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Central American University - UCA  
  Number 219 | Octubre 1999
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Latin America

Setting Chile on the Right Path

Since the end of war in the region, some Central American countries have been struggling to put the atrocities of war and decades of government and military repression behind them. The debate on how to do so has ranged between full disclosure and possibly punishment of those responsible for the horrendous human rights violations, to sweeping it all under the rug on the argument that reopening old wounds is morbid, serves no good purpose and could just stir up trouble. The detention exactly a year ago of General Pinochet, a veritable symbol of ruthless dictatorship in Latin America, has very belatedly forced that debate into the open in Chile. We offer a concrete proposal emerging from that debate that shows the importance of dealing with the issue well.

The arrest of General Augusto Pinochet in London on October 16, 1998, has led our country, or perhaps more accurately has forced it, to look into the still-open conflict regarding the human rights violations that occurred during the 17 years of his dictatorship.

The following proposal specifically addresses the issues relating to that period, although this of course does not obviate the fact that human rights cover many other areas.

The Humanist Party and its candidate for President of the Republic, Tomás Hirsch G., present this document in the hope that it will contribute to resolving this conflict at last.

The party is of course open to dialogue and debate with all those who genuinely desire to build a Chile in which the values of solidarity, justice and freedom are uppermost.

An historical recap

In 1973, the Chilean Armed Forces, pushed by the political and economic right and with the support of the United States, broke with institutional order, usurped power by force and installed a military dictatorship. From beginning to end, the Chilean military dictatorship exercised a state policy of violence that included assassinations, torture, kidnappings, exile, the forced disappearance of individuals, house break-ins and the elimination of personal liberties. A government based on terror and arbitrary rule controlled our country for 17 years.

In 1978, the dictatorship imposed an amnesty law through which it intended to remain legally unpunishable for all the crimes committed during those years.

In 1980, the regime held a fraudulent plebiscite to approve a Constitution. This fundamentally anti-democratic charter is the legal framework within which the country has been developing from that date to this.

In 1990, the period of “Transition to Democracy” established by that Constitution began, and since then the government has been in civilian hands. Ten years have passed since that “transition” got underway and the “Concertación” governments have been unable or have not wanted to find the way to build a full democracy and reestablish the dominion of human rights.

With respect to justice, General Manuel Contreras and Brigadier Pedro Epinoza are serving minimum sentences for the Orlando Letelier crime [the Allende government official assassinated in Washington D.C.], the only case prior to 1978 excluded from the amnesty law by agreement with the United States. Another 18 people are serving sentences for the case of the “decapitated.” Those are the two most significant cases but, in total, only around 25 people have been sentenced in 7 processes for 11 assassinations, out of a total of 3,197 cases of executed and disappeared people whom the State of Chile recognizes as victims of human rights violations. For the most part, the consequences and aftermath of torture, exile and the exoneration of tens of thousands of Chileans remain.

Today, thanks to legal proceedings in Spain and the detention of Pinochet in London, the judicial branch has, for the first time, reinterpreted the amnesty law in one of the Supreme Court chambers to permit the courts to investigate some of the crimes before amnestying them. This detention has focused particular attention on the pending human rights themes and given Chileans the opportunity to seek a genuine solution to this problem, which is compromising the course of our history as a nation.

Personal, institutional and social responsibility

We cannot speak of exclusively personal responsibility in the crimes committed during the dictatorship. If we could, this whole issue would have been resolved a long time ago.

Certain individuals ordered these crimes, while others executed them. All of them unquestionably have personal penal responsibility. These people weren't just plain old individuals, however; we are speaking of high commanders and members of the institutions responsible for defending our country. The crimes were committed under the protection of a judicial branch that accepted the rules of an illegitimate legal framework and of a sector of political power that, if it did not play an active role in the coup, justified and endorsed the military intervention. For this reason, it is clear that establishing personal responsibilities is not the only thing at issue. So are responsibilities of an institutional sort, perhaps even more so.

Lastly, there were the thousands, intoxicated by an irrational fear, who applauded the atrocities, or those who justified the violence on the grounds that it served to avoid even greater horrors, or those who preferred to act as if nothing was happening.

There are personal, institutional and social responsibilities for the human rights violations committed during the military dictatorship, making it impossible to reduce what happened to a situation between victims and victimizers.

What we decide today will condition our future

This is not just one more problem among so many others that we have as a country. It is a central problem in the life and the future of our nation. It is not just as good to resolve it one way as another; it will not be the same taking one road as taking another.

If we fall into the trap of continuing to seek superficial solutions and cosmetic cover-ups, as has been the case over the past ten years, we will not only keep the wounds of the past open and festering, we will also remain under the permanent threat of repeating tragic and violent deeds. If on the other hand we decide to seek a response that tackles the very root of the conflict, we can grow as individuals, as a people and as a nation. In so doing, we can come to terms with our past, regardless of how serious the “errors” committed may have been, and can transform ourselves into a people capable of building our future by accepting our true history, vaulting over the abyss of death and repetition.
What we decide today will strongly condition our future and will be the legacy we leave to future generations.

Reestablishing institutional legitimacy

The 1980 Constitution was born during a dictatorship and approved in a fraudulent plebiscite. Consequently, it is an illegitimate legal framework imposed through violence. That Constitution did not come into being through the will of the citizenry.

The root of all the current institutionality was an act of violence in which a handful of people decided for and on behalf of all of society, seeking to validate this action through fraud. Strictly speaking, the fact that the executive, legislative and judicial branches are founded on that Constitution means that they have no legitimacy. Any act based on the 1980 Constitution is illegitimate and has neither judicial nor democratic underpinnings.

Legitimacy will only be reestablished when society as a whole freely and democratically decides the rules of the game by which it wants to develop. And the only way to reestablish legitimacy is by giving people back the intentionality that was snatched away so they can create a new Constitution.

Repealing the amnesty law

It is imperative to repeal the amnesty law decreed by the dictatorship. No process of reestablishing human rights can be initiated if the main people responsible for the crimes have forced society to grant them an amnesty in advance. In the current situation, the amnesty law is a law of impunity.

The responsibility for annulling the effects of the amnesty law is in the hands of the political power, that is, the legislative and executive branches. Two proposals have recently been presented to the National Congress in this regard, but neither has been sponsored by the government or even discussed in chambers. The government and the parties of the Concertación have demonstrated a lack of political will to move forward in this commitment that they formally and publicly assumed before those who elected them.

Military Justice

The actions of Military Justice in Chile today totally exceed its faculties. The military judges crimes committed by military personnel against civilians and this has been the main tool permitting impunity in the majority of the cases that have managed to get that far.

Military Justice must be limited to strictly military crimes. Civilian courts must judge common crimes and misdemeanors, especially those involving human rights violations committed during the dictatorship.

The situation of the victims' relatives

We affirm the right of the victims' relatives to truth and justice. Not to an “archeological” truth, reduced only to knowing what happened to the bodies of those politically executed or disappeared, which is unquestionably also necessary, but to a complete truth, one that explains how the events happened and who was responsible and that restores the dignity of the victims. We affirm the need for a justice that identifies those responsible, directly or behind the scenes, that carries out due process and that applies the corresponding sentences.

The “pardon” being requested of the victims’ family members is a personal option that they can choose to grant or not, but it in no way eliminates the need for truth and justice, nor does it solve the social conflict that concerns all Chileans.

Institutional acknowledgement

On the path toward genuine reconciliation, the institutions responsible for the institutional rupture and the human rights violations—the Armed Forces and the “right”—must acknowledge their responsibility for what happened and ask the forgiveness of the people of Chile, just as President Aylwin did in the name of the state, clearly manifesting his desire never to repeat what happened.

As a branch of the state, the judiciary must also review and recognize its conduct during that period.

Social reconciliation

We are not confusing “reconciliation” with “negotiation,” through which enemies divvy up public posts and quotas of power. Nor is vengeance a path of reconciliation, nor still is offering a token to those who mowed down the lives and rights of individuals.

Social reconciliation will take place when we recover the confidence that we will never again allow Chileans to murder, torture or kidnap other Chileans, when it becomes clear that we all have the right to existence, freedom of opinion, and participation in decisions about the destiny of the nation, when we can understand and pledge that our differences will no longer be resolved by trying to make a certain group disappear. There will be reconciliation when we agree that mutual respect, not discrimination and violence, will be the fundamental pillars of the Chile we want to construct.

Pardon as an instrument of integration

Aware that we are speaking of a situation that involves individuals and implies institutional responsibilities, one in which all of society was compromised one way or another, it is necessary at some point to propose a mechanism for popular consultation that allows the participation of all Chileans.

Once legitimacy has been reestablished and those directly to blame have been sentenced, it is necessary to propose a plebiscite in which society as a whole decides if it wants the guilty to be pardoned or to serve their sentences. Only in that way, with the participation of all, can an effective social integration be achieved.

The path to follow

It matters a great deal how we resolve the trampling of our human rights. If we err, we are condemned to repeat history; if we do it well, we will grow as individuals, as a people and as a nation. The fact that responsibilities for the crimes are not only personal, but also institutional and social is what makes the solution to the problem so complex, what makes truth not enough, justice not enough and even an institutional change not enough.
Reconciliation is a process, a path that a people takes to recover an intentionality that was snatched away at a particular moment.

Given these considerations, we propose to:
Immediately annul the effects of the amnesty law, in which the dictatorship absolved itself of responsibility for its crimes, and reduce the scope of Military Justice. Unless this is done, the necessary conditions for freedom or for a genuine option in which people can reflect and decide for themselves what they consider best for their future will not exist.

Investigate, judge and sentence those responsible for the crimes in civil courts.

Call a plebiscite, consulting the people on whether or not they want a new Constitution. Elect a Constituent Assembly that would formulate a new Constitution and legitimate that constitutional proposal by direct popular vote.

Given that responsibility for the crimes was not only individual, but also institutional and social, hold a popular consultation with this new constitutional framework, so Chileans can decide whether the guilty should be pardoned and exonerated from punishment or should serve sentences.

This proposal was presented by the Humanist Party of Chile in Santiago, Chile on August 15, 1999.

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