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WEEKLY NEWSLETTER
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Chile
Index
Although the Republic of Chile's founders drew on the
example
of the United States in designing the institutions of
government,
they drew on Roman law and Spanish and French traditions,
particularly the Napoleonic Code, in designing the
country's
judicial system. The judicial system soon acquired a
reputation for
independence, impartiality, and probity. However, the
judiciary
fell into some disrepute during the Parliamentary Republic
(1891-
1925), when it became part of the logrolling and patronage
politics
of the era.
The 1925 constitution introduced reforms aimed at
depoliticizing and improving the judicial system by
guaranteeing
judicial independence. Chile's justice system established
itself as
one of the best on the South American continent, despite a
serious
lack of resources and inadequate attention to the needs of
the
nation's poorest citizens.
During the Popular Unity government, the Supreme Court
repeatedly clashed with the president and his associates.
The
Allende government viewed the court as a conservative and
inflexible power, obsessed with a literal definition of a
law
designed to protect the privileges of private property
against the
new logic of a revolutionary time. The Supreme Court
retorted
vehemently that its task was simply to follow the dictates
of the
law, not to change it to suit some other objective.
The courts had much less difficulty dealing with the
military
regime, which left the court system virtually intact. As
soon as
the courts accepted the legitimacy of the military junta
as the new
executive and legislative power, they worked diligently to
adjudicate matters in conformity with the new decree laws,
even
when the latter violated the spirit and letter of the
constitution.
In particular, the courts did nothing to address the
serious issue
of human rights violations, continuously deferring to the
military
and security services. The Supreme Court saw its own
jurisdiction
severely eroded as the military justice system expanded to
encompass a wide range of national security matters that
went far
beyond institutional concerns.
According to the 1925 constitution, modified somewhat
by the
1980 document, the Supreme Court can declare a particular
law,
decree law, or international treaty "inapplicable because
of
unconstitutionality." This does not invalidate the statute
or
measure for all cases, only for the one under
consideration.
Another important function of the Supreme Court is the
administration of the court system. The organization and
jurisdiction of Chile's courts were established in the
Organic Code
of the Tribunals (Law 7,241) adopted in 1943. This law was
modified
on several occasions; two recent instances are the organic
constitutional Law 18,969 of March 10, 1990, and Law
19,124 of
February 2, 1992. Chile's ordinary courts consist of the
Supreme
Court, the appellate courts (cortes de apelaciĆ³n),
major
claims courts, and various local courts (juzgados de
letras). There is also a series of special courts,
such as the
juvenile courts, labor courts, and military courts in time
of
peace. The local courts consist of one or more tribunals
specifically assigned to each of the country's communes,
Chile's
smallest administrative units. In larger jurisdictions,
the local
courts may specialize in criminal cases or civil cases, as
defined
by law.
Chile has sixteen appellate courts, each with
jurisdiction over
one or more provinces. The majority of the courts have
four
members, although the two largest courts have thirteen
members, and
Santiago's Appellate Court (Corte de ApelaciĆ³n) has
twenty-five.
The Supreme Court consists of seventeen members, who
select a
president from their number for a three-year term. The
Supreme
Court carries out its functions with separate chambers
consisting
of at least five judges each, presided over by the most
senior
member or the president of the court.
Members and prosecutors of the Supreme Court are
appointed by
the president of the republic, who selects them from a
slate of
five persons proposed by the court itself. At least two
must be
senior judges on an appellate court. The others can
include
candidates from outside the judicial system. The justices
and
prosecutors of each appellate court are also appointed by
the
president from a slate of three candidates submitted by
the Supreme
Court, only one of whom can be from outside the judicial
system. In
order to be appointed, ordinary judges at the local level
are
appointed by the president from a slate of three persons
submitted
by a court of appeals. They must be lawyers, must be at
least
twenty-five years old, and must have judicial experience.
Ministers
of the appeals courts must be at least thirty-two years
old, and
Supreme Court ministers must be at least thirty-six years
old, with
a specified number of years of judicial or legal
experience. Judges
serve for life and cannot be removed except for
inappropriate
behavior.
The relationship between the Aylwin administration and
the
Supreme Court was tense. Pinochet offered extraordinary
retirement
bonuses to the eldest court members to ensure the
appointment of
relatively young judges who were friends of the outgoing
regime.
The parties of the CPD were highly critical of these
appointments
and made no secret of their strong disapproval of the
Supreme
Court's behavior under the military government,
particularly its
complete disregard for the massive violations of human
rights.
Responding to these concerns, the Aylwin administration
introduced
constitutional reform legislation that would overhaul the
nomination procedure for Supreme Court ministers, create a
separate
administrative structure for the judicial branch, and
obligate the
Supreme Court to take a more vigilant role in the
protection of
human rights. These reform efforts failed because the
parties of
the right refused to go along with change in the face of
strong
opposition from the Supreme Court, which was fearful that
it would
lose its prerogatives and concerned that the judicial
system would
become "politicized." Still pending as Aylwin's term
neared its end
were reforms of the military justice system with its
authority to
try civilians in areas of national security and to judge
military
personnel even when charged with a criminal or civil crime
against
civilians.
Data as of March 1994
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