Chile’s 1980 Constitution: Drafting and Transitional Implementation in 1981

After the 1973 military coup, the junta led by Augusto Pinochet set about reshaping Chile’s institutions. On 25 October, the Ministry of Justice issued Decree 1064, appointing a commission to study and propose a new constitution and accompanying legislation. Its members included legal figures such as Enrique Ortúzar and Jaime Guzmán. The commission communicated with the government through the ministry and could invite advisers and form working groups.

The study commission submitted its work in 1978, after which the Council of State examined it and delivered its report in July 1980. The junta then revised the proposal, particularly its transitional arrangements. The junta settled the final text before submitting it to a plebiscite. The military government and bodies it appointed directed the constitution-making process.

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Decree 3465 scheduled the plebiscite for 11 September 1980. The ballot offered only approval or rejection, each choice covering both permanent and transitional provisions. Participation was in principle compulsory for adult Chileans, and adult foreigners meeting residence requirements could also vote. Identity cards served as identification. Local mayors organized polling locations and polling stations.

The government’s published result declared the constitution approved. In its 1985 report, the Inter-American Commission on Human Rights pointed to the absence of voter registration, the continuing state of emergency, restrictions on political parties and opponents’ unequal access to the media. These conditions seriously undermined the credibility of the procedure.

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Pinochet promulgated the constitution through Supreme Decree 1150 on 21 October 1980, and it appeared in the official gazette on 24 October. The original text contained fourteen chapters, 120 permanent articles and 29 transitional provisions, replacing the 1925 Constitution as the new institutional text.

The final article set the ordinary effective date at six months after approval in the plebiscite, making 11 March 1981 the implementation date. The ninth and twenty-third transitional provisions had separate arrangements for earlier entry into force. Promulgation and publication in 1980, and implementation in 1981, performed different legal functions. The transitional provisions chiefly governed the configuration of state institutions at the outset.

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The original text made the president head of state and responsible for government and administration. The ordinary presidential term was eight years, with no immediate reelection. The president could appoint and dismiss ministers and held substantial powers in the legislative process. Congress was designed as a Chamber of Deputies and a Senate, with 120 directly elected deputies.

The Senate combined elected, appointed and life seats. Alongside representatives elected by the regions, the Supreme Court, National Security Council and president took part in selecting former judges, military and police chiefs, university rectors or ministers for designated seats. Former presidents who met service requirements and other conditions held life seats. The constitution also established a Constitutional Tribunal and National Security Council, giving military and unelected bodies a continuing institutional position.

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Article 19 listed protections for life, personal liberty, equality before the law, religion, education and property. Article 20 allowed people whose specified rights were infringed, obstructed or threatened by arbitrary or unlawful acts to seek protection from a court of appeals. Article 21 separately provided a remedy for unlawful detention.

The same version placed broad restrictions on political activity. Original article 8 declared activities or organizations advocating certain positions, including class struggle, unlawful or unconstitutional, with the Constitutional Tribunal handling such matters. Transitional provision 24 also gave the president exceptional powers to restrict assemblies, certain publishing activities and residence. These restrictions existed alongside the catalogue of rights, creating an important tension within the original text.

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Transitional provisions 13 and 14 kept Pinochet in office as president for an eight-year term. The junta retained constituent and legislative authority, and major decisions required unanimity. Most permanent provisions concerning Congress were temporarily inapplicable. The junta performed the initial legislative work; the elected chambers had not yet been established.

The transitional provisions also required military and police leaders to nominate the next president for approval by plebiscite. If the nominee was rejected, the incumbent president and junta would remain for one further year, followed by presidential and parliamentary elections under the permanent provisions. The order established in 1981 thus included arrangements for later elections while extending military government. This explains the distance between the permanent institutional design and its initial operation.

References: [3]