■ Constitutional history of Chile

Chile is located in southern South America and spans 756,950 square kilometers in area. It borders the South Pacific Ocean and its neighbors are Argentina and Peru. As of July 2008, its population numbered approximately 16.5 million, 95.4 percent of which is white and white Amerindian, with the remaining 4.6 percent from the Mapuche and other indigenous groups. The country is divided into fifteen regions, with Santiago as its capital. Eighty-five percent of Chile's population resides in urban areas.

Chile's market-oriented economy, with its relatively well-diversified and well-regulated financial system, is generally regarded as a model for other Latin American countries. According to the World Bank, Chile's economy has been the fastest growing in Latin America during the past fifteen years. The 1990s, however, was a difficult period as Chile experience a backdrop of global financial crisis and negative investor sentiment about emerging markets. In 1999, severe drought and Chile's over-dependence on commodity exports such as copper, among other factors, pushed the country into recession. Chile has since recovered, with a real GDP growth averaging 5.0 percent between the years 2003 and 2007, and its GDP per capita in 2007 was US$14,300. The Economist credits this growth to the stable macroeconomic policies that have been put in place over the past two decades and in particular the counter-cyclical fiscal policy developed by Ricardo Lagos's government (2000-06). However, some argue that Chile's economic policies are overly cautious and the government should do more to encourage growth.

Constitutional history

The Portales Constitution

Chile's independence from Spain on April 5, 1818, marked by the Spanish defeat at the Battle of Maipu, was followed by a period of near-anarchy. In 1829, conservative forces led by Diego Portales succeeded in asserting control over the country. Portales, who became the de facto ruler of Chile, also wrote Chile's first long-lasting constitution. The Portales constitution established a strong central government dominated by the chief executive. For most of the nineteenth century, the president presided over a gradual institutionalization of representative practices and expansion of suffrage. These developments were accompanied by growing challenges to executive authority by the political parties sitting in the National Congress. The struggle for power between different governing branches escalated into a brief civil war in 1891 that was won by congressional forces, and which paved the way for a parliamentary republic.

The 1925 Constitution

Chile's next constitution was adopted in 1925, in the midst of instability and discontent generated by the First World War, and resulting national events such as the collapse of the nitrate export trade, the articulation of new political ideologies, and the rise of the labor movement. The Parliamentary democracy was discredited, with the common perception of Congress being a group of conservative and corrupt elites who were incapable of responding to Chile's political and economic problems, and who were opposed to social reform. Because of this, new and radical parties flourished, on both left and right sides of the political spectrum.

The 1925 constitution largely followed in the classical liberal and democratic lines of its predecessor, thus allowing for institutional continuity. At the same time, it codified a number of significant changes: the separation of church and state, the recognition of workers' right to organize, the promise to care for the social welfare of all citizens, the assertion of the state's right to infringe on private property for the public good, and the increase in the powers of the now directly elected president vis-à-vis the bicameral Congress. The government was divided into four branches: the executive, the legislature, the judiciary and the comptroller general.

Military Rule and the 1980 Constitution

In the wake of the Cuban Revolution of 1959, politics in Chile became increasingly polarized between left-wing and right-wing factions. Centrist parties were no longer able to mediate the agreements and compromises that had previously enabled the smooth functioning of Chilean politics. Matters came to a head during Salvador Allende's presidency, which pitted Allende's coalition of leftist parties against the center-right opposition. The March 1973 congressional elections, which each side had hoped would give it a clear governing mandate, provided the catalyst—inconclusive results led to an escalation of the confrontation, with violent street demonstrations and threats of insurgency. On September 11, 1973, a military junta composed of the heads of the Army, the Navy, the Air Force and the national police led a coup to overthrow the Allende government for alleged constitutional violations. This military junta imposed military rule.

Days after the coup, the junta appointed a commission to begin crafting a new constitutional order that could legitimize the military regime and further its ideological objectives. The process, which included layers of review by the State Council (a consultative body created by the military government) and the junta, took seven years to complete. During that time, Chile was governed as a dictatorship under the aegis of Augusto Pinochet, who assumed the dual positions of President and commander-in-chief of the army. On September 11, 1980, the new constitution was ratified in a plebiscite organized and tightly controlled by the military government.

The 1980 constitution has been described as a “dual constitution” that contained “transitional” as well as “permanent” articles. The transitional articles would apply during the transitional period of military rule, with Pinochet as President and the junta holding constituent and legislative power. In 1988, the junta was to appoint a Presidential candidate to be approved by plebiscite to lead Chile for the next eight years. The permanent articles were intended to create a “protected” democracy through: first, the establishment of a permanent tutelary role for the military; second, a prohibition upon persons, parties and movements whose views and objectives were judged by the Constitutional Tribunal to be hostile to democracy (“article 8⁰”); and third, a series of checks on representative governmental institutions.

Constitution Building Process

Beginning in 1987, the Chilean political opposition accepted that the Pinochet regime could not be overthrown by popular revolt or guerilla warfare, but had to be challenged from within the constitutional system that the military government had itself created. A group of opposition parties formed the Concertación por el No coalition (the “Concertación”) to campaign for a “no” vote in the upcoming 1988 plebiscite. The Concertación's efforts at voter registration, publicizing its cause and voting oversight resulted in Pinochet's defeat on October 5 by a 55% vote. Under the constitution, this meant that presidential and parliamentary elections would be held in December 1989.

In the period between the plebiscite and the presidential elections, three-way negotiations over constitutional reform were held between the military government, moderate right-wing parties that supported the government, and the center-left opposition. There was no public discussion or participation. The agreed-upon reforms, which were approved in a July 30, 1989 plebiscite, reflected compromises made by the opposition rather than any far-reaching constitutional change: article 8 was eliminated; the number of elected senators was increased; the constitutional amendment mechanism was modified; the President's ability to dissolve the lower house of Congress was removed and his power to declare a state of exception was reduced; a new civilian member was added to the National Security Council. The military succeeded in including a provision that laws that dealt with the armed forces would be governed by an organic constitutional law, increasing the difficulty of amending such laws. Political sociologists have argued that the effect of these reforms, which accepted the foundations of the 1980 constitution and were achieved through bargaining, was to make Chile's transition a transición pactada (transition by agreement) and not a transición por ruptura (transition that broke with the previous order).

Since the 1989 reforms, the Governments have been engaged in reforming Chile's constitution. Important changes have included: allowing for the direct election of municipal councils; Supreme Court and criminal justice reform; the enshrining of sex equality; the elimination of appointed (as opposed to elected) senators; the transformation of the National Security Council into an advisory body to the President; giving the President the power of dismissing the commanders-in-chief of the armed forces and the national police.

Timeline for Constitution Building Process