Comparative Judicial Process: Chilean Case Study and Issues of Power

Tools in Emergencies and the Scheppele Framework

• Methods of Government Response to Emergencies: According to Scheppele, there are two primary ways governments respond to emergency situations:     - The Legal Way: Responses are required to fit strictly within the authorities and powers articulated for specific circumstances under existing law.     - The Extralegal Way: This view posits that emergencies must be met and addressed in the moment they occur. They should not be authorized under "regular law" because doing so might tarnish or corrupt the integrity of the law itself.

• Historical Roots of Emergency Powers: Temporary emergency powers trace back to concepts and legends found in Ancient Rome and Ancient Greece.

• Core Components and Themes:     - Prerogative Claims: Assertions of power by the executive to act in the interest of the public.     - Martial Law: The imposition of direct military control over normal civilian functions.     - State of Exception: A general theme involving the suspension of the normal legal order. A central question for communities is how to reconcile this "exception" with the state of normality.

• Incorporation into Law: When emergency powers are incorporated legally, they are often not fully utilized or formally claimed. Instead, they are used in limited fashions through specific techniques:     - Delegation: The transfer of authority to other entities.     - Suspension: The temporary halting of certain laws or rights.     - Deference: Courts or other branches yielding to executive decisions.     - Partition: Dividing legal jurisdictions to isolate emergency measures.     - Regular Order Treatment: In many limited scenarios, these tools are treated as a standard part of the regular legal order.

Legitimacy, Accountability, and the Rule of Law

• Legitimacy in Democracies: Scholars generally agree that legitimacy is intrinsically tied to individual protections. If a government fails to protect individual rights, its legitimacy is questioned.

• Rule of Law vs. Individual Rights:     - Rule of Law: Often defined as the procedural aspect of governance.     - Individual Rights: Usually considered the substantive content of the law.

• Examples of Judicial Performance:     - Positive Rights Cases: Colombia and Costa Rica are cited as successful examples where courts protected rights.     - Mixed Results: Mexico is categorized as having mixed outcomes in protecting rights.     - Negative Case: Chile is highlighted as an example where the judiciary was not supportive of individual protections during a critical period.

• Types of Accountability:     - Vertical Accountability: Public support for the government expressed through votes and elections.     - Horizontal Accountability: Checks and balances across different governmental branches. An independent judiciary is considered critical to maintaining this form of accountability in many democracies.

Theoretical Justifications for Judicial Behavior in Chile

• Regime-Related Considerations: These involve whether judges maintain independence or if the regime influences the selection of judges. It also looks at how the regime influences the jurisdiction of the courts.

• Attitudinal Considerations: This theory suggests that judicial policy preferences during the Pinochet regime were not significantly different from preferences held before the regime. Notably, a significant portion of the Supreme Court held favorable views at the moment of Pinochet’s takeover.

• Class-Based Considerations: Judges in Chile were generally not members of the economic elite. This lack of elite status, combined with concerns for job security and personal welfare, likely encouraged judges to comply with the regime. A top-down push for uniformity further reinforced compliance, particularly at the entry levels of the judiciary.

• Legal Theory Considerations:     - Legal Positivism: A self-imposed formalistic and narrow role for judges within Chilean legal culture.     - Subservience: The belief that judges should remain subservient to the democratically elected crafters of laws.     - Apolitical Identity: A focus on remaining "apolitical," which in practice meant avoiding conflicts with political actors and not "stepping on toes."

Institutional Considerations and Control

• Institutional Structure and Culture: This represents the "5th Option" for explaining judicial behavior, focusing on strategic decisions by the judiciary and structural factors.

• Regime Influence on the Judiciary:     - While judicial independence was largely respected on the surface, indirect influences were present.     - The regime boosted the image of certain judges and granted the judiciary the authority to purge its own members.     - Investigations into the judiciary were occasionally initiated by the Ministry of Justice.

• Factors Shaping Judicial Performance:     - National Security: An embrace of the "National Security" doctrine by the judiciary.     - Positivist Philosophy: A continued reliance on positivist legal frameworks.     - Institutional Discipline: Use of promotions and disciplinary actions to maintain control.

The Military Junta and the State of War ($1973$)

• Timeline of the Coup: The military junta took power in $1973$. Pinochet relied on constituent authorities, and the Supreme Court recognized these "de facto" authorities.

• State of War and Subversion: A "state of war" was maintained throughout $1973$. This was justified by concerns over "internal enemies" and "potential states of war."

• Executive Authority: Pinochet held the authority to revoke civil liberties based on concerns regarding "subversion."

• Military Courts vs. Civilians: The military tried civilians at a ratio of $4-1$ compared to military personnel. The Supreme Court (SC) refused to provide appellate oversight for these cases.

• Decree $1$: This decree stated that the laws and the judiciary’s authority would be respected "insofar as the country's present situation permits."

• Human Rights Impact: Thousands of individuals were detained, arrested, disappeared, or tortured. Individual rights were severely restricted.

• Decree-Based Governance: Subsequent decrees maintained a de jure state of war or emergency, allowing military courts to hear political crimes until the year $1978$. When decrees conflicted with the existing $1925$ constitution, they were declared "amendments" to the constitution.

Legal Mechanisms and Judicial Deference

• $1976$ Declarations and the Writ of Protection:     - The regime reiterated individual constitutional rights and provided for a recurso de protecci#on (writ of protection).     - This writ required the court to reach a decision within a $48$-hour timeframe when a claim was made that civil or political rights were violated.     - The Caveat: Reductions in civil rights were still permitted during states of emergency. A later decree explicitly announced that writs of protection were unavailable during any state of emergency.

• Judicial Review and Habeas Corpus (Amparo):     - Amparo Actions: Rarely survived judicial review. Only $30$ out of $90,000$ actions survived. Out of $37$ cases granted, all were eventually overturned by the Supreme Court.     - Formalism and Delay: The judiciary added formalistic requirements and took longer than the authorized time to review and decide cases.     - Evidentiary Deference: There was a strong deference to the facts as stated by the executive branch or the military.     - Constitutional Review: Between $1973$ and $1980$, the courts rejected constitutional review cases $29$ out of $32$ times.     - Unpublished Decisions: Many judicial decisions were not made public.

The $1980$ Constitution and the Transition to Democracy

• Codification of Junta Principles: The $1980$ Constitution formally incorporated many of the junta’s decrees. It maintained individual rights from the $1925$ constitution but extended the decree-based restrictions.

• Specific Changes:     - Jurisdiction: Wartime courts were explicitly excluded from the judiciary’s jurisdiction.     - Judicial Power: The Supreme Court was given increased power to select lower court judges and other government officers.     - Individual Responsibility: Added new requirements for individuals to support the state.     - Restricted Activities: Certain associative activities were eliminated during states of emergency.

• The Constitutional Tribunal:     - Created to conduct constitutional reviews of legislation and government acts.     - Judges had $8$ year staggered terms and were mostly selected by the government without independent tenure.     - Initially, $3$ members were from the current Supreme Court, and $4$ were lawyers appointed from elsewhere.

• Return to Democracy: As public outrage over military rule increased, the judiciary initially failed to side with the public. However, in $1985$:     - The Constitutional Tribunal established standards for free and fair elections regarding the $1988$ plebiscite.     - This move outlined the return to democracy and invoked the spirit of fundamental law and individual rights.