By Claudio Nash
The tragic experience of human rights violations during the civilian-military dictatorships resulted in a political and social understanding about the need to prioritise human rights in the design of a democratic society and the explicit commitment to state terrorism never being accepted again.
These seemed to be profound and water-tight agreements within the Chilean society, but over the years they have shown their weakness.
Since the return to democracy there has been a slow but persistent deterioration of the centrality of human rights as the basis for civil democratic society. The “within the limits of the possible” in terms of the transition, and the constitutional deadlocks to satisfy economic, social and cultural rights generated a context in which the understanding on human rights stopped being a shared space and became a subject of debate and controversy.
In this context the human rights crisis that the country has suffered since the 18th October 2019 is no inexplicable or simply regrettable parenthesis, but rather a consequence of the deterioration of the agreement about fundamental rights in Chile. The social uprising is testimony to the civic dissatisfaction with the economic model that doesn’t safeguard our economic or social rights; it reveals a clear democratic deficit that had failed to generate spaces of real participation; and it is evidence of the dismantling of the traditional associative ways of working (unions, professional colleges, student organisations) and the lack of credibility of political institutions (parties and parliament).
On the other hand, the government response to this civic upheaval of protest has generated a human rights crisis that is unprecedented in democracy, but about which there had been worrying indications for some time. For several decades a context of normalised state violence was developing and no effective response had been initiated in order to prevent the current crisis. The following examples clarify this claim.
The first example is the constant and increasing violence against the Mapuche peoples. The militarisation of the government response to their demands had its most clear expression in the murder of the young Mapuche man Camilo Catrillanca, and the torture of the 15-year old boy who was with him. This case revealed key elements that currently afflict the country as a whole: excessive and criminal use of force by the police, attempts to hide the truth of what happened, the creation of an environment allowing for police impunity, and the complete absence of responsibility on the part of the leadership or politicians.
A second example is the growing violence used against the movement protagonised by the secondary-school pupils in their demand for better education. 2019 was in many ways a dry-run for what became the social response to legitimate citizen protests: an emphasis on violent acts, indiscriminate and repressive use of force (tear gas, physical, psychological and sexual violence), an attack on the right to education, and an inability to isolate and sanction those who resort to violence.
Finally, revealing the extent to which the understanding of never again returning to the violence of the dictatorship years has been eroded, one should point to the setbacks in transitional justice. The country could have made serious advances in this matter, but instead the justice system began to open deep cracks through which impunity was able to flourish, and, even more seriously, discourses that sought to justify or contextualise the human rights abuses of the dictatorship were given a platform.
In this context it is neither surprising nor inexplicable that the response to the people’s protests have given rise to such serious, widespread and systematic human rights abuses.
Is it possible that the parliamentary agreement to initiate the process of constitutional change could be a watershed moment for human rights in Chile? The answer to this question depends on three issues: the response to the current serious human rights violations; the role that these violations play in the movement towards a new constitutional agreement; and above all, the way in which human rights are incorporated into the Constitution.
In the first instance the truth of what is happening has to be acknowledged, and there has to be justice and reparation for the victims. Chile cannot survive another process of impunity and forgetfulness.
Secondly, the constitutional process has to guarantee citizen expression (the freedom to rally and the freedom of expression), participation without discrimination (using affirmative action for certain sectors of society that are discriminated against), and total transparency in informing the population so that the people can evaluate and vote on the new constitutional text.
Finally, the substantive legitimacy of the new constitutional agreement will be given by certain minimal and basic elements. The way in the Constitution resolves the relationship between international decrees on human rights and the national decrees on human rights or the constitutional bases of national institutionality are essential questions to be taken into account in an institutional design based on human rights. So there are matters in which the Constitution will not start from zero, but rather from the minimum basis of international agreements reached by the state (a catalogue of rights and the protection of these rights). Similarly, the way in which those bodies of the state will be linked to the protection of human rights has to be resolved, in a way that has, to date, not been accomplished in the designs of the Constitution of the country.
The deterioration of the central importance given human rights that has marked our society after the dictatorship has had its most brutal expression in the violence inflicted by the state on the people during the 2019 uprising. The constitutive process, as well as a response to the social demands, are an opportunity for a new political and social pact that, this time, can be based on a profound agreement on human rights.