Chile 2018 Draft Constitution

Chapter VIII. Constitutional Tribunal

Article 93

The Constitutional Tribunal is an organ of the State; it is autonomous and independent of any other authority or power.

The Constitutional Tribunal will be composed of ten members, designated according to the following procedure:

1. The Supreme Court convenes a public contest to form a three candidate list that will be sent to the President of the Republic.
2. The President of the Republic proposes one of the nominees from said three candidate list to the two houses of the National Congress.
3. Each of the houses, with an affirmative vote of at least two thirds of their members in office, give their approval to the candidate.
4. The President of the Republic designates his or her selection naming them as a Minister of the Constitutional Tribunal.

To comply with the provisions of c), and prior to the vote, the proposed candidate must formulate a presentation of his or her nomination to the respective role in a public special session before the respective house of the National Congress.

The members of the tribunal will serve for nine years in their positions and they may be partially renewed every three years. They must have at least fifteen years of certification as a lawyer, have served actively within the profession, in a university or publicly, they may not have an impediment that would make them unable to perform the duties of a judge, they will be submitted to the norms of articles 59, 60, and 82, and they may not exercise the profession of lawyering, including judicature, nor any other act of those established in the second and third clauses of article 61.

The members of the Constitutional Tribunal will be irremovable and may not be reelected, except one that has been a replacement and has exercised the role for a period of less than five years. They will cease in their role at the age of 75.

In the case that a member of the Constitutional Tribunal ceases to occupy their role, the member will be replaced by the corresponding person, according to the first clause on this article and for the time period remaining to complete the term of the member who was replaced.

The court will function as a whole or divided into two chambers. In this first case, the quorum to hold a session will be of at least eight members and, in the second case, of at least four. The tribunal will adopt its agreements by simple majority, except in the case that a different quorum is required and will rule in agreement with the law. The tribunal as a whole will definitively resolve the attributes indicated in numbers 1, 3, 4, 5, 6, 7, 8, 9, and 11 of the following article. To exercise the remaining attributes, the tribunal may function as a whole or as separate chambers according to the provisions of the respective organic constitutional law.

An organic constitutional law will determine their organization, function, procedures, and will establish their staffing, the regime of remuneration and the employment statute of their personnel.

Article 94

The attributes of the Constitutional Tribunal are:

1. To verify the constitutionality of laws that interpret any precept of the Constitution, the organic constitutional laws, as well as the norms of a treaty that affect materials contained within the constitution or organic constitutional laws prior to their promulgation. The declaration of unconstitutionality of any of these norms must be agreed to by a majority of four fifths of the tribunal’s members;
2. To resolve the questions of constitutionality of the general norms issued by the Supreme Court, the Courts of Appeals, and the Tribunal Calificador de Elecciones;
3. To resolve the questions that arise about the constitutionality of a decree with the force of law;
4. To resolve the questions that arise about constitutionality with relation to the convocation of a plebiscite, without prejudice to the powers that correspond to the Tribunal Calificador de Elecciones. Additionally, to resolve the convocation to a plebiscite set forth in the second clause of article 15 by a majority of its members.
5. To resolve, by a majority of its members in office, the inapplicability of a legal precept whose application in any proceeding that takes place before an ordinary or special court produces results contrary to the Constitution;
6. To resolve by a majority of four fifths of its members in exercise, the unconstitutionality of a legal precept declared inapplicable in accordance with the provisions of the prior number.
7. To resolve the complaints in the case that the President of the Republic does not promulgate a law when he or she must do so or promulgates a different text than the constitutionally corresponding text;
8. To resolve the constitutionality of a decree or resolution of the President of the Republic that the Comptroller General of the Republic has deemed unconstitutional, when requested by the President according to article 101;
9. To declare the unconstitutionality of the organizations and the movements or political parties as well as the responsibility of the persons that participated in the deeds that motivated the declaration of unconstitutionality, according to the provisions of number 22 of article 19 of this Constitution. However, if the affected person is the President of the Republic or the President elect, the referred to declaration will also require the agreement of the Senate, adopted by the majority of its members in office;
10. To inform the Senate in the cases referred to in number 6 of article 53 of this constitution;
11. To resolve the disputes regarding competence that arise between the political, administrative, and judicial authorities that do not correspond to the Senate;
12. To resolve the constitutional or legal inabilities that affect a person being designated as a Minister of the State, to remain in said role, or to simultaneously perform other functions;
13. To issue pronouncements about the inabilities, incompatibilities, and orders of cessation in the roles of parliamentarians;
14. To qualify the inability invoked by a parliamentarian in terms of the final clause of article 61 and to issue pronouncements regarding resignations from the role, and
15. To resolve the constitutionality of supreme decrees, regardless of the error invoked, including those that were ordered in the exercise of the autonomous regulatory power of the President of the Republic when they refer to materials that could be reserved to the law by the order of article 64.
16. To resolve, by the majority of its members, the effective protection of rights in response to a violation of constitutional rights, which the rights holder of the action foreseen in article 20 of this document will be subject.

In the case of number 1, the house of origin will send the respective project to the Constitutional Tribunal within the five days following the day in which the declaration of unconstitutionality is completely processed by the Congress.

In the case of number 2, the tribunal may hear the matter upon the request of the President of the Republic, of any of the houses or of ten of their members. Additionally, requests may be made to the tribunal by any person that is part of a judgement or an action pending before an ordinary or special court, or from the first action of the penal process when it affects the exercise of their fundamental rights due to the provisions of the respective normative statement issued by the court.

In the case of number 3, the question may be put forward by the President of the Republic within the period of ten days when the Comptroller rejects a decree with the force of law as unconstitutional. It may also be posed by any of the houses or by a fourth of its members in office in the case that the Comptroller challenges a decree with the force of law as unconstitutional. This requirement must be made effective within the period of thirty days, counting from the publication of the respective decree with the force of law.

In the case of number 4, the question may be posed upon the request of the Senate of the Cámara de Diputados, within ten days counting from the date of publication of the decree that sets the day of the plebiscitary consult.

The tribunal will establish the definitive text of the plebiscitary consult in its resolution, when doing so is appropriate.

If, at the time of issuing the sentence, there are less than thirty days remaining for the realization of a plebiscite, the tribunal will set a new date between thirty to sixty days after the judgement.

In the case of number 5, the question may be put forward by any of the parties or by the judge dealing the issue. It will correspond to either of the chambers of the tribunal to declare, without further recourse, the admissibility of the question whenever the existence of a question pending before an ordinary or special court is verified, that the application of the challenged legal precept may be decisive in the resolution of an issue, that the challenge is reasonably based and they meet the requirements established by the law. The responsibility to resolve the suspension of procedure in which the action of inapplicability due to unconstitutionality originated will correspond to the same chamber.

In the case of number 6, once a declaration of inapplicability due to unconstitutionality of a legal precept is resolved, according to number 5 of this article, there will be a public action to request a declaration of unconstitutionality from the Constitutional Tribunal, without prejudice to the ability of the tribunal to declare it ex officio. Establishing the requisites of admissibility, in the case that the public action is exercised, as well as regulating the procedure that must be followed to act ex officio will correspond to the respective organic constitutional law.

In the case of number 7, the question may be posed by either of the chambers or by a fourth of their members in office, within the thirty days following the publication of the challenged text or within the seventy days following the date on which the President of the Republic must give effect to the promulgation of the law. If the tribunal welcomes the claim, its finding will promulgate the law that the President was supposed to have promulgated or it will rectify the incorrect promulgation.

In the case of number 10, the tribunal may only hear the case upon the request of the Senate.

There will be public actions to make requests of the tribunal with respect to the attributes conferred by numbers 9 and 12 of this article.

However, if in the case of number 9 the affected person is the President of the Republic or the President elect, the request must be made by the Cámara de Diputados or by the fourth of its members in office.

In the case of number 11, the request must be met by any of the authorities involved in the conflict.

In the case of number 13, the tribunal may only hear the case upon the request of the President of the Republic or upon the request of no less than ten parliamentarians serving in office.

In the case of number 15, the tribunal may only hear the case upon the request of any of the legislative houses, issued within the thirty days following the publication or notification of the challenged text. In the case of defects that do not refer to decrees that exceed the autonomous regulatory power of the President of the Republic, a fourth of the members in office may also meet said requirement.

The Constitutional Tribunal may fully assess the facts when it exercises the attributes indicated in numbers 9, 10, and 12, as well as when it is aware of the grounds for cessation in the role of parliamentarian.

In the cases of numbers 9, 12, and in the case of number 2 when it is requested by a parte, it will correspond to a chamber of the tribunal to issue a pronouncement without further recourse, of its admissibility.

Article 95

Against the resolutions of the Constitutional Tribunal there will be no recourse, without prejudice to the tribunal’s ability, according to the law, to rectify the errors it has made.

In order to execute its resolutions, the Constitutional Tribunal may issue orders or request actions to the public departments concerned. With this purpose the fourth clause of article 77 of the Constitutions is applicable.

The provisions that the tribunal declares unconstitutional may not be converted into law in the project or decree with the force of law in which it is contained.

In the case of number 6 of article 94, having declared the unconstitutionality of a legal precept, the legislative organs must, within the period of six months, initiate a process to formulate the norm that will regulate the matter previously subject to the abrogated precept.

In the case of number 15 of article 94, a nullified supreme decree will remain without effect, with the single merit of the sentence of the tribunal that receives the complaint. Nevertheless, the precept declared unconstitutional according to the provisions of numbers 2, 3, or 6 of article 94, will be understood to have been abrogated from the publication in the Diario Oficial of the sentence that receive the complaint, which will not produce a retroactive effect.

Sentences that declare all of or a part of a law, a decree with the force of law, a supreme decree or a general norm unconstitutional, will be published in the Diario Oficial within the three days following the declaration.