Constitution of Chile

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The current constitution of the Republic of Chile dates from 1980 . It was drawn up by the then ruling military government and approved with 67% on September 11, 1980 in a referendum that was held under great pressure and did not meet democratic criteria. In another referendum in 1989, under similar conditions, some changes were adopted. On August 16, 2005, the Chilean parliament once again changed key points of the constitution .

Chile has been ruled democratically since 1833 , with the exception of a few months of short-lived dictatorial regimes and the dictatorship of Augusto Pinochet from 1973 to 1990. Except during the so-called "Parliamentary Republic" from 1890 to 1925, the country was always governed by a presidential system .

On October 25, 2020, the Chilean people voted in a referendum with a large majority for a new constitution. The constituent assembly will be directly elected by the people in April 2021. The draft constitution she has drawn up will be voted on in another referendum in 2022.

Before 1833

  • Reglamento Constitucional Provisorio de 1812 (full text at wikisource )
  • Reglamento para el Gobierno provisional de 1814 (full text at wikisource )
  • Constitución Provisoria para el Estado de Chile de 1818 (on February 12, 1818 Chile had become independent )
  • Constitución Política del Estado de Chile de 1822
  • Constitución Política y Permanente del Estado de Chile de 1823
  • Leyes Federales de 1826
  • Constitución Política de la República de Chile de 1828

Constitution of 1833

After taking power in the post-colonial civil war, the conservative Diego Portales Palazuelos created the first constitution of Chile in 1833, which stabilized the state.

1925 Constitution

The constitution of 1925 ended the phase of the so-called "parliamentary republic" and reintroduced a presidential system.

Reform 1970

Under President Eduardo Frei Montalva , a constitutional reform was passed in 1970 that gave the President a wealth of new powers. According to a comparative study by Carey / Shugart (1992), of 44 presidential constitutions, the Chilean constitution was the one that gave the president the most powers (also more than the 1980 constitution). The influence of Congress had been severely curtailed, particularly in legislation and the state budget.

1980 Constitution

aims

The dictatorial regime wanted to legitimize its rule internally and externally. In addition, an institutionalized distribution of power between Pinochet and the other generals should be found. Furthermore, the transition to a democracy should be determined, this transition pushed far into the future and, even after a transition, the supremacy of the military and the establishment of a radically market-oriented economy should be ensured. On the other hand, a powerful and independently acting president like Allende (under Frei's 1970 constitution) should be prevented.

Elaboration

As early as October 1978 a commission ( Comisión de Estudios de la Nueva Constitución ) presented a draft constitution. The conservative ex-president Jorge Alessandri was in charge . The Council of State ( Consejo de Estado ) modified the draft, and finally Pinochet and his junta changed it again. In a vote that did not meet democratic criteria, the constitution was adopted in September 1980. There were no electoral registers (these had been destroyed by the military in 1973), no alternative constitutional proposal and no free media. Previously, the opposition had been intimidated by seven years of massive repression; many were murdered or emigrated.

The executive

In Chile the president has an extremely strong position. In particular, the "reactive", that is, rights defending the status quo, are extensive, while "proactive", that is, rights that change, are less pronounced.

The president is directly elected with an absolute majority (i.e. elected by a runoff). He appoints the ministers who are responsible only to him and not to Parliament. The president can only be removed from office by a two-thirds majority of the Senate, ministers by simple majority. The president does not have the power to decree (i.e. to pass laws without parliamentary approval), but he has the exclusive right to initiate legislation in many areas, for example in questions of the state's financial policy, minimum wages and social security systems. In the state budget, the rights of the president are even more extensive. Parliament only has 60 days to discuss the budget proposal and, moreover, cannot decide to increase expenditure. All spending laws must identify the sources of funding. In the legislative process, the President can order different levels of urgency (with consultation periods of 60, 10 and 3 days), which, however, are often disregarded by Parliament. If the president veto a law, it can only be overruled by a two-thirds majority of both chambers.

The military

The National Security Council of Chile ( Consejo de Seguridad Nacional de Chile , COSENA) is an instrument with which the military leadership can actively intervene in politics. It decides on important issues, such as the dismissal of generals or the declaration of a state of emergency, and was a central organ of the Chilean constitution. He sat down together

  • the four commanders-in-chief of the armed forces
  • the president
  • the President of the Senate
  • the President of the Supreme Court

Since the "Copper Act" (ley 13.196) of 1958, the Chilean armed forces have received direct income from copper mining. A LOC Pinochets stipulates that 10% of the export revenues of the state-owned copper company CODELCO (in US dollars) are available for military investments. In addition, a minimum level was set for the defense budget based on the (inflation-adjusted) budget from 1989. In the event of economic decline, the share of military spending in gross domestic product would have increased.

The Carabineros (National Police) are the fourth type of armed forces (alongside the army , air force and navy ) in the Ministry of Defense .

The legislature

The National Congress of Chile is a bicameral parliament with a House of Representatives and a Senate . The MPs ( diputados ) are elected every four years in 60 constituencies according to the binomial electoral system . The Senate is composed of 26 elected senators (2 from each region who are half-elected every four years) and nine appointed senators, viz

  • four former commanders in chief, appointed by their respective branches of the armed forces
  • two members appointed by the President: a former minister and a former university rector
  • three members appointed by the Supreme Court: two former chief judges and one former head of the audit office
  • additionally for life: all presidents who have been in office for more than six years

Control of the executive is incumbent on the House of Representatives alone. It can put inquiries to members of government that need to be answered but do not necessarily affect government policy. The position of the Chilean parliament in shaping politics and legislation is weak, among other things because both chambers have strongly symmetrical powers that can block each other. For example, 87% of the laws actually passed in the 1990s go back to initiatives by the president, although every member of parliament or senator can introduce legislative proposals (for exceptions see under: Executive ).

Leyes Orgánicas Constitucionales

The Leyes Orgánicas Constitucionales (LOC), in German for example constitutional body laws, are, so to speak, a "second class constitution". They are not part of the constitution, but regulate central policy areas, such as the central bank, the constitutional court, the right to vote, the police and the military. In addition, there are increased hurdles for the change (4/7 members of both chambers of parliament).

1989 reform

Eight years later, the 1980 constitution provided for a referendum on Augusto Pinochet for another term. On October 5, 1988, however, a majority of 55.99 percent voted against Pinochet's further term in office. As a result, there were negotiations on constitutional changes between supporters of Pinochet and the opposition.

Framework of negotiations

The negotiations on the constitutional amendments of 1989 took place in a tense environment, namely between the referendum that Pinochet lost in October 1988 and the first free presidential election more than a year later. As early as October 14, 1988 - days after the lost referendum - Pinochet made his claim to power clear:

"Si tocan a uno solo de mis hombres, se acaba el estado de derecho"

"If you touch even one of my men, the rule of law is over"

- Augusto Pinochet

The opposition was faced with the dilemma of not wanting to endanger the democratization process on the one hand and, on the other hand, at least apparently legitimizing the constitution of the military by approving the reforms.

Results of the negotiations

  • The term of office of the first democratically elected president was reduced to four years.
  • The prohibition of class struggle doctrines was lifted, but associations that are directed against the democratic order were banned. According to Article 19, paragraph 15, associations that are contrary to morality and public order and security of the state are prohibited.
  • Emergency powers of the president were restricted (for example the right to eviction from the country was abolished).
  • The number of elected senators was increased from 26 to 38.
  • The President can no longer dissolve Parliament.
  • The National Security Council ( COSENA ) now has four (instead of three) civilians (and still four soldiers).
  • The threshold for constitutional reforms has been lowered somewhat.

Changes Under Democratic Governments, 1990-2003

  • April 1, 1991 (Law 19.055): Article 9 (Amendment of the Amnesty Rules)
  • November 12, 1991 (Law 19.097): Articles 3 and 32.9 (administrative reform: democratization of the municipality, direct election of mayors)
  • April 4, 1994 (Law 19.295): Article 25 (the term of office of the President is fixed at six years)
  • September 16, 1997 (Law 19.519): Articles 19.3, 32.14, 49.8 y 9, 54, 73, 75 and 78
  • November 17, 1997 (Law 19.526): Articles 62.2, 107, 109 and 110 (municipal reform)
  • December 22, 1997 (Law 19.541): Articles 32.14, 49.9, 75, 77.4, 79.2 and 81 (Judicial Reform: Amendment to the Supreme Court)
  • January 14, 1999 (Law 19.597): Article 74
  • June 16, 1999 (Law 19.611): Articles 1 and 19 (legal equality between men and women)
  • October 2, 1999 (Law 19.634): Article 19.10 (Recognition of Kindergarten Education)
  • November 4, 1999 (Law 19.643): Articles 26, 27 and 84
  • April 28, 2000 (Law 19.672): Article 30 (Status of Former Presidents)
  • April 29, 2000 (Law 19.671): Article 117 (Association of the two chambers of parliament for constitutional amendments)
  • August 25, 2001 (Law 19.742): Articles 19.12 and 19.25 (abolition of censorship for the cinema and creation of the right to free artistic expression)
  • May 22, 2003 (Law 19.876): Article 19.10 (Media Education)

Constitutional reform of 2005

Law 20.050 of August 26, 2005 changed the constitution in 58 places. Important advances have been made in limiting the influence of the military on politics and removing undemocratic elements from the legislature. The most important innovations were:

  • The Constitutional Court was expanded from seven to ten judges, all appointed by the President, Senate or Supreme Court, none from the Army or COSENA.
  • Abolition of the appointed senators: So far, for example, representatives of the four branches of the army and ex-presidents automatically became senators. In addition to the 38 elected, there are also nine unelected in the Senate. This was abolished with the constitutional amendment.
  • Reduce the President's term of office from six to four years. One of the motives was that the parliamentary and presidential elections can now be held at the same time in order to avoid majorities in parliament opposing the president.
  • Reduction of the minimum age for presidents and senators from 40 to 35 years.
  • Removal of generals: The president can now independently remove the commanders-in-chief of the four branches of the armed forces and no longer has to obtain the approval of the COSENA (National Security Council), in which the commanders-in-chief are represented.
  • COSENA : The Security Council can only be convened by the President and has been expanded to include civilian members (so that the military are now in the minority).
  • Officers are no longer allowed to run for Congress.
  • the Supreme Court now has supreme jurisdiction over the military courts even in a state of war.
  • Article 90 no longer specifies the role of the military as “guardian of the constitution”.
  • Nationality: Anyone born abroad to a Chilean child is now automatically a Chilean, not only after one and a half years of residence in Chile.

Drafting a new constitution for 2019–2022

prehistory

In 2019 and 2020 there were protests against social inequality in Chile . One of the demands was to work out a new constitution.

First referendum in October 2020

In December 2019, the Piñera government announced a referendum. There were two questions to be voted on:

  1. “Do you want a new constitution?” - Possible answers: agree / reject
  2. "What kind of organ should the New Constitution prepare?" - Possible answers: Mixed constituent assembly (50% elected people's delegates and 50% elected congress members ) / Constituent assembly (100% elected representatives)

The vote was originally scheduled for April 26, 2020. It has been postponed because of the COVID-19 pandemic . The plebiscite finally took place on October 25, 2020.

The extrapolations after the election showed a high level of approval for the drafting of a new constitution (78%). This should be drawn up by a constituent assembly which should consist of 100% directly elected representatives (79%).

The constituent assembly is due to be elected in April 2021. After a new constitution has been drawn up, it is to be put to a vote in another plebiscite in 2022.

Web links

Commons : Constitution of Chile  - collection of images, videos and audio files

literature

  • Detlef Nolte: The political system: constitution and constitutional practice. In: Peter Imbusch, Dirk Messner, Detlef Nolte (eds.): Chile today. Politics, economy, culture. Frankfurt 2004, ISBN 3-89354-590-5 .

See also

sources

  1. ↑ tagesschau.de: Chileans vote for a new constitution. Retrieved October 27, 2020 .
  2. ↑ full text (pdf)
  3. ↑ full text (pdf)
  4. ↑ www.leychile.cl (full text)
  5. ↑ see also Spanish Wikipedia
  6. ↑ www.leychile.cl (full text)
  7. ↑ leychile.cl
  8. ↑ Article 25, second sentence.
  9. ↑ see Chapter III, last section: Constitutional states of emergency
  10. ↑ www.leychile.cl
  11. ↑ Ministerio Secretaría General de la Presidencia (26 de agosto de 2005), Ley 20050: Reforma constitucional que introduce diversas modificaciones a la Constitución política de la República
  12. ↑ jki / AFP: Chile's government extends the state of emergency. October 21, 2019, accessed October 21, 2019 .
  13. ^ A b Plebiscite on the new constitution: Referendum in Chile in April. In: heute.de. December 27, 2019, accessed January 4, 2020 .
  14. ↑ Rachelle Krygier: Chile to hold referendum on new constitution. In: Washington Post. November 15, 2019, accessed October 26, 2020 .
  15. ^ A b Acuerdo Por la Paz Social y la Nueva Contitución. (PDF; 108kB) Legal text. Biblioteca de Congreso Nacional de Chile, November 15, 2019, p. 1 , accessed on October 26, 2020 (Spanish).
  16. ↑ a b c d e kle / ack, afp, dpa, rtre: Clear majority for a new constitution in Chile. In: Deutsche Welle. October 26, 2020, accessed October 26, 2020 .