CHAPTER XII
POLITICAL RIGHTS

A. GENERAL ASPECTS

1. The Inter-American Commission on Human Rights has repeatedly pointed out the close linkage between the existence of a representative democratic system and respect for fundamental human rights.

2. Such a conviction follows from the conception of democracy--as an ideology and a form of government--embodied in the principal instruments that comprise the inter-American system.

3. Indeed, Article XX of the Declaration of the Rights and Duties of Man states that:

Every person having legal capacity is entitled to participate in the government of his country, directly or through his representatives, and to take part in popular elections, which shall be by secret ballot, and shall be honest, periodic and free.

4. For its part, the Charter of the Organization of American States has explicitly set forth the relationship between democracy and human rights by including the following among the principles it has affirmed in its Article 3:

d. The solidarity of the American States and the high aims, which are sought through it require the political organization of those States on the basis of the effective exercise of representative democracy.

j. The American States proclaim the fundamental rights of the individual without distinction as to race, nationality, creed, or sex.

5. That relationship is also set forth in the Preamble of the OAS Charter in which the American States stipulate:

That the true significance of American solidarity and good neighborliness can only mean the consolidation on this Continent, within the framework of democratic institutions, of a system of individual liberty and social justice based on respect for the essential rights of man.

6. In the Declaration of Santiago, 1959, adopted by the Fifth Meeting of Consultation of Ministers of Foreign Affairs, which established the Inter-American Commission on Human Rights, the Foreign Ministers of America agreed that:

Harmony among the American republics can be effective only insofar as human rights and fundamental freedoms and the exercise of representative democracy are a reality within each one of them ...

7. Likewise, the American Convention on Human Rights, 1.969, confirms the linkage between the recognition of political rights in a democratic society and the exercise of human rights. Its Preamble reaffirms the purpose of the American States:

To consolidate in this hemisphere, within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of man.

8. In turn, Article 23 of that Convention recognizes the political rights of citizens as one of the rights it guarantees. [1]

9. In application of those rules the General Assembly of the Organization has repeatedly recommended:

... to the member states that have not yet done so that they reestablish or perfect the democratic system of government, in which the exercise of power derives from the legitimate and free expression of the will of the people, in accordance with the particular characteristics of each country. [2]

10. For its part, the Inter-American Commission on Human Rights has repeatedly insisted on the need to respect political rights since it believes that governments derived from the will of the people through periodic, free, and authentic elections are the best guarantee of the full exercise of the other human rights. It has also held that the exercise of political rights excludes the monopoly of power by one person or one group and constitutes the basis of hemispheric solidarity, as recognized by the Charter of the Organization of American States and the Pact of San José. [3]

11. All this makes it possible to derive the concept of representative democracy from the above-mentioned international instruments, especially from the American Convention on Human Rights. Accordingly, representative democracy is a system of government in which the population participates in the organization of public affairs, directly or indirectly, through representatives, who must be freely elected in periodic and authentic elections carried out by universal suffrage and secret ballot that will ensure the free expression of the will of the electors, who must have equal access to public offices.

12. It is now appropriate to present the problems of political rights as they have taken shape in Chile since September 11, 1973. For that purpose an account will first be given of the political plan of the present government of Chile, from which will be derived its main lines of activity; then, the situation of the political parties and of other social groups whose activities influence public life; next, the exercise of the right to vote, as it has been practiced in the period covered by this Report; and, finally, the present situation characterizing the exercise of political rights in Chile.

B. THE POLITICAL PLAN OF THE GOVERNMENT OF CHILE

13. As stated in Chapter one, the Armed Forces, on assuming power on September 11, 1973, “solely for the period the circumstances require” [4] made it their goal “to restore the Chilean way of life, justice, and the institutional system that have been destroyed, aware that this is the only way of being faithful to national traditions, to the legacy of the Founding Fathers, and to the history of Chile, and of enabling the development and progress of the country to be guided forcefully in the direction the dynamics of modern times require of Chile in the international community of which it forms a part”. [5]

14. On March 11, 1974, the Government Junta announced the ideological basis of its governance, which was contained in the “Declaration of Principles of the Government of Chile”. This document is of particular importance as regards both the diagnosis of the situation that caused the intervention of the Armed and Security Forces and the objectives, which the Government intends to achieve. This document also refers to human rights, in general, and the exercise of political rights, in particular.

15. With respect to the “legal order respectful of human rights: the framework for the present Government” the Declaration of Principles of the Government states that:

Chile has always lived within a legal framework. The majesty of the law invariably has been present in our social development. But, in addition, that legal framework has always been a reflection of the deep respect Chileans feel for the spiritual dignity of the human person and, consequently, for his fundamental rights. It is in that respect for human rights rather than in its tradition of popular generation and constitutional succession of governments in which the essence of Chilean democracy is to be found.

Another important characteristic of our juridical tradition has been respect for freedom of conscience and the right to dissent. These two aspects must be preserved by the Rule of Law which the movement of 11 September intends to recreate, but whose fundamental effectiveness has been maintained within the emergency measures that it itself contemplates. Human rights must be strengthened, so their exercise can be effectively enjoyed by all, and must be extended to encompass their most modern social expressions. The right to dissent must be maintained, but the experience of recent years indicates the need to establish the admissible limits of such dissent. Never again can we allow an ingenuous democracy, in the name of a misunderstood pluralism, permit organized groups that sponsor guerrilla violence to achieve power, or, feigning acceptance of the rules of democracy, to advocate a doctrine and a morality, the objective of which is to build a totalitarian state. Consequently, Marxist parties and movements will never again be admitted to civic life.

Hence it follows that Chile is not neutral to Marxism. It is precluded from being so by its conception of man and of society, which is fundamentally opposed to that of Marxism. Consequently, the present Government does not fear or hesitate to declare itself anti-Marxist.

16. With respect to “a new and modern institutional system; task of the present Government”, the Declaration of Principles states that:

... the Government of the Armed and Security Forces has assumed the historical mission of giving Chile a new institutional system that will embody the radical changes modern times have been producing. Only in this way will it be possible to endow our democracy with firm stability and to purge our democratic system of the faults that facilitated its destruction, but it will go beyond a mere corrective effort and enter fully into the audacious field of creation. Central to this new institutional system will be “the decentralization of power”, both in the operational and in the territorial sphere, which will enable the country to advance towards a “modernized society of authentic social participation”.

a. Functional decentralization: political and social power.

The new institutional system that is being created today will differentiate political power from social power and will clearly separate those who exercise it from the forms of exercising it.

“Political Power” or the power to decide matters of general interest to the nation properly constitutes the function of governing the country.

“Social Power”, on the other hand, must be understood as the power of the intermediate institutions of society to develop with legitimate independence towards achieving their respective ends thereby becoming vehicles of limitation as well as of enrichment of the action of political power.

Because of the lengthy erosion caused in our country by many years of demagoguery and the systematic destruction of all aspects of national life that has been accentuated by Marxism since 1970, the Armed and Security Forces of Chile, in fulfilling their classical doctrine and their duties towards continued existence of the nation, had to assume full political power on September 11. They did so by overthrowing an illegitimate, immoral and failed government and thus fulfilled a widespread national aspiration that is today expressed in the support of a majority of the population for the new government.

The Armed and Security forces are not establishing any time limit for their Government, operation, since the task of rebuilding the country morally, institutionally, and materially essential to change the mentality of Chileans. But, more than that, the present government has been categorical in declaring that it does not intend to limit itself to being a government of mere administration, which means a pause between two similar party governments; in other words, it is not a “truce” for reorganization only to return power to the same politicians who were so largely responsible, by acts of commission and omission, for the virtual destruction of the country. The government of the Armed and Security Forces wishes to initiate a new stage in the national destiny and to open the way to new generations of Chileans trained in a school of healthy civic habits.

Nevertheless, although it does not establish any time limit, the Government Junta will in due course hand over political power to those whom the people elect through universal, free, secret and informed suffrage. The Armed and Security Forces will then assume the specifically institutional role of participation that the new Constitution assigns them, which will be that which must devolve upon those responsible for ensuring National Security, in the broad sense this concept has in modern times.

What has been said does not mean that the Armed and Security Forces are going to wash their hands of their governmental succession and to observe its resolution as mere spectators. On the very contrary, and as stated by the President of the Government Junta itself, “the Junta considers part of its mission to be that of inspiring a new and great civic-military movement”, which is already arising from the reality of events and will project the work of the present government in a fruitful and lasting manner towards the future.

17. With respect to the “social power”, the Declaration of Principles affirms that it “is called upon to become the most important organizational source of civic expression”, for which purpose it is necessary:

To ensure the independence and depolarization of all intermediate bodies between man and the State. Of particular importance are the organized unions, whether labor, business, professional or student bodies. In addition, the principle of subordination already set forth requires these bodies to develop autonomously to achieve their specific purposes, without the State taking control of them, nor with their objectives distorted by political party manipulation by them or their leaders. Therefore, any political party intervention, direct or indirect, in the creation and work of the boards of directors of these unions, regardless of its nature, will be expressly prohibited. It is essential to understand that the above-mentioned depolarization is the only possible way of ensuring that these unions and other intermediate organizations are authentic vehicles of social participation, thereby fulfilling a desire that may be distinguished as a true sign of our times. There can be no talk of social participation if the bodies called upon to channel it, instead of being vehicles of the genuine thought of the organized people, become docile spokesmen of the instructions of some political party, which instructions are also frequently based on the narrow electoral interests of that party. The same requirements apply to the Municipalities.

18. The passages transcribed indicate the central aspects guiding the action of the Government of Chile with respect to the exercise of political rights, and the institutional forms that exercise is to assume. First, mention should be made of the explicit recognition that “formal democracy” practiced in the past has led to its own destruction by being infiltrated by Marxism-Leninism--a doctrine which, according to Decree Law No. 77 of 1973, the new Government has the mission of eradicating--which has been permitted by other political parties. Second, this document sets forth the need to build a protected democracy, in the subsequent operation of which an important role will be assigned to the Armed and Security Forces, in accordance with the wide meaning the concept of national security has in modern times. In the new institutional system, the intermediate groups will become the “most important organizational channel of civic expression” and therefore must be de-politicized, which will be complemented by a great civic-military movement inspired by the Government. Third, the absence of time limits for the task proposed, which includes the ambitious purpose of changing the mentality of Chileans, is evident. Once this profound reorganization, which includes the economic aspects, is achieved, the Government Junta will hand over political power to the person who is chosen by elections based on universal, free, secret, and informed suffrage.

19. In accordance with this thinking and in the official letter sent to the Studies Commission of the new Constitution on November 10, 1977, General Pinochet stated that the draft that was being prepared should:

Provide for the legal proscription of the dissemination and activity of totalitarian doctrines, groups, and persons, the establishment of electoral systems that will prevent political parties from becoming monopolistic channels of civic participation; foster the existence of new forms of political association, understood as currents of opinion; prevent the interference of future parliamentarians or political groups in the establishment and operation of trade associations or labor, student, professional and neighborhood unions and the incompatibility of union activities and political activities.

20. On April 6. 1979, General Pinochet made an important speech on the occasion of the inauguration of the academic year of the University of Chile. In it he dealt at length with some of the essential aspects that make it possible to understand rather clearly the most important characteristics of the institutional system the Government intends to construct and the limits within which it is to operate in order to prevent the defects of the past and to overcome the serious risks it believes it faces at present.

21. This speech centers around two leading ideas. One of them is the interpretation that the goal of the political process initiated in 1870 was to reduce presidential power--as opposed to the system instituted by Portales--which gradually led Chile to social turmoil, political ineffectiveness, and economic stagnation as a result of the activities of parliamentarians until 1924 and as a result of the activities of political parties until 1973. This interpretation is condensed in the assertion that “the country had been the slave and victim of its Congress until 1925. Now it was the slave and victim of the political parties”.

22. The other leading idea of that speech is the permanent danger of the aggression of “Soviet imperialism”, channeled through the Communist Party of Chile, which with its hegemonistic pretensions uses the varied sources provided it by the system of formal democracy: subversion and terrorism.

23. In view of this diagnosis, the speech proposes the institutionalization of a strengthened presidential power and the operation of a protected democratic system. To that end, it postulates the appropriate regulation of political parties so as to confine them to the sphere of action proper to them, and to make the intermediate groups of society independent of their activities. After reaffirming the principles set forth in the Declaration mentioned above--recognition of the dignity and spiritual nature of the human person, the common good as the goal of the State, the validity of the principle of subordination which implies acceptance of economic freedom as a necessary condition for political freedom--General Pinochet on that occasion stated;

We believe that, in accordance with our more than century-old tradition, such a goal can only be attained through a truly democratic form of government that clearly distinguishes essential from accessory freedoms.

Democracy, as a way of life, re-acquires a new validity in the new institutional system we advocate. It does not, however, if the intention is to limit it to the form of government that was used by Soviet communism during the Popular Unity period.

We must make it clear that we do not assign to democracy the value of an end in itself but rather we conceive of it as a suitable means for achieving those other values we have mentioned, which, if they are not truly realized for all the members of the community, make democracy a mere name lacking any real content.

Directly related to this concept is that of universal suffrage, which again we do not regard as an end but rather as a means, which, in specified conditions, can conduce to the realization of those values, but in no way is a unique condition for guaranteeing them.

…

Universal suffrage does not, in and of itself, have the quality of being the only valid means of expression of the will of the Nation and of constituting the formula, which necessarily and mechanically gives rise to authority. This way of thinking is contrary to that of the old democrats, for whom there is no democracy other than formal democracy, that of the periodical vote, that of the electoral act, from which arises the representation of a majority, frequently accidental and temporary, that does not always represent the true national feeling.

Indeed, our country directly, proved that neither formal democracies, nor popular suffrages, understood as operating formulas by themselves, are sufficient to effectively address contemporary conditions.

The mere dictation of a system of norms does not enable an authentic democracy to exist and to maintain its stability nor is the real expression of the popular will guaranteed by the promulgation of laws on popular suffrage or electoral rolls. All that is implacably transcended by totalitarian statism, which abolishes liberty.

Every society is based on a certain degree of consensus or common unity about specified values and basic objectives, which allow it to exist as such and to progress towards the goals they presuppose. At the same time, every human society carries within it a degree of dissent whose elimination is the purpose shared equally by tyrannies of any color.

In contrast, a society that really wishes to live under liberty must be capable of bringing about a balance in the coexistence of the two realities, unity and dissent.

In Chile, such minimum consensus disappeared as a result of the advance and subsequent assumption of power by Soviet Marxism.

When the system in which unity and dissent had formerly coexisted was destroyed by it, the construction of a new system must necessarily embody that tragic experience, and since it is unacceptable to return to the old system that led us into imminent totalitarian peril, we must develop a new system capable of confronting the alternative of ensuring freedom, but which also keeps the nation safe from new Soviet infiltration through legal restrictions that will set virtual limits on civic dissent and protect the democratic system as a permanent way of life.

From this point of view the coexistence within one and the same community of two intrinsically antagonistic conceptions, as would occur if within a democracy totalitarian parties were permitted to operate legally, would be impossible, since these parties inevitably lead to the destruction of democracy.

It must be understood that these limitations also prevent the activities of those democratic sectors that vainly attempt to compete with totalitarian systems in a demagogic race that is lost beforehand.

In ending this summary examination of developments in Chile, we must reiterate that we have never set time limits but rather goals for the present Government, since the work to be done goes to the roots and involves a change in the oppressed and suffocated mentality of the body politic.

The permanent danger is so serious and great that we do not consider our mission completed and our duty fulfilled with the mere enactment of a new Constitution, no matter how accomplished the technical perfection of its norms may be.

We shall ensure its prompt implementation and operation.

We shall safeguard the consolidation of the new institutional system during a short but sufficient period, until we are sure that, within the foreseeable future, it is sufficiently sound and strong to resist a totalitarian attack.

The nation cannot permit itself the precipitate opening of political elections, for which it is not yet ready. The deep wounds produced by Marxism are not yet closed and Marxism and its tools are endeavoring to keep them open as long as possible.

From every point of view an effective political recess is necessary to ensure that the economic reorganization achieved is translated into sustained development, which will offer all Chileans greater well-being and to ensure that it be consolidated in a new social model consistent with the institutional system of a truly free society.

The period of transition makes gradual progress possible, without periods of sterile stagnation, without the failures of an abrupt leap forward. During that period, renewed and healthy civic habits shaping a tradition in the political institutions the new system provides for must arise and be developed.

To pass abruptly from the present regime to full democracy, with the creation of authority by elections, would only find as favored actors the former political groups and parties whose work was harmful to Chile.

24. As may be seen, the institutionalization of the protected democracy postulated by the Government of Chile presupposes the nullification of any possibility of action by elements considered destructive that may act against it. The implementation of this requirement implies that there will be what is known, as a “period of transition” to that protected democracy, during which there must be an effective political recess. The number of political actors accepted by the Government is significantly reduced either because they profess Marxism or because they propose a system that can be directly or indirectly used by it.

25. In accordance with the objective of de-politicizing the intermediate groups, one of the first steps taken by the Government was to dissolve the Central Unica de Trabajadores (CUT). [6] This objective was embodied in the labor legislation subsequently enacted by the Government. [7] Then the Professional Associations were dissolved and became trade associations with functions and faculties in conformity thereto. [8]

26. The task of de-politicizing undertaken by the Government also affected the civil service when all civil servants were declared to be temporary employees. [9] For their part the universities were taken over by the Government and government rectors, all of whom were military men, were appointed. [10]

27. With respect to the activity of other institutions, the reasons that motivated the dissolution of the Comité Pro Paz have already been mentioned in the chapter dealing with organizations for the defense of human rights. The various difficulties that they face in practice and the way in which the authorities view the political impact of those activities were already described. This has significantly affected the activities of churches of various denominations and especially the Roman Catholic Church.

28. The 1980 Constitution contains these central policy lines. However there are some modifications. The initial statements about handing over power to the person who is elected through universal suffrage are replaced by the formula--applicable in 1989--of the appointment of a President by the Government Junta subject to ratification by a plebiscite. The institutionalization of the participation of the intermediate groups is not proceeding as was to be expected in view of the initial importance assigned to them and the Constitution limits itself to reaffirming in Article 23 the prohibition of their involvement with any political party.

29. Furthermore, as regards the time limits for the implementation of the new institutional system, the 1980 Constitution attempts to reconcile the need to achieve the goals proposed with the establishment of the prolonged periods resulting from the timetable set forth in Chapter I of this Report which derive from transitory provisions 27, 28 and 29.

30. Two elements mentioned in the documents cited are faithfully embodied in the 1980 Constitution: the illegality of totalitarian political parties--which will be described in the following section of this chapter--and the strengthening of the functions of the President. With respect to this last-mentioned characteristic, the permanent provisions referring to the powers of the Executive have been considered excessive by some sectors of opinion in Chile.[11]. With respect to the strengthening of the powers of the President during the “transition stage”, the respective rules have been consolidating the process of concentrating powers in the President, which process included the resignation of one of the original members of the Government Junta--Air Force General Gustavo Leigh in 1978--because of political differences with General Pinochet. This concentration of powers in the President, furthermore, results from the consultative role assigned to the organs instituted, such as the Council of State, the Economic and Social Council and the regional and communal development councils. The analysis contained in Chapter II of this Report made it possible to draw the conclusion that what is at issue is an excessive concentration of powers.

31. The basic parameters of the conception of the Chilean’s Government of the exercise of political rights having been presented, the conditions in which that exercise occurs and the future institutional system it proposes, it is now appropriate to consider the ways in which that conception has been expressed in practice. For that purpose, the problems the political parties have faced and the forms taken by suffrage on the two occasions on which it has been exercised will be presented.

C. POLITICAL PARTIES

32. Consistently with the policy lines set forth in the foregoing section, the Government proposed to eradicate party activity, de-politicize the so-called intermediate groups and prevent any activity by other institutions that could directly or indirectly obstruct the above-mentioned objective.

33. Thus, Decree Law No. 77 of October 13, 1973, “on the grounds that it is the mission of the new government to eradicate Marxism from Chile”, prohibited the following parties because it considered them illegal associations, “Communist, Socialist, Unión Socialista Popular, Movimiento de Acción Popular Unitaria, Radical, Izquierda Cristiana, Acción Popular Independiente and all those institutions, groups, factions or movements that support the Marxist doctrine or which because of their purposes or the conduct of their members are substantially in agreement with the principles and objectives of that doctrine, which are aimed at destroying or weakening the fundamental purposes and postulates embodied in the Act of Constitution of this Junta.” All the above-mentioned political parties, with the exception of the Unión Socialista Popular, formed a coalition known, as “Popular Unity” that made up the Government whose President was Salvador Allende.

34. That Decree Law, in turn, defined as a crime the mere fact of organizing, promoting or inducing the organization of the above-mentioned parties and movements. It also ordered the cancellation of the legal personality of these parties and the transfer of their property to State ownership.

35. Also in accordance with the conception that the other political parties had facilitated the action of the above-mentioned parties, Decree Law No. 78 of October 17, 1973, declared in recess all political parties and institutions, groups, factions or movements of a political nature not covered by Decree Law No. 77 mentioned above. Decree Law No. 78 affected, inter alia, the following political groups; Partido Democracia Radical, Partido Demócrata Cristiano, Partido Democrático Nacional, Partidos Izquierda Radical, and Partido National.

36. Subsequently, Decree Law No. 1,697 of March 12, 1977 ordered the dissolution of all parties and institutions, groups, or factions that had not yet been dissolved and also prohibited the execution or promotion of any activity, act or step, public or private, that was of a political nature and stipulated penalties for infringement of that prohibition. This Decree Law also ordered the confiscation of the property of the political parties.

37. These limitations on the operation of political parties are fully consistent with the distrust they cause in the Government authorities and with the conception they have of democracy itself. Thus, General Pinochet stated in August 1981:

There are some who believe that the only way of participating is through movements. They resemble those who argue that democracy is today the only possible form of government and do not understand that there can be other forms. [12]

38. On December 2, 1982, General Pinochet stated that:

The solutions to national problems will be achieved only through the participation of the grassroots organizations and not through politics. [13]

39. These policy lines are embodied in the 1980 Constitution, which stipulates in Transitory Provision 10 that, until the constitutional organic law relating to political parties comes into force, “it shall be prohibited to carry out or promote any activity, action or step of a political or party nature, either by natural or juridical persons, organizations, institutions or groups of persons.”

40. For its part, Article 8 of the Constitution stipulates that:

Any action by an individual or group intended to propagate doctrines which are antagonistic to the family, or which advocate violence or a concept of society, the State, or the juridical order of a totalitarian character or based on class warfare is illegal and contrary to the institutional code of the Republic.

The organizations and political movements or parties, which, due to their purposes or the nature of the activities of their members, tend towards such activities, are unconstitutional.

The Constitutional Tribunal shall have cognizance of violations of the provisions set forth in the preceding paragraphs.

Without impairment of the other sanctions established by the Constitution or the Law, persons who incur or who should have incurred the aforementioned violations shall not, for a period of ten years from the date of the Tribunal’s decision, be eligible for public duties or positions, regardless of whether obtained or not through popular vote. Likewise, they will not become rectors or directors of educational establishments or teach, or exploit any medium of mass communication, or become directors or administrators thereof, or hold positions relating to the broadcasting or dissemination of opinions or information. Neither will they be able to act as leaders of political organizations or of organizations related to education, local, professional, or business, labor, student, or of a union nature, in general, for the prescribed period.

If at the time of the Tribunal’s decision, persons referred to above held a public position, whether or not as the result of an election, they will lose same as matter of law.

Persons penalized in accordance with this precept, will not be eligible for reinstatement during the period indicated in the preceding paragraph.

The duration of ineligibility contemplated in this article will be doubled in case of recurrence of the offence.

41. Article 8, reproduced above, does not proscribe, as it would have been legitimate to do, acts of violence intended to abolish the system of representative democracy. Indeed, the acts punished by it are those “intended” to spread certain doctrines without requiring that that propagation have been carried out. The declaration of unconstitutionality of organizations, movements, or political parties affects those that “aims’ at that objective; nor is it necessary that there have been objective actions for that purpose. It is, therefore, an extremely wide formulation, which permits an excessive margin of discretion. [14]

42. It is easy to see the various consequences of the application of that article on the exercise of certain human rights: freedom of opinion and expression of thought is radically restricted for a whole sector of Chileans; access to public office and civil service jobs is severely limited; the exercise of the right to work in certain areas of the life of society such as education is eliminated and, should a public official be found guilty, he loses his job “by operation of law”, freedom of association and of performing managerial functions in a wide category of associations is proscribed. The persons punished will be subject to these penalties for a period of ten years and, in the event of a repetition of the offence, for twenty years.

43. The above-mentioned defects are magnified by the scope of the provision under examination, which is that of dogmatically disqualifying certain doctrines. As historical experience shows, the disqualification of certain doctrines results from the political practice exercised within the framework of a democratic system and the only one authorized to exercise it is the voter.

44. For its part, Article 19 (15) of the Constitution--which will only enter into force when the Government Junta enacts a Constitutional Organic Law on the matter--provides that political parties will not be able to take part in uncharacteristic activities or to have any privilege or monopoly over civic participation; their registers and accounts must be public; the sources of their finances cannot come from cash, goods, donations, contributions or credits of foreign origin and their statutes must contain rules that will ensure effective internal democracy.

45. With respect to the “intermediate groups”, Article 23 of the Constitution stipulates penalties for the leaders that misuse the autonomy the Constitution grants them by taking part in activities unconnected with their specific purposes. It also stipulates that the job of union leader and membership in a political party are incompatible and leaves it to the law to specify the corresponding penalties.

46. As may be seen, the goals fixed by the Government of Chile in the matter of political rights and the practice followed by it for achieving them--whose fundamental characteristics follow from the presentation made in the earlier chapters of this report--have meant and continue to mean severe restrictions on their exercise. An important social group is excluded from exercising those rights because of the ideology it professes; the other political parties are excluded because they intend to institute a system similar to that which existed prior to September 11, 1973. The sphere of action of other institutions is restricted because of the possible impact their activities may have on the proposed objective of de-politicizing social life in Chile and creating the new mentality the Government has conceived. Similar restrictions affect other social sectors such as labor unions, professional associations, community groups, and student groups.

47. These “intermediate groups”, for their part, have not become the channels of participation the Government had proposed but rather have shown clear signs of resisting de-politicization in the terms postulated by it. The great civic-military movement the Government aspired to create has not come into being; it is no longer mentioned in official declarations. For their part, the political parties have maintained their organization and continue to operate despite the severe restrictions imposed on them; in some cases and for certain periods, the government has tolerated some of their activities. The reality is, therefore, that the Government lacks politicians to speak to and the citizens lack institutional channels that enable them to influence decisions affecting them.

48. Despite the above-mentioned limitations, on two occasions the population of Chile has been called upon to exercise the right to vote. Those aspects are the subject matter of the following section.

D. THE EXERCISE OF THE RIGHT TO VOTE

49. In July 1974, the Government destroyed the electoral rolls and thus made it impossible, in practice, to exercise the right to vote. Eleven years later, those rolls have not been reconstructed.

50. The 1980 Constitution assigns the organization of the future electoral system to a constitutional organic law--which is not yet being enacted by the Government Junta.

51. Nevertheless, the Government has directly requested the opinion of Chileans on the occasion of the national consultation of January 1978 and that of the plebiscite of September 11, 1980, to which the Constitution was submitted.

52. Because of their importance, especially that of the plebiscite of 1980, which has affected and will affect the life of Chile for a lengthy period, the conditions under which these electoral acts were carried out will be examined below.

a. The National Consultation of January 1978

53. As a result of a resolution of the United Nations General Assembly on the state of human rights in Chile, General Pinochet spoke to the country on December 21, 1979, and announced the convocation of a consultation. He said:

In this consultation every man, every woman, and every youth in this country will have to decide, in the secrecy of his conscience, whether he supports the President in his defense of the dignity of Chile and reaffirms the legitimacy of the Government of the Republic sovereignty to lead our institutional process, or whether, in contrast, he supports the resolution of the United Nations and its pretension to impose our future destiny on us from abroad. [15]

54. On December 27, 1977, the President announced the terms of the consultation and said that its purpose was exclusively to respond to the United Nations and that it had no connection with internal politics. [16]

55. The National Consultation was convoked and regulated by Supreme Decree No. 1,308 of December 27, 1977 of the Ministry of the Interior, published in the Official Gazette, one day before the consultation was held, namely January 3, 1978.

56. In the above-mentioned consultation, persons over 18 years of age voted, using the identity card, since there was no electoral roll. The only official ballot stipulated; to vote YES was to accept the legitimacy of the Government to lead the institutional process and to reject the resolution of the United Nations. To enable illiterates to recognize the options, the YES was identified with a Chilean flag, and the NO with a black flag.

57. According to the results of the voting announced by the Ministry of Interior, in the National Consultation of January 4, 1978, YES votes numbered 4,177,064 (75.04%); NO votes, 1,131,115 (23%); and there were 258,169 invalid and blank votes. A total of 5,566,348 persons voted.

58. This consultation was held without electoral rolls, without there being any electoral court (Tribunal Calificado de Elecciones), under the state of siege, without organized political parties, with severe restrictions on the right to assembly and freedom of information, and the publicity accepted by the media was to a large extent that favorable to the Government’s thesis.

59. The Head of State himself recognized the circumstances in which the consultation was carried out. In commenting on its being held under the state of siege and the lack of a law regulating that consultation, he stated.

Gentlemen, I say that we are in a state of siege and that it is possible to hold a consultation. According to the legal rules, we cannot do anything else.

I make myself very clear: a National Consultation. This procedure does not appear in any legislation. It does not exist. Consequently it is something we have arranged as a way of obtaining a reply from the citizens of Chile.

Therefore, I wish the word plebiscite to be eliminated. To hold a plebiscite or referendum, it is necessary to have electoral rolls, to have an electoral law, places where citizens vote, etc. In contrast, on this occasion, only identity cards are being used and citizens may vote wherever they deem it advisable. [17]

b. The 1980 Plebiscite

60. By Decree Law No. 3.465, published in the Official Gazette of August 12, 1980, the Government Junta, in the exercise of the constituent powers it had assumed, convoked the citizens to a plebiscite to be held one month later, on September 11, 1980, to submit the proposed Constitution to it that it had approved. All Chileans over 18 years of age, including illiterates and the blind, would be entitled to vote, and aliens over 18 years of age who were legally resident in Chile, could also vote. Participation by Chileans was obligatory. Since there were no electoral rolls, an identity card was sufficient for voting. The official single ballot stipulated that YES meant approval of the new Constitution, and NO, its rejection. The appointment of polling officers to receive the ballots was made the responsibility of the mayors, officials appointed by the President, and voters could freely choose the place in which to vote. The tallies provided for were:

a. Tallies made by the polling officers in public;

b. Communal tallies, in the charge of the Mayor, and based on the certificates of the polling officers’ tallies;

c. Regional tallies, made by a Regional College of Tallies, composed of the Intendants, the senior judge of the respective Appeals Court, and by the Real Estate Conservator of the capital of the Region; and

d. National tally, by a National College of Tallies, composed of the Comptroller General of the Republic, a judge of the Santiago Appeals Court appointed by the Supreme Court, and the Clerk of the Supreme Court.

61. The above-mentioned decree law also provided that ballots in which two preferences were marked would be null and void and blank votes would be counted as YES votes.

62. It should be recalled that the convocation to a plebiscite, without electoral rolls, had been ruled out by the Head of State himself, as pointed out above in connection with the consultation held in 1978.

62. General Fernando Matthei, the Commander in Chief of the Air Force and a member of the Government Junta, had also stated in an interview published in El Mercurio of Santiago on July 29, 1979, that;

If the Constitution were submitted to a plebiscite without there being full debate and information beforehand, it would become a farce. And our intention is completely foreign to that type of farce. In those circumstances, the Constitution would have no importance, Chileans would not consider it their own but that of the government that prepared it. Therefore, it would not be respected. A new Constitution has to be submitted to a plebiscite in any event, but after political parties can operate and give their opinion. If not, what opinions are going to be offered?

64. The conditions surrounding the holding of the plebiscite warranted various observations by outstanding personalities and important institutions of Chile. They agreed in denying any validity to the plebiscite, since it had been convoked and held under a state of emergency with severe restrictions on the various rights that implied; because there were no electoral rolls; because there was no proper supervision of the polls; because of the lack of options the voter could oppose to the proposed Constitution; because of the de facto disadvantageous situation of the opposition with respect to the publicity given to its positions; because the political parties were proscribed or dissolved; and because a significant sector of the population was outside the country and could not return. [18]

65. After the plebiscite was held, the result announced by the National College of Tallies was the following: in favor, 4,204,879 (67.04%); against, 1,893,420 (30.19%); votes null and void 173,569 (2.77%).

66. Subsequent to the holding of the plebiscite, Mr. Patricio Aylwin Azocar, the former President of the Senate, together with 46 other persons, including professors of Constitutional Law, submitted a statement to the National College of Tallies reporting violations of Decree Law No. 3,465 and serious irregularities and anomalies before, during, and after the plebiscite, which, they alleged, deprived it of any legal validity and moral credibility.

67. According to that statement, the plebiscite was held under the following abnormal conditions: (1) the country was in a state of emergency, which was not suspended during the period prior to the plebiscite; (2) the Government could detain any person at its discretion for up to 20 days, send them into enforced residence to any place in the country for up to 3 months, and expel them indefinitely from the country; (3) the political parties were dissolved and their activity definitely prohibited; (4) there were no electoral rolls; (5) in the so-called plebiscite, a project without an alternative was submitted to popular consultation and the Government limited itself to saying that its rejection would mean chaos or a return to the situation that prevailed prior to 11 September 1973 without specifying the meaning of the last mentioned terms; (6) the consultation covered at least three different matters: (a) a proposed future Constitution; (b) a transitional regime of from 9 to 16 years; and (c) the appointment of General Pinochet as President for a single period of 8 years, but it only allowed a single reply to the three questions; YES to all or NO to all; (7) the country had had no opportunity to obtain objective and sufficient information about the matters submitted to plebiscite; (8) the population was subject to various forms of psychological pressure and threats about the evils to which it would be exposed if the NO vote won.

68. In addition, the statement of former Senator Aylwin and of the other jurists to the National College of Tallies mentioned various irregularities and anomalies in the plebiscite itself. The extensive statement includes various irregularities which, according to the complainants, comprise: (a) violations in the appointment of polling officers; (b) irregularities in the work of the polling officers; (c) violation of the use of indelible ink; (d) violation of the limit on the number of voters per polling officer; (e) information that supported serious presumptions of stuffing of ballot boxes. Each one of those reports of irregularities was exemplified by various examples in the lengthy document presented. [19]

69. The Government upheld the legitimacy of the plebiscite held on September 11, 1980 in a document in which it reaffirmed the legitimacy and validity of the plebiscite which was held “under absolutely normal” and correct conditions, and argued that the presentation made by former Senator Aylwin was “a desperate compendium of all the false statements made before, during, and after the plebiscite” and it deemed “especially serious the fact that petty interests of minorities repudiated by the immense majority of Chileans and their desire for international justification” could affect “the honor and rectitude” of those who supervised the plebiscite. The above-mentioned document emphasized the fact that the complainants should prove their statements before the National College of Tallies and affirmed that the “Supreme Government, as always, will abide by the legal order” and comply with the decision of that body. [20]

70. On October 14, 1980, the National College of Tallies rejected the complaints filed by the group headed by former Senator Aylwin, stating, among other things, that it lacked authority “to make pronouncements on political-electoral complaints like that which had been filed, which, of course, would have to be submitted to the formalities and be subject to the procedure indicated by the law, impossible eventualities because of the non-existence of those precise regulations”. [21]

71. The Commission is not in a position to refer to the specific irregularities in the plebiscite that were reported. However, that does not preclude it from forming a judgment on the circumstances prior to it, and considering that the lack of electoral rolls, the existence of the state of emergency, the inactivity of political parties, the practical disadvantages of opposition sectors in access to the information media, and the absence of viable options to the rejection of the proposal of the Government, are all elements that seriously affect the credibility of that procedure.

72. Furthermore, the plebiscites, in and of itself and its background, as well as its result--the 1980 Constitution--have been discredited by important figures and opinion groups inside Chile. Therefore, there is no solid consensus in that regard among the various sectors representative of Chilean society; and it should be noted that that consensus is the fundamental basis on which the very concept of a constitution rests. That consensus is, in the opinion of experts, the essence of a constitution, one of whose most important functions is that of manifesting an agreement between the various groups that participate in its preparation, and thus feel committed to its provisions. This “constitutional feeling” is fundamental as a unifying element of a nation. In Chile, given the way in which the Constitution was approved, it is evident that that constitutional feeling does not exist for a vast sector of Chileans.

73. In addition, it should be pointed out that one of the central factors preventing that consensus is the concentration of powers in the presidency, an aspect that is particularly apparent in the so-called transitional period envisaged by the 1980 Constitution. The institutionalization of power in the person of General Augusto Pinochet Ugarte--who is designated President, with his name and surnames, in Transitory Provision 14 of the Constitution; the concentration of the powers granted him; the lack of judicial control over the measures he is empowered to adopt pursuant to Transitory Provision 24; and his lack of penal, civil, administrative and political accountability the courts have interpreted from the Constitution, are elements that make it possible to consider that that Constitution does not fulfill the basic requirement of limiting personal power and redistributing it among the politically significant sectors of the nation.

E. POLITICAL RIGHTS AT PRESENT

74. The intolerance of any form of opposition by the Government of Chile that follows from the exposition in Section C of this Chapter, and the absence of channels of participation of the Chilean population as a consequence of the rigid application of the provisions of the 1980 Constitution, have helped to generate serious social problems which have begun to emerge more forcefully since 1983. This is the framework in which the Commission believes that the effectiveness of political rights should be evaluated today.

75. Extensive sectors of the population of Chile, however, believe that the system does not provide them with appropriate channels for participation in the decisions that affect them, and have planned to achieve, by peaceful means, agreements that will make political participation and the re-establishment of a democratic regime possible in the short term.

76. The Roman Catholic Church, for example, issued a document in 1982 entitled “Renacer de Chile” (Rebirth of Chile), adopted by all the Bishops, which emphasized the need for a return to democracy and stated:

This has been the tradition of Chile. Thanks to it, we have lived in peace for many years and we have been respected throughout the world. The abuses that have occurred do not justify so lengthy an interruption in the normal life of the Nation. This is not healthy and has brought us the consequences we now regret. Opening the channels of political participation is an urgent task. Before the level of tensions causes a possible tragedy. [22]

And the following year, the Roman Catholic Bishops again stated.

As we said last December in Renacer de Chile, only a real and prompt opening to true democracy can open the channels for preventing a tragedy of vast proportions. [23]

77. The rigid application of the current legal system, coupled with economic and social factors that have worsened since 1982, gave rise to the so-called “national days of protest”, which with effect from May 1983, have been organized because of the lack of other more appropriate means of expressing disagreement with the Government. According to the organizers of these “days”, their purpose has been to call upon the population peacefully to express their disagreement with the political, economic, and social system of the Government and to protest against the human rights situation. The authorities have responded with great severity to these various protests, which have resulted, as stated in the pertinent chapters, in large numbers of dead and injured.

78. In August 1983, a new cabinet took office with the declared purpose of achieving a political opening, for which purpose it adopted measures such as authorizing the return of many Chileans who had been prevented from doing so. In addition, Mr. Sergio Onofre Jarpa, the new Minister of the Interior, initiated at the request of Monsignor Fresno, the Archbishop of Santiago, and a dialogue with the representatives of the opposition grouped in the Alianza Democrática. Shortly afterwards, that dialogue was discontinued because it had not achieved its purpose.

79. In this respect, the Inter-American Commission on Human Rights noted in its 1982-83 Report:

The Commission has taken due note of the statements made by the senior authorities of the Chilean Government with regard to engaging in a dialogue with the democratic opposition groups and initiating a political opening. Although this dialogue is currently suspended, this year’s events show more than ever the urgency and need for change in position by the Government, establishing conditions favoring the exercise of the political rights of all Chileans, and allowing, as soon as possible, the establishment of a democratic system stemming from free, secret and informed elections with equal access by all participants to the mass media and reflective of the people’s will. If the strong desire of the Chilean majority to achieve such a democratic system--shown by the monthly peaceful protests, among other actions--is frustrated, this could lead the country to very regrettable consequences, including a high cost of human lives. This explains the statements made by high religious authorities speaking of the need to restore democracy in Chile as the only way to avoid violence and to consolidate a stable and lasting social peace. [24]

80. In 1984 those manifestations of violence continued, and again led the Commission to state in its Report for that year that:

It is clear from this that if the situation is not soon remedied by peaceful and reasonable means, the use of violence and force could reach alarming proportions...[25]

81. On November 6, 1984, the Government decreed the state of siege as a means of counteracting the growing social tensions. In turn, it insisted on strict adherence to the terms and time limits established in the 1980 Constitution. Although the state of siege was lifted on June 17, 1985, the state of emergency and the extraordinary powers conferred on the President by Transitory Provision 24 of the Constitution remain in effect.

82. For their part, virtually all the political sectors have stated that to postpone the return to democracy until 1989 and possibly until 1997 entails too heavy a burden for Chileans, which can compromise the future of Chile as a nation. Even sectors close to the Government, which accept the current Constitution, have advocated that it be amended to permit elections before the planned date. Thus, the political parties or movements that make up the Acuerdo Democrático Nacional (ADENA), all of which have expressed support for the present Government, made a proposal in April 1984, which may be summarized as follows:

a. To recognize the institutional framework in effect and urge all political groups to do so “as the only way of achieving a peaceful and orderly transition process”.

b. To request the Executive and Legislative powers to put political laws into effect as soon as possible, and to see to it that the law on political parties comes into effect shortly, so that “they can be established, organized and act within the framework of the law” and that the enactment of the other laws take place with a public discussion.

c. To convoke a plebiscite to allow Chileans to decide on the “installation of the National Congress at the latest in 1986”, after amendment of the pertinent norms of the Constitution and “especially on the continuance of Transitory Provision 24”. [26]

83. The National Party, which, while accepting the institutional system in force, has maintained an independent position vis-á-vis the Government, has also argued that it is necessary to amend the present Constitution and requested that elections for deputies and senators be held on September 11, 1985, that the membership of the Senate envisaged in the 1980 Constitution be amended to permit all the senators to be elected. It has also advocated the repeal of Transitory Provisions 27, 28 and 29 of the Constitution to permit the successor to General Pinochet to be elected “democratically and directly by the people” and not appointed by the Government Junta as stipulated in those provisions. [27]

84. In contrast, the Movimiento Democrático Popular, which is made up of the Communist party, the Socialist party, the Movimiento de Izquierda Revolucionario (MIR) and other left-wing groups, in a manifesto dated May 31, 1984, after declaring that Iran anti-democratic Constitution cannot be the basis of any transition to real democracy,” and also rejecting “the political laws whose enactment has been announced, in that they only implement the anti-democratic provisions of that Constitution”, made the following proposal for achieving a national agreement.

a. Immediate end of the present regime.

b. Institution of a provisional democratic government, based on broad social and political representation, to succeed it.

c. Repeal of the 1980 Constitution and of all repressive legislation. Dissolution of the CNI.

d. Establishment of a Constituent Assembly to prepare and submit a new Constitution to a plebiscite.

e. Reestablishment of the full exercise of all human, individual and collective, social and political rights.

f. Preparation and priority execution of an economic emergency program that would give priority to combating unemployment and reactivating the national economy.

85. For their part, the representatives of the Christian Democrat, Liberal, MAPU Obrero and Campesino, Radical, Socialist and Union Socialista Popular parties, grouped in the Democratic Alliance, in a communication in December 1984, addressed to the Commanders in Chief of the Army, Navy, Air force and the Director General of the Carabineros, emphasized the need to find an agreement that would ensure a rapid return to democracy. In one part of that document, the heads of these political parties stated that:

We are certain that everything that has happened in these years limits the possibilities of the regime alone to mobilize the country. At the same time, we reaffirm our conviction that any peaceful solution requires an agreement between the Armed Forces and civilians, represented by their democratic social and political organizations. No way that is the product of a unilateral imposition of the Government can generate the true unity needed, much less really commit Chileans to the effort required.

The choice cannot be clearer; those who hold power continue governing at their will or the people of Chile recover its sovereign right to democratically elect its authorities.

The first option can only be maintained by force and every day that passes will require a greater dose of it. That is proved by the proclamation of the state of siege after 11 years. This deepens the division between Chileans and pushes them increasingly towards irrational behavior, desperation, anger and violence. History teaches that, in such circumstances, force finally leads to civil war, confrontation or new dictatorships.

The other option is to seek a peaceful outcome by means of reconciliation between Chileans. It means that we must devote ourselves to the solution of serious national problems, on the basis of the participation of all. It simply means returning to democracy as the other nations of Latin America that experienced situations similar to ours have done. The recent cases of Argentina, Uruguay and Brazil demonstrate a way from which Chile, which has had an unsullied and unalterable democratic tradition, cannot be absent.

The maintenance of the present state of affairs has already caused great damage to the country, its population, and its Armed and Security Forces. It is urgently necessary to find a way of uniting the common efforts of Chileans in the great task of national reconstruction.

The search for an agreement that will ensure a peaceful road to democracy must primarily include the following:

1. The establishment of a reasonable timetable for carrying out the transition process. We believe that the full institution of a democratic regime should take place no later than March 1986;

2. Full re-establishment of freedoms and end of all states of emergency;

3. Election, within the shortest possible period, of a National Congress by universal suffrage and endowed with effective constituent, legislative and fiscal powers;

4. A government of transition to deal with the emergency and to lead the march towards democracy.

The agreement to be achieved on these matters could be embodied, for its fulfillment, in an institutional mechanism to be submitted to plebiscite, the only way of ensuring that the sovereign nation approves it. In addition, a law regulating the electoral procedure should be enacted.

86. Subsequently 21 political leaders from 11 political groups on the right, center and left, who until that time had maintained divergent positions, responding to a call of Cardinal Archbishop of Santiago, Monsignor Juan Francisco Fresno, to create the basis for a national reconciliation, signed on August 25, 1985 the “National Agreement on Transition to Full Democracy”.

87. In part the said document states:

... As a testimony to the readiness of very large political and social sectors of the country to endorse a great national agreement ensuring peaceful evolution towards full and authentic democracy, all we undersigned, in a gesture of active support for the reconciliation desired, express our adherence to the political, economic and social principles set forth below.

Chile’s community life must be ruled by democratic values, and the prerequisites for their establishment include the orderly surrender of political power to authorities invested with full and undisputed democratic legality; a social, economic and political framework guaranteeing both the govern ability of the country and the basic conditions for the collective effort demanded by the challenges of today and of the future; and, in addition, the return of the Armed Forces to their indispensable permanent functions, all due respect being accorded to their code of values, dignity and institutional requirements.

Furthermore, the restoration of harmony calls for absolute respect of the right to life and all other rights envisaged in the Universal Declaration of Human Rights and supplementary Covenants; this implies repudiation of violence, whatsoever its source, as a method of political action, and makes it indispensable to get to the bottom of the assaults and crimes that have shocked the country and apply to those responsible the full force of the law. A priority aim is to unite the Chilean people in the task of constructing the essential bases of their co-existence.

In the cultural and freedom-loving tradition of the Chilean people, democracy is the best possible way of life, and accordingly, the present agreement relates to the fundamental conditions that ought to be fulfilled, not only to permit the transition to that democracy, but also to ensure its stability once it is fully reinstated.

The reinstatement of democracy makes it indispensable that every Chilean should have the right to express his thoughts and be sure of his liberties under a constitutional regime, which includes at least the following provisions:

1. The entire National congress shall be elected by popular ballot with clearly defined legislative, supervisory and constitutive faculties;

2. A constitutional reform procedure shall be devised, which, with all due regard to the stability that must necessarily characterize the Basic Charter, shall allow of its amendment, and, in the event of disagreement between the Executive and the Congress, shall provide for submission of the reform to a plebiscite;

3. The President of the Republic shall be directly elected by popular ballot, and an absolute majority, with a second vote if it should prove needful;

4. A Constitutional Court of Law shall be set up in whose membership the Executive, Legislative and Judicial Powers shall be appropriately represented;

5. The Political Constitution shall guarantee the free expression of ideas and the organization of political parties. Parties, movements or groups whose objectives, acts or behavior fail to respect periodic renewal of the government by popular will, alternation in power, human rights, the validity of the principle of legality, repudiation of violence, the rights of minorities and the other tenets of the democratic regime defined in the Constitution shall be declared unconstitutional. This designation shall be determined by the Constitutional Court of Law;

6. Such Extra-Constitutional States (of Emergency, Martial Law, etc.) as permit the restriction of individual liberties of assembly, freedom of movement, access to information and expression of opinion shall be subject to regulation, it being explicitly stated that in no event, while they are in force, shall they be allowed to vulnerate Human Rights, and that it shall always be possible to appeal to the Courts of Justice for defense and protection.

88. Further on the document states that “[1] n order to restore to the Chilean people the full exercise of their citizenship, with the capacity to participate in decisions that affect their future in conditions of liberty and equality, and likewise in order to endow the political process with the elements that are indispensable for effective evolution towards an authentic democracy, it is necessary to adopt the following measures:

1. Abolition of Extra-Constitutional Regimes (State of Exception); full restoration of all public liberties, of real university autonomy and of constitutional guarantees, and a government commitment not to apply the interim Article 24 of the 1980 Constitution. Abolition, likewise, of exile, which negates the legitimate right to live in the Land of one’s bird, and restoration of nationality to those who have been deprived of it;

2. Construction of electoral registers;

3. Termination of the political recess and derogation of the rules, which prevent the functioning of political parties;

4. Adoption of an electoral law under which the President of the Republic, Senators and Deputies shall be elected by direct, personal, free, secret, informed and impartially controlled vote, and which shall guarantee to that end freedom of propaganda and equitable access to the State and university means of communication;

5. Action to ensure that the plebiscite to legitimize the provisions set forth in the present document is held in conformity with the guarantees defined in the preceding paragraph.

89. Cardinal Fresno, upon making public this document, affirmed that it had no other purpose “than to seek reconciliation between all Chileans”, and that the future steps for that realization “ought to be defined by those who drafted it”.

90. The document “National Agreement on Transition to Full Democracy” immediately created broad support from vast sectors representative of Chilean society, among them, labor, students and professional associations, etc. [28] From the political parties or movements, only, on the right, the Unión Demócrata Independiente (UDI), whose principal leaders had been high officials of the present Government or maintained close contacts with it, expressed their discrepancy, stating “it is not a political agreement, only a mere sketch which, presenting itself as an agreement can turn into an illusion which takes on a life of its own and ends up becoming a fool’s trap for the anti-Marxist sectors of the country”, adding subsequently that said Agreement, “is made worse by the fact of its implicit disavowal of the Constitution of 1980 which underlies the entire document, and which is made explicit for nothing less than to ignore that the Communist Party is illegal.” For its part, the Chilean Communist Party officially announced its decision to marginalize itself from the National Agreement, explaining that it considers it an “insufficient” text. [29]

91. The Head of State initially pointed out, in hard terms, his criticism of the National Agreement, stating, “There exist differences which can not be subject of agreements or transactions. Thus it is not intransigence or intolerance, but differences of principles which are not overcome by mutual concessions, nor unconditional surrenders to those who wish to trick us.” [30] Later, General Pinochet on the occasion of his twelfth anniversary in power again rejected the initiative of national reconciliation, stating that “the same people participated in this declaration who yesterday were part of the unfortunately named Popular Unity and were responsible before Chile and before History for the strategy which was designed to convert the country into a satellite of the Soviet Union and for the political, economic and social chaos which resulted there from,” adding also that 11considering the previous circumstances, and that which experience has demonstrated to us in these years concerning the situation of these groups, it would be an ingenuous act to attribute to their political proposals the value of a patriotic commitment called upon to sustain the democratic system to which we all aspire.” [31]

92. The Commission is concerned about the lack of receptivity on the part of the Chilean Government and its Armed Forces concerning the proposals of the population which offer, in principle, a reasonable basis for the institutionalization of a dialogue which would permit it to face, in a realistic and peaceful manner, the serious problems which confront Chilean society. The present attitude of the Chilean Government impedes the evolution of conditions, which would favor a rational and peaceful solution to the problems, which have arisen, such a solution being the basic objective of a system of representative democracy.

F. CONCLUSIONS

93. The statements made throughout this chapter lead to the conclusion that, throughout the period covered by this report, the Government of Chile has imposed a severe political recess that has adversely affected the exercise of political rights. This situation has been a consequence of the goal that the Government proposed to achieve; to establish an authoritarian and protected democracy through the strengthening of the powers of the President and of the granting of a protective role to the Armed and Security Forces within the broad framework provided by the concept of national security.

94. The Commission has been able to observe that to achieve the above-mentioned goal the Government of Chile has conducted a policy designed to depoliticize the so-called intermediate groups and to fit political parties into functions it considers to be proper to them. To this end, several political parties have been proscribed and others dissolved, in order to achieve a political recess that makes it possible to achieve a change in mentality in Chileans and thus prevent the defects, which, according to the Government, characterized the system of “formal” democracy that existed before the military coup of 1973. These measures were to be completed by the coming into being of a great civic-military movement that would assure the strengthening of the new institutional system the Government wishes to create.

95. The Commission has been able to observe, however, that the so‑called intermediate groups have resisted the measures aimed at depoliticizing them and have not become instruments of political participation, as was the initial intention of the Government. The Commission has also found that, in practice, the great civic-military movement has not come into being. The result of that situation, in the opinion of the IACHR, has been the radical exclusion from political decisions of important sectors of the Chilean people, who have been deprived of institutional channels enabling them to participate in those decisions. For its part, the Government has failed to take concrete steps that would permit an advance towards the restitution of the exercise of political rights. Thus, the electoral rolls, which were destroyed by the Government, have not been re-established and the law that will appropriately regulate the operation of political parties has not been enacted.

96. Despite the serious limitations on the exercise of political rights resulting from that situation, the Commission has noted that on two occasions the Government of Chile has permitted the exercise of the right to vote. To the above-mentioned limitations have been added, on both occasions, the restrictions arising from the existence of states of constitutional emergency, which have had a negative impact on the exercise of other human rights associated with the exercise of political rights such as the right to freedom of expression and opinion, the right of association, the right of assembly, and the right to personal freedom. The Commission has also been able to observe that, when those polls were held, political parties were proscribed or dissolved and that a significant group of Chileans was impeded from returning to the country. The Commission has also been able to observe that when those polls were held, the Government used all the resources at its disposal and put the opposition in a clearly disadvantageous position. In the opinion of the Commission, these serious restrictions violate the principle of pluralism, which is characteristic of a regime of representative democracy; they also affect the freedom and the authenticity that are fundamental characteristics of any poll in which the right to vote is exercised. All these elements cast well-founded doubts on the credibility of the two procedures.

97. The Commission has been able to ascertain that, as a result of the above-mentioned situation, large sectors of the Chilean population have rejected the 1980 Constitution that was submitted to plebiscite. This has meant that that Constitution is not the result of the consensus of the principal political sectors of Chile and it, therefore, lacks one of the fundamental elements that characterize any constitution. Nor has it, in the opinion of the Commission, achieved the other objective of any constitution, which is to redistribute power among significant political groups of Chilean society; rather it embodies an excessive concentration of powers in the President, especially during the so-called transition period. The Commission also notes that, after a reasonable period of existence of the time table established in that Constitution, the time limits and mechanisms provided for have proved to be highly inefficient for solving the social problems that have arisen.

98. Consequently, the Commission is concerned about the lack of specific steps demonstrating the will of the Government of Chile to move ahead to the reestablishment of an authentic democracy, arising--as the IACHR has been calling for in its reports--from free, secret, and informed elections, with all the participants having equal access to the media and whose results genuinely express the will of the people. The lack of an Electoral Role and the failure to enact a law regulating the operation of political parties are clear indications of that.

99. The lack of receptivity of the Government of Chile and of the Armed and Security Forces to proposals from representative sectors of the population that could contribute to the solution of the serious problems that confront Chilean society, and the dynamic of polarization this situation entails, makes it possible to foresee a further deterioration of human rights. This deterioration is a consequence of the Government’s rigid adherence to norms and persons, which threaten to put Chilean society in a situation that efforts were made to avoid when the Armed and Security Forces took supreme command of the Nation “only for the period the circumstances require” and with “the patriotic commitment to restore the Chilean way of life, justice, and the institutional system that have been destroyed”.

100. The Commission, therefore, believes that it is imperative for the Government of Chile to put in place the institutional mechanisms it deems pertinent for re-establishing, without delay, a democratic system compatible with the principles and norms contained in the international instruments on human rights applicable to Chile.

Notes____________________

[1] Article 23 of the Inter-American Convention on Human Rights states: 1. Every citizen shall enjoy the following rights and opportunities: a. To take part in the conduct of public affairs, directly or through freely chosen representatives; b. to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters; and c. To have access, under general conditions of equality, to the public service of his country. 2. The law may regulate the exercise of the rights and opportunities referred to in the preceding paragraph only on the basis of age, nationality, residence, language, education, civil and mental capacity or sentencing by a competent court in criminal proceedings.

[2] OAS General Assembly resolutions 510 (X-0/80); 543 (XI-0/81.); 618 (XII-0/82); 666 (XIII-0/83); and 742 (XIV-0/84).

[3] In this regard see Report on the Situation of Human Rights in El Salvador (OEA/Ser.L/V/II.45 doc.23, rev. 2, November 17, 1978), p... IACHR Annual Report, 1979-80, p. 151; IACHR Annual Report 1980-1981, p. 122; and IACHR Annual Report 1982-1983, p. 24.

[4] Proclamation No. 5 of the Honorable Government Junta of Chile, September 11, 1973.

[5] Decree Law No. 1 of September 11, 1973.

[6] Decree Law No. 12 of 1973.

[7] Decree Laws 2.346, 2.347, 2376 of 1978 and 2.756 of 1970.

[8] Decree Law 2.757 of 1979.

[9] Decree Law No. 6 of 1973.

[10] Decree Law No. 50 of 1973.

[11] Thus, Edgardo Boeninger, former Rector of the University of Chile, states in this regard that the permanent rules of the Constitution embody a presidential Cesarism with military protection ... there is virtually no important matter in which the legal initiative is incumbent on parliamentarians, their supervisory powers have been reduced to a minimum, their agreement is not required for decreeing states of emergency, except the state of siege, the President of the Republic can dissolve the Chamber of Deputies without there being any power offsetting this Presidential power ... See. La Democracia: Unico Proyecto Posible, Que Pasa, May 10, 1985, p. 16.

[12] El Mercurio of Santiago, August 19, 1981.

[13] Idem, December 3, 1982.

[14] In application of Article 8 of the Constitution, the Constitutional Tribunal, by decision of January 31, 1985 declared the Communist Party of Chile and other political organizations based on the Marxist-Leninist doctrine to be unconstitutional.

[15] El Mercurio of Santiago, December 22, 1977.

[16] El Mercurio of Santiago, December 28, 1977.

[17] El Mercurio of Santiago, December 28, 1977.

[18] Thus, Eduardo Frei, the former President of the Republic stated:

This plebiscite is invalid and we reject it because it does not satisfy the minimum conditions guaranteeing its legitimacy.

It is not valid because a plebiscite cannot be held when a country is living under a state of emergency.

It is not valid because it would require an electoral system ensuring the authentic expression of the people to which it is put.

It is not valid because there are no electoral rolls and almost seven years has elapsed since they were destroyed, which reveals a deliberate determination not to reconstruct them.

It is not valid because the polling offices that will receive the ballots and will count them are persons appointed by the mayors, who in turn are appointed by the Read of State.

It is not valid because the entire process of counting votes and their results, in their initial phases, is in the hands of the authorities, first of the mayors and their secretaries and then of the governors, appointed by the Executive.

It is not valid because political parties are proscribed and consequently there cannot be reliable proxies that supervise the voting and the trustworthiness of the vote counting.

It is not valid because there is no freedom of assembly or of political demonstrations.

It is not valid because there is no freedom of information or expression, those who disagree do not have access to television, which in our world is the principal instrument of mass communication, and very little access to radio stations and the press. (Chile America No. 64, June-September 1980, p. 32.)

For their part, a group of important persons, which included outstanding intellectuals, scientists, performers, university professors, university members, and important men and women of Chilean public life made a presentation to President Pinochet and the members of the Government Junta in which they stated that the convocation had no constitutional and political alternative. In this regard, they stated;

The present convocation does not contain any constitutional and political alternative. In his speech on the 11th of this month General Pinochet stated that “in order to avoid any malicious criticism to the effect that it would be a plebiscite lacking an alternative I emphatically declare to the citizens that the hypothetical rejection of the draft approved by the Government Junta would mean a return to the juridical and legal situation existing in the country on September 10, 1973.” These words do not encompass the proposition of a real alternative since a return to the juridical and political situation existing at that date is not only absurd but also impossible. The juridical-political situation which, according to General Pinochet, would be imposed if the draft constitution of the Government were rejected is not described. What does it mean to return to September 10, 1973? That the country will fall into chaos since the President of the Republic of that time is dead and Parliament dissolved? Is this what General Pinochet wishes to say?

The only alternative that exists for Chile would be either to approve the draft constitution of the Government with its transitory articles, which embodies a personal government that as a minimum would continue up to 1990 or to pronounce itself in favor of a authentic formula of transition to a full democracy, which will have to envisage an alternative constitutional model. And this, of course, does not mean chaos but, on the contrary, the normal advance toward a stable institutional system legitimately generated. If this last-mentioned option can be presented, discussed, and submitted to a correct plebiscite, the Government must make possible a process of popular decision in which fundamental conditions will be given (El Mercurio of Santiago, August 24, 1980).

In addition, the Group of Constitutional Studies or the Group of 24, made up of professors and experts in constitutional law, stated in a document published in Santiago in August 1980 that;

None of the guarantees exist for making this plebiscite a credible and authentic act either as regards its holding on September 11 or less as regards its subsequent results it lacks validity because; 1. There are no electoral rolls or an up-to-date census; 2. There are no public liberties; 3. There is a permanent state of emergency; 4. Equal access to information media does not exist; 5. There is no supervision of the plebiscite; 6. Both the regional count and the national count will be based “solely” on the certificates sent by the provincial Governors and the Mayors, which officials are appointed by General Pinochet; 7. There is no Electoral Court; 8. Participation in the plebiscite of about one million Chileans who are outside the country is prevented.

In turn, the Comite Permanente del Episcopado Chileno made a “Declaration on the Plebiscite” which states that:

Both the plebiscite and the juridical rules that might stem from it will have moral authority and will enjoy the respect of the citizens insofar as they are an authentic expression of the national feeling and, for that purpose, the meaning and juridical consequences both of approval and of rejection must be defined with absolute clarity in an instrument of juridical value; very different contents should not be grouped together for a single reply; the various currents of opinion should be guaranteed sufficient information and equal access to information media; there should be freedom, secrecy, and security for voting; and the electoral procedure should guarantee correctness in all its stages (El Mercurio of Santiago, August 24, 1980).

In addition, a group of 500 senior dignitaries of Chilean Freemasonry issued a statement in which they opposed the way in which the plebiscite was posed “which goes against the most elementary democratic sense” (Chile America No. 64-65, June-September, 1980, p. 32).

[19] El Mercurio of Santiago, October 4, 1980 and Chile-America, No. 66-67, October-November, 1980.

[20] El Mercurio of Santiago, October 5, 1980.

[21] El Mercurio of Santiago, October 15, 1980.

[22] The Chilean Bishops, Document “Renacer de Chile”. Punta de Tralca. December 17, 1982. Mensaje. Vol. XXXII, January-February 1983, No. 316.

[23] The Chilean Bishops. Santiago, August 12, 1983, Mensaje, Vol. XXXII, September 1983, No. 322.

[24] Annual Report of the Inter-American Commission on Human Rights, 1982-1983, p. 26.

[25] Annual Report of the Inter-American Commission on Human Rights, 1983-1984, p. 96.

[26] Hoy, No 353, April 25-May 1, 1984.

[27] Hoy, No. 352, April 17-24, 1984 and No. 353, April 25-May 1, 1984.

[28] Thus, for example, the National Board of Directors of the Chilean Bar Association, in a special session on August 30, 1985, convoked to discuss the “National Agreement for the Transition to Full Democracy” decided unanimously:

I. To express its full support for the document, which faithfully reflects the democratic desires of the great majority of Chileans.

II. To thank His Eminence Cardinal Archbishop Juan Francisco Fresno for having sponsored the activities that led to the achievement of the Agreement referred to in the foregoing paragraph.

III. To commend the Directors Messrs. Patricio Aylwin Azocar, Francisco Bulnes Sanfuentes and Enrique Silva Cimma, the signatories of the document, for their effective and talented participation in the generation of that National Agreement.

[29] El Mercurio of Santiago. August 29, 1985.

[30] UPI dispatch. Dispatches of news agencies. News items compiled by the Press Division of the Public Information Department of the organization of American States. August 29, 1985.

[31] UPI dispatch. Idem.September 12, 1985.