Before the enactment of the Constitution of 1925, the possibility of reviewing the constitutionality of the law was nonexistent, attended the clear wording of Article 164 of the Constitution of 1833: ‘Only the Congress, as provided in Articles 40 and subsequent, can solve any questions regarding the correct understanding of some of its articles.’
Hence, the Constitution of 1925 established for the first time in Chilean law the possibility that the constitutionality of the law could be reviewed by a public entity other than the Congress. Article 86 of the Charter established, in fact, the mentioned remedy for unconstitutionality of the law, a milestone in the Chilean public law, which allowed the Supreme Court to determine whether laws were in line with the Constitution. The remedy for unconstitutionality had the following characteristics:
» It was a constitutional remedy established directly by the Constitution to enforce [the principle of] constitutional supremacy.
» It meant a suppressive or a posteriori [(ex post)] form of constitutional review, and was applied to existing legal provisions that were directly invoked in specific cases being heard by the Supreme Court or by other courts.
» It was meant only for legal provisions, included among them decree laws, decrees having the force of law and international treaties. There was no remedy, however, against infra-statutory provisions.
» It had limited and not erga omnes effects, i.e. the judgment of the Supreme Court applied only in relation to the specific case and its parties.
Although the text of the 1925 Constitution did not exclude formal unconstitutionality from the scope of the inapplicability remedy, i.e. constitutional vices related to the law-making process, the Supreme Court repeatedly held that it was only allowed to review the substantive constitutionality of the law; otherwise there would be a trespassing into the powers of the legislature. As regard to the admissibility criterion of this remedy, the Supreme Court was particularly strict.
The obvious limitations imposed by the Supreme Court to the hearings and decisions of inapplicability remedies raised concerns within the academic community. Indeed, renowned Chilean Constitutional Law professors valued how constitutional supremacy was safeguarded by foreign judiciary –special or ordinary–, as one of the pillars of what we know today as a Constitutional State. Hence, the concern to strengthen judicial review regarding the inapplicability for errors in substance, i.e. an ex post [(or a posteriori)] and limited [(not erga omnes effect)] check was reflected in conversations, seminars, texts and proposals. Quite rightly, the academic community exposed the need to fill the void regarding the formalities of the law-making process. Therefore it was concluded that it was necessary to create a Constitutional Court with powers of preemptive constitutional review regarding both formalities or procedure and substance of the law, decrees having the force of law, international treaties and executive decrees, among other legal precepts. At the bottom of this academic concern was the need to generate an effective mechanism to resolve conflicts between the branches of government.
Professor Jorge Guzmán Dinator and Professor Alejandro Silva Bascuñán, in the forums held in 1963 at the National Library, published under the title ‘Old Society, New Constitution’ (‘Vieja Sociedad, Nueva Constitución’), proposed the creation of a Constitutional Court that followed the concentrated model of constitutional jurisdiction originated in the Court of Austria in 1920. The conclusions of the Third Chilean Conference of Public Law, held at Universidad de Concepción in 1964, pointed to the same direction. Those were drafted by Professor Francisco Cumplido, who had suggested the creation of a Constitutional Court years before in his work ‘Constitutional Theory’ (‘Teoría de la Constitución’).
Among the inputs of the Academia in promoting the creation of the Constitutional Court, we can mention Carlos Andrade Geywitz and his work ‘Notions of Chilean Constitutional Law’ (‘Elementos de Derecho Constitucional Chileno’), published by Editorial Jurídica in 1963, as well as the work of Professor Jorge Mario Quinzio, entitled ‘Judicial Power. Constitutional Supremacy, constitutionality of the law’ (‘Poder Judicial. Supremacía de la Constitución, constitucionalidad de la ley’), published by the Public Law Seminar of the Universidad de Chile in 1965.
Finally, the suggestions and desires of the Academia were followed by President Eduardo Frei Montalva, who filed a bill of constitutional amendment in 1964, which, among other reforms, created a Constitutional Court. This amendment did not get through.
When his term in office was ending, President Frei Montalva filed a new bill of constitutional amendment, which became Law N°17284 of 23rd January 1970, creating a Constitutional Court that responded to the academic concerns, which followed the model of the Constitutional Council of the French V Republic. The new Court was granted, among others, the powers of preemptive constitutional review of the law; review of decrees with force of law, and to declare the inabilities of Ministers [of State].
The Court was composed of five members, including three lawyers appointed by the President of the Republic in accordance with the Senate (at least one of them should be a 10-year experienced university professor of Constitutional Law or Administrative Law) and two appointed by the Supreme Court from its own members.
This first Constitutional Court was composed by Enrique Silva Cimma, who served as its President; Jacobo Schaulsohn and Adolfo Veloso as members appointed by the Executive in accordance with the Senate, and the Ministers of the Supreme Court Rafael Retamal and Israel Bórquez.
The Court issued 17 judgments before being suppressed by Decree Law No. 119 of 5th November 1973, which invoked as motives the cease of the National Congress and the ‘unnecessariness’ of the Constitutional Court.
The constitution-makers of 1980 deemed necessary to restore the Constitutional Court originally created in 1970, under the assumption that it was ‘an essential support of the integrity of a fundamental system of law’. With that purpose, it was stated that the nature and importance of the role of the Constitutional Court required that its composition had a legal and non-political nature, with judges of remarkable moral and professional standing so as to provide assurance to the country.
In this context, Chapter VII of the Constitution created a Constitutional Court of 7 members appointed as follows:
3 Justices of the Supreme Court, chosen by the Court itself by an absolute majority of its members, in successive secret elections.
1 lawyer appointed by the President of the Republic.
2 lawyers appointed by the National Security Council; and; y
1 lawyer appointed by the Senate chosen by the absolute majority of its members in office.
The Ministers of the Constitutional Court would last eight years in office. They would be partially renewed every four years and could not be removed from office.
An organic constitutional law (Law No. 17997) was entrusted with the regulation of the Court’s staff and its salaries, as well as the organization and functioning of the Court.
The characteristic of this new Constitutional Court as a constitutionally autonomous body was reinforced by a provision set forth in Article 79 of the Constitution, excluding the Court from the oversight that the Supreme Court exerts over all national courts.
Published in the Official Gazette of 26th August 2005, Law No. 20050 introduced several amendments to the Constitution of 1980, among them those referring to the Constitutional Court. Such amendments can be summarized as follows:
1. The number of members was increased from 7 to 10: 3 members will be appointed by the President of the Republic; 4 members will be appointed by the National Congress: 2 of them by the Senate, and the other 2 also by the Senate but after the proposal of the Chamber of Deputies (or House of Representatives); and 3 members will be appointed by the Supreme Court. Each Minister would last 9 years in office, and would be subject to a very strict regime of incompatibilities, including the inability to exercise the legal profession and to be part of the judiciary.
2. The organic constitutional law of the Constitutional Court shall be entrusted with the regulation of the Court’s staff and its salaries, as well as the organization and functioning of the Court.
3. The Constitutional Court will exercise both the preemptive and subsequent constitutional review of the law. To this end, the hearings and decisions of inapplicability remedies is transferred from the Supreme Court to the Constitutional Court.
4. The Constitutional Court may declare unconstitutional, with erga omnes effect, a legal precept which previously had been declared inapplicable, either on the court’s own motion or as a consequence of a public action.
5. The Constitutional Court shall resolve questions of constitutionality concerning regulations (Autos Acordados) issued by the highest judicial courts of the country (Supreme Court and Court of Appeals), as well as those issued by the Electoral Court.
6. The scope of the compulsory preemptive review was broadened to include legal precepts of international treaties dealing with matters that should be regulated, internally, by organic constitutional laws.
7. The Tribunal’s power to review the constitutionality of executive orders was unified into a single constitutional provision, comprising orders executing legal regulations as well as those issued by the President in virtue of its own regulatory powers.
8. The effect of the decisions of the Constitutional Court declaring the unconstitutionality of regulations (Autos Acordados) issued by the highest judicial courts of the country (Supreme Court and Court of Appeals) as well as those issued by the Electoral Court; of decrees having the force of law; or of legal precepts previously declared inapplicable, was explicitly introduced into the Constitution. In such cases, the provision shall be deemed repealed from the date of publication in the Official Gazette of the Court’s sentence declaring the unconstitutionality.