The Legal System
of the
Republic of Chile
-- by a student of Comparative Law at the Catholic University of America.
Please direct any inquiries to:
* flag image taken from CIA World factbook website.
Introduction
This is a webpage designed to provide an overview of the Chilean legal system in general. Although there are many aspects of the system which would warrant entire studies in and of themselves, this project is meant to offer only a superficial perspective of the Chilean system. Key points/ sections of interest addressed on this webpage include:
The Republic of Chile
History: the establishment of the Constitution
Branches of government
Executive branchMore about the current president
Legislative branch
Judiciary branch
The Education of AttorneysAdditional Links
The Republic of Chile: overview
Unlike the United States, the Chilean legal system is based on the civil law model common in Europe and throughout Latin America. As compared with the United States legal model, the Chilean legal system emphasizes the importance of codified, statutory law in instances where common-law systems (like the United States) would give more weight to legal precedent on the particular issue at hand. Despite this difference, the design of the Chilean flag has been described as being "based on the US flag". See CIA World Factbook Website; see also http://www.bakerinfo.com/apec/chilapec.htm.
Chile is a Democratic Republic. See Chilean Constitution, Art. 4. Voting is obligatory for all citizens aged 18 or above. See Chilean Constitution, Art. 15; Art. 16 (for details on how privilege of suffrage is lost).
The Chilean Constitution outlines basic rights comparable to those outlined in the Constitution of the United States, and includes some different rights (such as the right to live in a clean environment, discussed below). See Chilean Constitution, Art. 19. Among those rights guaranteed to Chilean citizens, the right to be free from bodily (physical or psychological harm), the right to equal treatment under the law, the right to exercise all rights under the law (including the right to a fair trial and justice in general), respect for the sanctity of family and private life, inviolability of the home, the right to worship freely, the right to liberty, the right to freedom from detainment absent a just cause, and the right to live in a clean environment, the right to choose one's system of healthcare, freedom of education, the right to peacefully assemble in protest (or support), a guarantee of a multi-party system, the right to earn a living through any means other than those vocations which are seen as violative of public policy, the right to own or hold property (material, real, or other). See generally, Chilean Constitution, Art. 19, (Capitulo III.)Chile's government is divided into three branches: the executive branch, the judiciary, and the legislature. The judiciary branch in Chile is comprised of the Constitutional Court, the Supreme Court, the Court of Appeals, and the Military Court (and lower courts designated by organic law as necessary).
Chile is a culturally, ecologically, and environmentally diverse country.
Ottoway Sound Penguins.
Zorro gris chileno (grey fox).
Saltodellaja. Atacama desert. Volcan Chungara.
* Photos found at website for the Embassy of Chile in Washington, D.C
History: establishment of the Constitution and formation
of Chilean government.
The Republic of Chile gained independence from Spain on September 18, 1810. The present version of the Constitution was amended in 1997, but was first enacted in on September 11 of 1980, effective on March 11, 1981. The legal system is based on a Spanish code enacted in 1857, which was added to by incorporating elements of French and Austrian codes during the 19th Century. See CIA world fact book website.
Branches of Government
"La Moneda", the building in the above photos, was once the presidential palace. Although it is no longer used to actually house the president and his family, La Moneda remains a symbolic seat of the Chilean government, largely because of the historic happenings that occurred within its walls.
* Photos taken from website of Chilean Government (under "conozca La Moneda").
* Facts in this section are translated from Spanish http://www.presidencia.cl; photographs also found at http://www.presidencia.cl.
The President of the Republic of Chile is elected by popular vote for a six year term, and may not run for consecutive terms. See Chilean Constitution, Art. 26. The current President, Ricardo Lagos Escobar, was elected through a runoff election on January 16, 2000 after the initial December 2000 election was too close to call. President Lagos' term will expire in December of 2005. In his position as President, Lagos serves as both head of state and as head of the government in general. See Chilean Constitution, Art. 24. To become President, a candidate must be a Chilean-born citizen, must have the right to vote, and must be aged forty (40) years at the time of his/ her election. See Chilean Constitution Art. 25. The President personally appointing members of cabinet as he deems necessary or appropriate. See Chilean Constitution, Articles 33-38.
*For details about the cabinet members and the positions they serve, click here.
Should the President need to step down from his position, the vice president is to take his place until the President is able to re-assume his duties; an absence of two years or more will result in the permanent positioning of the Vice President as head of state. See Chilean Constitution, Art. 29. Duties particular to the President include: concurring on, sanctioning, and promulgating law in accordance with the Constitution, calling upon the Congress to legislate on matters needing attention, dictating necessary declarations of power/ aggression (with the support of Congress), calling for plebiscites where necessary, nominating/ naming ambassadors to the exterior on the country's behalf, carrying out political obligations both domestically and internationally, forgiving or retiring citizens where appropriate, nominating judges, declaring war, assuming the position of head of the armed forces where war has been declared. Id.
* For the actual text on powers delegated to the Executive by the Constitution in general (from which this was information was translated into English) see Chilean Constitution, Articles 24-41 (Capitulo V).
More About President Ricardo Lagos Escobar
Ricardo Lagos Escobar was born on March 3, 1938, to Ricardo Escobar and Margarita
Morales. Although his parents were born in Chile, President Escobar's grandparents had only just arrived in Chile at the beginning of the 20th century. After completing primary and secondary schools in Chile, at age 16, Mr. Lagos enrolled at the University of Chile to study law. At age 22 (1960), he graduated from the University gained international recognition after publishing "The Concentration of Economic Power". As a result, Mr. Lagos' international prowess won him an interview
in Time magazine; the newspaper "La Nacion" in Chile dubbed him "Mozart of Economics". Lagos is offered a full scholarship to study at Duke University in North Carolina where he eventually completes his Doctorate degree. Upon returning to Chile, Lagos accepted a position at the University of Chile's Institute of Economics. He is eventually named Director of the Department of Political Science and Administration, remaining at this position until 1969, whereupon he is named Secretariat General of the same Department. From 1971-1972, Lagos serves as the Director of the Institute of Economics at the University of Chile.
From his being a professor of Economics, Lagos' career takes on a more political character beginning in 1972, where he was named Ambassador to Russia by then President Salvador Allende. Although this nomination was not ratified by the Congress, his nomination brought Lagos' name to the political forefront, where some might argue that it has since remained. From this time in the early seventies through the 1980's Lagos' served on many special committees within the United Nations focusing on international socio-economic development.
An active member of the Socialist party throughout the 70's and 80's, Lagos was an active participant in the movement toward reestablishing democratic governance in Chile. He played an integral role in ousting General Pinochet from power through the October 5, 1988 plebiscite, despite the fact that the Constitution enacted in 1980 under Pinochet's regime would make ousting Pinochet from power a practical impossibility. Because of the successful role Lagos had in this time of political reformation, some saw him as a viable Presidential candidate immediately. Despite this, he supported the nomination, and later, candidacy of President Patricio Aylwin, convincing the Left Party to do the same. Under Aylwin and through 1998, Lagos served as Minister of Education, focusing on efforts to equalize access to education for the rich and poor alike, and making efforts to centralize resources by re-vamping old, non-functional budgetary systems that had been in place. Also throughout this time, Lagos remains committed to the cause of social-democracy, maintaining this position internationally and openly through a dialogue with other similarly-minded
international political players, including Gro Harlan Bruntland (former Prime Minister of
Norway and President of the World Heath Organization), and Felipe Gonzalez.
Although he once was a member of the Radical party, Escobar currently claims to be an independent leftist. See Chilean Politics (under "Partidos Politicos") links.
* For specific text from which this information regarding the President's history was
translated into English, go to http://www.presidencia.cl/, "Bibliografia".
President Lagos's wife, Luisa Duran de Lagos (photo taken from her website).
The Congreso Nacional (or National Congress) consists of two component parts: the Senado (Senate), and the Camara de Diputados (Chamber of Deputies). See Chilean Constitution, Art. 42.
The Senate consists of 49 seats, 38 of which are elected through popular vote and who serve 8 year terms; elections are held for half of these positions every 4 years. See Chilean Constitution, Art. 45; see id, Art. 47 (for requirements for becoming a Senador/ Senator). The remaining Senate positions are composed of two designated Senators and 9 past presidents.
The Chamber of Deputies is made up of 120 seats, all of which are determined by popular vote and whom serve for a term lasting 4 years. Currently, the largest percentage of votes in the both houses is held by the CDP (Coalition of Parties for Democracy, known as "Concertacion"). See CIA WorldFactbook for a general list of these figures about politcial party (numbers in each house and party affiliations). See also Chilean Constitution, Art. 42-47 for structure of both houses and requirements for members.
The responsibilities of the Chamber of Deputies are outlined in the Chilean Constitution, Art. 48, and include preparation of the government's budget, and prosecution of suits against government officials (including the President). See Chilean Constitution, Art. 48. Although both houses may generally propose laws, only the Chamber of Deputies may propose legislation regarding public administration or governance. See Chilean Constitution, Art. 62.
The responsibilities of the Senate are outlined in the Chilean Constitution, Art. 49, and include approving rehabilitation of an individual's status as a citizen, approving or disapproving of the President's plans to leave the country, declaring incompetence of the President in instances of incapacity, providing approval or consent to Presidential acts where the Constitution so requires, serve as a judges in trials against government officials (brought/ investigated by the Chamber of Deputies), approval of any declarations of the Constitutional Tribunal, as is outlined in Article 82 of the Constitution of Chile, approval of judges and minister nominated. See Chilean Constitution, Art. 49.
Jointly, both houses are charged with tasks including: the review of international treaties before they are entered into by the president and prior to final ratification, and declaring an estate of emergency, when necessary. See Chilean Constitution, Art. 52. The Congress is not permitted to act or enter into discussions on an issue where less than 1/3 of the body concurs. See Chilean Constitution, Art. 53. The National Congress may only accept, diminish, or do away with employment issues, such as hiring, benefits, or other fiscal matters designated initially by the President. See Chilean Constitution, Art. 62. In instances where a legal norm is clamed to have been extrapolated from the text Constitution, Congress must ratify this conclusion by 4/7 of those congress members participating for it to have any legally binding effect of law. See Chilean Constitution, Art.
63.
Although the President may veto any act he does not deem appropriate to ratify, the bill will be sent back to the Camera of Deputies for further review. See Chilean Constitution, Art. 70. If the President fails to return or sign the bill with those 30 days, it will be deemed ratified. See Chilean Constitution, Art. 72.
** Legislative Power is outlined in the Constitution of Chile, Articles 42-72 (Capitulo V).
Justices serving on the Corte Suprema (Supreme Court) are nominated by the President and must be ratified by the Senate from lists of candidates provided by the court itself; the president of the Supreme Court is elected by the 21-member court). See Chilean Constitution, Art. 75.; see also, CIA Worldfactbook.
The lower courts are structured according to a law promulgated for the specific purpose of designating lower courts. See Chilean Constitution, Art. 74. With the exception of the Tribunal Constitucional (Constitutional Tribunal), the Tribunal Calificador de Elecciones (the Tribunal charged with qualifying elections), regional electoral tribunals, and military tribunals during wartime, all lower courts must defer to the direction of the Supreme Court. See Chilean Constitution, Art. 79.
The Tribunal Constitucional, (Constitutional Tribunal) is made up of seven members, serves the function of resolving Constitutional questions posed in response to organic or enacted law. See Chilean Constitution, Articles 81, 82. The Tribunal Constitucional has the power to resolve issues of Constitutionality of declarations made by the President and of laws enacted by Congress. See Chilean Constitution, Art. 82. This court also has the power to declare acts of Congress to be entirely unconstitutional, sending them back to the Senate. Id.
Another special court is the Tribunal Calificador de Elecciones, which is charged with
ensuring the fairness in tabulation and calculation of votes in elections of the President and any other elected officials. See Chilean Constitution, Art. 84. For the organic law
establishing this court, click here. Regional Electoral Tribunals are also established to give the local voter recourse in regional-level voting disputes. See Chilean Constitution, Art. 85.; http://www.camara.cl/enlac/en3.htm.
Distinction between Civil and Criminal law
As previously mentioned above, the Chilean legal system is divided in a manner that is distinguishable from the system used in the U.S; civil and criminal law are treated as separate and distinct where, in the U.S. system, a particular courts jurisdiction would not be affected by the fact that a case is either civil or criminal in nature. Although the Chilean Constitution itself does not explicitly designate the multi-level court system in place today, through enactments of Congress in the form of "organic" law (or created law), the lower court system and subparts are ordained as the need for a separate court becomes apparent. See Organic law number 7421, (Pdf. file found at Chilean Library of Congress website).
In order for an "organic" Constitutional law to be enacted, modified, or even discussed a quorum of four senvenths (4/7) of the acting members of Congress must be present. See Chilean Library of Congress (historical section). Organic laws are of a type that are inherently related to political structure in their nature, and are brought before the Constitutional Tribunal to ensure their Constitutionality prior to being accepted as law. See id. In fact, even the existence of the Constitutional Tribunal itself was established through enactment of an organic law. (Organic law Number 17997, also at Library of Congress site). The following section is a brief description of some such distinct areas of law in Chile as they are reflected though the court system.
In general, the Chilean court system is divided into three major areas: tribunales juzgados de letras (for civil cases), tribunales juzgados de crimen (for criminal cases), and in the more specialized arena of labor disputes, the judicatura para temas laborales. See supra, Chilean Library of Congress for links to organic laws proclaiming separate courts. Additionally, for each area of law, separate codes of procedure and code are established through other "organic" law enactments.
* Links to text of organic laws: Chilean Penal/ Criminal Code; New Criminal Procedure Code; Civil Code; Code of Civil Procedure.
The original version of the current Civil Code was written in 1820 by a Venezuelan national, Andres Bello. As a result of the success of Bello's work in Chile, the legal system present in Venezuela today is actually very similar to the Chilean legal system. See website on the Venezuelan legal system at http://ourworld.compuserve.com/homepages/vei/sect1.htm.
While this type of division of areas of law is common throughout many code-based legal systems used in Western Europe and other countries in Latin America, each system may be said to have features distinguishing its version of code-based law from even these close relatives. An example of a distinguishing feature of Chilean law is that, unlike Argentina or Germany, no separate tribunals have been designated to deal strictly with the area of Commercial or Trade law. Also, Chilean criminal law has recently (as of 1999) started to undergo a system of reform that would change the nature of criminal trials so that they might be more similar to common law-based systems such as that of the U.S. In part, the reforms set in place would make a criminal proceeding more adversarial; as a result, more aspects of cases will be presented orally (as opposed to being mostly written pleadings based on code law) and might give more credence to precedent in similar cases. Also, the reforms aim to gradually change the role of the judge. These reforms are not currently being used throughout the country's courts, but are slowly being adopted into practice throughout each jurisdiction.
** Above information regarding the the distinction of civil and criminal law, the formation of the lower court system, and recent trends in criminal law was obtained through a telephone interview with Andres Lamoliatte, a Chilean attorney working at the Embassy of Chile in Wasington, D.C.
Education of attorneys
Legal education in Chile begins upon graduation from secondary school (high school) and continues usually from 5-6 years for a "Licenciatura" degree (license in law). See Folleto de carrera or course of study/ plan for law career at Universidad Catolica de Chile (Facultad de Derecho). After finishing the required credits, which usually takes 10 semesters, prospective Chilean attorneys must additionally complete a period of "aprendisaje" or apprenticeship, during which they typically provide legal services to individuals without other recourse (somewhat comparable to the LegalAid system in the U.S.). The apprenticeship period for the Chilean law students lasts somewhere around 6 months.
Once the apprenticeship period has been completed, a prospective Chilean attorney is elegible to sit for the "examen de grado", a culminating legal exam that covers, comprehensively, the topics of civil law, procedural law, and a third area (typically either criminal law or commercial law). Although the exam is oral and lasts for an hour or two, a law student taking the exam does so alone and must defend his/ her answers before 3 panelists who are specialists in each of the three areas. The "examen de grado" in Chile is likely the Chilean equivalent of the Bar Exam taken in the U.S., and often requires a several month hiatus set aside for the specific purposes of preparing for the exam.
To complete his academic requirements, the prospective Chilean attorney must complete and present, at some time during his/ her legal carrer, a thesis, which may be focused on any area of particular interest to him/ her.
Lastly, to complete the requirements before a student's accomplishments may qualify him as a practicing attorney, the Chilean law student must present evidence that he indeed completed the requirements (completion of required coursework, certificate of completion of the apprenticeshio, completed and approved thesis, and a passing grade on his/ her final oral exam), a prospective attorney may sign himself up to be sworn in by the Supreme Court as an attorney. An additional, non-academic or work-related requirement needed to be sworn in is that of a certificate of good conduct, stating that the prospective attorney has not run into problems with the law in the past; "problems" includes torts requiring a showing of malice, and, presumably, other crimes of moral turpitude, but falls short of car accident and other negligence-based crimes.
** Above information regarding the process of becoming a practicing attorney in Chile was obtained through a telephone interview with Andres Lamoliatte, a Chilean attorney working at the Embassy of Chile in Wasington, D.C.
In addition to the basic "licenciatura", which traditionally takes about 10 semesters of study, or 5 years of continuous study to complete, students may obtain a specialized degree in particular areas of the law (such as Civil law, Economic-Commercial law, Public Law, or Fundamentals of Chilean Law). Post-graduate courses of study (such as "Doctorado", doctorate of law, or "magister", master's degree) may also be undertaken. These advanced degrees take approximately two additional years. See above website.
See also University of Chile Website.
** For those interested in study abroad in Chilean law schools for credit in U.S.-based
schools, see American University's program at the University of Chile in Santiago.
Other Useful Links
Punta Arenas.
* (Photo found at "Lonely Planet" website- Chile Slideshow.)
Legal e-commerce guide:
http://www.bmck.com/ecommerce/chile.htm
CIA World Factbook 2002:
http://www.cia.gov/cia/publications/factbook/geos/ci.html
http://www.hrw.org/reports/2001/chile/Foe05fin-02.htm
http://www.rrojasdatabank.org/chile101.htm
http://www.un.org/ga/55/president/bio10.htm
http://www.pensionreform.org/eys/carta11_ingles.html
http://www.worldlii.org/catalog/2390.html
http://colegioabogados.org/normas/codice/penal.html
http://www.hrw.org/reports/2001/chile/
http://www.purochile.org/indexen4.htm
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