The Courts

Chile Table of Contents

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 apelación), 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 Apelación) 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.

More about the Government and Politics of Chile.

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Source: U.S. Library of Congress