Chilean Constitution of 1980

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The Chilean Constitution of 1980.

The Chilean Constitution is the supreme legal text that forms the framework of the Chilean State. It was first redacted by the Ortúzar Commission (9 jurists with participation of former presidents) on 1980 during the Military Government of President Augusto Pinochet, approved on a referendum held on the 11 of September, 1973 with 67% of the vote, and promulgated on March 11, 1981. A second referendum was held on the 30th July, 1989 to apply reforms to the text, winning by a 91.25% (this referendum has never been objected by anyone).[1]

Jaime Guzmán founder of the Independent Democrat Union party, writer of part of the 1980 Constitution and its complementary laws, including the binomial system.

The same Constitution has been in force in Chile since with several reforms under democratic administrations. At least 43% remains the same as it was originally enacted as of 2020, while 57% come from democratic governments.[2][3] The Constitution writing had an important participation of Jaime Guzmán. The text established a gradual and legal path for the return to full democracy and introduced a new binomial electoral system that was also made by Guzmán. The constitution introduced an amnesty law for all military officials, and Pinochet granted himself the title of senator for life (Senador vitalicio) that would be enacted once Pinochet left the charge of Commander in Chief of the Chilean Armed Forces.

The left-wing commonly criticizes the "origin" of the text. This is absurd to the extreme, because the 1980 Constitution has been the most ratified by the Chilean people of all those that have existed. In the 1980 plebiscite, more than 60% voted for it. In the 1989 plebiscite, more than 90% ratified the reforms that were then proposed and ratified it again. Afterwards, it was modified every time a majority was gathered to do so, to abolish the appointed senators, to create a new criminal procedural system, to modify the electoral system. In 2005, President Ricardo Lagos made 54 modifications, and he proclaimed the text as a great democratic Constitution saying: "today we finally have a democratic Constitution, in accordance with the spirit of Chile, of the permanent soul of Chile (...) a Constitution that no longer divides us", worthy of the Chilean people, and appropriated it, putting his signature at the bottom of the text instead of President Pinochet's signature. Thus, strictly speaking, the current Constitution is "the Constitution of Lagos".[4]

For the left, the changes introduced by Lagos, and even the fact that his signature is now there, never changed the main condition of this mother law for the Chilean political system: having been created and promulgated under "dictatorship" and being considered the "Constitution of Pinochet". In the 2019 Chilean Marxist Insurrection, the left-wing called for a change of the Constitution. A referendum (with voluntary voting) was made on October 25, 2020, and the option to change the Constitution won, however, after a proposed leftist Constitution was written, on September 4, 2022, the second referendum (with mandatory voting) took place in which the 'Rejection' option won with 61.86% of the vote against 38.14% of the 'Approve' option. A new Council was made by the political class without asking the people of Chile if they wanted to start a new process and on December 19, 2023, the "Against" Option obtained 55.76% of the votes while the "In Favor" Option obtained 44.24%. The dissident right was victorious over the establishment "right-wing" parties who supported the new proposed text.

The previous Constitution of 1925 lacks sufficient democratic title, because only 44.9% of those registered voted for it, and those who approved it were an even smaller number. Broad sectors called for abstention. The jurist José Bernardo Lira stated, regarding its text, "I find the draft of the new Constitution unacceptable in its substance, in its spirit, in its letter and in the way in which it has been elaborated and will be sanctioned".[4] Also, the 1925 text had been insufficient to face the problems the country had suffered for many years and even more inoperative in the face of the outbursts of the socialist regime that led the country to the greatest moral, political, social and economic chaos in its history.

History

Main article: Military Government (Chile)
President Augusto Pinochet in 1974.

On September 11, 1973, the military intervention that overthrew the Marxist Regime of Salvador Allende happened. That same day, after seizing power by force, the commanders-in-chief of the Armed Forces (Armed Forces) and the Carabineros created, through Decree Law No. 1, the Military Government. They declared the formation of a Government Junta that would immediately assume the Supreme Command of the Nation and committed themselves to respect the Constitution and the laws of the Republic, "to the extent that the current situation of the country allows it for the best fulfillment of the postulates that it proposes".

The Fundamental Charter then in force was that of 1925, promulgated by Arturo Alessandri Palma. But in fact, it was subordinated to the power of the Armed Forces and was replaced by a series of decrees that would determine the order of the country during the government. One of them, promulgated in October of that same year, was the one that established the creation of the Commission for the Study of the New Political Constitution: seven men specially designated to study, elaborate and propose the preliminary draft of the text that would lay the institutional foundations of Chile. Seven years later, this text saw the light of day and, after a ratifying plebiscite, it was promulgated by President Augusto Pinochet on March 11, 1981.

Characteristics of the original text

The Political Constitution of Chile defines a new political order and a new economic order, based on free private initiative and a subsidiary State, while reinforcing the family as the nucleus of a free society where respect for individuals and their active participation prevail.

The main characteristics of the new Constitution of 1980 are:

  • Recovery of the rule of law, which implies the hierarchy of constitutional norms and the separation of public powers.
  • Consolidation of individual liberties.
  • Subsidiarity of the State.
  • Strengthening of individual and social freedoms.
  • Recognition and constitutional consecration of rights that were not duly safeguarded.
  • Regulation of constitutional states of exception. And creation of a new recourse of protection to defend constitutional guarantees.
  • Organization of a strong Executive Branch, rationalization of the Legislative Branch and strengthening of the Judicial Branch.
  • Creation of bodies that reinforce institutionality and give people new instances to defend their rights, such as the Constitutional Court, the National Security Council. The General Comptroller of the Republic was elevated to constitutional hierarchy.
  • Constitutional consecration of regionalization

Since its enactment on March 11, 1981, the 1980 Constitution regulated the political, economic and social life, transforming the country into an orderly and solidly democratic nation.

In this area, the most important initiative of the military government was the drafting of a new Constitution for the country, which would support the new order it sought to impose in Chile. In this sense, the Declaration of Principles of the Government of Chile, issued in March 1974, served as the basis for the new Magna Carta.

The rights of man (prior and superior to those of the State), the principle of subsidiarity, the recognition of private property and free initiative in the economic field, were assumed as pillars of the foundational work.

The drafting of the new constitutional text was entrusted to a commission chaired by Jorge Alessandri's former Minister of Justice and the Interior, Enrique Ortúzar. The group -whose work was permanently guided by the Executive also included constitutionalists such as Sergio Diez, Jaime Guzmán, Alejandro Silva Bascuñan and Raúl Bertelsen.

The new Political Constitution was voted on in a plebiscite held on September 11, 1980, in which 67.04% of the population voted "Yes" and 30.19% "No". Six months later, the document came into force.

The regulation contemplated new conceptions of the person, society and the State. In this sense, the important definition that the rights of men are first and prior to those of the State laid the foundations of the institutional framework that would govern the nation.

Likewise, the new Constitution detailed the functioning and role of future institutions.

The election of parliamentarians by constituencies strengthened the regionalization of the country, initiated during the first stage of the government.

The binominal electoral system set the basis for a two-party system that would guarantee the balance of political forces represented in Congress.

It also introduced appointed senators, the second round in presidential elections and the obligation to obtain more than 50 percent of the votes in order to accede to the presidency.

The most revolutionary and resisted innovation of the new Charter was the establishment of the Armed Forces as guarantors of institutionality, a precept that led to the creation of the National Security Council (Cosena).

Reforms

How much the Constitution of Chile was reformed since 1980. 43% of the articles are from the original 1980 text, while 57% come from democratic governments.
President Ricardo Lagos reformed the Constitution in 2005 putting his sign and replacing Pinochet's.

Since its promulgation, the Constitution has been modified 49 times, two of the most important being: the transition reform in 1989 -the last changes introduced by the Pinochet Government-, which made 54 modifications; and the one signed by President Ricardo Lagos in 2005, which also made 54 changes. But there is much that remains intact, and among the changes introduced there are all kinds.

Although most of it has changed on democratic governments, the current text still considers 43% of the original articles. That is to say, that is the proportion that still remains in the Fundamental Charter as a legacy of the Military Government.

The graph is the result of the comparative analysis which compared the original 1980 version with the 2020 version and considered the reforms that have been made in between to see how each article has evolved over time.[5]

There are five categories:

  1. Identical: articles that have not been modified or, if they have been modified, it was done in such a way that it does not change their meaning;
  2. Minor change: means that the article has been modified to a lesser extent, partially redefining its meaning;
  3. Major change: those that have been modified in a major way, resulting in a total redefinition of their meaning;
  4. Deleted: are the articles that disappeared in one of the reforms and no longer exist in the current text.
  5. New: an item was created for a specific purpose.

In addition, the articles that listed rights and/or powers were separated by numeral, with review of projects and constitutional reforms enacted until August 17, 2020.

Current text

The original texts that remain are distributed throughout the entire constitutional text. There are 82 articles in total.

Likewise, most of the presidential, ministerial and Senate powers are maintained, which in recent times have generated a struggle for control of the legislative agenda between La Moneda and the Congress. Although the President no longer has the power to appoint senators or to dissolve the Chamber of Deputies, he does have the power to make decisions on requesting a session of parliament; to issue decrees with the force of law; to declare states of exception, appoint ministers, ambassadors and other authorities of exclusive trust; to grant retirements, pensions and pensions of grace, in accordance with the law; to take care of the collection of public revenues and decree their investment according to the law; to grant pardons; to appoint and remove the Commanders-in-Chief of the Armed Forces and the Director General of the Carabineros; and to assume, in case of war, the leadership of the Armed Forces, the Armed Forces and the General Directorate of the Carabineros, among others.

The powers of the Ministers of State are maintained, but the regulation of their per diems, transparency requirements and incompatibilities with the position was increased. On the other hand, the Senate maintains almost the same powers with the exception of allocating special sessions or parts of sessions to issue opinions on government acts. The Chamber of Deputies is the one that has undergone the greatest changes, having increased its powers, such as summoning ministers of State to question them and initiating investigative commissions. Before that, it could only supervise government acts by adopting agreements or suggesting observations. The rules regarding the matters of law and their formation remain the same as those provided for in the text that originated under Pinochet's mandate. That is to say, laws on taxation of the budgets of the Public Administration and on recruitment may only originate in the Chamber of Deputies; laws on amnesty and on general pardons may only originate in the Senate; and bills relating to the alteration of the political or administrative division of the country, or to the financial or budgetary administration of the State, including amendments to the Budget Law, are the sole responsibility of the President. In total, nine articles were eliminated and, of those remaining, 19 were only slightly modified, 88 were completely redefined and 36 are new.

Rights

Of the 26 numerals corresponding to the rights guaranteed by the Constitution - contained in Article 19 - only 10 have been modified. For example, No. 2, on equality before the law, incorporated gender differentiation: men and women are equal before the law, and No. 3, on equal protection of the law in the exercise of their rights, adds that the State shall provide legal representation to those who do not have the means to provide themselves with one, a task that falls to the Public Defender's Office, created in 2001, under the Criminal Procedure Reform.

It was eliminated that damage to honor by false statements by the media may be a crime (No. 4); and with respect to freedom of expression and information (No. 12), it changed the term "censorship" to "content qualification", adding guarantees; and incorporates "the freedom to create and disseminate the arts" together with the right to property (No. 25).

The conditions regarding personal freedom and individual security were modified (No. 7); the guarantees regarding the right to associate without prior permission were increased (No. 15), ensuring political pluralism, registration of militancy, primary elections and defining sanctions for those who violate the rules of association; and eliminating the constitutional exception as a situation that can regulate, complement or limit the guarantees of these rights (No. 26).

In addition, powers were increased in the right to education (No. 10), adding compulsory kindergarten education with certain levels free of charge, as well as basic and secondary education, which will be provided free of charge by the State until the age of 21. Regarding freedom of labor (No. 16), powers and conditions of professional tuition were added.

Constitutional evolution through the years

One of the transitory provisions drafted in the 1980 Constitution indicated that the office of President would be held by General Augusto Pinochet for a period of eight years. Once that period had elapsed, the name of a person would be proposed to exercise the same function and his approval would be subject to ratification in a plebiscite. When it was time to choose a name, it was his name that was put on the ballot. Then it was no longer a matter of electing another person to continue in office, but rather of defining whether Pinochet could remain in La Moneda for another eight years. Thus, on October 5, 1988, the citizenry rejected Pinochet's continuance in power on the 1988 Chilean national plebiscite.

This involved a power transition that began with the enactment of 54 reforms enshrined in the first amendment to the Constitution since 1980. This was aimed at increasing pluralism and citizen political participation. Among its modifications, rights were strengthened, the role of the National Congress was deepened, and the functioning of the Armed Forces was reorganized, among others.

Between 1989 and 2005 -before the major reform enacted by Lagos- 16 constitutional amendments were made, including the reduction of the presidential term to six years, the incorporation of the second round, the creation of the Public Prosecutor's Office -which meant a new chapter in the Charter-, and equal opportunities for women and men.

With the enactment of the 2005 reform, changes in relation to the participation and democratization of the State were deepened, including the elimination of appointed senators, the change in the functions of the National Security Council, the new reduction of the presidential mandate, the modification of the system for the replacement of parliamentarians and allowing the removal of Commanders-in-Chief. Since then, 31 other constitutional reforms have been carried out, many of them deepening social rights: voting abroad, transparency and modernization of the State, criminal defense, protection of personal data, limit on the reelection of authorities and -one of the latest- the holding of a plebiscite to determine whether or not a new Fundamental Charter will be drafted.[3]

References