One might have expected that the end of the junta and the election of a democratic government coalition, La Concertación de Partidos por la Democracia, would mark a break with the ‘limited’ or ‘protected’ democracy instituted by Guzmán and supported by his neoliberal allies. Quite the opposite is true. As Fernando Atria notes: ‘Democratic politics is no longer seen as the best insurance against human rights violations, but as the primary danger.’ As Atria suggests, while in some contexts it may be reasonable to assume that judges should protect individual rights and the constitution from democratic politics, in Chile, whose key problem has been authoritarian anti-democratic tendencies, including in the judiciary, this focus is difficult to justify. It was Pinochet’s 1980 constitution that first gave judges a substantial role in adjudicating matters which, prior to the coup, belonged to the political process. But 2005 amendments to the constitution, after the ‘return to democracy’, dramatically expanded the powers of the constitutional court to determine the constitutionality of legislation, in the name of protecting human rights.

Jessica Whyte, The Morals of the Market, loc. 373