Editor’s Note: Today we publish the 2016 Report on Chilean constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.
—Iván Aróstica, Justice of the Chilean Constitutional Court & Universidad del Desarrollo; Sergio Verdugo, Universidad del Desarrollo & JSD candidate, New York University; Nicolás Enteiche, Universidad del Desarrollo & P. Universidad Católica de Chile
This report aims to introduce the Chilean Constitutional Court (Tribunal Constitucional de Chile – hereinafter, the “CC”) and to identify the landmark cases it decided in 2016. We do not refer to all the CC’s decisions. Instead, we focus on cases that were politically salient or were landmark cases from a doctrinal perspective, and which involved the CC’s constitutional review power to strike down legislation, or deny the application—on constitutional grounds—of a legal provision in a concrete case. Because we need to be brief, we focus on the main aspects of the majority decisions, and we ignore dissenting opinions and concurrences. The selected cases that we show in this report are examples of a broader trend of judicial empowerment, that has situated the CC as a key actor in the Chilean constitutional system.
The relevant literature typically assumes that the CC’s power has increased because of the 2005 constitutional amendment. That amendment gave the CC important new judicial review powers and changed the CC’s justices’ appointment mechanisms. After the implementation of these modifications, scholars have noticed that the CC’s dissenting opinion rate has increased, that there was a shift from a judicial career profile to an academic profile of the justices, and that the CC became less deferential to the legislator. It is thus uncontroversial to say that the CC has notably increased its influence in the past few years.
Although the main purpose of this report is to introduce the CC and to describe these selected cases of 2016, we also use the selected cases as examples that illustrate the fact that the CC is becoming an increasingly consequential actor. Its influence is not only explained by the importance of its decisions in specific cases, but also because of the impact those decisions produce among legislators, importing to Chile the idea of “constitutional dialogue” to reaffirm the CC’s authority in interpreting the Constitution, and the power of the legislative branch to reform the Constitution as a reaction to the CC’s decisions. Even though we cannot fully demonstrate this claim by only examining a selection of 2016 cases, we show examples that support the CC’s consequential character, and we explore one case that illustrates how the CC understands the “constitutional dialogue” idea.
Although this is not the place to comment on the future of the CC, the reader should be aware that the CC is currently functioning in a politically complex context. A group of people has been demanding a constitutional replacement since 2011, and President Bachelet has consequently initiated a constitution-making process that will not come to an end during her administration. Within the numerous topics that are part of this constitution-making debate, the CC’s preventive (ex-ante) judicial power and the CC’s justices’ appointment mechanisms have been put into question.
II. The Constitution and the Court
The Chilean CC was first created in 1970 through a reform to the 1925 Constitution intended to establish an arbiter who could protect the legislative powers of the President. The CC closed its doors after the events of 1973The 1980 Constitution—enacted during the Pinochet regime—reestablished the CC with a new institutional design.
In addition to a few ancillary powers, the 1980 Constitution gave the CC an ex-ante—or preventive—judicial review power over legislation. At the same time, the Supreme Court had a weak ex-post judicial review power, which allowed the Court to deny the applicability (inaplicabilidad) of specific pieces of legislation that conflicted with the Constitution. The Supreme Court’s decisions in this matter lacked formal precedential effect, so judges could still use and apply the unconstitutional legal provision in other cases. The CC was not authorized to review legislative norms after their promulgation. The CC could review legislation when the President, either House of the Congress, the Senate, or a fourth of the members of the House or the Senate submitted a petition to the CC before its promulgation. The CC could also review legislation in an ex-ante procedure when the subject matter of the specific legislative bill was “organic”—the Constitution provides a list of “organic” matters, generally associated with the regulation of key institutions such as the Congress and the Electoral Court. The CC could also review administrative regulations enacted by the President, but the deadline to submit the case to the CC was only for thirty days after the official gazette (Diario Oficial) published the regulation.
The 1981-2005 CC played a modest role in the constitutional system, and it was conceived as a deferential court, although there were exceptional rulings with important consequences. Also, the CC decided interbranch conflicts that helped to define the President’s regulatory powers. Between 1981 and 2005, the CC ruled, on average, nearly 18 decisions per year. This number changed drastically after the 2005 constitutional reform. Between 2005 and 2014, the CC released an average of 109 decisions per year.
The 2005 reform was the result of a broad political agreement between President Lagos’s administration and the opposition. It was intended to put an end to the transition to democracy by eliminating the so-called “authoritarian enclaves,” such as the powers of the National Security Council and the existence of non-elected Senators. The 2005 reform was also an opportunity to modify many of the 1980 Constitution’s institutional arrangements. Regarding the CC, the 2005 reform changed the appointment mechanisms and the tenure of the justices, who now serve for a non-renewable nine-year term. The President appoints three judges to the CC, each House of the Congress appoints two judges, and the Supreme Court appoints three judges, for a total of ten CC judges.
Following the 2005 reform, the CC kept the powers that the original 1980 Constitution established, and was granted new ones. Among the new powers, the reform transferred the Supreme Court’s ex-post judicial review power (inaplicabilidad) to the CC, and added an abstract power to eliminate specific legislative provisions when the CC justices achieve a supermajority of eight (out of ten) judicial votes. While legal practitioners broadly use the inaplicabilidad mechanism, the ex-post abstract judicial review power is rarely used, arguably because the ex-post abstract review power requires a high judicial supermajority.
In 2016, the CC released 91 decisions and dismissed 103 cases by enacting inadmisibilidad resolutions. The CC enacts inadmisibilidad resolutions when the claim has a procedural or formal flaw that prevents the CC from processing the case. 58 out of the 91 decisions were inaplicabilidad cases, and there was only one ruling about an ex-post abstract judicial review claim (STC 2800). That ruling rejected the claim. The rest of the docket consisted of rulings regarding ex-ante review of organic laws (29), two cases of conflicts of jurisdiction, and one claim against a legislative bill.
It is important to take into account that the CC and the Supreme Court have respected each others’ powers of interpretation. Nonetheless, we should keep in mind that the CC recently released a statement declaring that the CC is the only court with the power to declare the unconstitutionality of a legal provision, including the legal provisions that were promulgated before the enactment of the Constitution (leyes preconstitucionales).
III. Constitutional Controversies
1. The “Labor Reform” case (STC 3016)
The “Labor Reform” case is arguably the most politically salient case of 2016. The case involved a labor reform promoted by President Bachelet. The reform aimed at strengthening the powers of the unions. President Bachelet presented the legislative bill and, during the legislative debates, a group of legislators from the opposition opposed Bachelet’s project on constitutional grounds. This group of legislators asked the CC to declare the unconstitutionality of parts of the legislative project.
The CC, using its ex-ante power of judicial review, partially accepted the legislators’ claim, and struck down specific provisions of the bill. The CC stated that labor negotiating between employers and unions are, of course, legally allowed. However, those negotiations should proceed without violating the constitutional right of individual workers to negotiate separately, contained in the freedoms of association (Article 19, Nº 15) and labor (Article 19, Nº 16). The most controversial rule that the CC struck down using this rationale was the prohibition for employees and groups of employees to directly bargain the terms of their contracts with employers, forcing them to engage in the labor negotiation only within the representation of the respective union.
Per the CC, the unions’ monopoly over collective labor bargaining violated the employees’ labor freedom (Article 19, Nº 16) and freedom of association (Article 15, Nº 15), because—under Bachelet’s bill—the mere existence of a union would prevent the employees from bargaining with their corresponding employer directly. The rule also violated the right to create a union (Article 19, Nº 19), which the CC considers as a negative liberty that protects individual employees’ autonomy, and the right not to be discriminated (Article 19, Nº 2).
It is worth noticing that, in the decision, the CC included normative justifications for its ex-ante judicial review power. It pointed out that the CC exercised that power in several occasions under different presidential administrations, that the power dates from the 1970 constitutional amendment to the 1925 Constitution, that legislators can reform the Constitution when they achieve the pertinent supermajority, and that there is no such thing as a neutral constitution.
2. The CC as a key actor of constitutional dialogue (STC 2907)
The CC has not only influenced legislators’ actions within the cases that motivate its decisions. Sometimes the consequences of the CC’s decisions go beyond the case and serve as a key reason for legislators to initiate a bill or to reinforce an existing statute, creating a dialogue between the CC and the legislative branch. The following case is an example of this dialogue.
A salmon company called “Salmones Multiexport S.A.” asked the CC to order the Supreme Court not to apply a rule that imposed a duty to release information regarding the company’s use of antibiotics in their salmons—the Supreme Court has not yet released a final decision on this case. Under the specific statute, the company was required to give the information to the Chilean administrative regulator (SERNAPESCA), but the company disagreed with the rule that allowed SERNAPESCA to give the information to other parties or even share the information publicly. “Salmones Multiexport” argued that the information had a commercial value and that the company’s industrial property rights protected its secrecy.
The CC declared that the challenged legal provisions should be inapplicable to the case because of the limits that Article 8 of the Constitution impose against rules of transparency and publicity. In its decision, the CC invoked prior decisions that interpreted Article 8 in a similar way, and explicitly invoked the idea of “constitutional dialogue” to claim that its constitutional interpretation can be overruled by constitutional reform—which in Chile requires a legislative supermajority of 3/5 or 2/3 of both chambers of Congress, depending on the chapter of the Constitution to be amended. The CC elaborated the idea of “constitutional dialogue” by quoting a legislative bill that Congress is currently discussing (Boletín 8805-07), which aims to reform the Constitution by recognizing and including an explicit right to access public information. The project intended to reform the Constitution as a reaction to a set of past CC decisions that recognize the limits of Article 8 (STC 634/2007, 1990/2012, 2246/2012, 2153/2013, and 2379/2013). According to the CC: “Even though the Tribunal has a relevant say in matters of constitutionality, the Congress always has the last word, in the sense that the Congress can reform the Constitution to incorporate what it believes right. The only way to overrule the CC’s interpretation is by reforming the Constitution.” (STC 2907, consideration XXVIII).
The idea of constitutional dialogue has been discussed before among some Chilean academics, and other cases in the past also connect to this idea. However, this is the first time that a court explicitly invokes it. This idea is consistent with the Congress’ legislative practices (in this case, the constitutional reform that the Congress is currently discussing), and reaffirms the interpretative authority of the CC over the Constitution and the consequential character of the CC itself.
IV. Major Cases
1. The “Emilia Law” case (STC 2983)
The “Emilia Law” case was an inaplicabilidad case. The questioned legal provision is part of the “Emilia Law,” a statute that severely punishes with jail all impaired drivers (under the influence of alcohol) who crash and, as a result, kill or injure a person. The name of the statute is due to Emilia Silva, who died because of a car crash by an impaired driver. Her death was publicly used to push for bipartisan approval of the Emilia Law in 2014. Under the Emilia Law, prosecutors and criminal judges have investigated and punished many infractions and crimes with severity, sometimes under high media attention. This severity triggered a number of due process and proportionality allegations against the Emilia Law. In the CC’s decision (STC 2983), the CC signaled its doctrine in a landmark ruling.
The criminal court (the Tribunal Oral en lo Penal de San Antonio) found that Mr. Rojas, the defendant in the criminal case, was guilty of crashing and killing the victim after disregarding a “stop signal.” Moreover, Mr. Rojas did not help the victim, avoided informing the authorities, and refused to take a medical exam to determine if he was under the influence of alcohol. During the process before the Valparaíso’s Court of Appeals (Corte de Apelaciones de Valparaíso), Mr. Rojas’s defender filed a petition to the CC and challenged a set of rules that, taken together, would result in a severe punishment for Mr. Rojas. One of these rules (Article 196 ter) stated that an impaired driver who crashes and kills the victim should spend at least a year in prison. According to this rule, all pertinent benefits or alternative punishments—e.g., a judicial authorization to leave prison during daytime—should be postponed and cannot be applied before the driver has spent a year in jail.
The CC decided to partially grant Mr. Rojas’s petition by rejecting the challenge against most of the rules except that of Article 196 ter. The CC declared that that provision was disproportionate and unequal. To postpone the application of an alternative punishment to Mr. Rojas, and to make him stay in prison for a year, deviates from the goal of the state’s power to punish, which is to help the individual to be reincorporated to society.
The decision was politically incorrect, and it attracted the attention of the media, public opinion and politicians, all of which expected the CC to reaffirm that impaired drivers should be treated severely. However, it is important to point out that the case’s issue was not to evaluate Mr. Rojas’ behavior or to judge the severity of the punishment. Instead, the legal issue was whether a person should be prevented from pursuing an alternative punishment for at least a year, even if that person fulfills the general requirements. Thus, the CC did not criticize the new legislative penalization in abstract terms.
Consequently, the Valparaíso’s Court of Appeals followed the CC’s ruling and allowed Mr. Rojas not to fulfill its punishment in prison. From a legal perspective, the case contributed to a better understanding of the application of constitutional standards in criminal law cases.
2. The “Cascadas” case (STC 2922)
According to the Chilean financial regulator (the SVS), the “Cascadas case” dealt with a high-profile financial scandal that took place in Chile in 2014. The case is still pending a decision from the corresponding civil judge (Santiago’s 16th Civil Court). The SVS declared that a group of people used a form of pyramid scheme to illicitly trade companies’ shares to acquire the control of a group of corporations. The SVS penalized the infractions using a rule that allows the agency to establish a fine that could get to 30% of the value of the irregular operation. One of the businessmen involved filed a legal action against the agency and, within that procedure, brought the case to the CC.
The CC declared the inapplicability of the rule allowing the agency to establish such a fine. The CC did not question legal violations that supposedly took place (that is part of the civil judge’s jurisdiction, and the CC cannot address that issue), but evaluated the constitutionality of the possible application of the rule that establishes the fine. The CC argued that said rule violated the principle of proportionality, as it did not establish sufficient standards to calculate the amount of the fine in an objective way, in practice allowing the agency to establish an unreasonable, unjustifiable, and unfair punishment. The rule infringed equality (Article 19, Nº 2) and the right to a fair and rational administrative procedure (Article 19, Nº 3). If the civil judge decides that there were legal violations (that judge has not yet released a final decision), that judge would not be able to use the rule that was declared inapplicable to sanction the businessmen involved.
This case, along with the next one, confirms a consistent jurisprudence that aims to limit the power of administrative agencies to penalize private actors.
3. The “Colhue 2” case (STC 2946)
A Chilean environmental agency (the so-called Comisión de Evaluación del Medio Ambiente de la Región del Libertador General Bernardo O’Higgins) sanctioned Colhue S.A., a company that was operating an organic waste management center, for five infractions against environmental regulations. Colhue filed an administrative petition to get the fine reversed and later submitted the case to the corresponding court. Both the administrative and judicial actions were rejected. Colhue appealed to the Rancagua’s Court of Appeals (Corte de Apelaciones de Rancagua) and, during the appeal process, asked the CC to declare that the rules governing the administrative procedure that led to the fine be inapplicable because they violated the Constitution. If the rules regulating the procedure were declared unconstitutional by the CC, then the Rancagua Court of Appeals would not be able to use those rules to decide the case against Colhue.
The CC declared that the challenged legal provision did not sufficiently describe the behavior to be penalized by the administrative agency. This lack of precision allowed the agency to qualify as an infraction a behavior Colhue could not predict that was illegal. Moreover, the challenged rule authorized the agency to establish a fine without providing a criterion for calculating the amount of money to be paid—the rule only contained a maximum. Thus, the agency could use its power to establish fines in an unpredictable and disproportionate way. The challenged rule violated the due process elements of tipicidad and proportionality. Tipicidad is a constitutional requirement (Article 19, Nº 3) that requires legislative statutes to describe the illegal behavior and the penalty with precision, so that individuals can effectively avoid committing an infraction. Tipicidad is traditionally considered to be a requirement for criminal statutes, but the CC has extended this requirement for administrative regulations that aim to penalize individuals with fines. The Constitution’s purpose is to protect individuals against the state’s power to punish (potestas puniendi or ius puniendi) and, in this regard, the distinction between criminal law and administrative law is not relevant.
Although the Rancagua Court of Appeals has not yet released a final decision on this case, its jurisdiction would be limited by the CC’s ruling because it would not be able to use the legal provision declared inapplicable to justify its final decision. The CC’s inapplicability decision is important because it confirms that administrative regulations should follow the requirements that the Constitution establishes for criminal law, and provides some specific criteria regarding the tipicidad and proportionality principles.
In this report, we have shown five selected cases that illustrate how the CC is becoming an increasingly consequential actor in the Chilean constitutional system. The first case shows how the CC can affect an important legislative reform in a politically complex scenario while the second is an example of “constitutional dialogue” in its Chilean version, and how that idea (which includes legislative practices) reaffirms the CC’s interpretative authority. The case regarding constitutional dialogue is probably the most interesting case for scholars working on comparative constitutional law.
In the other three cases, the CC challenges legal provisions and orders not to apply them to the specific case. In the three cases, the state tries to punish an individual (or a firm) using its ius puniendi (the power to punish) in a way that violates the Constitution. According to the CC’s doctrine, the constitutional limits of the ius puniendi do not only operate against the state in criminal cases but also against administrative agencies imposing fines.
 Lydia B Tiede, ‘The Political Determinants of Judicial Dissent. Evidence from the Chilean Constitutional Tribunal’  European Political Science Review 1.
 Diego Pardow and Sergio Verdugo, ‘El Tribunal Constitucional Chileno Y La Reforma de 2005. Un Enroque Entre Jueces de Carrera Y Académicos’ (2015) XXVIII Revista de Derecho (Valdivia) 123.
 Royce Carroll and Lydia Tiede, ‘Judicial Behavior on the Chilean Constitutional Tribunal’ (2011) 8 Journal of Empirical Legal Studies 856.
 About the creation of the CC, and particularly about its power to declare the inapplicability of legal provisions, see the explanation by Iván Aróstica, ‘Sanciones Y Restricciones Administrativas En Un Entorno de Leyes Compendiosas’ (2016) 9 Derecho Público Iberoamericano 13, 20–26. About the 1970 CC, see Enrique Silva C., El Tribunal Constitucional de Chile (1971-1973), vol 38 (second edition (2008), Cuadernos del Tribunal Constitucional 1977); Sergio Verdugo, ‘Birth and Decay of the Chilean Constitutional Tribunal (1970–1973). The Irony of a Wrong Electoral Prediction’ (2017) 15 International Journal of Constitutional Law.
 Javier Couso, ‘The Politics of Judicial Review in Chile in the Era of Democratic Transition, 1990-2001’ (2003) 10 Democratization 70, 76. Javier Couso, ‘Models of Democracy and Models of Constitutionalism: The Case of Chile’s Constitutional Court, 1970-2010’ (2011) 89 Texas Law Review 1517, 1533–1534.
 See, for example, the CC decisions regarding the implementation of a competitive plebiscite and the establishment of the Electoral Court. See, for instance, Eugenio Valenzuela, Contribución Del Tribunal Constitucional a La Institucionalización Democrática, vol 30 (Tribunal Constitucional 2003).
 Druscilla L Scribner, ‘Distributing Political Power: The Constitutional Tribunal in Post-Authoritarian Chile’ in Diana Kapiszewski, Gordon Silverstein, and Robert A Kagan (eds), Consequential Courts. Judicial Roles in Global Perspective (Cambridge University Press 2013).
 There was a relative scholarly consensus regarding the Supreme Court’s performance in using the inaplicabilidad. Scholars found that the Supreme Court formalism and deferential attitude prevented it from developing a relevant jurisprudence, failing in its function. See, for instance, Gastón Gómez, ‘La Jurisdicción Constitucional: Funcionamiento de La Acción O Recurso de Inaplicabilidad, Crónica de Un Fracaso’ (2003) 3 Foro Constitucional Iberoamericano.
 An examination of this topic is provided by Marisol Peña, ‘Inaplicabilidad por inconstitucionalidad: reciente jurisprudencia del tribunal constitucional chileno’ (2008) Estudios en homenaje a Héctor Fix-Zamudio, 727-731.
 The inaplicabilidad claim can be filed by private parties that are involved in another judicial procedure of any other court, or by any judge that is hearing a case where she is supposed to apply a legal provision that could be contrary to the Constitution. Within the inaplicabilidad, the CC’s jurisdiction consists of reviewing whether an application of the contested legal provision violates the Constitution or not. If the CC declares that the legal provision should be used, the case goes back to the court where the case initiated, and that court is obliged to solve the case without using the specific legal provision that the CC ruled unconstitutional.
 This is relevant, because in the past some scholars argued that any court could recognize that a legal rule enacted before the Constitution was derogated by the Constitution. However, because the derogation of these kinds of legal rules requires an examination of their compatibility with the Constitution, the CC is the only court that can execute this power. See the CC’s statement here: http://www.tribunalconstitucional.cl/wp/wp-content/uploads/Conclusiones-II-Jornada-de-Reflexi%C3%B3n-TC.pdf [accessed in April 2017]. Notice that the CC’s statement was not a formal judicial decision but a special document enacted by the CC and authored by the unanimity of the CC.
 One of us has promoted it in: Sergio Verdugo, ‘La Discusión Democrática Sobre La Revisión Judicial de Las Leyes. Diseño Institucional Y Modelos Constitucionales’ (2013) 40 Revista Chilena de Derecho 181.
 During the Valparaíso Court of Appeals process, the defender asked the Court to void the criminal court’s decision (recurso de nulidad). The Valparaíso Court decided the case in January 2017.