By Marina Martinez Mateo
It has been repeatedly emphasized that the current Constitution of Chile was implemented during the military dictatorship of Augusto Pinochet. However, what that means in concrete and what follows from there, may still need to be shown. To understand the historic impact of all that has been going on in Chile for the last three years – the protests in 2019, the current constituent process, and the potential implementation of the new constitutional draft in September 2022 – it needs to be taken into account that the Constitution of Chile expresses the constitutional form of authoritarian neoliberalism. There is much to learn from this historical background and the current constitutional process if we aim to overcome the forms of authoritarian neoliberalism in many places all over the world today.
Authoritarianism and Neoliberalism in the 1980 Constitution of Chile
In 1973, just a few days after Augusto Pinochet's military coup on September 11, a group of lawyers instituted a constituent commission with the purpose to develop a constitutional order for Chile after the coup. In secret sessions, they elaborated on a constitutional draft which was put to a plebiscite in 1980 and approved – according to official sources – with 67% of the votes cast. However, although this constitution was to take effect already during the dictatorship (albeit with massive restrictions), it was not intended to simply perpetuate the dictatorship. Rather, the constitution was presented as the instrument that would lead out of the dictatorship into a "new" democratic constitutional order. Through the constitutional project, the regime expressed the promise of a "self-surpassing" of the dictatorship that was about to take place after eight years of "transition". Thus, on the one hand, with this design, it was communicated that the regime had always meant to be temporary and never claimed any power for itself, while, on the other hand, it was ensured that the constitutional order after the dictatorship would be based precisely on what had been developed and enacted under the control of the military. Today's democracy in Chile and the current constitution that frames it is thus – still in its current form – the result of the military regime's political project. Admittedly, from 1989 onward, there have been significant efforts to modify and democratize the constitutional text. However, the constitutional order in its basic pillars and principles had not been fundamentally questioned (at least not within a broader public) until the protests of 2019.
The fact that Chile's current constitution corresponds to the military's authoritarian conception of the rule of law is visible in the considerable influence that it attributes to the military (although this influence has been curtailed repeatedly in the course of reforms). Therefore, among other things, a National Security Council was established whose originally seven members included four army commanders in chief and which had far-reaching powers, such as conducting political arbitration, filling political offices, and intervening in domestic politics (the massive violence with which the protests in 2019 were met is due in no small part to the deployment of this body). In addition, the power of the legislative branch was severely limited, while at the same time the presidential executive and the constitutional court – whose members had been initially taken over from the regime – were given far-reaching powers. On this basis, within the framework of the constitution, a reconditioning of the dictatorship and the massive violence that accompanied it is possible only to a very limited extent. In contrast, the new constitutional draft envisions the memory and examination of state crimes – not only, but certainly with particular urgency – in the context of the military dictatorship (Art. 24).
However, the authoritarian structure of Chile's constitutional order is also related to the second great aim of the military regime: the implementation of neoliberal economics. Already long before the coup, there had been a university exchange between the Universidad Católica de Chile and the Chicago School of Economics that allowed about a hundred Chilean economists to study with well-known neoliberal protagonists such as Milton Friedman, Arnold Harberger, and Friedrich Hayek. Out of this program, a team of economists was built, characterized by strong internal homogeneity and today famously known as "Chicago Boys." From the time of the coup on, this group was given an astonishingly large and increasing scope for shaping the political order and implementing monetarist measures. All of the regime's economic and finance ministers were recruited from the context of the Chicago Boys, and their "mentors" from Chicago were regularly in Chile in an advisory capacity, publicly voicing support for the military regime. This is how the image of Chile as a neoliberal "experiment" became famous. However, as impressively shown by Naomi Klein, it is also crucial to acknowledge that the creation of "clean," seemingly laboratory-like experimental conditions also implied the violent persecution of opposition and unions – since they showed as "disturbing factors" for the "pure" experiment of neoliberal economics.[1] Based on this insight, it does not seem appropriate to separate the economic program from the military's anti-democratic politics and the blatant acts of violence in the course of the coup and its aftermath. However, this collaboration between the (nationalist and conservative) military and the (technocratic) economists was not a given from the beginning: It was part of the constitutional project to provide the ground for such a collaboration. The constitution aimed to enable a political form that corresponded to the military's authoritarian view on the state and, simultaneously, provided a supporting framework for neoliberal economies. The main point where these two came together was their shared aim of limiting democracy. This limitation is at the center of the constitutional project of the military regime.
Protected Democracy and Social Participation: The Constitution of Authoritarian Neoliberalism
Within the context of the military regime, the necessity of introducing a new constitution was argued by highlighting that the former constitution had been incapable of preventing the socialist transformations envisaged by the (democratically elected) Allende government. According to them, this is why Chile needed a new constitutional order that would be fundamentally dedicated to blocking the possibility of democratically implementing socialism. In his famous "Chacarillas Speech" in which Pinochet announces the publication of the new constitution, he calls this dedication a "new democracy" that would be "authoritarian" and "protected".[2] This idea of a "protected democracy," in its invoked authoritarian form, does not refer to protecting democracy but, rather, to protecting liberalism (here meaning the freedom of the market) against democracy – i.e. against political participation. According to the "fathers" of Chile's 1980 constitution, the market will only stay liberal (as in opposition to socialist) if democracy is limited by the constitutional order (they take this basic idea from Hayek's Constitution of Liberty[3]). At the same time, Pinochet in this speech goes on to celebrate "authentic social participation" as something supposed to be enabled by their "new democracy." However, this "social" participation is clearly opposed to political participation and (in Pinochet's own words) refers to "creative vitality as well as economic freedom" within a society that is supposed to be "only truly free if, based on the principle of subsidiarity, it sanctifies and respects the real autonomy of the intermediary groups that are located between the individual and the state – groups through which individuals pursue their own specific goals." What he calls "intermediary groups" are, among others, universities, churches, families, but also companies. In the context of Chile's constitutionalists, these groups were viewed as primary forms of organization that build the condition for the realization of individual freedom. Therefore, what social participation means in actuality, is the aim of ensuring these intermediary groups the greatest possible autonomy vis-à-vis the state, while the role of the state, conversely, must be to protect and support the autonomy of these intermediary groups – including, if necessary, state intervention against attempts of addressing them with political ends (e.g. through union work) or against individuals challenging them from inside (e.g. by imposing restrictive divorce and abortion laws that would push the bourgeois family).[4] This way in which a legal framework is supposed to protect both state and society from politics constitutes the authoritarian neoliberalism of the 1980 Constitution of Chile – and these or comparable elements can be found in other contexts where this constitutional anchoring does not exist in the same form.[5]
The fact that the new constitutional process began through a protest around social demands (against an increase in public transport fares) that then turned into the fundamental claim for a new constitution, entails the opportunity to, through the new constitutional project, fundamentally question the link between neoliberalism and authoritarianism that was in the heart of the old constitution. Through the radically democratic process that has ignited in Chile, it becomes possible to express a fundamental critique of neoliberalism and to enable a groundbreaking change – both economic and political – that can be taken as an example, even beyond Chile. It raises the seemingly unique possibility of radically politicizing neoliberal conditions and integrating the social issues with which the protests began into the constitutional process.[6]
Radical Democratization: Chile's current constitutional project
To what extent did this democratic and anti-neoliberal background enter the constitutional proposal itself?[7] In which sense does the constitutional text read as an explicit critical answer to the "protected democracy" of authoritarian neoliberalism that shaped the old constitution? I will only highlight a few points that I assume to be of special significance in this context.
First of all, the understanding of the nation-state expressed in the new constitutional text is fundamentally opposed to the homogeneous national unit imagined in the still constitution of 1980. The old constitution contained "a mono-ethnic understanding of society and state" by placing the nation at the center and negating the "existence of different peoples and nations within the state."[8] With its still-in-place constitution, Chile is "the only state in South America that does not include constitutional recognition of indigenous peoples and their collective rights."[9] In contrast, the new constitutional text acknowledges from the very beginning that Chile is composed of "diverse nations" (preamble of the constitution). The state must assure the collective rights of indigenous people and the autonomy of "their lands, territories and resources" (Art. 79) – thereby posing clear limitations against the exploitation of natural resources that has been happening in indigenous territory for many years. This visible focus in the constitution is primarily the result of the strong involvement of indigenous communities in the constituent process. Seventeen seats were reserved for representatives of ten indigenous communities and the Mapuche representative Elisa Loncón was elected president of the constituent commission for the first six months of its work.
Very much contrasting the former aim of limiting democracy to protect the market, here the idea that the political formation of a constitutional order must be used to set limits on the economic exploitation of humans and nature is evident in a number of ways. Referring to the exploitation of nature, an "environmental democracy" (Art. 154) is envisioned (chap. 3), based on the recognition of the fundamental rights of nature (Art. 127). One part of this democratic ideal is a "participatory and decentralized water governance system" (Art. 143) and the state dominion over mineral extraction (Art. 145). With the introduction of a (decentralized, regionally working) "Office of the Ombudsman of Nature" ("defensoría de la naturaleza"), a constitutional organ is created to ensure the protection of nature from human exploitation (Art. 148-150). With regard to the exploitation of people, the constitution introduces a regulation of labor that limits the imperative of productivity (Art. 46-50): "This includes the right to equitable working conditions, to health and safety at work, to rest, to the enjoyment of free time, (and) to digital disconnection" (Art. 46, 1). Moreover, it includes a focus on gender equality (Art. 46, 2), non-discrimination (Art. 46, 3), and special protection of working person's reproductive rights (Art. 46, 5). What is specifically worth noting within the whole idea of work implemented by the constitution is the recognition of reproductive labor ("domestic and care work") as an "economic activity" that is "socially necessary and indispensable for the sustainability of life and the development of society." (Art. 49, 1) This results in a "right to care", meaning "the right to care, to be cared for and to care for oneself from birth to death. The State is obliged to provide the means to guarantee that care is dignified and carried out under conditions of equality and co-responsibility." (Art. 50) This protection of one's own body both from capitalist exploitation and from authoritarian state intervention also includes "ensuring all women and persons with the capacity to bear children the conditions for a pregnancy, a voluntary interruption of pregnancy, a voluntary and protected childbirth and maternity." (Art. 61, 2) Read against the background of the special protection of unborn life that has been part of the old constitution (Art. 19), this is of outstanding meaning.
This small glimpse already makes clear how much the new constitutional project is firmly committed to opposing the constitution of authoritarian neoliberalism with a clear and politically defined alternative. What it advances is, on the one hand, liberal (in the sense of protecting social and cultural diversity against an authoritarian state), and, on the other hand, social democratic (in the sense of protecting the foundations of social reproduction against capitalist exploitation). Nevertheless, nothing about this is self-evident – not only in light of Chilean history (which is still to be viewed as recent) but also in light of current developments toward authoritarian neoliberalism that are emerging or growing in many places outside Chile today.
Marina Martinez Mateo is junior professor for media and technology philosophy at the Academy of Fine Arts in Munich.
[1] Naomi Klein, The Shock Doctrine. The Rise of Disaster Capitalism. London: Metropolitan, 2007; 76.
[2] Augusto Pinochet, "Discurso en Cerro Chacarillas, con ocasión del Día de la Juventud el 9 de julio de 1977", in: Nueva Institucionalidad en Chile. Discursos de S.E. el Presidente de la República General de Ejército D. Augusto Pinochet Ugarte, 12–15. Santiago de Chile: memoriachilena.cl 1977/1978. http://www.memoriachilena.gob.cl/602/w3-article-127202.html.
[3] Friedrich A. Hayek, The Constitution of Liberty. Chicago: The University of Chicago Press, 1978 [1960]; 106–107.
[4] The importance of "intermediary groups" and the "principle of subsidiarity" for constitutional neoliberalism in Chile has been highlighted repeatedly. See, among others, Christian Viera Álvarez et al., "Una aproximación a la idea de 'Constitución económica' y sus alcances en la Constitución chilena", in: Boletín Mexicano de Derecho Comparado 145 (2016): 325–359.
[5] Melinda Cooper highlights the alliance of neoliberalism and neo-conservatism in the protection of the traditional family for the context of the USA: Melinda Cooper,Family Values. Between Neoliberalism and the new Social Conservatism. New York, NY: Zone Books, 2017.
[6] For an insightful analysis of the relationship between the political and economic dimensions of the protests see Alexis Cortés: "The Chilean October: Neoliberalism was born and will die in Chile?" https://www.opendemocracy.net/en/democraciaabierta/el-octubre-chileno-el-neoliberalismo-nace-y-muere-en-chile-en/.
[7] The constitutional draft can be found here: https://www.chileconvencion.cl/wp-content/uploads/2022/07/Texto-CPR-2022.pdf For an English translation see here: https://act.progressive.international/newchile/
[8] José Aylwin, "Proceso Constituyente en Chile: Análisis crítico desde la perspective de derechos humanos", in: José Aylwin und José Marimán (Hg.), Proceso Constituyente en Chile: Análisis crítico desde la perspectiva de los derechos humanos y de la plurinacionalidad, Temuco: Observatoria Ciudadano, 2017, 9–36; 14.
[9] Ebd.
