The Constitution of 1980

Chile Table of Contents

The constitutional document imposed by the regime in 1980 consisted of 120 "permanent" articles, which went into full effect after the transition to "constitutional government." The document also included thirty-four "transitional" articles applying to the transitional period from March 11, 1980, to March 11, 1990. The transitional articles provided the regime with sweeping powers and outlined the procedures for the 1988-89 plebiscite on constitutional amendments and the election of a legislature. The most controversial provision was Transitional Article 24, which eliminated due process of law by giving the president broad powers to curtail the rights of assembly and free speech and to arrest, exile, or banish into internal exile any citizen, with no rights of appeal except to the president himself.

The "permanent" articles of the constitution were intended to create a "modern and protected democracy," an authoritarian version of representative government that guarantees "national security" by severely circumscribing the will of the people. This was to be accomplished in three ways: through the establishment of a permanent role for the armed forces as "guarantors" of the nation's institutions; through the imposition of restrictions on political activity, including the banning of movements or ideologies hostile to democracy; and through the creation of institutional mechanisms that would limit popular sovereignty.

The cornerstone of the military regime's constitutional doctrine was, according to the 1980 document, the establishment of a permanent tutelary role for the armed forces. The principal manifestation of this "tutelage" was, according to the 1980 document, the National Security Council (Consejo de Seguridad Nacional--Cosena), a body composed of eleven members, eight of whom have enjoyed full voting rights since 1989 and only two of whom were to be elected officials (Article 95). Voting members consisted of the president of the republic, the president of the Senate of the Republic (Senado de la República; hereafter, Senate), the president of the Supreme Court (Corte Suprema), the commanders in chief of the armed forces, and the director general of the Carabineros of Chile (Carabineros de Chile). This arrangement provided military leaders with an absolute majority on any Cosena vote. Nonvoting members included the ministers of defense; economy, development, and reconstruction; finance; foreign relations; and interior.

The 1980 constitution prescribed that Cosena could "express to any authority established by this constitution its opinion regarding any deed, event, act, or subject matter, which in its judgment gravely challenges the bases of the institutional order or could threaten national security" (Article 96). Cosena was thus empowered to admonish top government leaders and institutions, including Congress and the president, on any matter Cosena deemed relevant to the nation's security as Cosena defined it. Although the fundamental law did not specify what would transpire should an authority ignore Cosena's opinion, the framers clearly intended to give the armed forces constitutional authority to take matters into their own hands should their views be ignored.

The 1980 constitution also gave Cosena significant powers of "authorization" and "nomination." The constitution required the president to seek approval from Cosena to impose any state of exception and gave the council authority to solicit any information it deemed necessary in "national security" matters from any government agency. Under the 1980 charter, Cosena was also empowered to name four of the nine designated members of the Senate and two of the seven members of the powerful Constitutional Tribunal (Tribunal Constitucional), whereas the president and the Senate could nominate only one each. Finally, only Cosena could remove military commanders.

Perhaps the most significant protection of military prerogatives was provided by Article 93, which severely limits civilian control over the armed forces. Although the president names the commanders of each of the military services and the director general of the Carabineros, nominees must be selected from a list of the five highest-ranking officers with greatest seniority. Once a commander is appointed, that appointee is safe from presidential dismissal for the duration of the individual's four-year term, unless qualified charges are brought against the person.

A second set of instruments for the establishment of a "protected" democracy excluded from political life those individuals, parties, or movements whose views and objectives are judged hostile to democracy. The language of Article 8 was aimed specifically at the parties of the Marxist left, although it could be applied to other groups and movements as well. According to the article, "any act by a person or group intended to propagate doctrines that are antagonistic to the family or that advocate violence or a totalitarian concept of society, the state, or the juridical order or class struggle is illicit and contrary to the institutional order of the Republic." Furthermore, any organization, movement, or political party that supports such aims is deemed unconstitutional. Article 19 barred parties from intervening in any activities that are "foreign to them," including the labor movement and local or community politics. Finally, Article 23 and Article 57 specifically barred leaders of "intermediate groups," such as unions, community organizations, and other associations, from leadership of political parties, and vice versa; deputies or senators could lose their seats for acting directly on such groups' behalf.

Third, the military regime sought to limit the expression of popular sovereignty by placing a series of checks on government institutions whose existence derives from popular consent. The most dramatic example was the elimination of elected local governments. Since colonial times, Chileans had elected municipal governments with considerable local powers and autonomy. Although modern local governments were limited in their efficacy by the overwhelming power and financial resources of the state, participation and interest in local politics had always been high. Article 32 of the constitution called for the direct presidential appointment of regional intendants (intendentes), governors (governadores) of provinces, and mayors (alcaldes) of large cities. Other mayors could be appointed by provincial corporative bodies.

Reversing Chilean democratic practice, the constitution created an exaggerated presidentialism, severely limiting the prerogatives of Congress. Article 32 was particularly dramatic, giving the president the power to dissolve the lower house, the Chamber of Deputies (Cámara de Diputados), at least once in the chief executive's term. Popular representation in Congress was to be checked through the appointment of nine "designated" senators, more than a fourth of the thirty-five-member chamber. Finally, the constitution made any reform in the basic text extremely difficult to implement by requiring the concurrence of the president and two succeeding legislatures, each of which would have to approve an amendment by a three-fifths vote.

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Source: U.S. Library of Congress