ADDED 05/04/2018

Chile: A Return to ‘Guardian Democracy’?

FROM 04/17/2018 |

BY J. Patrice McSherry

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How Sebastián Piñera’s right-wing government is undermining democratic institutions 

Sebastián Piñera, a conservative billionaire, assumed the presidency of Chile for the second time on March 11 after an election in which abstention was the biggest winner. In only a few weeks he and right-wing allies engineered changes to key reforms enacted by previous socialist president Michelle Bachelet (2014-2018), using technicalities and administrative channels rather than engaging Congress, which includes a range of left and center-left forces. These changes signified setbacks to progressive reforms made after years of democratic discussion and debate. As in other Latin American countries in recent years, Chile’s new government represented a swing to the right. In the region, democratic institutions are being bypassed and right-wing politicians, wealthy elites, and security forces are working to impose their interests via decrees, unelected institutions, and other undemocratic means, including violence—witness the assassination of councilwoman and activist Marielle Franco in Brazil and the shots fired against a bus caravan carrying Lula, former leftist president of Brazil, both in March.

After the transitions from military to civilian rule in Latin America in the 1980s and ‘90s some scholars noted that military dictatorships had implanted structures that could later limit the future transition to full democracy, a phenomenon I have termed “guardian democracy.” Struggles to democratize political systems were constrained and sometimes halted by guardian structures that limited and controlled social mobilization, political opposition, and civilian power. In Chile, Augusto Pinochet established a Constitution in 1980 that enshrined a permanent political role for the armed forces. He stacked the Supreme Court with pro-military figures, named a number of “designated senators,” and set up a National Security Council (Cosena) to monitor the civilian government and override its decisions if the military deemed it necessary. Political personnel from the dictatorships, their civilian collaborators, and security forces remained a powerful presence in state and society after the transitions. In countries such as Argentina, Brazil, Chile, and Uruguay, limited forms of democracy emerged alongside neoliberal economic systems.

A 1984 Anti-Terrorist law imposed by Pinochet is still in effect, despite some modifications, and Piñera is intent on hardening the law.After the 1990 transition in Chile, the most egregious guardian structures were gradually eliminated, especially in 2005. But some have never been completely removed. Pinochet’s Constitution is still in effect, with some revisions. Some cases of crimes committed by military or police officers are still sent to military courts and more than 1000 outstanding cases of human rights violations are pending in the judicial system. A 1984 Anti-Terrorist law imposed by Pinochet is still in effect, despite some modifications, and Piñera is intent on hardening the law. The Anti-Terrorist law has been used against Mapuche land-rights activists who have protested the large-scale forestry projects of transnational corporations and wealthy landowners in Araucanía, their ancestral lands. In 2014, the United Nations Human Rights Council criticized the law, not for the first time, as did the Inter-American Court of Human Rights, which found the state of Chile guilty of violating the human rights of the Mapuche people. In 2017, UN experts again urged the government not to use the law because it deprived accused people of due process and the presumption of innocence. The law permitted “protected” (secret) witnesses, harsher penalties, and long “preventive detentions,” and allowed authorities to withhold evidence from the accused.

The courts continued to convict and sentence notorious military human rights abusers from the dictatorship era. But the Supreme Court sometimes reduced their sentences. Bachelet never closed Punta Peuco, a luxurious “prison” especially constructed for military men convicted of crimes against humanity. She did, however, with Congressional support, reform other enduring guardian structures during her second term. Pinochet’s binomial (or binominal) system of elections—designed to give disproportionate weight to right-wing minority political parties and impede the left—was finally eliminated.

Yet Chile remains a country marked by contradictions. It is the only South American member of the Organization for Economic Co-operation and Development (OECD), the “club” of developed countries with 35 members. Macroeconomic indicators are good, but they disguise sharp levels of inequality. Under Bachelet, Chile became a leader in solar power development, and the president oversaw a significant expansion of Santiago’s public transit system. But such signs of progress coexisted with extreme social inequality and concentrations of wealth, legacies of the dictatorship. Chile’s entire water supply is privatized and prices for water are the highest in Latin America. The privatized pension system imposed by Pinochet left retired people struggling to survive. Some 90% of the retired earned less than $154.000 pesos per month, about $220 dollars—an unlivable amount in neoliberal Chile. The OECD stated in 2018, “The gap between the wealthiest 10% and the poorest 10% in Chilean society is 65% higher than the OECD average.” We now turn to a few of Bachelet’s other reforms—and recent government countermeasures to undercut them.

Education Reform

Massive weekly student demonstrations in 2011 demanded an end to privatized education, another heritage of the Pinochet regime. Young people called for free, public, quality education from primary to university levels. The students, whom 80 to 90% of the population supported, insisted that education was a social right and not a market commodity. In her second term, Bachelet sponsored and finally enacted an education reform to provide free public primary and secondary education, and free university education for the poorest 60% of households. While many students and other Chileans were disappointed in the final law’s shortcomings, as they had demanded universal free education, they supported the law’s prohibition of profit-making. Bachelet also eliminated the privatized voucher system to reduce segmentation in Chile’s schools, which reproduced class stratifications.

But the law soon elicited controversy. A leader of the private university sector demanded that the Constitutional Court  review the new law. This Court had existed in various iterations for decades, but Pinochet abolished it after the 1973 coup. It was recreated and significantly “militarized” under Pinochet’s 1980 Constitution, but then reformed under civilian government in 2005. Separate from the Supreme Court, the Constitutional Court had broad powers to declare legislation unconstitutional. Its decisions are not subject to appeal. Londres 38, a memory site, denounced this court in March 2018 for “paralyzing more than 30 human rights cases” for more than three years. That same month, the Constitutional Court decided to strike down the fundamental Article 63 in the new education law, which had banned functionaries seeking to make a profit from positions of authority in private universities. Many opposition figures decried the decision, which essentially nullified years of debate and deliberation. Eighteen university rectors issued a statementcondemning the alteration of “a law democratically approved and highly valued by Chilean society.” They declared: “The law is incongruent because it mandates the state to eradicate profit-making from higher education but at the same time permits higher education institutions to be controlled by institutions or individuals whose goal is profit-making.” A number of public figures denounced the Constitutional Court as an undemocratic institution that overrode Congress. Ex-student leader and current Congressman Giorgio Jackson commented that Chile Vamos (Piñera’s coalition) had a 6-4 majority in the Constitutional Court, and said the Court was acting like the unelected “designated senators” of years past. In this case, the Court basically acted as a guardian structure and a check against democratic processes, to preserve the interests of wealthy investors and the market model of education despite the clear preferences of Chilean society.

Students protest in June 2011 in favor of universal, free, quality education. (Photo by J. Patrice McSherry)

Students protest in June 2011 in favor of universal, free, quality education. (Photo by J. Patrice McSherry)

Decriminalizing Abortion

Up to 70,000 illegal abortions per year took place in Chile thereafter, and sometimes clinics would turn in women they had treated for complications from crude abortions.Another key reform also faced a backlash from the Piñera government and the Constitutional Court. Bachelet’s landmark law to decriminalize abortion passed in 2017, supported by 70% of the public. It allowed “therapeutic abortion” in three limited cases: rape; an unviable fetus; or life-threatening danger to the woman. In fact, Chile had had a liberal abortion law from 1931 to 1989, which the outgoing Pinochet dictatorship nullified in 1989. The result was to criminalize abortion in all cases, making Chile one of a handful of countries in the world with such restrictions. Up to 70,000 illegal abortions per year  took place in Chile thereafter, and sometimes clinics would turn in women they had treated for complications from crude abortions. Most impacted by this draconian law were poor women without access to resources to travel abroad to have abortions. Hundreds of people were charged and convicted of undergoing, or performing, abortions after 1989.

The extreme Right, especially the Independent Democratic Union (Unión Demócrata Independiente, UDI) party—which included former functionaries of the Pinochet regime—the Catholic Church, and other rightist forces fiercely opposed Bachelet’s reform. In fact, elements of the Christian Democrat Party, part of Bachelet’s governing coalition, also opposed it. Conservatives from Chile Vamos challenged the constitutionality of the law by lodging a complaint before the Constitutional Court in 2017. The Court judged the law constitutional, but expanded a “conscientious objection” clause to include institutions as well as individuals. The Catholic Church had lobbied for a clause to allow medical personnel to “opt out” of providing abortions.

After 12 days in office Piñera’s government further weakened the law by dismantling, by decree, one of its legal requirements: that private clinics that received state funding could not use the “conscientious objection” clause to refuse to aid women. In other words, institutions that declined to perform abortions as stipulated by the law would still receive state funding. This decision opened the door for more medical institutions to refuse to perform abortions. The Catholic University Hospital had already done so and other religiously-oriented clinics began to suspend abortions as well. Medical groups called for the new protocol to be annulled. But in this case, again, the Constitutional Court and an administrative measure were used to undermine a democratically-approved law with significant repercussions for women, which had the support of a large majority of Chileans.

The Anti-Terrorist Law

The new Piñera government also announced it would toughen the Anti-Terrorist Law—which has been used against the Mapuche. Significant areas of Mapuche territory in southern Chile are militarized and for years there have been clashes and reports of police brutality. Large landowners and timber companies have increasingly moved into Mapuche land, under permissions granted by the Pinochet regime. This process began, of course, in the 19th century when the Chilean state defeated the Mapuche. The region is essentially occupied by Carabineros, Chile’s militarized national police force, which sweeps through villages and sets up checkpoints on roads. (An early version of the Carabineros was created in 1903 precisely to control the Araucanía region and its inhabitants. Carabineros are also used to disperse protests in cities, using water cannons, tear gas and tanks.)

In recent years violence has increased in the region. There has been a rash of arson attacks against lumber trucks and churches. Police have brutalized and killed Mapuche protesters (figures are hard to come by). Two landowners died in 2013.  Eleven Mapuche leaders, including including Machi (spiritual leader) Francisca Linconao, faced “terrorism” charges for the fire that killed the landowners, but were acquitted for lack of evidence. By the time they were found innocent, they had been imprisoned or under house arrest for 18 months. But when the Attorney General’s Office appealed the acquittal in December, the trial was declared null and void. It was rescheduled to be repeated in 2018. Police have also been deemed responsible for the killing of several Mapuche youth.

After taking office in March, Piñera traveled to Mapuche country, La Araucanía, to announce 11 policy changes to the existing Anti-Terrorist Law. Among the new measures were the use of clandestine agents and infiltrators and a hardening of penalties not only for “terrorism” but also for “apology of terrorism,” which could conceivably be used against solidarity activists or journalists. The president’s bill vaguely categorized “acts that destabilize the democratic institutional order” as terrorist crimes. The former Mapuche governor of La Araucanía, who is now a Senator, Christian Democrat Francisco Huenchumilla, sharply criticized the bill, insisting that the problem was a political one, having to do with the usurpation of Mapuche lands. It would be hard to reach accords if the executive “arrived with a garrote,” he commented. The former Minister of Social Development under Bachelet said that the new measures “criminalized and stigmatized the political demands of indigenous peoples, especially the Mapuche” and called Piñera’s proposals “far outside international standards in terms of human rights.” But the Anti-Terrorist law was applied under Bachelet’s government too, despite her apology to the Mapuche in 2017. In that year, eight Mapuche ativists were arrested under the law with no official warrant or evidence, and held in “preventive detention” for months, accused of “illicit terrorist association.”

Moreover, the notorious Operación Huracán took place under Bachelet’s watch, a program led by the Carabineros and Chilean intelligence services purportedly to detain Mapuche lawbreakers. In 2017, during the trial of Mapuche activists accused of arson attacks against logging interests, a controversy erupted over manipulated evidence. Prosecutors discovered that Whatsapp messages on the cell phones of the accused—cited as crucial evidence of their guilt—had been planted. Police personnel were suspected of fabricating evidence to implicate Mapuche leaders. The court threw out the charges against the activists and closed the case. The commander of the Carabineros, General Bruno Villalobos, first decided to “go on vacation” in the United States as the scandal intensified. Then, with the change of administration, he resigned. This case raised serious questions as to whether the Carabineros were under civilian control and whether they were using criminal and undemocratic methods to target and entrap Mapuche leaders.

An Eternal Transition?

These developments prompted doubts and concerns regarding both Chile’s “eternal transition” from military rule and the resurgence of pro-market ideology and policy by neoliberal actors. Piñera’s government and its allies have resorted to decrees and technicalities as well as the Constitutional Court—with its origins in Pinochet’s Constitution—to bypass or undercut democratically debated laws to the benefit of powerful elite interests. As in other countries where the Right has taken power (Macri in Argentina, Temer in Brazil, Trump in the U.S.), civilian governments, supported by wealthy elites, security forces, and right-wing sectors, have rolled back social gains achieved after difficult struggles. The militaries are not in power but right-wing governing elites were criminalizing (or ignoring) popular demands and turning back the clock. In Chile, the result has been to produce a sense of frustration and impotence in the public as well as increased cynicism toward elected government. The Chilean social movements have planned four major marches this month. The question is whether powerful interests will accept popular demands achieved through democratic means or whether they will continue to resort to guardian structures to block them under the guise of legality.

J. Patrice McSherry, Professor of Political Science Emerita, Long Island University, is currently a researcher in collaboration with the Instituto de Estudios Avanzados, University of Santiago, Chile. Among her books are Chilean New Song: The Political Power of Music, 1960s-1973 (Temple, 2015) and Predatory States: Operation Condor and Covert War in Latin America (Rowman & Littlefield, 2005). She thanks Felipe Agüero, Raúl Molina, and Rose Muzio for their comments on this piece.

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