PART TWO
Chapter Two

Legal and Institutional Framework

1. THE MONTHS AFTER SEPTEMBER 11, 1973
   
   
   1. INSTALLATION OF THE JUNTA
      
      According to the 1925 Constitution, government functions were to be exercised by independent, separate bodies exercising oversight over one another. In his manner the Chilean institutional order expressed the principle that abuses by government bodies in carrying out their functions are to be prevented by dividing, imiting, and controlling their powers, and that those who violate these bounds must be held accountable within the legal system. Such was the order that the 1925 Constitution established; indeed it was the same order that had been in effect, with some variations, since the Constitution of 1833.
      
      When viewed from this perspective, what happened starting on September 1, 1973, constituted a profound disruption of the Chilean governmental system. On that date the military junta stated that it was assuming "supreme rule over the nation with the patriotic commitment to restore the Chilean way of life, justice, and institutional order that have been shattered. . . as a result of the intrusion of dogmatic and intolerant ideology inspired by the alien principles of Marxism-Leninism."¹ In that same legally binding statement, the junta stated that it would assure that the powers of the judicial branch remain fully in effect and will respect he Constitution and the laws of the Republic, to the extent the present situation allows, so as to better fulfill the principles it intends to follow."² There was no mention of the Congress or of the General Comptroller's Office.
      
      What did it mean that the junta was assuming "supreme rule over the nation"?
      
      Some looked to Article 60 of the 1925 Constitution, which states that "a citizen with title of President of the Republic of Chile administers the state and is the supreme head of the nation." They maintained that what the junta was assuming was only that body of powers proper to the head of state since he was the supreme head exercising his corresponding authority, and the purpose of the military movement was to remove the one who had been occupying that position until September 1973.³
      
      Under that interpretation, the junta seemed to be saying that it was assuming only the executive, administrative, and co-legislative functions proper to the president. Thus the military manifesto would not affect the supervisory and co-legislative functions of the National Congress nor the oversight function that the Constitution entrusts to the General Comptroller's Office. The same could be said about the competency the president shares with the Congress-and with the electorate should there be a plebiscite-to act as one of the members of the constituent power.ⁱ
      
      Any doubt was soon dispelled, however, when the junta specified "that the assumption of supreme rule over the nation means exercising all the powers of the persons and bodies that make up legislative and executive powers and consequently, the constituent power that is theirs."⁴ In keeping with that premise, the junta stated that on September 11, 1973 it had assumed the exercise of the constituent, legislative, and executive powers, and it reiterated that the judicial power "will exercise its functions as specified in the Constitution, and with the independence and authority indicated therein." Again the junta said nothing about the constitutional independence of the General Comptroller's Office. Nevertheless, it subjected the decentralized agencies of the administration to that office⁵ and during September and October 1973 it sent its supreme decrees there to be registered but not to have their legality approved.
      
      The junta retained the full use of such powers until June 26, 1974. At that point Decree Law No. 527, which states the junta's by-laws, went into effect, and it declared that "executive power is exercised by the president of the junta, who is the supreme head of the nation."⁶ Shortly thereafter and in order to maintain the title traditionally granted to the head of state in our country, the junta declared that the executive power was "exercised by the president of the junta, who, under the title of President of the Republic of Chile, administers the state and is the supreme head of the nation." Thus the administration and governing of the state was entrusted to the president of the junta and of the republic, and his authority was extended to everything related to maintaining the internal public order and external security of Chile.
      
      
   2. FUNCTIONING OF POLITICAL POWER
      
      The junta exercised constituent and legislative power by issuing decree laws.^j These decrees were signed by all members of the junta, either themselves or their deputies, and when they deemed it appropriate, they were also signed by the relevant ministers of state. In any case all the junta members had to be in agreement in order to issue constitutional and legal norms.
      
      Decree Law No. 527 envisioned the issuance of complementary regulations that would enable the junta "to require the collaboration of the community through its technical and representative organizations in the preparation of decree laws." Additionally, and in keeping with Decree Law No. 991,⁷ each junta member presided over one of the legislative commissions. The Legislation Secretariat was set up in order to coordinate the legislative process and issue legal reports.
      
      In accordance with Decree Law No. 527, only the junta could pass laws. Furthermore, it alone could take the initiative in those legal matters that were proper to the president of the republic, according to the text of the 1925 Constitution, as it stood until September 11, 1973.
      
      It is worth keeping in mind that there were two kinds of decree laws, in accordance with the greater or lesser importance of their provisions. First, some decree laws were of constitutional rank because they expressly or tacitly modified, complemented, or annulled provisions in the Constitution. Second, some decree laws issued had legal standing but were subordinate to those of constitutional rank, and were the practical equivalent of those laws which until September 11, 1973, had been the joint work of the president and Congress.
      
      Nevertheless, the junta issued many decrees whose provisions, even though they were substantially opposed to those in the Constitution, did not state that they were modifying or annulling it on a particular point. The result was confusion over the meaning and scope of those legal texts, that is, whether or not they constituted reforms of the 1925 Constitution. Since the situation was unclear, individuals who were affected, for example, by provisions suspending or restricting personal freedom when states of siege and states of emergency were declared, appealed to the Supreme Court, asking it to declare such decree laws inapplicable because they conflicted with individual guarantees that are safeguarded in the Constitution.
      
      The Court managed to grant review and decide some of these appeals.⁸ The Court's rulings, however, prompted the junta to issue Decree Law No. 788,⁹ which specified the difference between decree laws that were constitutional in scope and those that simply had legal effect. In this regard the junta declared that the decree laws issued between September 11, 1973 and December 4, 1974 insofar as they were contrary to, opposed to, or different from any provision of the Constitution "had and have the nature of being norms that modify, whether expressly or tacitly, partially or totally, the corresponding clause in the Constitution." In other words, by playing its role as constitutent power, the junta remedied the flaws of the unconstitutionality attributed to the decree laws issued during that period. As a result, pending appeals on the grounds of inapplicability were to be disregarded.
      
      The provisions of Decree Law No. 788 affected not only those "judicial rulings made prior to their publication in the Diario Oficial," this law also stated that "decree laws issued in the future that may be expressly or tacitly, wholly or partially, contrary to, opposed to, or different from some provision of the Constitution will have the effect of modifying it in that respect only if it is explicitly noted that the junta is issuing it in the exercise of its constituent power."
      
      In short, after December 4, 1974, the difference between the two kinds of decree laws was formalized. The result was that the constituent body tended to be distinguished from the legislative body, at least adjectivally.
      
      
   3. THE JUNTA'S LEGISLATIVE ACTIVITY
      
      In quantitative terms, the legislative activity of the junta was considerable. In less than four months it issued almost 250 decree laws, a number equal to the whole of what had been legislated in the year prior to the declaration of military rule. The rapidity of legislative activity could be attributed in part to the system's concentration of government functions, the lack of any institutionalized opposition, and the authorities' declared intentions to change matters.
      
      Qualitatively speaking, the body of legislation was extremely important, no matter what the ultimate judgement on the laws drawn up might be. The new legislation succinctly and plainly presented a scale of values and political principles that differed profoundly from those contained in the preceding and still somewhat surviving legal order. Hence the democratic orientation of the previous order gave way to one in which the state's coercive apparatus was reinforced and the system of government became authoritarian.
      
      Acting as the legislative body, the junta made rulings on the most diverse matters in the political, social, and economic realms. So wide was the variety that it is impossible to make a systematic presentation of its content here. By the same token, in order to describe the institutional legal system then in effect, we must draw up a representative inventory simply to give an idea of its characteristic features.
      
      
      1. Assumption of total control
         
         It has already been noted that the system in place in Chile as of September 11, 1973, was one in which government functions were highly concentrated. The junta members made reference to that character when they called it an authoritarian regime. It is evident when we call to mind the following events:
         
         
         1. Dissolving of Congress and of the Constitutional Tribunal By means of Decree Law No. 27, the junta disbanded the National Congress, stating that as of that moment its current members no longer exercised their legislative functions. That decision was based on "the need to assure that the principles that the junta has proposed be implemented more expeditiously. . . and on the fact that it is therefore impossible to allow legislative measures to be subjected to the ordinary procedure for issuing laws, as well as the need to avoid jeopardizing the reestablishment of institutional order that is so urgently needed."
            
            Shortly thereafter, the junta went on to dissolve the Constitutional Tribunal, since its primary function was to resolve conflicts between the executive and legislative branches "which cannot occur since the Congress is disbanded."
            
            
         2. Outlawing and closure of political parties
            
            Once the president had been unseated and the Congress had been disbanded, the basic political institutions of Chilean representative democracy were no longer in operation. The junta's decisions inevitably had an impact on those associations that made possible the operation of representative bodies, namely political parties.
            
            That indeed is what happened on October 13, 1973, when with Decree Law No. 77 the junta declared to be disbanded, prohibited, and regarded as unlawful associations those parties, entities, groups, factions, or movements "which uphold Marxist doctrine or which in their aims or the behavior of their adherents are substantially in agreement with the principles and objectives of that doctrine and which tend to destroy or undermine the basic aims and principles laid down in the founding decree of this junta." With that same law, the junta also ordered that the juridical status of all the parties and the other organizations mentioned be canceled, and ordered that their property be transferred to the state.
            
            In the very next decree, No. 78 (October 17, 1973) the junta, believing that it was absolutely necessary to suspend the normal pattern of party activity in the country, declared to be "in recess all political parties and entities, groups, factions or movements of a political nature not included in Decree Law No. 77"; all their properties likewise were to be administered in the same fashion. [Note: footnotes ¹⁰ and ¹¹ are missing in the original text.]
            
            
         3. Election lists declared null and burned
            
            Decree Law No. 130¹² declared null all the electoral registration lists, and they were burned by the head of the Electoral Registry. As of that date the process of registering to vote was suspended. As a basis for its decision the junta declared that "investigations carried out by governmental and university agencies have demonstrated that there have been serious and widespread electoral frauds," and hence it was necessary to devise a system "which from now on may prevent such frauds and assure the seriousness and efficiency of decisions by the citizenry."
            
            
         4. Mayors and aldermen dismissed
            
            Recognizing the need to harmonize the organization and functioning of municipalities with its own principles, in Decree Law No. 25 (September 19, 1973) the junta declared that the mayors and aldermen [municipal council persons] were to cease functioning. The junta subsequently appointed people in whom it had complete confidence to serve as mayors.
            
            
         5. Interim status of government employees
            
            By means of Decree Law No. 6 (September 12, 1973), government personnel, with the exception of those in the judicial branch and the Comptroller General's Office, were put on interim status. A few days later Decree Law No. 22¹³ gave authorization to immediately dismiss such public servants at will, and without being bound by the laws preventing dismissals and assuring job stability.
            
            Invoking its intention to "reestablish the principles of order, discipline, rank, and public morality" that ought to inspire government administration, the junta in Decree Law No. 98¹⁴ declared that all public services, with the two exceptions noted above, were being reorganized.
            
            
      2. Effect on constitutional guarantees
         
         We must now refer to the changes the junta introduced into the doctrinal portion of the Constitution, that is, changes affecting rights and duties as well as actions aimed at safeguarding both of them, which are recognized and protected by the constituent power. We refer to what are called constitutional guarantees.
         
         
         1. States of emergency
            
            Personal freedom was first suspended and then restricted by the new provisions concerning states of emergency and particularly the state of siege. Those provisions were in effect during this entire period.
            
            Decree Law No. 3 (September 11, 1973) declared that a state of siege was in effect throughout the country and that the junta was in effect "the general-in-chief of the forces that will be operating during the emergency." Nevertheless, starting the next day and in accordance with Decree Law No. 8, the junta delegated to the commanders-in-chief of the operational units in the country the exercise of military jurisdiction and the power to issue decrees.
            
            Moreover, Decree Law No. 4 issued that same day (September 11, 1973) imposed a state of emergency in the provinces and departments which it listed.
            
            Chile was thus under one of the states of exception,^k the state of siege. For the next several years the state of siege was to be extended every six months, generally for reasons of internal defense as laid down, for example, in Decree Law No. 922 (March 11, 1975). It should be noted that the state of siege was to be declared for that reason "when there is an internal disturbance provoked by rebellious or seditious forces already organized or being organized whether openly or underground," in accordance with Decree Law No. 640¹⁵ which codified regulations concerning situations of emergency.
            
            In accordance with Decree Law No. 228 (December 24, 1973), the junta exercised the powers proper to the state of siege. Nevertheless, Decree Law No. 951, issued March 31, 1975, declared that such powers "will be exercised through supreme decrees which the interior minister is to sign with the formula 'by order of the president of the republic,' or through resolutions which the intendants [regional governors] or provincial governors may issue as natural or immediate agents of the head of state."
            
            The magnitude of the suspensions and restrictions thus imposed on personal freedom are obvious when we consider the following constitutional and legislative decisions made by the junta:
            
            Interpreting Article 418 of the Military Justice Code, Decree Law No. 5¹⁶ declared that "in the current situation of the country the state of siege decreed by reason of internal disturbance should be understood as 'state or time of war,' and thus the penalties laid down by the Military Justice Code and other criminal laws for such a period are to be applied and in general all the other effects of such legislation are also in effect." The practical result of such a ruling was that the power to examine and decide upon cases of infraction of the rules of a state of siege were removed from the ordinary court jurisdiction and were assigned to the jurisdiction of military courts in wartime.
            
            We should add that ordinary courts did not issue decisions questioning the constitutionality of that legislation. On the other hand, from the standpoint of legal doctrine, we should mention the essay by Daniel Schweitzer in which he explained his disagreement with the way ministers of the judicial branch were behaving toward military tribunals.¹⁷
            
            That same Decree Law No. 5 also added various regulations to the Military Justice Code, to the Weapons Control Law, and to the Internal State Security Law, some of which provided that certain crimes be punishable by death.
            
            Decree Law No. 81 (October 11, 1973) made it a punishable offense to disobey public call on the part of the government to present oneself to the authorities. It also empowered the government during the state of siege to deport Chileans and foreigners "when the noble interests of the state so require," as long as it issued a decree giving the reason for doing so. Finally this decree law punished anyone who entered the country clandestinely in order to attack state security, and it presumed hat such would be the intention of those who had left the country through asylum, or had been expelled or forced to leave it.
            
            
         2. Control over union activity
            
            The junta's lawmaking activity also affected labor unions. Decree Law No. 198 (December 10, 1973) ordered labor unions, their boards, and their leaders "to refrain from all political activity in carrying out their functions." It furthermore declared that "while the state of war or state of siege the country is experiencing is in effect, union organizations may only hold general meetings of an informational nature or in order to deal with matters concerning the internal management of the organization." The fact that such a meeting was to be held, the site, and the agenda were to be provided in writing to the nearest police station with at least two days prior notice.
            
            That same decree law declared that the terms in office of union board members that were in effect on September 11, 1973, were to be extended and it made their rules applicable to the provisional directorates. These directorates were to be made up of those who had worked longest in the particular industry, job, or activity.
            
            
         3. Stepping in to control the universities
            
            "Considering the need to work toward unifying standards in the administration of higher learning" the junta issued Decree Law No. 50 (October 1, 1973) by virtue of which it appointed "delegate rectors to represent it in each university in the country." These rectors held all the powers and functions previously held by the various individuals or collegial bodies that ran Chilean universities.
            
            The junta complemented Decree Law No. 50 with Decree Laws Nos. 111, 112, and 139,¹⁸ issuing specific norms for certain universities and broadening the powers of rectors, so that they could, for example, dismiss professors, disband existing academic bodies, eliminate courses of study and degrees, draw up curricula, and issue or change relevant by-laws.
            
            
2. THE 1974-1977 PERIOD
   
   
   1. PRINCIPLES AND REALITY
      
      The junta assumed "power only as long as the circumstances require it," "with the patriotic commitment to restore the Chilean way of life, justice, and the institutional order, which have been shattered."¹⁹
      
      How far the junta's thought had developed, however, became evident on March 11, 1974, when the Declaration of Principles of the Government of Chile was published. In that document, the junta declared that it "understands national unity as its most prized objective and rejects any conception that entails and encourages irreducible antagonism between social classes." It added that "in keeping with its guiding inspiration derived from Portales, the government of the armed forces and police will vigorously exercise the principle of authority, and will severely punish any outbreak of undisciplined behavior or anarchy."
      
      That declaration also stated that, "The human being has natural rights that are prior to and higher than the state," and that hence the state "must be at the service of the person rather than the reverse." The document goes on to say that "Chile has always lived under a legal framework. . . that has ever reflected the deep esteem Chileans feel for the spiritual dignity of the human person, and consequently for his or her fundamental rights. It is in this respect for human rights, more than in its tradition of the popular origins and constitutional succession of governments, in which the essence and core of Chilean democracy are to be found."
      
      In practice, however, the junta gradually built up a legal framework that departed from the principles and goals of that statement. A comparison of what was promised in that document with the text of the decree laws and administrative rulings given in accordance with those decree laws leads to the conclusion that they moved along separate and parallel tracks and operated with principles and values that did not meet around a set of ideas truly respectful of the dignity of the person and of human rights.
      
      An analysis of the system then in effect indicates that the junta had defined the most basic principles of the legal and political framework in a formal and general way, but that as they were actually put into operation, those principles made it clear that total power was being consolidated by means of violations of the right to life and other human rights directly connected to that right and that those violations were being committed with impunity. The content of that legal framework indicated the determination of the ruling group to make the suspension and restriction of public freedoms the normal state of affairs. They were operating on the basis of a certain notion of national security that involved using secret police agencies or the armed forces themselves. Consequently repression was unleashed against the opposition, political parties were dismantled, labor union activities were paralyzed or controlled, and universities lost their independence.
      
      The result within the Chilean legal system was an impairment of the ability of the judicial system to offer protection, and particularly the role of the Supreme Court to respond to appeals on the grounds of inapplicability, habeas corpus and the appeal for protection [recurso de protección], (which was instituted in 1976).¹ Likewise such consequences became obvious with regard to the revision of the constitutionality and legality of the power to regulate administrative acts, which was the role of the General Comptroller's Office. In short, those mechanisms of legal oversight remained formally in place, but insofar as the efforts of those persons affected to utilize them ran counter to the junta's decisions, the oversight agencies opted for caution in order to avoid having to make potentially conflictive decisions.
      
      
   2. CREATION OF THE DINA
      
      Decree Law No. 521, issued June 14, 1974 created the DINA (National Intelligence Directorate), which, as the decree noted, was an outgrowth of the commission set up in November 1973 and known by that same acronym. The DINA was said to be a "military body of a technical and professional nature, under the direct command of the junta. Its mission is to be that of gathering all information from around the nation and from different fields of activity in order to produce the intelligence needed for policy formulation and planning and for the adoption of those measures required for the protection of national security and the development of the country."
      
      This agency was staffed by personnel from the armed forces and when necessary it could contract other personnel with presidential authorization. The head of the DINA, who was appointed by a supreme decree, was given the power to demand from any agency, municipal body, legally constituted juridical person, or state enterprise, whatever reports or documentation he might regard as necessary to carry out his assigned tasks.
      
      It must be emphasized that, as was the case with more than a hundred laws issued in subsequent years, Decree Law No. 521 was only partially made public, since Articles 9, 10, and 11 were published in a supplementary edition of the Diario Oficial whose circulation was restricted. Some years later, however, it became known that those articles allowed the junta to involve all the armed forces intelligence agencies in the DINA's own functions, and that it empowered the DINA to engage in raids and arrests.
      
      
   3. NEW PROVISIONS ON PERSONAL FREEDOM
      
      Decree Laws Nos. 1008 and 1009, which were published in the Diario Oficial on May 8, 1975, dealt with new restrictions on personal freedom.
      
      The first of these added a new paragraph to the Constitution, on the grounds that "crimes against national security are extremely serious" as well as the fact that "while the state of siege is in effect the period of time contemplated in Article 15 of the Constitution is insufficient" for investigating such crimes. Article 15 permitted officials to hold a person for a period not exceeding forty-eight hours; by the end of that period they had to advise the appropriate judge and turn the detainee over to the judge. When Decree Law No. 1008 went into effect, the permitted detention period was extended to five days "in the case of crimes against state security and while periods of emergency are in effect."
      
      Based on that change in the Constitution, Decree Law No. 1009 declared:
      
      

      Under a state of siege, when those agencies that are devoted to assuring the normal unfolding of national activities and to maintaining the established institutional framework proceed to the preventive arrest of people who with some foundation are believed to be capable of jeopardizing state security, they are obliged to advise immediate family members of the arrest within forty-eight hours.
      
      An arrest made by the agencies referred to in the previous paragraph may not exceed five days; at that point the detainee is to be released or handed over to the proper court or to the Ministry of the Interior, when extraordinary powers are being applied, or a state of siege is in effect, along with a written report of the evidence gathered.
      
      The use of unlawful mistreatment against prisoners is to be punished in accordance with Article 150 of the Criminal Code or Article 330 of the Code of Military Justice, as the case may be.
      
      

      Decree Law 1009 also modified the Law of State Security by authorizing the appropriate tribunal to suspend the publication or transmission of an offending newspaper, magazine, radio station, or television channel for ten days. Finally Decree Law 1009 modified Decree Law No. 640, by ordering that "when the state of siege is declared due to a situation of internal or foreign war or in response to an uprising within the internal defense [police] forces, wartime military tribunals will enter into session. . . When the state of siege is declared for reasons of internal security or for a simple internal disturbance, the arrangements for peacetime military tribunals will be in effect."
      
      
   4. THE CONSTITUTIONAL ACTS
      
      In Constitutional Act No. 2 ("Essential Foundations of the Chilean Institutional Framework") the junta defined the underlying principles of the country's future political system. In Constitutional Act No. 4 ("Emergency Periods") it sketched the consolidation of the full power that had been assumed in 1973. Finally, placed between these two was Constitutional Act. No. 3, a wordy catalogue of rights, freedoms, equalities and inviolabilities, brought together under the title "On Constitutional Rights and Duties."²⁰
      
      As the government explained, these acts constitute an effort to implement a future constitution chapter by chapter. The suitability of the new institutional framework would thereby be tested gradually, and what was built up by accretion would be systematized, while the existing emergency legislation and other similar innovations would be recast.
      
      However, these acts were also prompted by more practical and immediate considerations. In this sense they served to create the image of progress in building a new institutional order, and in other countries they gave the impression that the military were respecting human rights, that the military government was restraining itself, and that the judicial branch was truly independent.
      
      In Act No. 2 the constituent power mixed provisions from the 1925 Constitution with new ones, thereby combining tradition with lessons learned in more recent years, and attempting to fulfill the following principle: to give form to "a new and solid democracy that may permit the members of the community to participate in acknowledging and resolving the major problems of the nation; a democracy endowed with mechanisms to defend it from the enemies of freedom who, under the protection of a misunderstood pluralism, seek only to destroy it."²¹
      
      The second of these acts read, "The activity of government agencies and public officials is subject to the constitutional acts, the Constitution, and the laws." However, this statement did not apply to the constituent power rooted in the junta, for the junta could exercise that power to modify them "through explicit changes that must be incorporated into the text"²² of the Constitution.
      
      Act No. 4 laid out the framework of how rights and public freedoms were restricted, suspended, or lost. It should be kept in mind that the institutional context of that period authorized the junta to determine which events justified the declaration of one or more of the states of exception. The president, either personally or through his delegates was given the discretionary authority to carry out measures for preventing, thwarting, or overcoming emergencies, that is, the state of foreign or civil war, internal uprising, latent subversion, and public disaster.
      
      Such states, with the exception of that of assembly, could not exceed six months, although they could be extended through successive periods of no longer than six months, as actually happened in practice.
      
      The catalog of rights guaranteed to all persons in Act No. 3 was most complete, but it was often dependent upon further legislation for its implementation. Such was the case of the right to life and to both physical and emotional integrity, of a more specific development of equality before the law and the justice system, of personal freedom, and of the right of petition.
      
      It should also be noted that the affirmation of some rights was weakened in practice by other measures taken by the same legal body. Thus freedom of opinion was complemented by the freedom and right to receive information, all without prior censorship. These provisions, however, did not affect the courts' ability to issue prohibitions of opinions or news that might affect morality, public order, national security, or the private life of people. Article 11 of that same Act No. 3 ordered that "any act by a person or by groups intended to spread teachings attacking the family, advocating violence or a notion of society based on class struggle, or that are against the established regime or the integrity or functioning of government of law, is unlawful and contrary to the institutional order of the republic." Another illustration of the same problem was the right to association without prior permission, even though political parties continued to be banned or in recess by virtue of Transitory Article 7 of that act.
      
      The duty to comply with the constitutional acts, the Constitution, and laws bound every official, person, institution and group to obey the orders that the established authorities might issue within the scope of their powers. A measure that could have served human rights was one that prohibited the invoking of any constitutional or legal provision in order to interfere with the rights and freedoms acknowledged by Act No. 3, or to attack the integrity or functioning of the rule of law or of the established regime.
      
      The most valuable feature of the constitutional acts was the fact that Act No. 3 in combination with Article 14 of Act No. 4 envisioned habeas corpus appeals and appeals for protection on the grounds of other consitutional rights. These were legal defenses which in theory would work rapidly and could be invoked for broad reasons both against the decisions of government officials (except when they were exercising constitutional and legislative power), and against the activity of private citizens. Broad powers were conferred on the courts; if the judges had actually used them, they would have provided the most effective safeguard of human rights within the Chilean legal system.
      
      The appeal for protection [recurso de protección] was an extremely important innovation. Any person or association could invoke it as a defense, for example, against unlawful mistreatment, against being judged by special commissions, against being prevented from assembling peacefully, and for preserving the inviolability of the home and of private communications, expressing opinion, and freely giving and receiving information.
      
      The broadening of habeas corpus should also be emphasized. In principle from that point on it was possible to act on behalf of any person who might be prevented, disturbed, or threatened illegally from exercising his or her right to personal freedom and individual security. The respective appeals court was obliged to issue the rulings it judged conducive to reestablishing the rule of law and to assure that the individual in question was properly protected.
      
      Between January and March 1977, however, the junta modified the constitutional acts and declared that the appeal for protection was inapplicable during periods of emergency and it suspended the application of Act No. 4 until the law corresponding to such periods should be issued. Nevertheless, at the same time the junta declared that Article 13 of that act was to be implemented immediately, thus extending from forty-eight hours to ten days the time period for presenting those arrested or detained to the appropriate judge, during emergency periods and when actions affected state security.²³
      
      
   5. BANNING OF ALL POLITICAL PARTIES AND SUSPENSION OF POLITICAL RIGHTS
      
      Decree Law No. 1697 (March 11, 1977) declared that those political parties that were in recess were disbanded; prohibited the existence of parties, groups, factions, or movements of a political nature; banned any kind of political party action, and suspended indefinitely the political rights mentioned in Article 9 of the 1925 Constitution.
      
      In accordance with Decree Law No. 77 of 1973, Decree Law No. 1697 canceled the legal status of such organizations, and ordered that their property be treated as in the statutes of that law; if nothing was stated about a particular category of good, it was to be put to whatever use the president might decide.
      
      
   6. AUTHORITARIAN EXECUTIVE
      
      The actual implementation of Decree Law No. 527, already mentioned, went beyond what was stated in its articles and what those in power said when it was issued. Indeed, although at first the formal division of the constituent and legislative functions on the one hand and the executive on the other remained in place-the latter being exercised primarily but not exclusively by the president even though the junta was still regarded as its bearer-matters eventually came to the point where the chief of state held a monopoly over the executive function. Moreover, the practice of delegating legislative powers to the chief of state was ever more observable and in more significant matters.
      
      For various reasons, the DINA came to be directly under the president's authority, even though Decree Law No. 521 had established that it should be directly under the authority of the junta. The same thing happened with regard to applying the laws dealing with a state of siege, which, until the issuance of Decree Law No. 527 was a matter for the junta, according to the terms of Decree Law No. 228 (1974). Decree Law No. 951 (1975) broadened the president's power by empowering him to exercise it through the Minister of the Interior or through regional and provincial governors.
      
      In a somewhat opposite direction, Decree Law No. 1141, issued as an exercise of constituent power on August 13, 1975, clarified the status of the General Comptroller's Office, which had been unclear during the period immediately after September 11, 1973. The General Comptroller's Office was thereby enabled to exercise its powers more independently through supreme decrees and resolutions, although the effect was negligible, since the appointment and dismissal of the comptroller was decided by agreement between the president and the junta.
      
      
   7. CONTROL OVER INTERMEDIATE GROUPS AND PROFESSIONAL ASSOCIATIONS
      
      The lawmaking body issued directives of a social character while leaving unaffected those that restricted the activities of intermediate groups. Such was the case of Decree Law No. 349 (March 4, 1974). Noting that "although the situation of the country has practically returned to normal, it is not yet appropriate to allow the unlimited functioning" of community organizations and professional associations, the junta extended the mandate of their boards, and provided procedures for replacing members unable to participate "due to physical or moral impossibility or any other reason."
      
      
   8. SITUATION OF PUBLIC FREEDOMS
      
      Most of the many rulings on personal freedom were codified in Supreme Decree No. 890 (1975) of the Ministry of the Interior,²⁴ which brought the text of the State Security Law up to date. From the day it was issued until 1977 that supreme decree was subject to a number of changes, the most important of which were declared in Decree Law No. 1281,²⁵ which among other things made the state of emergency a permanent condition and broadened the powers of the local commanders over the media during the state of emergency. We make the former observation because the expression "for a single time," which limited to this single instance the authorization given to the president to impose martial law throughout Chile, was eliminated. We make the latter observation because all that was required was that a particular military officer determine that one of the media was offering opinions, news, or broadcasts that might cause alarm or displeasure in the population, that exaggerated matters, that were clearly false or went against instructions given for the sake of internal order, and it could be prevented from being published or broadcast for as many as six days or editions. Moreover, if the same kinds of things happened again, the military commander could order that such media and their workplaces and facilities be subject to intervention and censorship. Decree Law No. 1281 ended by stating that those affected by any of these measures could appeal to the martial or naval court^m within forty-eight hours. Making such an appeal, however, did not prevent the measure from being carried out.
      
      Decree Laws 1008 and 1009 had no effect whatsoever in limiting detention by government officials to five days while states of emergency were in effect and in obligating the relevant agencies to inform the immediate family of the arrest within forty-eight hours. The Supreme Court likewise continued to declare itself incompetent to handle habeas corpus appeals presented in response to the implementation of the state of siege regulations.
      
      Finally, "to guard and protect the integrity of the supreme and permanent values of the Chilean community and of the national honor which has been compromised," Decree Law No. 604²⁶ forbade "the entry into national territory of persons, whether Chileans or foreign, who spread or encourage, by word or writing or any other means, doctrines tending to destroy or change through violence the social order of the country or its system of government; those who are said to be or have the reputation of being agitators or proponents of such doctrines, and in general, those who carry out actions that Chilean laws classify as crimes against the external security, national sovereignty, internal security, or public order of the country, and those who engage in acts against the interests of Chile, or who in the judgement of the government constitute a danger to the state."
      
      That same law ordered that the passports of all such Chileans were to be canceled, made clandestine entry into the country a crime, and authorized the military tribunals to take up and issue sentences on the crimes outlined in the decree. In accordance with Article 2, Chileans who were forbidden to enter the country could go to their consuls and request that the interior minister lift such a measure; when he deemed it appropriate, he was allowed to grant that request through a justifying resolution.ⁿ
      
      
   9. DISSOLVING OF THE DINA AND CREATION OF THE CNI
      
      Considering that it was convenient "to structure in accordance with the present circumstance of national events the powers of an agency that had been created to deal with a now superseded situation of internal conflict," the junta issued Decree Law No. 1876,²⁷ repealing Decree Law 521, which had established the DINA. That same day by means of Decree Law No. 1878, the junta created the CNI (National Center for Information).
      
      This was a specialized military agency of a technical and professional nature. Its missions were to gather on a national level all information that the government might need for the formulation of policies, plans, and programs, the adoption of measures necessary for safeguarding national security, the normal unfolding of the nation's activity, and the maintenance of established institutions. Even though the CNI belonged to the armed forces and police, it was connected to the government through the Interior Ministry.
      
      Its director had to be a top level officer on active duty from the armed forces or the police and be appointed by supreme decree. An overall secret set of by-laws established the CNI's organization, structures, and duties. It had its own personnel and others from the armed forces and police, and could contract additional personnel by means of a supreme decree. The members of the CNI were subject to the same set of laws as civilians working for the armed forces, and they were regarded as such for all legal and disciplinary effects.
      
      Decree Law No. 1878 authorized the head of the CNI to demand of any government body such information or documentation as he might deem necessary for effectively carrying out its duties. The director was also exempted from the obligation to respond in person to any legal summons. Finally this law ordered that the CNI was to coordinate the intelligence services of the armed forces and police in joint efforts ordered by the government when these entailed functions that were specific to the CNI.
      
      
   10. BROADENED POWERS
       
       Exercising constituent power, the junta issued Decree Law No. 1877²⁸ in order to "perfect the legal instruments that might make it possible to deal more effectively with situations of emergency."
       
       From that point on, by declaring a state of emergency, the president of the / republic had the power "to arrest persons for up to five days in their own houses or sites other than prisons." It was made clear that the references to the state of siege in Decree Laws Nos. 81, 198, and 1009 should be understood as applicable to the state of emergency as well.
       
       
3. THE 1978-1990 PERIOD
   
   
   1. GENERAL AMNESTY
      
      Decree Law No. 2191²⁹ was issued in view of "the ethical imperative to make all efforts conducive to strengthening the bonds uniting the Chilean nation, leaving behind hatreds that are meaningless today, and encouraging all those initiatives that might solidify the reunification of Chileans."
      
      To that end, this Decree Law granted amnesty to those who had committed criminal actions while the state of siege was in effect from September 11, 1973 to March 10, 1978, or had been accomplices to, or covered up such actions, provided they were not already involved in a legal process or already sentenced when the law went into effect. Those whom military tribunals had found guilty after September 11, 1973, also received amnesty.
      
      The amnesty did not include, however, "persons who are responsible, whether as perpetrators, accomplices, or as covering up, the actions being investigated in legal proceeding No. 192-78 of the military tribunal of Santiago," that is, the case dealing with the murder of the former foreign minister, Orlando Letelier, and his secretary, Ronnie Moffit, in Washington, D.C.
      
      
   2. POWERS OF THE MILITARY JUDICIARY
      
      Decree Law No. 3425³⁰ created the military public ministry, represented by an attorney general of that jurisdiction, appointed by the president of the republic, who was charged with assuring that the interests of society, and particularly the interests of the armed forces and police, were safeguarded in crimes tried in peacetime military tribunals.
      
      The decree law listed the following as some of that official's duties: to report criminal actions within military jurisdiction that might come to his knowledge in any way; to participate in court proceedings undertaken in peacetime military tribunals, preferably in appeals or before the Supreme Court (he might become involved in the case during the judicial investigation, appeal decisions to grant the accused provisional freedom, and be present during the public testimony stage of the proceeding and would enjoy all the rights of the parties themselves); and to follow any military trial "in which the interest of society or of the armed forces and police is involved, at any point in the legal process."
      
      We may note that Decree Law No. 3655,³¹ granted further authority to wartime military tribunals to punish "with the utmost rigor terrorist actions planned from outside the country that damage the noble values of the country and seek to destroy the very foundations of our national being."³² Hence "in the case of crimes of whatever nature, in which as a result of the main or related action, the result is the kind of death or injury referred to in Articles 385 and 396, first paragraph of the Criminal Code, inflicted on the persons mentioned in Article 361 (1 and 2) of the Code of Civil Procedures, or against members of the armed forces and police, and which given the characteristics or circumstances of its perpetration, it must be assumed that the actions were committed against those persons as such, the wartime military tribunals will try such cases, taking into account the changes incorporated into this decree law."³³
      
      
   3. DELEGATION OF EXTRAORDINARY POWERS AND EXTENSION OF ARREST PERIOD
      
      Exercising its constituent power, the junta issued Decree Law No. 3168,³⁴ by virtue of which it modified Decree Law No. 1877, stating that the presidential power to arrest people for five days during the state of emergency, "is to be exercised by means of a decree signed by the minister of the interior with the formula 'by order of the president of the republic."'
      
      Decree Law 3451,³⁵ which was likewise intended to have constitutional rank, also modified Decree Law No. 1877, ordering that the five day period "could be extended up to twenty days, when crimes against state security resulting in persons being killed, injured or abducted are being investigated."
      
      
   4. THE 1980 CONSTITUTION
      
      The Study Commission to Prepare a New Draft Constitution finished its work five years after being created.³⁶ In July 1980 the State Council handed the president a proposed new constitution. Exercising constituent power, the junta issued Decree Law No. 3464,³⁷ approving the text of the 1980 Constitution and submitting it for ratification by a plebiscite. The plebiscite took place on September 11, 1980 under a state of siege and of emergency, in accordance with Decree Law No. 3465,³⁸ which was of constitutional rank. Ratified in this fashion, the Constitution went into effect on March 11, 1981, with the exception of those matters contained in its twenty-nine transitory articles, most of which were in effect until March 11, 1990.
      
      
      1. Foundations, basic rights, and guarantees
         
         The Constitution states that all human beings are born free and equal in dignity and rights, and declares that the state is at the service of the human person and that its purpose is to promote the common good, with full respect for the rights and guarantees laid down in the Constitution. Moreover, the Constitution obliges the state to safeguard national security, provide protection for the population and the family, and promote the harmonious integration of all sectors of the nation. It further acknowledges that the exercise of sovereignty is limited by respect for the essential rights that arise out of human nature.³⁹
         
         Applying the concept of a protected democracy, Article 8 declared unlawful and contrary to the institutional order of the republic any act intended to promote doctrines that attack the family, advocate violence or a conception of society, the state, or the legal order that is totalitarian in nature or based on class struggle. Organizations, movements, or political parties tending toward such objectives through their aims or the activity of their members, were unconstitutional.⁴⁰
         
         The Constitution declared that terrorism in any of its forms is inherently contrary to human rights, and specified that a law passed by a "qualified quorum"o was to define terrorist behavior and how it should be punished.
         
         In the chapter on constitutional rights and duties the Constitution guaranteed all persons:⁴¹
         
         
         • The right to life and to physical and psychological integrity and prohibited the application of any illegitimate mistreatment.
           
           
         • Equal protection under the law in exercising their rights, by requiring that any decision by an agency exercising jurisdiction be made in accordance with legally established procedures and requiring the legislative authority to establish guarantees for a rational and just procedure;
           
           
         • The inviolability of the home and of private communication of any sort-although the home could be searched and correspondence could be intercepted, opened, or examined in such manners and cases as the law determined;
           
           
         • The right to personal freedom and individual security, including the ability to enter and leave the country. No one could be arrested or held except by order of a government official expressly empowered by the law and after being legally notified of that order. If, however, government authorities arrested or detained someone, they were obliged to advise the appropriate judge and entrust the person detained to the judge within forty-eight hours. By means of a justifying resolution, however, that time period could be extended up to five days, and up to ten days when terrorist activities were under investigation. Finally, no one could be arrested or detained, subjected to preventive detention or imprisoned except in his or her home or in public sites designated for that purpose;
           
           
         • Freedom to express opinion and to provide information without prior censorship; the response to crimes and abuses committed in the exercise of these liberties was to be in accordance with the law;
           
           
         • Finally, the right to peaceful assembly without prior permission and without weapons, as well as the right of association without prior permission; the Constitution itself laid down the foundations of the system as it applied to political parties. Nevertheless, the tenth transitory provision prohibited the carrying out or encouragement of activities, measures or actions of a political party nature, until the organic constitutional law on political parties should enter into effect.
           
           
         Article 20 of the Constitution made it possible to seek protection in the appropriate appeals court, in cases of arbitrary or illegal acts or omissions that prevented, hindered, or jeopardized the legitimate exercise of the rights and freedoms already mentioned, except as related to due process and personal freedom and individual security. With regard to these latter freedoms, Article 21 granted the right of introducing habeas corpus to the court as indicated by the law; that right could be used on behalf of any individual who might be arrested, detained, or jailed in violation of what is laid down in the constitution or in the laws, and likewise on behalf of any person who might illegally be hindered, disturbed, or threatened in his or her personal freedom and individual security.
         
         
      2. States of constitutional exception
         
         From March 11, 1981 to August 27, 1988 (with the exception of a few very short periods), Chile lived uninterruptedly under one or more states of exception, as envisioned in the permanent or transitory provisions of the Constitution and its complementary legislation.
         
         It must be kept in mind, however, that according to Article 39 of the Constitution, the rights and guarantees mentioned could only be affected in situations of civil or foreign war, internal disturbance, emergency, and disaster; for each of these situations the Constitution authorized the imposition of the corresponding state of exception. For example, when the president with the assent of the junta declared a state of siege, he was empowered to transfer people from one place to another in the country, to arrest them, to deport them from the country, and to prohibit them from entering or leaving the country, in each instance for a ninety day period. Nevertheless, the measures of deporting and prohibiting entry remained in effect even though the state of siege was over, as long as the authority who had given such orders did not explicitly cancel them.⁴² That extension was also in effect with respect to prohibiting entry into the country during the state of emergency, which could be decreed simply by a presidential decision.⁴³
         
         Under a state of siege the appeals for protection and habeas corpus were not admitted. Moreover, as a rule habeas corpus was not admitted during states of exception, including the state of emergency, with regard to "the rights and guarantees which have been suspended or restricted in accordance with the norms governing such states."⁴⁴ In such situations the courts could never step in to judge the factual grounds for the measures the authorities had taken in exercising their powers.⁴⁵
         
         We may close this summary description of the original text of the Constitution by recalling the fifth of the states of exception, as envisioned in Transitory Article No. 24, which, as will be seen, concentrated the full powers of the head of state over public freedoms and revealed that those powers not only stood in continuity with the earlier form of those powers but were even being extended.
         
         In accordance with that article, and regardless of the other similar kinds of periods envisioned in the permanent articles, if during the presidential period beginning on March 11, 1981 there should occur acts of violence intended to disturb public order, or there was a danger that public internal peace might be disturbed, the president of the republic was obliged to declare and assume the following powers for six months, subject to renewal:
         
         
         • To submit people to house arrest or place them under arrest in sites other than jails. Should there be terrorist actions with serious consequences, that period could be extended for two more weeks.
           
           
         • To prohibit from entering, or expel from the country those who spread the teachings mentioned in Article 8 of the Constitution, those who are accused of being active proponents of such teachings, those who carry out actions contrary to Chile's interests or who constitute a danger to its internal peace.
           
           
         • To order particular persons to remain in an urban location of the country for three months.
           
           
         • To restrict the right of assembly and freedom of information (the latter only with regard to initiating, publishing, or circulating new publications).
           
           
         The measures adopted by virtue of this article did not admit any kind of appeal, except that of being reconsidered by the official by whom they were ordered.
         
         
      3. Complementary legislation
         
         
         1. Violations of Transitory Article No. 24 and of the state of emergency
            
            Law 18015⁴⁶ punished by depriving of personal liberty all those who were arrested, those obliged to remain in a specific urban locality, or those returned to the country, as well as those who participated in organized meetings, all of whom were violating the terms of Transitory Article No. 24 of the Constitution. That same law assigned punishments for those persons who violated the measures decreed for dealing with the state of emergency. Criminal procedures for these crimes were subject to the provisions of the Law of State Security.
            
            New reforms were introduced into Decree Law 1877 with Decree Law No. 3645, which had constitutional status and entered into effect along with the Constitution, although it was issued five days previously.⁴⁷ In accordance with the Constitution, the references to the state of siege in Decree Laws Nos. 81, 198, and 1009 were to be understood as likewise applicable to the state of emergency, and now in addition to Transitory Article No. 24 of the Constitution.
            
            Finally, Decree Law No. 1878 regarding the CNI was modified twice. Law No. 18315⁴⁸ brought about the first such change by ordering that while that transitory article was in effect, the CNI could hold people under arrest in its own installations, which for all legal purposes were regarded as detention sites. A decree of the Interior Ministry declared which CNI installations were to be so regarded.⁴⁹
            
            Three years later Law No. 18623⁵⁰ repealed that previous law and ordered that anyone apprehended by the CNI "is to be detained or arrested in his or her home or taken immediately to a jail or a public detention site, in accordance with what is ordered for the particular case."
            
            
         2. Systematization of states of exception
            
            Law No. 18415,⁵¹ the Organic Constitutional Law for States of Exception, abolished all the regulations authorizing the suspension, restriction, or limitation of constitutional rights in situations of exception. The provisions of this new statute were to be applied in their place. Hence Decree Laws Nos. 81, 198, 604, 640, 1009, 1878 and others were no longer in effect except as related to Transitory Article No. 24 of the Constitution.
            
            In accordance with Article 12 of that law, a constitutional guarantee was suspended when its full exercise was temporarily impeded during a state of emergency, and likewise such a guarantee was restricted in one such state if its exercise was limited partially [by requiring bureaucratic steps which would hinder full exercise] or entirely.
            
            The same law stated that the related presidential powers could be delegated and exercised through decrees which were exempted from the procedure for notification. Moreover the commanders-in-chief or heads of the armed forces or police forces were also authorized to issue whatever decrees they regarded as useful, for example, to give instructions aimed at maintaining order within a zone under a state of emergency.
            
            
         3. Liability to punishment for unauthorized demonstrations
            
            Prompted by the protests and demonstrations that had been taking place since May 1983, Law No. 18256⁵² modified the regulations on state security by sanctioning those persons who without permission encouraged or called for public or collective actions in the streets, squares, and other public places, as well as those who encouraged or incited to any other kinds of demonstrations that might issue in, or lead to, disturbance of public order.
            
            Besides prescribing jail terms for those who violated its terms, this law declared that those responsible were collectively responsible for damages caused as a result, of or on the occasion, of such events, in addition to the responsibility that might incur to those who actually carried out the acts.
            
            
         4. Antiterrorist legislation
            
            Law No. 18314⁵³ defined terrorist actions and assigned punishments. With regard to the former, the law described sixteen punishable crimes, including publicly inciting to the commission of some of the crimes described in that law; defending terrorism, a terrorist act, or someone participating in it; maliciously provoking disturbance or grave fear in the population or a sector of it, by information concerning the preparation or execution of false terrorist acts. This law proposed the death penalty for some of these acts.
            
            Procedurally, the law declared that with a justifying resolution the competent tribunal could extend up to ten days the period in which the person detained was to be entrusted to it, and could approve that the person could be held in solitary confinement during this period. Moreover the armed forces and police, either separately or jointly, were authorized to carry out whatever tasks the courts might order. However, in dealing with such cases, military courts were authorized to order the CNI to carry out the procedures.
            
            The law also stated that when investigating terrorist crimes, the members of those forces and of the CNI could "proceed without a warrant, if they had a written order from the interior minister, regional governors, provincial governors, or base commanders, but only if obtaining a warrant might prevent the effort from being successful or those presumed responsible from being arrested, or hinder the search and impounding of the goods or instruments that might be found in the arrest site and might be related to the crimes under investigation." The authorities were obliged to inform the court of actions carried out in this fashion within the next forty-eight hours, a time period which the court could extend to ten days by means of a justifying order.
            
            Subsequently Law No. 18585⁵⁴ created the position of military prosecutor general, whose duty it was to become involved on behalf of the Interior Ministry in all trials dealing with violations of Law No. 18314 [the antiterrorist law, see above] which were to be treated within the jurisdiction of the ordinary courts. As such this attorney had the "task of centralizing the defense of the established government and of the threatened society in all such legal proceedings."
            
            
   5. DOCUMENTS CONCEALED, FILED AND DESTROYED
      
      Modifying the Military Justice Code, Law No. 18667⁵⁵ ordered that when the prosecutor of a case believes it necessary to include in the case secret documents belonging to the armed forces or police of Chile, he is to request them from the commander-in-chief of the particular branch or the head of the armed forces. However, if the authority to whom the request is made believes that sending them might affect state security, national defense, internal public order or the security of persons, he can refuse to do so. If the prosecutor believes the measure to be absolutely necessary, he may proceed to take the matter to the Supreme Court to be resolved.
      
      That same law stated that "secret documents are understood to be those directly related to state security, national defense, internal public order, or the security of persons, including those related to personnel lists and the institutional security of the armed forces or police of Chile and of their members. . ." This law also ordered that the ordinary criminal courts abide by its terms.
      
      In addition, Law No. 18711⁵⁶ ordered that the documents of the Ministry of Defense, of the armed forces, and of the police and security forces and of the other bodies under this ministry, or that were related to the government through it, were to be filed or destroyed in accordance with the relevant ministerial and institutional regulations.
      
      Finally, Law No. 18845⁵⁷ on the electronic storage of documents prohibited their destruction when they belonged to the public administration, both centralized and decentralized, or to public registries. Nevertheless, those institutions mentioned in Law No. 18771 cited above, were subject to what was there stipulated, and were "authorized to proceed to destroy the original documents, in accordance with the provisions and restrictions laid down" in Law No. 18845.
      
      
   6. CONSTITUTIONAL REFORM
      
      In the plebiscite held on July 30, 1989, with no state of exception in effect, 87.7 percent of the voters ratified the fifty-four amendments that the junta, exercising its constituent power, introduced into the 1980 Constitution. Law No. 18125⁵⁸ contains those changes.
      
      
      1. Changes on human rights
         
         It is the duty of governmental agencies to respect and promote the essential rights that flow from human nature, which are guaranteed by the Constitution as well as by those international treaties that Chile has ratified and which are in effect.⁵⁹
         
         In canceling Article 8, while maintaining its strictures against those responsible for terrorist crimes, the reform guaranteed political pluralism. However, "parties, movements or other kinds of organization whose objectives, actions or behavior do not respect the basic principles of democratic and constitutional rule, seek to implant a totalitarian system, or those that employ violence, advocate it or incite to it as a method of political action, are unconstitutional."⁶⁰
         
         Only situations of exception can affect the exercise of constitutional rights and guarantees. During a state of siege, the president can only transfer people from one site to another urban site within the nation; keep them under house arrest or in sites other than jails or other places set aside for the detention or imprisonment of common criminals; suspend or restrict the exercise of the right of assembly and restrict the exercise of freedoms of movement, information, and opinion. By declaring a state of emergency, the chief of state is now empowered only to restrict the exercise of freedom of movement and of the right to meet. The measures adopted on the basis of these and other states of exception cannot be extended beyond their proper period.⁶¹
         
         In no case are the courts allowed to make a judgment on the grounds or factual circumstances that the authorities invoke to adopt such measures. Nevertheless, appeals of habeas corpus and other constitutional guarantees may be presented and judges are bound to process them; doing so will not suspend the effects of the measures decreed, regardless of what the final outcome of such appeals may be.⁶²
         
         Finally the Supreme Court still has no authority over the war tribunals in the realm of issuing orders, reproving, or funding. In this respect matters remain as laid down in the original text of the Constitution in 1980.⁶³
         
         
      2. Complementary annulments and adjustments
         
         As of March 24, 1990, Transitory Article No. 24 of the Constitution was no longer in effect. On August 17, 1989, the date on which the constitutional reform went into effect, the terms of Decree Laws Nos. 77, 78, and 1697 having to do with the proscription, recess, confiscation of property and other matters related to political parties that had not yet been annulled ceased to have effect. The Organic Constitutional Law on States of Exception and the law defining terrorist behavior and punishment for such were modified by Laws Nos. 18906 and 18937⁶⁴ to adjust them to changes in the Constitution.
         
         Finally, along with the laws already mentioned, the following, which essentially affected constitutional guarantees were also repealed: Decree Law No. 50 on universities (by Law 18944); Decree Laws Nos. 81 and 1009, on states of emergency, (by Law No. 18903); Decree Law No. 349 on intermediate groups and professional associations (by Law No. 18879); Decree Law No. 1878 which created the CNI (by Law No. 18943); and Law No. 18585 dealing with the prosecutor general in cases initiated by virtue of the antiterrorist law (through Law No. 18925).⁶⁵
         
         

Notes

1. Decree Law No. 1, of September 11, 1973, Law Establishing the Ruling Junta, Diario Oficial of September 18, 1973.
   
2. Ibid., No. 3.
   
3. Military Decree No. 5, of September 11, 1973, No. 13.
   
4. Decree Law No. 128, consideration c, Diario Oficial, November 16, 1973.
   
5. Decree Law No. 38, Diario Oficial, October 2, 1973.
   
6. Decree Law No. 806, Diario Oficial, December 17, 1974.
   
7. Diario Oficial, January 3, 1976.
   
8. For example, Supreme Court ruling No. 10987, dated October 9, 1974, published in Fallos del Mes No. 191, October 1974.
   
9. Diario Oficial, December 4, 1974.
   
10. [Missing in text.]
    
11. [Missing in text.]
    
12. Decree Law No. 1 (September 11, 1973), Decree Establishing the Junta, Diario Oficial (September 18, 1973).
    
13. Ibid. No. 3.
    
14. Diario Oficial, October 26, 1973.
    
15. Diario Oficial, September 10, 1974.
    
16. Diario Oficial, September 22, 1973.
    
17. Revista de Derecho Procesal, September 22, 1973.
    
18. [Missing in text.]
    
19. Decree No. 5 (cited above [cf. n. 3]) No. 13, and consideration 4c.
    
20. Decree Laws Nos. 1551, 1553 and 1552, published in the Diario Oficial on September 13, 1976.
    
21. Consideration 4c.
    
22. Constitutional Act No. 2, Article 9, second paragraph.
    
23. Decree Laws Nos. 1684 and 1689 published in the Diario Oficial, January 31 and March 11, 1977.
    
24. Diario Oficial, August 26, 1975.
    
25. Diario Oficial, December 11, 1975.
    
26. Diario Oficial, August 10, 1974.
    
27. Diario Oficial, August 13, 1977.
    
28. Diario Oficial, August 13, 1977.
    
29. Published in the Diario Oficial on April 19, 1978.
    
30. Diario Oficial, June 14, 1980.
    
31. Diario Oficial, March 10, 1981.
    
32. Decree Law No. 3627, Diario Oficial, February 21, 1981, consideration number one. The articles of that decree were replaced by Decree Law 3655, but the consideration cited was retained.
    
33. Decree Law No. 3655, first paragraph.
    
34. Diario Oficial, February 6, 1980.
    
35. Diario Oficial, July 17, 1980.
    
36. Supreme Decree No. 1064 of the Ministry of Justice, published in the Diario Oficial on November 12, 1973.
    
37. Diario Oficial, August 11, 1980.
    
38. Diario Oficial, August 12, 1980.
    
39. Articles 1 and 5, second paragraph.
    
40. Article 8. This provision was complemented by Law No. 18662, published in the Diario Oficial on October 29, 1987.
    
41. Article 19, Nos. 1, 3, 5, 7, 12, 13, 15.
    
42. Article 41, Nos. 2 and 7, in relation to transitory provision No. 15, B, No. 40.
    
43. Article 41, Nos. 4 and 7, in relation to transitory provision No. 15a, No.1.
    
44. Article 41, No. 3.
    
45. Article 41, No. 3.
    
46. Diario Oficial, July 27, 1981, modified by law No. 18150, published there on July 30, 1982.
    
47. Diario Oficial, March 10, 1981.
    
48. Diario Oficial, June 14, 1984.
    
49. Supreme Decrees Nos. 594, 603, and 3214 of the Interior Ministry, published in the Diario Oficial of June 15, 1984, and March 2, 1987, respectively, listed fourteen CNI installations which were "regarded as detention sites for carrying out the arrests" ordered by virtue of Transitory Article No. 24.
    
50. Diario Oficial, June 11, 1987.
    
51. Diario Oficial, June 15, 1985.
    
52. Diario Oficial, October 27, 1983.
    
53. Diario Oficial, May 17, 1984.
    
54. Diario Oficial, December 19, 1986.
    
55. Diario Oficial, November 27, 1987.
    
56. Diario Oficial, January 17, 1989.
    
57. Diario Oficial, November 3, 1989.
    
58. Diario Oficial, August 17, 1989.
    
59. Article 5, paragraph 2.
    
60. Articles 9 and 19, No. 15, paragraph 6.
    
61. Article 41, Nos. 2,4, and 7.
    
62. Article 41, No. 3.
    
63. Article 79.
    
64. Diario Oficial, January 24 and February 22, 1990.
    
65. Diario Oficial, March 10, 1990, March 19, 1990, December 19, 1989, February 22, 1990, and February 20, respectively.
    

i) Constituent power: The Chilean institutional framework provides for the concept of a "constituent power" inhering in all citizens of a nation and superior to the executive, legislative and judicial powers (branches)-which are, in fact, derived from this greater power. It is regarded as embodying the "Sovereign Power of the People." In actuality the legislative and executive powers together represent the constituent power. When it is charged with reforming the constitution, certain requirements must be met, such as high percentage quorums in both legislative houses (Senate and Chamber of Deputies).

j) Decree laws: Decree laws are norms dictated by a de facto government-one not constitutionally established which has assumed legislative branch powers. A supreme decree differs from a decree law in that a supreme decree is issued by a legitimately established president as part of his/her regulatory powers. Supreme Decree #355 enacted by President Patricio Aylwin established the National Commission of Truth and Reconciliation.

k) States of exception: The Constitution of 1925, then in effect until 1980 (although seriously modified by the junta), provides to the president of the republic the power to declare a "state of assembly" in the case of war with external forces, and to declare a "state of siege" in the case of internal disturbance. Making use of decree laws, the junta established a series of "states of exception" which provided to the president the power to declare these states. States of exception could be declared in cases of internal disturbance, public calamity, or on the subjective grounds of the existence of subversive forces. The states of siege, assembly, emergency, and catastrophe were later formalized in the Constitution of 1980, Articles 39, 40, and 41. These articles state that the "rights and guarantees of the Constitution . . . can only be effected in the following situations of exception: external or internal war, interior disturbance, emergency or public calamity," and that during states of assembly and/or siege the courts could not challenge the reasons given by government officials for arresting people, thereby-in effect-making the appeals of habeas corpus and protection not applicable during these periods.

l) Appeals of habeas corpus, inapplicability and protection (recursos de amparo, inaplicabilidad, and protección): The recursos de amparo, inaplicabilidad and protección are not appeals, in the sense that they are used in the first instance. The three represent legal methods by which a person or someone acting on his/her behalf can ask for judicial remedy when the constitution is violated. Habeas corpus was recognized in the Constitution of 1925 and grants individuals the right to petition the court on behalf of detained persons, so that legal formalities and provisions concerning detention be complied with. The court may request the presentation of the detained person before it, his/her immediate release, or the correction of illegalities. The recurso de inaplicabilidad was also recognized in the Constitution of 1925 and permits a defendant (or his/her defense) to argue that a law or proceeding is unconstitutional and therefore "inapplicable." The recurso de protección was established in 1976 in Constitutional Act No. 3 and later in the Constitution of 1980. It provides for an individual to petition the court for remedy in the case of the privation of, or threat of privation of, other constitutional guarantees not covered under habeas corpus. These guarantees include the right to life and to the physical and psychological integrity of the individual, the right to legal defense, the inviolability of the home, freedom of conscience and other rights mentioned in Article 20 of the Constitution of 1980.

m) Martial and naval courts: Chilean law provides for the martial court to be composed of and to have jurisdiction within the army, air force, and police forces. The naval court pertains to the navy only.

n) Justifying resolution: A justifying resolution is one in which the reasons or basis for an action are expressed. It is not always the case that resolutions are "justifying," especially when taken under discretionary powers.

o) Qualified quorum: The Constitution of 1980 established that a qualified quorum is required for the approval, amendment, or abrogation of certain legal norms, such as the determination of what constitutes a terrorist act and the legal sanctions for their committal. An absolute majority of deputies and senators in office is necessary-or 61 deputies (of 120) and 25 senators (of 48) for a qualified quorum.

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Posted by USIP Library on: October 4 2002
Source: Report of the Chilean National Commission on Truth and Reconciliation
(Notre Dame, Indiana: University of Notre Dame Press, 1993), vol. I/II, Part Two, Chapter Two, 73-98.
Note: Digitized and posted by permission of the University of Notre Dame Press, February 22, 2000.