The Constitutional Reforms of 1989

The Constitutional Reforms of 1989

The victory of the opposition led to a period of political uncertainty. The no coalition had campaigned on a platform that rejected not only Pinochet's candidacy but also the "itinerary" and proposed "institutionality" of the Pinochet government. Democratic leaders felt that their clear victory entitled them to seek significant modifications in the constitutional framework established by the armed forces. However, they firmly rejected calls for Pinochet's resignation, or the formation of a provisional government, as unrealistic. Although Pinochet and the armed forces had suffered an electoral defeat, they had, of course, not been defeated militarily, nor had they lost their iron grip on the state. Nor was there any hint that the military would be willing to disregard Pinochet's wishes and abandon the transition formula and institutional order envisioned in "their" 1980 constitution. The fact that Pinochet had received 43 percent of the popular vote, despite fifteen years in office, only strengthened his hand in military circles.

Under these circumstances, the opposition leaders understood that they could not risk upsetting the military's transition formula or giving Pinochet an excuse to renege on the constitutional provision calling for an open presidential election within seventeen months. The opposition had won the plebiscite following Pinochet's rules; it could not now turn around and fully disavow them. Yet the opposition faced a serious dilemma. The 1980 constitution would be very difficult to amend once a new government was elected; a government elected under its terms would be locked into a legal structure the coalition considered fundamentally undemocratic. Pinochet would appoint almost one-third of the Senate, and the congressional election would take place under the rules of a system designed to favor the forces of the right, which had supported the military government. Changes to the constitution could be approved much more expeditiously before the full return to democracy because they would require the approval of only four men on the military junta, subject to ratification by a plebiscite.

Moderates within the military government who were open to discussions with the opposition quickly distanced themselves from regime officials and supporters who saw any compromise as capitulation. These moderates believed that it was in the military regime's clear interest to bargain with the opposition so as to salvage the essential features of the institutional legacy of the armed forces. They wanted a "soft landing" and feared that if the regime proved inflexible, a groundswell of support for the opposition could sweep away all of what they viewed as the government's accomplishments.

The position of the moderates in the military government, whose power was not assured, was bolstered significantly by the willingness of the largest party on the right, the National Renewal (Renovación Nacional--RN), to sit down with the opposition parties to come to an agreement on constitutional reforms. Political leaders of the democratic right were also uncomfortable with many of the authoritarian features of the 1980 constitution and anxious to distance themselves from the more unpalatable features of the regime as the country began to move toward electoral politics. They too were committed to a spirit of dialogue that might help prevent a breakdown in the transition and a return to raw military rule. The rightists' willingness to talk to their opponents in the center and on the left placed the regime hard-liners on notice: if reforms were not accomplished before the election of a Congress, the center-left parties of the opposition and the moderate right might yet find a way to dismantle the constitution of 1980.

The moderates within the government won the day with two additional arguments. First, they argued that any compromise with the opposition would leave the essence of the constitution intact while providing it with a legitimacy it presently lacked. The constitutional reforms finally would establish the Pinochet document as the legitimate successor to the 1925 constitution.

Second, the government soft-liners made persuasive arguments that constitutional reforms, prior to the advent of democratic politics, could improve certain features of the constitution. The constitution was designed for Pinochet's reelection, not his defeat, and the armed forces feared that the document did not sufficiently protect their institutional autonomy. By entering into a constitutional-reform agreement, the authorities could insist on an amendment that would elevate the law regulating the armed forces' internal operations, including promotions, organization, training, and finances, to the status of an "organic constitutional law." This would mean that changes in the law could not be made unless approved by a majority, or four-sevenths, of all senators and deputies.

The extraordinary bargaining among the democratic opposition, the moderate right, and the regime owed much to the leadership of Patricio Aylwin, the leader of the Christian Democrats, who had become the standard-bearer of the no alliance. Aylwin understood that the hard-liners within the military government could make the transition difficult, if not impossible, if the reform process broke down. Nor did Aylwin, who expected to be the next president of Chile, relish the prospect of a confrontational transition government in which the new authorities would endeavor vainly to implement reforms while supporters of the former military government sought to hold the line. The prospects for the first government after a long authoritarian interlude would be jeopardized by a continuous struggle to define the future of the country's institutional order. Better to agree on the playing field now, in order to avoid fatal problems later. For the regime, Carlos Cáceres, Pinochet's minister of interior, played a critical role. At one point in the talks, he threatened to resign when the general balked at key constitutional reforms, only to find strong support for his position among other commanders on the junta.

Opponents of constitutional reform on both the far left and the far right shared a curious symbiotic logic. Those on the left rejected reform because they envisioned a sharp break with the military government, which would be defeated once again in an open presidential election and would have to concede the failure of its institutional blueprint. Those on the right relished that very confrontation because they saw it as forcing the military once again to accept its "patriotic responsibility" and save the country from a citizenry still not ready for democracy.

The fifty-four reforms, approved by 85.7 percent of the voters on July 30, 1989, fell far short of the expectations of the opposition but nevertheless represented significant concessions on the part of the authorities. From the point of view of the opposition, the most important modifications were to Article 8, which in its new form penalized parties or groups that, through their actions and not simply through their objectives, threatened the democratic order. Other reforms eliminated the prohibition against party membership of labor or association leaders, required the courts to consider habeas corpus petitions in all circumstances, and prohibited exile as a sanction. The revised article also reduced the qualified majorities required for approval of organic constitutional laws and constitutional amendments in Congress; eliminated the requirement that two successive Congresses vote to enact amendments; and increased the number of elected senators to thirty-eight, thus reducing the proportion of designated senators while restoring some oversight functions to the Senate. In addition, the amended article eliminated the president's power to dissolve the lower house of Congress and reduced some of the chief executive's power to declare a state of exception; changed the mandate of Cosena by substituting the word representar (represent) for hacer presente (make known), a legal construction that the opposition interpreted from legal precedents at the Office of the Comptroller General of the Republic (Oficina de la Contraloría General de la República) as giving Cosena an advisory role, rather than an enforcement role; and increased the membership of Cosena to eight by adding another civilian member, the comptroller general (contraloría general). The latter modification ensured that the military members of Cosena would not enjoy a four-to-three majority.

From the perspective of the Pinochet government, the most important result of the reform process was the retention of the essential elements of its constitutional design and its ratification by an overwhelming majority of the citizenry. What the military had not achieved in 1980, it achieved with the negotiations of 1989. The constitution of the armed forces had now replaced the constitution of 1925 as the legitimate fundamental law of the land. Although it had to concede some points, the military gained a significant victory with the provision that laws dealing with the armed forces would be governed by an organic constitutional law. The Pinochet regime also succeeded in having the first elected president's term limited to four years with no option to run for reelection. Government officials were convinced that even if the opposition parties won the next election, they would be incapable of governing, a situation that would open the door in four years to a new administration more to the military's liking.

With the approval of the constitutional reforms, Chile's transition became, in political sociologist Juan J. Linz's terms, a transición pactada (a transition by agreement), rather than a transición por ruptura (a sharp break with the previous order). However, the opposition made clear that it saw the agreements as constituting only a first step in democratizing the constitution, and that it would seek further reforms of Cosena, the composition of the Constitutional Tribunal and the Senate, the election of local governments, the president's authority over the armed forces, and the powers of Congress and the courts.

With the constitutional reforms behind them, Chileans turned their attention to the December 14, 1989, elections, the first democratic elections for president and Congress in nineteen years. The fourteen opposition parties formed the Coalition of Parties for Democracy (Concertación de Partidos por la Democracia--CPD), with Aylwin as standard-bearer. His principal opponent was Pinochet's former minister of finance, Hernán Büchi Buc, who ran as an independent supported by the progovernment Independent Democratic Union (Unión Demócrata Independiente--UDI) and the more moderate rightist party National Renewal, which ran a joint congressional coalition called Democracy and Progress (Democracia y Progreso). Independent businessman Francisco Javier Errázuriz Talavera ran as the third candidate on a populist platform supported by a heterogeneous group of small parties calling themselves Unity for Democracy (Unidad por la Democracia).

Aylwin (1990-94) won a decisive victory, improving on the no vote in the plebiscite with 55.2 percent of the 7.1 million votes cast to Büchi's 29.4 percent and Errázuriz's 15.4 percent. In the congressional races, the CPD was able to beat the heavy odds imposed by the government's electoral formula and win a majority of the elected seats in both the Chamber of Deputies and the Senate. The CPD gained 49.3 percent of the vote to 32.4 percent for Democracy and Progress in the Chamber of Deputies, and 50.5 percent of the vote versus 43 percent for its opponent in the Senate.

Although the CPD won a majority of the contested seats in Congress, it fell short of having the numbers required to offset the designated senators to be appointed by the Pinochet government. Passage of even the simplest legislation would have required negotiations with opposition parties or individual designated senators. The military regime's electoral law had ensured an overrepresentation of the parties of the right in relation to their voting strength, making it virtually impossible for the new civilian government to adopt constitutional reforms without the concurrence of one of the main opposition groups.

Not the least of the new government's challenges was Pinochet himself, who by constitutional provision could remain as commander in chief of the army until 1997. Pinochet made it clear that he would continue to be a watchdog, ensuring that the new rules were followed and that "none of his men were touched" for their actions in the "war" to save Chile from communism.

Although Chile's authoritarian legacies clearly frustrated the new leadership, the transition probably was facilitated in the short term by the veto power that the military and the right continued to enjoy. Had the CPD pressed for an immediate modification of Pinochet's institutional edifice and attempted to dismiss many of his supporters, the armed forces would have been far more resistant to the return of civilian rule.

Chile's rightist parties, which remained suspicious of popular sovereignty and fearful that a center-left alliance with majority support could threaten their survival, would have been much more likely to conspire with the military had their "guarantees" been undermined. These authoritarian legacies also contributed to the success of the transition by helping the broad coalition under Aylwin's leadership achieve unity, retain it, and elaborate a common program of moderate policies. This moderation can be attributed not only to respect for a new style of politics after the traumatic years of authoritarian rule, but also to the new authorities' genuine fear of the strength of the armed forces and their rightist supporters. The danger Chile now faced was that the very provisions that made the transition possible in the short term could make the consolidation of a stable democracy more difficult in the long term.

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