The Chilean President: Powers and Functions

Posted on Nov 28, 2024 in Law & Jurisprudence

The President’s Role in International Relations

The President appoints and removes certain officials to cooperate with international relations:

  • Minister of Foreign Affairs
  • Undersecretary of Foreign Affairs
  • Ambassadors
  • Ministers Plenipotentiary or diplomats
  • Representatives to International Organizations

These are trusted members of the President’s exclusive circle, meaning that:

  1. They are appointed without a public call for applications.
  2. They remain in office as long as they have the President’s confidence.
  3. The President can remove them without an administrative inquiry.

Special Presidential Powers

Art. 32. The following are special powers of the President of the Republic:

19°. To declare war, subject to authorization by law, after consulting the National Security Council.

International Allocation: The declaration of war is made by Supreme Decree, which must record consultation with the National Security Council (national security experts). Their agreement is not required; only their opinion is sought. A law must authorize the declaration of war (Art. 63 N° 15), a law solely proposed by the President.

Art. 63. The following are matters of law:

15) Authorizing the declaration of war, proposed by the President of the Republic;

Head of Government

The President holds the quintessential governmental or political function.

This role allows the President to:

  • Formulate public policies, plans, and goals in various areas of national life (economic, educational, financial, public works, agriculture, mining, etc.).
  • Interact with other branches of government:
    • Constitutional Court
    • Congress
    • Comptroller General of the Republic
    • Central Bank, etc.
  • Interact with other states in the international community.

Characteristics of the Head of Government Role

  1. Implies high demands for knowledge, intelligence, creativity, and experience from the President.
  2. Is somewhat arbitrary; the President rules with wide latitude and various options. This discretion stems from the fact that presidential decrees directly apply to the Constitution. As this is a general constitutional rule, the scope of government is broad.

Art. 24. The government and state administration are led by the President of the Republic, who is the Head of State.

August 12.

  1. To exercise the function of government—formulating public policies, plans, and goals; relating to other state bodies; and interacting with other states—the President needs no enabling law.

Why not? Because the President’s actions are enabled by the Constitution itself.

Can the President act against existing laws? No, only in compliance with the rules.

Art. 24, Clause 2. Presidential authority extends to everything concerning the preservation of public order and the internal and external security of the Republic, in accordance with the Constitution and laws.

What if public policies contradict existing laws? The President may enact policies, but must amend or repeal existing laws to implement them, requiring a parliamentary majority in Congress.

Head of State Administration

The President is the supreme holder of the administrative function.

What is the role of administration? Constitutional Organic Law No. 18,575 on the General Administration of the State defines administrative functions as activities carried out by the President, with the collaboration of various agencies, to meet the continuous and equal public needs of the community.

What are public needs?

  • Communication
  • Transportation
  • Education
  • Healthcare access
  • Housing
  • Credit, etc.

Administrative functions are regulated by law, specifying the who, how, when, and why. All bodies must cooperate with the President in developing the civil administration (state or public administration).

Bodies of Public Administration

  • President of the Republic (Head of State Administration)
  • Regional Inspectorate (Regional Governor and Regional Council)
  • Provincial Governors
  • Municipalities
  • Utilities
  • Comptroller General of the Republic
  • Armed Forces
  • Forces of Order and Public Safety (police and investigations)
  • National Television Council
  • Ministers of State
  • State Bank
  • Central Bank
  • Public enterprises (Codelco, Enap, Enaev, ENAC, port companies, etc.)

Administrative agencies also collaborate with the President when exercising the function of government (e.g., Ministers of State proposing government policies).

What limits the President as Head of State Administration? The law and the Constitution.

Is the administrative function as discretionary as the role of government? No, it is highly regulated by law (Principle of Administrative Legality) and the Constitution.

Principle of Administrative Legality: Administrative action requires authorization by law, specifying the who, how, when, and why.

In a presidential system, the President of the Republic is Head of State, Head of Government, and Head of State Administration.

The President’s significant responsibility requires an annual report to Congress on May 21 on the nation’s political and administrative status (Art. 24).

Art. 24, final paragraph. On May 21 each year, the President of the Republic shall report to Congress on the political and administrative status of the Nation.

What is the difference between Congress and Congress Plenary? Congress refers to the two houses acting separately; Congress Plenary refers to both houses meeting jointly.

If the President, as Head of State and Head of Government, must interact with other states, requiring travel outside Chile:

Art. 25. The President of the Republic may not leave the country for more than thirty days, nor in the last ninety days of their term, without the Senate’s consent. In any case, the President shall inform the Senate in advance of their departure and the reasons for it.

Constitutional Regime for Presidential Departures

  1. The President may leave the country for 30 days or less without permission, but must notify the Senate.
  2. For absences exceeding 30 days, the President requires Senate consent.
  3. For departures during the last 90 days of their term, the President always requires Senate consent.
  4. After their term, the President requires the Chamber of Deputies’ consent for departures within six months, as impeachment proceedings may be initiated.

Requirements to be President of the Republic

Art. 25. To be elected President of the Republic, a candidate must be a Chilean national (Art. 10, Nos. 1 or 2), at least 35 years old, and meet other qualifications for citizen suffrage.

Art. 10. Chileans are:

  1. Those born in Chile, except children of foreigners serving their government in Chile, and children of foreign bystanders (who may opt for Chilean nationality).
  2. Children of a Chilean parent born abroad (requiring a Chilean ancestor in the first or second degree who acquired citizenship under points 1°, 3°, or 4°).
  3. Foreigners who obtain naturalization.
  4. Foreigners who obtain naturalization by special grace.

The law shall regulate procedures for granting, refusing, and canceling naturalization and maintaining a register of such acts.

  1. Be Chilean (Jus Soli or Jus Sanguinis).
  2. Be a citizen entitled to vote.
  3. Be at least 35 years old.

In theory, an illiterate person could be President. However, the Administrative Statute requires basic education for public officials, so in practice, the President could not be illiterate.

Presidential Term

The 1980 Constitution initially set the term at eight years. The 1989 constitutional reform reduced it to four years for the first democratic government (March 11, 1990 – March 11, 1994), reverting to eight years thereafter. The 1994 reform reduced it to six years, and the 2005 reform reduced it to four years.

Who lost with this reduction? Eduardo Frei Ruiz-Tagle, elected in December 1993, whose eight-year term was shortened to six.

The Constitution prohibits immediate reelection.

Art. 25. The President of the Republic serves a four-year term and may be reelected for a subsequent term.

Election of the President of the Republic

Art. 26. The President of the Republic is directly elected by an absolute majority of valid votes. The election is held jointly with parliamentary elections, 90 days before the incumbent’s term ends. If no candidate obtains an absolute majority in the first round, a second round is held between the top two candidates, 30 days later.

Blank and null ballots are not counted. In case of death of a candidate, a new election is called within 30 days.

The Constitution establishes a two-round majority system.

  1. The presidential election is held 90 days before the incumbent’s term ends.
  2. The candidate with an absolute majority of valid votes is elected.
  3. If no candidate obtains an absolute majority in a multi-candidate election, a second round is held 30 days later (or the nearest Sunday).
  4. The second round features the top two candidates. The winner is the one who obtains an absolute majority.

Art. 27. The presidential election results are finalized within 15 days after the first or second round. The Election Review Court notifies the President of the Senate, who proclaims the President-elect.

  1. The Election Review Court has 15 days to review the first and second rounds.

Art. 27. Ninety days after the first or sole round, Congress Plenary formally recognizes the President-elect. The President-elect then takes the oath of office before the President of the Senate.

  1. Ninety days after the election, the President-elect takes the oath of office before Congress Plenary.

Who administers the oath? The President of the Senate.

What does the President-elect swear or promise? To faithfully discharge their duties, preserve national independence, and obey the Constitution and laws.

Subrogation and Replacement of the President

Art. 28. If the President-elect cannot assume office, the President of the Senate (or the President of the Chamber of Deputies, or the President of the Supreme Court) assumes the role of Vice President. If the President-elect’s inability is permanent, a new election is held within 60 days.

Art. 29. In case of temporary presidential disability, the responsible Minister (or the President of the Senate, Chamber of Deputies, or Supreme Court) assumes the role of Vice President. In case of permanent vacancy, a successor is elected. If the vacancy occurs less than two years before the next election, Congress Plenary elects a successor. If more than two years remain, a new election is held.

Art. 31. The President appointed by Congress has all the powers vested in the President by the Constitution.

Subrogation refers to temporary replacement; replacement refers to permanent replacement.

If the President is incapacitated, the Senate decides, after consulting the Constitutional Court (Art. 53 No. 7 and Art. 93 No. 11).

Art. 53. Exclusive powers of the Senate:

7) Declare the inability of the President or President-elect due to physical or mental incapacity, and declare whether a presidential resignation is well-founded. In both cases, the Constitutional Court must be consulted;

Art. 93. Duties of the Constitutional Court:

11°) Report to the Senate in the cases referred to in Article 53 section 7) of this Constitution;

The subrogee assumes the office as Vice President and initiates the replacement procedure. The replacement President serves until the end of the original term.

August 18.

The President-elect takes the oath of office before Congress Plenary.

What happens if the President-elect is temporarily incapacitated? Subrogation occurs.

Who subrogates? The President of the Senate (or the President of the Chamber of Deputies, or the President of the Supreme Court).

Why not a Minister of State? Because the President-elect has not yet appointed ministers.

If the President-elect is permanently incapacitated, who assumes the role? The subrogee, who calls for a new election within 10 days.

If the President is temporarily incapacitated after assuming office, who subrogates? The Minister of State, according to established precedence (e.g., Minister of the Interior, Minister of Foreign Affairs, etc.). If all Ministers are incapacitated, the President of the Senate, Chamber of Deputies, or Supreme Court subrogates.

If the President is permanently incapacitated after assuming office, what happens? The subrogee initiates the replacement procedure.

What is the replacement procedure? If less than two years remain in the term, Congress Plenary elects a replacement. If more than two years remain, a new election is held.

According to Article 30, former presidents receive a lifetime parliamentary allowance and immunity.

Requirements for former presidents to receive benefits:

  1. Complete their term.
  2. Not be convicted in impeachment proceedings.

If a former president works in the public sector, they forfeit their allowance while receiving other remuneration.

Art. 30. The President leaves office at the end of their term. Those who complete their term acquire the title of Former President of the Republic. Former Presidents receive a lifetime parliamentary allowance and immunity. Former Presidents who assume paid public positions forfeit their allowance while receiving other remuneration.

Special Powers of the President

  1. Legislative
  2. Constituent
  3. Political
  4. Administrative
  5. Judicial
  6. International
  7. Military

Legislative Powers of the President

The President has significant legislative powers, co-legislating with Congress. This is a characteristic of Latin American presidentialism, differing from the U.S. model.

The law-making process has five stages:

  1. Legislative Initiative
  2. Legislative Discussion
  3. Sanction or Veto
  4. Enactment
  5. Publication

Legislative Initiative

Regular legislative initiative belongs equally to the President and Members of Parliament. Exclusive legislative initiative rests solely with the President for certain matters.

Why is some legislation the sole initiative of the President? Because these matters are closely linked to the President’s roles as Head of Government and Head of State Administration, and to avoid parliamentary exposure to constituent pressure or electoral manipulation.

Matters of exclusive presidential initiative:

  1. Matters affecting the state’s budget and financial administration.
  2. The general budget law.
  3. Military matters:
    • Determining the size and composition of the armed forces.
    • Authorizing the deployment of Chilean troops abroad or the entry of foreign troops.
    • Authorizing the declaration of war.
  4. The political and administrative division of the country.
  5. Authorizing state borrowing (requiring a qualified quorum if the loan’s maturity exceeds the presidential term).
  6. Authorizing contracts or transactions that compromise state credit or financial responsibility.
  7. Taxation.
  8. Creating, abolishing, or modifying public service jobs or functions.
  9. Setting public sector salaries and pensions, and the minimum wage in the private sector.
  10. Collective bargaining.
  11. Social security.

What powers do the chambers have regarding exclusive presidential initiatives? They can approve, reject, or reduce the amount, but not increase it.

The 1980 Constitution’s Articles 63 and 65 exhaustively list matters of law. The method of maximum legal domain prevents the “no man’s land” of uncertainty that existed under the 1925 Constitution.

What determines the jurisdiction of self-regulation? Exclusion; matters not listed as matters of law are subject to self-regulation.

Article 63, number 20, is not exhaustive. It establishes that any general, mandatory, and essential rule must be established by law.

What is the effect on self-regulation? It decreases self-regulation competence.

Some authors argue that self-regulation is stillborn. A suggested adjustment is that any rule that is not general, mandatory, and essential may be subject to self-regulation.

August 25.

Art. 63. Matters of law include:

  1. Those that the Constitution requires to be constitutional organic laws.
  2. Those that the Constitution requires to be regulated by law.
  3. Those that are codified (civil, commercial, litigation, criminal, etc.).
  4. Basic matters relating to labor unions, pensions, and social security.
  5. Governing public honors to great servants.
  6. Modifying the national emblems.
  7. Authorizing state borrowing (requiring a qualified quorum if the loan’s maturity exceeds the presidential term).
  8. Authorizing operations that may compromise state credit or financial responsibility.
  9. Setting rules for state enterprises’ borrowing.
  10. Laying down rules on the disposal of state property.
  11. Establishing or altering the political and administrative division of the country.
  12. Determining the value and denomination of coins and the system of weights and measures.
  13. Setting the size and composition of the armed forces, and rules governing the entry of foreign troops or the deployment of national troops abroad.
  14. Other matters specified by the Constitution or laws as the sole initiative of the President.
  15. Authorizing the declaration of war (proposed by the President).
  16. Granting general pardons and amnesties.
  17. Determining the location of the President’s residence, Congress, the Supreme Court, and the Constitutional Court.
  18. Establishing the basic procedures governing public administration actions.
  19. Governing the operation of lotteries and betting.
  20. Any other general and mandatory provision essential to the legal system.

Art. 65. The President has sole initiative for bills concerning:

  1. Altering the political or administrative division of the country.
  2. The state’s financial or budgetary administration.
  3. Matters referred to in Nos. 10 and 13 of Article 63.
  4. Imposing, removing, reducing, or remitting taxes.
  5. Creating, abolishing, or modifying public service jobs.
  6. Making loans or engaging in operations that compromise state credit.
  7. Establishing, modifying, granting, or increasing wages, pensions, or benefits for public sector employees, and setting minimum wages in the private sector.
  8. Establishing procedures for collective bargaining.
  9. Establishing or amending social security rules.

Why is collective bargaining the exclusive initiative of the President? To prevent electoral favoritism.

Art. 19. The Constitution guarantees all persons:

18°. The right to social security. Laws governing this right require a quorum.

August 26.

Legislative Discussion: This stage involves discussions and agreements within each chamber to approve or reject a bill. Legislative committees specialize in different fields, informing parliamentarians about the projects. The Constitutional Commission reviews the constitutionality of bills.

The Finance Committee examines bills involving expenditure to ensure adequate funding. For the general budget law, it meets with the Senate’s Finance Committee to form a joint committee.

Each bill undergoes a double discussion (general and particular) in each chamber.

Process Outline:

  1. Bills enter the chamber through the respective party offices.
  2. The bill is sent to the relevant legislative committee for a first legislative report.
  3. The committee issues a report recommending approval or rejection.
  4. The project and report are sent to the chamber for general discussion.
  5. If rejected in general discussion, the bill cannot be resubmitted for at least one year, unless the President requests it.
  6. If approved in general discussion, the bill may be sent back to the committee for a second legislative report, followed by particular discussion.

Approval Hypotheses:

  1. Approval by both houses with the appropriate quorum.
  2. Rejection by the revising chamber, leading to a joint committee to propose an alternative, which must be ratified by both houses.
  3. Amendments by the revising chamber, leading to a third procedure in the chamber of origin. If the amendments are rejected, a joint committee may be appointed. The President may request a fourth and fifth procedure.

September 8.

Sanction or Veto: The President has 30 days to sanction or veto a bill. A veto can only be partial, requiring amendments. Congress decides on the President’s veto. If both houses reject the veto with a two-thirds quorum, the President must enact the bill.

Enactment: The President enacts the bill by promulgation decree, which is reviewed by the Comptroller General of the Republic to ensure it matches the text approved by Congress. The Comptroller can approve, reject, or request rectification. The President can appeal to the Constitutional Court.

Publication: The law is published in the official newspaper, entering into force unless otherwise specified.

Key Features of the Law-Making Process:

  1. Bills can be modified during processing (general discussion, amendments by parliamentarians, or presidential veto).
  2. The President can assert urgency (simple, urgent, or immediate discussion).

General Budget Law:

  1. The President has sole initiative.
  2. The bill is presented to the Chamber of Deputies.
  3. The bill must be submitted at least three months before January 1.
  4. Congress has 60 days to approve the bill; otherwise, it automatically enters into force.

September 9.

Parliamentary Powers Regarding the Budget:

  • Parliament cannot alter public revenue estimates.
  • Parliament can only decrease, not increase, variable expenditure estimates.
  1. The President’s Role During Budget Implementation: The President estimates actual public revenue performance. If revenue is lower than estimated, the President can propose a bill to create new expenditure, including funding sources. If funding is insufficient after Congress approves it, the President can proportionately reduce expenditure (Art. 67, paragraph 5).

Art. 67. If the source of funds granted by Congress is insufficient to fund any new spending is approved, the President of the Republic, in enacting the law favorable report of the service or institution through which to raise new revenue, endorsed by the Comptroller General of the Republic shall proportionately reduce all expenditures, whatever its nature.

Article 32, No. 2: The President can request Congress to meet to consider any bill. Before 2005, the President could convene special sessions to discuss specific bills. The 2005 reform limits this power to requesting a meeting to consider any bill.

Article 32, No. 3: The President can issue decrees with the force of law, based on Congress’s delegation of legislative powers.

September 22.

Constitutional Safeguards Against Decrees with the Force of Law:

  1. Congress must delegate legislative powers (through a law or an agreement approving an international treaty).
  2. The delegation must specify the matters of law to be regulated. Matters not subject to delegation include fundamental rights, nationality, citizenship, elections, referendums, and matters requiring a quorum (constitutional organic laws).
  3. The delegation cannot exceed one year (except for treaties).
  4. The Comptroller General of the Republic reviews the decree’s constitutionality and legality. The President can appeal to the Constitutional Court.

September 23.

Hierarchy of Decrees with the Force of Law: Decrees with the force of law and laws have the same hierarchy. A decree cannot repeal or amend a law on matters not subject to delegation.

Article 32, No. 5: States of emergency are exceptional and temporary mechanisms to address abnormal situations (external war, internal war, internal unrest, public calamity).

Presidential Decrees and Regulations: A decree is a written order issued by the President, signed by one or more ministers, to address matters of government and state administration.

Formal Requirements of Presidential Decrees:

  • Written order.
  • Signature of one or more ministers.
  • May include the formula “By order of the President” if authorized by law.

Types of Decrees:

  • Simple Decrees: Contain specific rules (appointments, dismissals, etc.).
  • Regulatory Decrees: Contain general rules.
  • Implementing Regulations: Detail the provisions of a legal precept.
  • Autonomous Regulations: Govern matters not covered by law.
  • Instructions: Guidelines for public officials.

October 14, 2009.

Military Powers of the President: Before the 2005 reform, the armed forces and police had a significant role in guaranteeing institutional stability, through the National Security Council. The 2005 reform reduced the Council’s powers and the military’s political role. The President appoints, promotes, and removes military officers, but requires proposals from the respective commanders-in-chief.

The President can declare war (Art. 32 No. 19 and Art. 63 No. 15), appoint, promote, and remove military officers (Art. 32 No. 16 and Art. 105), and organize and distribute the armed forces (Art. 32 No. 17). The President assumes supreme command of the armed forces only during foreign war (Art. 32 No. 18).

Exclusive Powers of the Chamber of Deputies and the Senate

The Chilean Congress is bicameral. The Chamber of Deputies has two exclusive powers:

  1. Auditing government actions: The Chamber can examine the merit, opportunity, and convenience of government actions, issuing observations to the President, who must respond within 30 days. This does not entail political responsibility for ministers.
  2. Impeachment: At least 10 and no more than 20 deputies can initiate impeachment proceedings against certain officials (President, Ministers of State, judges, Comptroller General).

October 20, 2009.

Mechanisms for Auditing Government Actions:

  • Observations to the President.
  • Interpellation of ministers.
  • Inquiry commissions.

Impeachment Grounds:

  • President: Seriously compromising national honor or security, or openly violating laws.
  • Ministers of State: Seriously compromising national honor or security, or violating laws (covert or otherwise), embezzlement, treason, or concussion.
  • Judges: Remarkable abandonment of duty, serious or repeated breach of duties and prohibitions.
  • Mayors and Governors: Violating laws or committing crimes (sedition, rebellion).
  • Generals and Admirals: Compromising national honor or security.

Role of Deputies in Impeachment: Deputies initiate impeachment and decide whether to formalize the accusation before the Senate.

Types of Offenses: Crimes, offenses, and abuse of power.

Purpose of Impeachment: To remove an official from office for loss of confidence, not necessarily to enforce other responsibilities (civil, criminal).

Role of the Senate in Impeachment: The Senate decides on guilt or innocence. A two-thirds quorum is required to convict the President; an absolute majority is required for other officials. The Senate’s decision is final.

Consequences of Impeachment: Loss of office, potential civil and criminal liability.

Impeachment Procedure:

  1. The accusation is presented by at least 10 and no more than 20 deputies.
  2. A commission is appointed to investigate.
  3. The accused is notified and has 10 days to respond.
  4. The commission issues a preliminary report.
  5. The Chamber of Deputies votes on whether to formalize the accusation.
  6. The formalized accusation is sent to the Senate.
  7. The Senate decides on guilt or innocence.

October 28, 2009.

Constitutional Court:

Art. 92 and 93.

The Constitutional Court has 10 members (two appointed by the Senate, two by the Chamber of Deputies, and six appointed by the President).

Incompatibilities for Constitutional Court Members:

  • Holding other paid public positions.

Art. 92. Constitutional Court members are irremovable and cannot be reelected.

Art. 93. Powers of the Constitutional Court:

The Constitutional Court exercises preventive and eventual control over the constitutionality of laws, constitutional organic laws, interpretative constitutional laws, and international treaties with constitutional standards.

Preventive Control: Performed before enactment (except for international treaties).

Eventual Control: Performed if questions of constitutionality arise during processing.

Optional Control: The President, either chamber, 10 deputies or senators, or parties affected by an agreed order can submit matters to the court.

The court must respond within 10 days (extensible to 20).

The court can resolve issues of constitutionality regarding agreed orders dictated by the Supreme Court, a court of appeals, or TRICEL.