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The Case 783, Part II: present system agreed and legitimate interests

In a previous column (05.09.2007) I presented a number of topics relating to fundamental rights emerge from the analysis of the Constitutional Court ruling handed down in the role N º 783/2007. Additionally, this statement touches aspects of the system of sources, which I find of interest comment.

a) Grounds for the power to issue writs agreed: the tradition as a source of law and the requirement of express attribution of powers, Article 7 of the CPR.

Until the constitutional reform of 2005, orders agreed constituted a source of law was developed primarily in the area of \u200b\u200bthe practice of collegiate courts, with some sporadic legal referrals, and poor treatment doctrine. Whether that practice as the study by the authors understood without question that they (the car agreed) were manifestations of the economic powers of the tribunals. They did not have a constitutional source, and its content was, in any case, given the legal regulation. The constitutional reference to the powers of superintendence of the Supreme Court does not alter this statement as only gives the correctional supervision and economic policy on the courts of this nation, but states that they should enjoy some of those specific powers, except what's up to the disciplinary authority of constitutional power in the art. 82.
After the reform, the picture changes, because the Constitution itself validates the rules of the cars production agreed at the level of appeals courts, Supreme Court and Electoral Court. The Court takes note of this when he notes that "If Article 93 N º 2 (sic) of the Constitution gives the judiciary the power to review the constitutionality of these rules, it is clear that validates this competition" (c. 24 °) without But by analyzing the source of the power to issue writs agreed, the Constitutional Court chooses a path of dubious constitutionality. This, as states that "always" has been understood that the ability to issue orders from the powers agreed economic that fall in the first place, the Supreme Court, but also to the Courts of Appeals. This is a questionable turn of our Constitutional Court to legal sources, or at least no positive legal and public legal system of our country. Is the reference to a source immemorial practice of law in Chile? If any doubt remains regarding the response to the Constitutional Court gives to this question, just read the end of the same paragraph 24: "The reduced regulatory environment that the applicant intends to assign to the Court agreed does not agree with the tradition of the important issues, from colonial times , the Royal Court first and then the Supreme Court are regulated by means of agreed orders. " Emphasis mine.

Actually, these references were completely dispensable in the sentence, so only call more attention to the inconvenience of incorporating the idea of \u200b\u200btradition, in a legal system based rational cutting policy, at least in the legal age in positive law. If you do not keep our commitment to this premise, subsection II of Article 7 of the Constitution begins to crumble dangerously. The source of the power of the courts of appeals to issue writs is agreed in the art. 93 of the Charter, and not in others precepts. It should be noted when reading the sentence in consideration, the Court finds that the power to issue writs is enshrined in the Constitution expressly agreed in the art. 82 CPR (c. 24: "... it is understood that the ability to issue orders from the call agreed economic powers are responsible, first, to the Supreme Court, but also to the Courts of Appeals. This power has enshrined in the Constitution also stated in Article 82, a provision that is repeated in our constitutions since 1828 ") The question of where, under article 82, the Court follows the power to issue writs agreed. What this article dedicated is the disciplinary authority of higher courts and the executive, correctional and economic information on all courts in the nation, but gives the courts of the Nation's economic powers: those that have (under the law, and after reform of 2005, under art. 93 of the Constitution regarding the issuance of agreed orders) are subject to the superintendence of the CS, but the article says nothing more. And if the Court wants to see something else in Article 82 reiterates the question: what is the scope of the express provision requiring the authority or duties provided for in art. 7 i. II CPR?


b) Auto agreed: the implementing regulations, autonomous, or a new type of alternative or supplementary rules? Made
reference to the traditional foundation of the faculty agreed to issue orders, the Court will now consider what appears to be the question: what is the scope of this power to issue writs agreed?. The task of the Court here could not be easier, for one simple reason: the correlation between Articles 63 and 32 N º 6 of our Charter, is that the font system is closed, what is not given to the law is delivered to autonomous regulatory authority. Indeed, the exercise of the latter in its entirety could have been Estimated prejudicial to the independence of the judiciary, if within this independence include the notion of regulatory autonomy. But this argument runs into two obstacles. The first is that the Constitution nowhere explicitly enshrines the independence of the judiciary. On the other hand, the Constitution does not provide a regulatory reserve for the judiciary as if the beholder, for example, for the regulation of the chambers (art. 56 CPR) or come down in the National Security Council ( CPR 107) central bank (for their agreement) regional council (art. 113) or the municipal council (art. 119 CPR). In all these cases, the argument of the interpretation systematic, well applied, leads us to conclude that where the Charter has sought to justify an exception to the residual nature of self-regulation on the law within the system of sources, has been providing allotments to the respective regulatory bodies. Must the mere mention of the car agreed to be subject to constitutional control, as a general constitutional authorization of the respective powers that make norms? But if so, left open the question anyway: what content? This question is not trivial, as it not only comes to define the regulatory scope of the present agreed on the regulatory power of PdlR, but respect the legislature itself could enter to regulate the power to make these cars agreed.
The solution gives the Court seems to inaugurate a new principle or criterion to address the system of sources in the Constitution, and how they operate, and used as criteria for rating the subsidiarity: there would be matters that are not assigned strictly legal, but due to a preventive approach, so that while they have not been regulated by the legislature, the courts could order them through an agreed order. While the ruling states in paragraph 25 º that cars can not regulate matters agreed that the constituent reserved by the legislature at the same point 25 º, the sentence reads: "In areas of operation that the legislature has not established standards or in case the Constitution has not booked it, the very court may self-regulate." An item analysis exposes what really raised by the Court. If it comes to ways in which the legislature has not established standards and competence within its field, the Court suggested that the inaction of the legislature gives the courts powers to regulate the matter. If these are aspects in which the legislature has not set standards because they are not within its competence, the statement is trivial. And if matters are that the Constitution has not expressly given to the legislature, which, according to mandate of the art. 32 N º 6 correspond to the regulatory powers of PdlR, the court does not justify how they spend the jurisdiction of that authority to the courts.
What the Court fails to justify is what the constitutional basis for the allocation of extra regulatory powers to enable the courts of appeals and Supreme Court to regulate a matter of law (and something that speaks of an area where the legislature has not issued the relevant regulation) by the fact that the legislature has not exercised its powers.

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sources as constitutional rights: the role

Regarding the failure and title of this post, only two questions. The court noted in its role as No. 634 legitimate individual interests should be understood within a broad approach to the concept of "right" (c. 21 °), and thus can be understood in the Constitution, referring to art. 1 of the Charter .. I assume that an interest is legitimate particularly when it encounters an endorsement in the legal system. No one could argue, well, the legitimate interest of the future heir. But if that interest, once considered mere expectation, is a legitimate concern, this implies, according to the Court, which is a right, in its corresponding category, nature heritage, protected by art. 19 No 24. And here the question, then the legislature could deny the same to potential heirs without compensation? Did it consider, the court weighed the consequences for the entire legal system had this statement?

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634 Retroactivity against Constitution, Constitutional Court Judgement in

The Court does not stop surprising us, so much dejustificar an interruption of the commentary to bug 783, launched earlier in this column. On September 4 statement, declared inadmissible an action brought against the art inapplicable. 116 of the Tax Code, in a case where this article was applied was found still in force. The reason for this, as the Court, is that, having been repealed art. 116 on March 27, 2007, the constitutional conflict has ceased to exist. But it happens that this court's decision, the decision comes in March to acquire an effect prior to its date, and that affects cases filed and failed many times and under art. 116 CT, currently on appeal, or to the CS
Now the court decision is not only serious because, contrary to the constitutional text, attributes, albeit reflects retroactive effect to its declaration of unconstitutionality, but because and predictably to a view of the wording of art. I. 93 I CPR # 6, comes to serve as judge of the instance to rule on the effects of the law in time. This is because the only way to explain that the Court is satisfied that there is no constitutional conflict is based on the view that the respective courts may not apply or be considered art. 116 on the causes of it, and, even if the date on which it was applied or could produce effects were current.

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instance role 783, Part I: fundamental rights

On August 31 the Constitutional Court has ruled on two cases related, roles 747 and 783. Each of these statements has many aspects of interest, which will be discussed hereafter in this column.

Because of its historical importance, beginning with the role 783. I say historic because it is two legal events that occur together for the first time. On the one hand, is the first time an agreed order higher courts is controlled by a body outside the supervision of the Supreme Court, at least in part, declared unconstitutional. (Incidentally, it seems fortunate that the case that motivated this decision has not been a high public profile or political controversy, nor been directed against an order of the Supreme Court agreed, in such a way to enable our institutional system assimilate gradually, not abruptly, this important development.) On the other hand, is the first time takes place and is welcomed by affecting a constitutional fundamental rights before the Constitutional Court.

For now, it is this second aspect of the decision which emerge a number of implications for the treatment gravitating fundamental rights in our Constitution, beginning with the fact that the court in its ruling does not discuss the admissibility of the action from the perspective of the requirements of Article 93 i. III CPR. At this point it is a pity as he realizes himself Court's ruling, the Santiago Appeals Court has not upheld its production rules (perhaps by a mistaken understanding of constitutional supremacy which leads her to note that "will be what the Constitutional Court ruling on matter, "thus giving his own role as interpreter-part in the respective constitutional process). But the fact is that you can conclude from this absence that the tribunal without which the action is against an order straightened agreed that may affect the fundamental rights of the applicant. Thus, the decision is more important in this for that silence is that what it says, namely:

a) it is assumed that, despite being an innovation in our constitutional language, the term "fundamental rights" used in art. 93 i. III CPR is coincident with the area covering the constitutional rights of Article 19 of the Charter. The question is not trivial considering that the terminology, where it has been used, has a base and positively defined areas (for example, the constitutions of Germany and Spain) while teaching at least three, but more likely understand the fundamental rights

b) is assimilated every precept within Article 19 CPR to the notion of a fundamental right, even in cases where the drafting of the Constitution itself does not lead to take the recognition of a right. This is because the court repeatedly argued on the allegation of injury "right" to a fair and rational procedure that enforces the applicant. However, if read with attention to Article 19 No. 3 i. V of the Charter, it appears that no such right but a duty to address the legislature. It follows, then, that the Court has not seemed to differentiate between "fundamental rights" and other provisions which, located in Article 19 of the Constitution does not establish rights but duties of government action;

c) Third, the court broadly interpreted the concept of "impact." As is clear from the minister minority vote Enrique Navarro Beltrán (not the background, I have not had the opportunity to learn), the date of delivery research the Court, which impinged on the precept that was supposed to affect the fundamental right to a fair and rational procedure was closed, the in trivial devenía action to exit the passage of the involvement of a fundamental right. Thus, the court's ruling does not take as relevant the possibility of injury specific to the rule in question can produce the right question but that it was sufficient consideration, in the abstract , its unconstitutionality;

d) finally, is interesting to note that the cause that motivates the declaration of unconstitutionality is not the precept (say, objective law) for the derecho fundamental (subjetivo) alegado, sino una disposición distinta, como lo es el art. 8º CPR en lo referente al principio de publicidad. De este modo, resulta del fallo en rol 783 que el Tribunal no estima necesario que exista conexión entre la afectación del derecho alegada por la parte requirente y el específico motivo de inconstitucionalidad en virtud del cual se pronunciará sobre la inconstitucionalidad del respectivo auto acordado.

Si llevamos a una expresión positiva los criterios que se desprenden de la ausencia de toda consideración sobre estos puntos, puede concluirse de este fallo que la expresión derechos fundamentales del art 93 i III de la Carta comprende al menos, y sin discusión, todo el content of his art. 19, regardless of whether the formula law is expressed in terms of individual rights or duties of state, that the concept of involvement is not subject to a requirement of effectiveness of the lesion, or principle of transcendence, but simply the normative contradiction with the Constitution, and that this contradiction is not limited to the breach by the respective banc a fundamental precept of law, but any constitutional provision into connection with the reasoning associated with the fundamental rights invoked.

Beyond these conclusions, which I think clearly the result of this failure lies in him an edge muy expuesto en el tema de los derechos fundamentales. En un sentido cercano a la prevención de la ministra Marisol Peña Torres sobre la falta de pronunciamiento del Tribunal sobre todos los argumentos de inconstitucionalidad hechos valer por la requirente, es particularmente notable la absoluta falta de comentario, por parte del Tribunal, en relación con las permanente referencias al Pacto de San José de Costa Rica en la argumentación de la requirente. Esto porque, siendo la primera vez que el Tribunal se pronunciaba sobre una acción de amparo constitucional de derechos, hubiese sido deseable delimitar el campo de futuras acciones vía art. 93 i. I Nº 2 - i. III CPR . La decisión en el rol 346, si bien rechaza la tesis de la jerarquía constitutional law of international treaties on the rights of people, adds nothing to the question of how an allegation of the bases of rights contained in those treaties should be handled in light of the obligation contained in art. 5 º i. II of the Constitution. The question becomes especially sensitive when considering the manner in which the Court faced the issue conceptually, in terms of fundamental rights. Can they be made, in light of art. 5 º above, and given the difference in terminology with the art. 19 CPR, a broader scope than the constitutional rights, and include in those, for example, to the rights contained in the Pact of San José de Costa Rica, and others? The Court could have the land surveyed with boundaries marked here. However, the field remains open.