Chile: doing a deal with memory - Brief Article

Chileans have made a pact to ease the transition to democracy. But the collective memory has played a more crucial part in progress towards a rule of law

The question of human rights violations by state officials during the military dictatorship is not a priority in the current political debate. Chileans have been saying this since 1990 in political speeches, in the media and through public opinion polls. Yet at regular intervals, this serious issue flares up in the national debate. When it does, political figures feel obliged to make amends, but as a rule they prefer to let time do its work. Is this passivity or a laissez faire attitude that should be legally condemned?

"Justice as far as possible," was the line taken by Patricio Aylwin while he was president. The work of the Truth and Reconciliation Commission (see box page 27) formed part of this approach. Its aim was to compile a list of victims of human rights violations under the military regime and identify the guilty parties. The idea was to establish the truth, award material and moral compensation to the victims, and lay the foundations of national reconciliation. But the Commission's work has been limited by an amnesty law passed under the military regime. In other words, its role has been largely symbolic: to preserve the history of the repression in the collective memory.

The Commission's report has nevertheless had a considerable impact. The truth began to come out, opening up new opportunities for "justice as far as possible". Under the current president, Eduardo Frei, the courts have handed out prison sentences to the former head of the DINA, the dictatorship's secret police, and to other military and police officers involved in the repression. [1]

But two big issues have been put on the back burner-the crimes covered by the amnesty law (committed between 1973 and 1978) and the responsibility of General Augusto Pinochet. Many Chileans and foreigners wonder why a democratic government has not managed to repeal a law which seems a disgrace and was passed in undemocratic circumstances.

How is it that Pinochet has remained beyond the reach of the law and that his political and criminal responsibility has not been established? The answers to these questions are connected to the special nature of Chile's transition to democracy, which includes an unspoken agreement to keep the amnesty law on the books and guarantee immunity for Pinochet. The transition is the result of a pact, whose effects have been strengthened by the existence of a right-wing electorate comprising up to 40 per cent of voters and an electoral system that prevents a majority from dominating parliament. Agreements have been made; there has been neither passivity nor laxity.

Reawakened memories

The society's collective memory is stronger than this, however. Whenever a debate arises about the political heritage of the military regime or someone tries to amend the constitution, memories are reawakened of prisoners who vanished, executions with or without trial and the torture inflicted on thousands of Chileans. There is no collective amnesia: the wickedness of the crimes has left an indelible mark.

For nearly nine years, there was a tug-of-war between collective memory and political determination to forget. On the one hand, several legal actions were started against Pinochet and members of his regime. On the other, one could point to a certain sluggishness in the legal system, a veto by the armed forces, and the feeling that drawn-out legal proceedings against Pinochet would not catch up with him and that he would die a natural death before coming to trial. This was the situation when he was arrested in London.

Pinochet enjoys immunity because he has a diplomatic passport and is a senator for life, and the Chilean government has accepted this. The government maintains that it cannot accept foreign jurisdiction over him that it has neither recognized by treaty nor through ratification of an international legal instrument.

I approve of this approach because states are subject to international law even if it conflicts with my ideals. I also approve of it because I think the democratic transition is our business. I would like to see, in my lifetime, Chilean courts put Pinochet on trial for what he did and remove him from parliament. I would like to see the armed forces quietly accept and respect court decisions and see the pro-Pinochet right accept the requirements of the rule of law and representative democracy. In sum, I would like to see judicial sovereignty in Chile fully deployed, as part of the rule of law in a strong and established democracy.

Pinochet's detention has moved the Chilean justice system forward. Politicians have turned a spotlight on the crimes of the dictatorship, and public opinion is starting to accept that globalization doesn't only involve trade. This is a process which is taking us towards a cosmopolitan society equipped with supra-national bodies based on freedom and the defence of human rights.

Professor at the Institute of Political Sciences of the Catholic University of Chile and a member of the Academy of Social, Political and Moral Sciences of the Institute of Chile

(1.) Manuel Contreras, the former head of the DINA, was sentenced in Chile for the murder in Washington of Orlando Letelier, Minister of Foreign Affairs in she Allende government, because Chile's amnesty law does not cover crimes committed abroad. In July 1999, in a decision described as "historic", Chile's Supreme Court confirmed the indictment of high-ranking officers on the grounds that when victims' bodies could not be found, the crimes involved were "permanent and not subject to limitation" and therefore not covered by the amnesty law. Editor

COPYRIGHT 1999 UNESCO
COPYRIGHT 2004 Gale Group