describe in general.

terms the powers and duties of the Armed Forces and the National

Security Council. For Instance, the Armed Forces' main role is

described as to defend the fatherland and to guarantee national

aecurlty and the inatitutlonal order. Nevertheless. Chilean

constitutional exports have emphasized that tho fundamental

purpoae behind these provisions is to safeguard for the military

the broadest possible role in guaranteeing the "new"

inatitutlonal order and In utlllting their authority as final

arbiters of what tha doctrine of national security embrace* to

exert direct tutelage over future government* for as long a* mBmBmaesjaBBaaeBj

A final chapter (Articles dealing with amendments to th* Constitution, erlee of reattictions on congreaaional authority to initiate amendments and considerable detail on the petrsmouni^roleofthe president. The effect,

to academic studies, is to

make the Constitution virtually unamondable in lesteara and absolutely unchangeable should the National Security Council object.

Outlook

There la, in our view, little in Pinochet's Constitution thetimits on his continued domination over the government snd the political proceaa for a* long aa he is Prealdant. Moreover, he haaharter thatong way toward perpetuating tha baolc featureo of the eyatem he implemented during the pastrs, snd the available evidence strongly euggsete that the militery fully intends to continue exerting atrong tutelage woll into. '

Wo also believe that this has Impelled leaders of' the

moderate opposition to announce repeatedly In recent months that if their "no* csmpslgn succeeds In defeating Pinochet in the plebieclte. they will Insist on holding negotiationn with the Junta to modify at least some constitutional provisions. inimum, they probably expect to obtain the Junta's agreement to hold direct elections earlier than ia laid out in the Transitory Provisions and to modify the restrictions on amending the Constitution. Whether they will Insist on other basic changse. such aa reducing the role of th* National Security Council.

changinq tha composition ot the Senate, stid modifying the role oC the commanders-in-chief appears lass likelyhie point. Nevertheless, we.believe that they will went to arrive at an understanding with military leaders that efeated Pinochet (roe continuing to exert power trow behind the scenes as head of the Army, of the National Security Council, snd Senator for life. We recognise that to accomplish this goal they will have toine line In their dealings with the allitary to avoid creating the impression thst they intend to Jettison the bsnlc features of the "new" institutionality provided for in0 Constitution, and In the proceea demolish the tutslary role that the military almost certainly Intends to preserve regardlessess in the plebiscite by Pinochet.

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