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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