Constitutional Reform and States of Emergency in Chile

Posted on Dec 18, 2024 in Law & Jurisprudence

Constitutional Reform Process in Chile

The process of reforming the Chilean Constitution involves specific steps and requirements, particularly regarding the role of the President and the Congress.

Presidential and Congressional Roles

1. Proposal of Reforms:

  • The President can propose any constitutional reform without exception.
  • Only Members of Congress can submit reform proposals to the Chamber of Deputies and the Senate.

Quorum Requirements

2. Quorum for Approval:

  • Generally, a 3/5 majority of the members in office in each chamber is required.
  • Exceptionally, a 2/3 majority is required for reforms concerning:
    • Chapter 1: Bases of the Institutions
    • Chapter 3: Constitutional Rights and Duties
    • Chapter 8: Constitutional Court
    • Chapter 11: Armed Forces, Law Enforcement, and Public Safety
    • Chapter 12: National Security Council

The higher quorum is necessary because these chapters define the core structure of the Constitution.

The project must be adopted by both chambers with the respective quorum (3/5 or 2/3). There is no provision for insistence in this phase.

Post-Approval Process

3. Post-Reform of 2005:

Before 2005, a special procedure required the full Congress to ratify the approved project 40 days after separate approvals. This step was deemed unnecessary and removed in the 2005 reform.

After the 2005 reform, the approved project goes directly to the President, who has 30 days to either sanction or veto it (tacitly or expressly).

  • If sanctioned tacitly, the President must promulgate it within 10 days following the 30-day period.
  • If sanctioned expressly, it must be promulgated within 10 days of the announcement to Congress.

Presidential Veto

4. Veto Power:

The President can issue a total or partial veto.

  • Total Veto: The project is rejected entirely unless both chambers insist on the original project with a 2/3 majority. In this case, the President has two options:
    • Promulgate the insisted project within 10 days.
    • Call for a plebiscite within 30 days of the insistence. The decree must include the text of the rejected reform. If the President fails to call for a plebiscite within 30 days, they must promulgate the reform within the following 10 days.
  • Partial Veto: The President approves the project but makes changes (additive, suppressive, or replacement vetoes). The project returns to Congress.
    • If both chambers approve the veto with the appropriate quorum, the President must promulgate it within 10 days.
    • If the quorum is not met, the veto is rejected. The affected part of the project dies unless both chambers insist on the original project with a 2/3 majority. In this case, the President has two options:
      • Promulgate the insisted project within 10 days.
      • Call for a referendum within 30 days of the insistence. The decree must include only the disputed parts of the reform. If the President fails to call for a referendum, they must promulgate the reform within 10 days.

The referendum must take place no sooner than 30 days and no later than 60 days after the publication of the decree. The Electoral Tribunal (TRICEL) proclaims the results, and the President must promulgate the reform within 5 days.

Integration of Reforms

Once the constitutional reform law is in effect, the text is integrated into the Constitution, altering subsequent editions. This differs from interpretative laws, which remain separate and require a 3/5 quorum for adoption, repeal, or amendment.

Presidential Powers: States of Emergency

Article 32 No. 5 and No. 20 of the Constitution: The President can declare states of emergency to address abnormal situations of political or public calamity. These states are transitory; prolonged use could indicate political instability.

Suspension and Restriction of Rights

The President can suspend or restrict certain rights to restore public order. The Constitution and Organic Law 18,415 define these actions:

  • Suspension: Temporarily depriving people of exercising a right (e.g., banning gatherings during a state of emergency).
  • Restriction: Imposing limitations on a right (e.g., prohibiting the publication of terrorist acts on the front page of newspapers).

The President can only restrict certain rights, not suspend them. Unconstitutional acts can be challenged through legal resources.

Types of States of Emergency

There are four types of states of emergency:

  • State of Assembly: Declared during a foreign war.
  • State of Siege: Declared during internal war or severe internal unrest.
  • State of Emergency: Declared in cases of serious public disorder or damage to national security.
  • State of Catastrophe: Declared during public calamities or natural disasters.

Declaration Process

The President can declare a state of emergency or catastrophe alone, with a duration of 15 days, extendable. Successive extensions require Congressional approval. Congress has 5 days to respond; silence implies consent.

For a state of disaster lasting more than a year, Congressional approval is needed. Congress can also end the state of disaster after 180 days if the situation has improved.

For states of assembly and siege, the President needs Congressional approval. Congress has 5 days to decide, without adding conditions. During this period, the President can declare a temporary state of siege or assembly.

A state of siege lasts 15 days, extendable with Congressional approval. A state of assembly has no time limit, lasting as long as the external war continues.

Extension and Renewal

  • Extension: Prolonging the state of emergency before it expires.
  • Renewal: Reinstating a state of emergency after it has expired, requiring a new declaration.

Affected Rights

Article 43 of the Constitution: Specifies the rights that can be affected during each state of emergency.

  • State of Assembly: Allows for the arrest of people in places other than jails, transfer within urban areas, expulsion from the country, and restriction of movement.
  • State of Siege: Allows for the arrest of people in places other than prisons, restriction of movement, suspension of the right of assembly, and confiscation of property.
  • State of Catastrophe: Allows for extraordinary administrative measures to restore normalcy, including requisitions and domain limitations.

Requisitions: Forced loans imposed by the state, requiring compensation.

Domain Limitations: Obligations imposed on property owners, requiring compensation if essential rights are affected.

Legal Challenges

Measures taken during states of emergency can be challenged in court through appeals for protection and shelter.