1. What is the Political Constitution of the Republic?
It is the fundamental regulatory body of our country’s Rule of Law, which sets forth the basic principles and rights for civil coexistence in the country, thereby regulating the relationship between the State and its citizens. It also establishes the general guidelines under which the State’s branches and their main public bodies and agencies must operate.
Every law or legal rule must abide by the principles and provisions enshrined in the Political Constitution of the Republic.
2. Constitutions in Chile’s History
Throughout its history, Chile has had various constitutional bills. However, three have been the main constitutions that have governed during the history of our Republic.
a. Political Constitution of 1833
Drafted on the basis of the constitutional bill of Mr. Mariano Egaña, the 1833 Constitution was discussed and approved by the convention of 1833, being the fundamental charter with the longest period of validity in our country. It laid the foundations of the Republic of Chile as a unitary and sovereign State, whose president is the head of State and Government, with a bicameral National Congress and an independent Judiciary.
b. Political Constitution of 1925
Drafted by a commission presided over by the President of the Republic at the time, Mr. Arturo Alessandri Palma, and approved on August 30, 1925. Its main purposes were to endow the President of the Republic with more powers vis-à-vis Congress, granting the President, among other powers, the exclusive initiative to submit laws on certain matters for discussion and enactment. It also enshrined the separation of church and state, as well as freedom of religion.
c. Current Political Constitution
The constitution currently in force in our country was drafted by the Commission for the Studies of the new constitution, presided over by Mr. Jorge Alessandri Rodríguez (former President Alessandri Palma’s son) and Mr. Enrique Ortúzar. Its final text was approved on Thursday, September 11, 1980.
3. Current Political Constitution of the Republic
Main aspects regulated by the Constitution
Our Political Constitution of the Republic is structured into fifteen chapters that regulate the following matters of our Rule of Law:
- Basis of Institutionality
- Nationality and Citizenship
- Constitutional Rights and Duties
- National Congress
- Public Prosecutor’s Office
- Constitutional Court
- Electoral Justice
- Comptroller General’s Office of the Republic
- Armed Forces, Forces of Order and Public Security
- National Security Council
- Central Bank
- Internal Government and Administration of the State
- Reforms to the Constitution
From the mentioned chapters we highlight the following:
- Basis of Institutionality
This is the first chapter of the Constitution and contains the set of principles on which the Republic of Chile is built. It enshrines freedom and equality in dignity and rights for all persons; it declares family as the fundamental nucleus of society; intermediate groups that conform society are protected; promotion of common good is established as the State’s purpose; Chile is enshrined as a unitary State and a Democratic Republic; the rights guaranteed by international treaties ratified by Chile are recognized; principles of legality, prior investiture, transparency and probity for the operation of the State’s bodies are enshrined; and terrorism is condemned for being contrary to human rights.
- Government System
This chapter defines the President of the Republic as the head of State and head of the Government, who is entrusted with its administration, the preservation of internal public order and the external security of the Republic. To this end, the Constitution grants the President a broad range of exclusive powers. It also enshrines the provisions concerning the appointment and requirements of the Ministers of State, ordering the passing of an organic constitutional law to establish the General Basis of State Administration. Finally, it defines the Constitutional States of Exception.
- Constitutional Guarantees
Chapter III of the Constitution regulates a wide variety of fundamental rights enshrined in favor of persons. Among the constitutional guarantees protected by the Constitution are: the right to life and physical and psychological integrity; equality before the law; equal protection of the law in the exercise of rights; the right to a legal defense; respect and protection of private life and honor; the inviolability of the home and private communications; freedom of conscience and religion; the right to personal freedom and individual security; the right to live in a pollution-free environment; the right to the protection of health; the right to education; freedom of speech and to inform without prior censorship; the right to associate; freedom of work; the non-imposition of disproportionate or unfair taxes; the right to carry out any licit economic activity; non-discrimination in economic matters; the right to property, subject to the relevant legal and constitutional limitations; copyright and the right to the creation of works of art; and, the right to the non-limitation of the constitutional guarantees in their essence.
In order to safeguard some of these guarantees, the Constitution provides for a constitutional protection action, which may be lodged by the affected person or by anyone on their behalf before the relevant Court of Appeals in order to request the measures deemed necessary for the due protection of such person.
- Regulated Bodies
The current constitution sets forth the general guidelines for each branch of government: Executive Branch, Legislative Branch (National Congress), and the Judicial Branch. It also enshrines the regulation of several public bodies relevant for the State, among these, the Public Prosecutor’s Office, the Constitutional Court, the Comptroller General’s Office of the Republic, the Armed Forces and the Forces of Order and Public Security, the Central Bank, and the Interior Government and Administration of the State (regional, provincial and municipal). The details of these public bodies are regulated in organic constitutional laws.
4. Reforms that Have Amended the current
The current constitution has had, to date, 63 amendments that have substantially altered its original content.
Of these reforms, the most extensive were passed in 1989 and 2005, under the administrations of President Patricio Aylwin Azócar and President Ricardo Lagos Escobar, respectively.
Law No. 18,825
- The duty of the State’s bodies to respect and promote the fundamental rights guaranteed by the Constitution, and those guaranteed by the international treaties ratified by Chile and in force, is added.
- Original Article 8, concerning the prohibition of conducts contrary to the family, that promote violence or a conception of society of the totalitarian State or founded on class struggle, is repealed.
- Article 9, referring to the condemnation of terrorism, is amended.
- The protection of political pluralism is added to Article 19 No. 15.
- Establishes that the President of the Republic (“President”) shall take office in the manner set forth by law.
- The procedure to follow in the event of a vacancy of the office of President is established.
- Sets forth that the President is appointed by the Plenary Session of Congress.
- The power of the President to dissolve the Chamber of Deputies one single time during his or her administration is eliminated.
- The reference to the administrative litigious courts is eliminated.
- Establishes that the constitutional states of exception may only affect the exercise of the rights and guarantees of the Constitution.
- The President’s powers concerning constitutional states of exception are modified.
- Sets forth that deputies and senators must reside for at least two years in the region of the electoral district in which they are candidates.
- Sets forth that senators are elected by electoral constituencies.
- The vacancy system of the Chamber of Deputies and the Senate is modified.
- Sets forth that the Senate may not control the Government’s acts or those of the entities dependent on it, nor reach agreements that imply control.
- Changes the term limits for the ineligibilities of deputies and senators.
- Changes the quorum for the approval of the Constitution’s interpretative laws, constitutional organic laws, and simple laws.
- Modifies the President’s power to insist on a bill rejected in general by the Chamber of Origin.
- Eliminates the penalization of the President of the commission who includes additions or corrections outside of the fundamental ideas of a bill.
- The process of passing a law is modified, in the event that the additions or corrections presented are rejected.
- The authority of the Constitutional Court to declare the unconstitutionality of political movements or parties that are contrary to the family, promote violence or a conception of society of a totalitarian State or founded on class struggle, is replaced.
- The authority of the Constitutional Court to declare the liability of persons that subvert or undermine the Republic’s institutional system is eliminated.
- Sets forth that the appointments, promotions and retirements of the officers of the Armed Forces and Carabineros (Police) are to be carried out by Supreme Decree, pursuant to the relevant constitutional organic law.
- The quorum for approving the agreements of the National Security Council (“COSENA” for its acronym in Spanish) is modified.
- The power of the COSENA to express, before any authority established in the Constitution, its opinion regarding any event that in its opinion seriously affects the basis of institutionality or national security is replaced.
- Sets forth that the modification of the regions’ boundaries, and the creation, modification or suppression of provinces and boroughs, are matters of laws with qualified quorums.
- Modifies the quorum for approving constitutional reforms referring to Chapters I, III, VII, X, XI or XIV.
- Modifies the quorum for insisting on a constitutional reform.
- Sets forth that the President elected in 1989 will be in office for a 4-year period, without reelection for the following period
- Law No. 19,055: Sets forth that terrorist crimes shall have the legal qualification of common crimes and that the particular pardon shall be inadmissible, except for commuting the death sentence to life imprisonment.
- Law No. 19,097: Introduces deconcentrating as a manner of State administration, and modifies the provisions on regional, provincial and communal administration.
- Law No. 19,295: Sets forth that the President will serve 6 years in office.
- Law No. 19,448: Through a transitory provision, it postpones the elections that would renew the municipal councils.
- Law No. 19,519: Incorporates into the Constitution a chapter referring to the Public Prosecutor’s Office and sets forth the amendments consistent with the criminal procedural reform.
- Law No. 19,526: Amends the rules on the organization and powers of municipalities.
- Law No. 19,541: Amends the constitutional regulation of the Judiciary and the appointment of the justices of the Supreme Court.
- Law No. 19,597: Amends Article 74 of the Constitution, adding that the Supreme Court must be heard in order to amend the constitutional organic law on the organization and powers of the Courts.
- Law No. 19,661: Sets forth legal equality between men and women.
- Law No. 19,634: Sets forth that the State shall promote pre-school education.
- Law No. 19,643: Amends the rules on the qualification of the President’s election in a run-off (second ballot). It also modifies the composition of the Election Qualification Tribunal.
- Law No. 19,671: Amends Article 117 of the Constitution relating to the vote of the Plenary Session of the Congress, summoned by the President, on a constitutional reform bill.
- Law No. 19,672: Creates the statute for former Presidents of the Republic.
- Law No. 19,742: Eliminates cinematographic censorship, replacing it with a qualification system. It also enshrines the right to free artistic creation.
- Law No. 19,876: Sets forth that secondary education shall be free and compulsory.
Law No. 20,050:
- Establishes the duty to promote regionalization.
- Establishes the duty of probity and publicity of the acts and resolutions of State bodies and agencies.
- Changes the grounds and causes for obtaining and losing nationality.
- Amends the rules on citizenship and the exercise of rights.
- Amends the rules on due process and personal freedom.
- Modifies the scope of application of the constitutional protection action (recurso de protección).
- Modifies the President’s duty to render a public account once a year.
- Modifies the requirements to be elected President of the Republic.
- Amends the rules on electing the President and the procedure in the event of his or her death or temporary incapacity.
- Amends the rules on summoning the Ministers of State to special sessions of Congress.
- Replaces the rules on constitutional states of exception.
- Replaces the rules regulating the Senate, the election thereof, and provides that senators shall hold office for 8 years.
- Amends the rules in cases of vacancies of deputies and senators.
- Modifies the power and authority of the Chamber of Deputies to inspect and monitor the Government’s actions.
- Modifies the powers and authorities of Congress, its incompatibilities, disqualifications and resignations.
- Repeals Article 51 relating to how National Congress functions in ordinary sessions.
- Modifies the processing of the law in relation to the President’s power to return an approved bill.
- Amends the rules applicable to members of the Judiciary.
- Replaces the rules on the integration of the Constitutional Court.
- Modifies the powers and authorities of the Constitutional Court, establishing that it shall hear motions on the non-applicability of the law in pending judicial matters and proceedings (a power that used to belong to the Supreme Court).
- Amends the rules on the Comptroller General’s Office of the Republic, the duration and requirements thereof.
- Amends the rules on the Armed Forces and the appointment and retirement of their Commanders in Chief and the Director General of the Police.
- Reforms the constitutional regulation of the COSENA and its powers.
- Amends the procedure on constitutional reform.
- Law No. 20,162: Establishes that pre-school education at its second transition level is compulsory.
- Law No. 20,193: Establishes Easter Island and the Juan Fernández Archipelago as special territories.
- Law No. 20,245: Regulates the entry into force of the constitutional organic law on the organization and powers of the Courts, as well as the procedural laws that regulate a judicial prosecution system.
- Law No. 20,337: Enshrines suffrage as a right of citizens and establishes automatic registration in electoral registers.
- Law No. 20,346: Authorizes the State of Chile to recognize the Rome Statute which creates the International Criminal Court.
- Law No. 20,352: Authorizes municipalities to associate with each other pursuant to the respective constitutional organic law.
- Law No. 20,354: Changes the date of election of the President of the Republic.
- Law No. 20,390: Amends rules and regulations on Regional Government and Administration related matters.
- Law No. 20,414: Establishes transparency-related obligations for authorities that determine a constitutional organic law. It also applies the incompatibilities of deputies and senators to ministers.
- Law No. 20,503: Regulates the oversight and control of firearms.
- Law No. 20,515: Changes the term limits linked to presidential elections.
- Law No. 20,516: Establishes the obligation of providing criminal defense and legal advice to individuals (natural persons) that have been the victims of crimes and cannot obtain their own defense and legal advice.
- Law No. 20,573: Incorporates regulations on the rights of residing, remaining and traveling to the special territories of Easter Island and the Juan Fernández Archipelago.
- Law No. 20,664: Introduces improvements to the personnel regime of the Legal Medical Service (Servicio Médico Legal).
- Law No. 20,710: Establishes that the promotion of pre-school education is mandatory, setting forth the financing a free system starting from the lower intermediate level.
- Law No. 20,725: Modifies the integration of the Chamber of Deputies.
- Law No. 20,748: Regulates the voting rights of Chilean citizens abroad.
- Law No. 20,840: Replaces the binominal electoral system with an inclusive proportional system and strengthens the representativity of National Congress.
- Law No. 20,854: Establishes the obligation of the authorities of National Congress to render an annual public account.
- Law No. 20,860: Grants constitutional autonomy to the Electoral Bureau.
- Law No. 20,870: Establishes the cessation of the offices of congresspersons, mayors, regional councilors, and councilpersons for the serious breach of the regulations on transparency, limits and control of electoral expenses.
- Law No. 20,990: Provides for the popular election of the regional government’s executive body.
- Law No. 21,011: Changes the date on which the President of the Republic must render the account before the Plenary Session of Congress.
- Law No. 21,096: Enshrines the right to personal data protection.
Law N°21.200: Modifies norms on the reform of the Constitution and the procedure to elaborate a new Political Constitution.
Law N°21.216: Authorizes the formation of electoral pacts of independents and guarantees gender parity in the candidacies and integration of the constituent body.
Law N°21.219: Authorizes the National Congress to meet by telematic means.
Law N°21.221: Establishes a new electoral itinerary for the constituent plebiscite and other electoral events.
Law N°21.233: Modifies the manner of determining the remuneration of certain authorities and officials. Among them, the President of the Republic, deputies, senators, and officials of exclusive trust.
Law N°21.237: Authorizes the Plenary of the National Congress to operate by telematic means and establishes a new date for the presidential public account in 2020.
Law N°21.238: Limits the reelection of deputies, senators, mayors, councilors, regional governors, and regional councilors.
Law N°21.248: Authorizes the exceptional withdrawal of accumulated individual capitalization funds.
Law N°21.253: Authorizes the Central Bank to buy and sell, in the open secondary market, debt instruments issued by the Treasury, in exceptional situations.
Law N°21.261: Regulates the financing and advertising of campaigns for the constituent plebiscite.
Law N°21.257: Authorizes the Electoral Service to dictate the necessary rules and instructions for the development of the national plebiscite and other electoral processes.
Law N°21.296: Facilitates the subscription of sponsorships and the declaration and registration of lists of independent candidacies, with a view to the election of the members of the constituent body.
Law N°21.298: Reserves seats for representatives of indigenous peoples in the Constitutional Convention and safeguards and promotes the participation of persons with disabilities in the election of members of the Constitutional Convention.
Law N°21.315: Establishes rules on electoral advertising of candidates to Constituent Assembly members.
Law N°21.317: Extends to two days the elections for mayors, councilors, regional governors, and constituent convention members and corrects mistakes in the registration of said candidates.
Law N°21.318: Extends the term of authorization for the National Congress to meet by telematic means.
Law N°21.324: Postpones the elections for mayors, councilors, regional governors, and constituent convention members due to COVID-19.
Law N°21.330: Establishes and regulates the exceptional mechanism for the withdrawal of pension funds and the advance payment of annuities.
Law N°21.383: Recognizes that scientific and technological development is at the service of people.
Law N°21.432: Incorporates rules on the resignation of constituent members of the Convention.
Law N°21.448: Incorporates norms of Law N° 21.385, which modifies the electoral legislation, assigning the voting place closest to the elector’s domicile for the constitutional plebiscite.
Law N°21.481: Modifies quorums for the reform of the Political Constitution of the Republic.
5 Constitutional Organic Laws
Constitutional organic laws are a special category of laws established by our current constitution. Their purpose is to supplement the constitutional legislation. They address matters expressly provided for in the Constitution and in order to be approved, amended or repealed, they require a quorum of 4/7, namely, 57% of the deputies and senators in office. They are also subject to preventive constitutionality control by the Constitutional Court.
The main subject matters that the Constitution accords to constitutional organic laws are, among others:
- The organization and operation of the electoral system.
- Regulation of the education system in Chile.
- Constitution and organization of political parties.
- Regulation of mining concessions.
- Basic organization of the Public Administration.
- Constitutional states of exception.
- Functioning of National Congress (investigation committees, constitutional accusations, and sessions, among others).
- Organization and powers of the Judiciary (regulated in the Organic Code of Courts).
- Organization and powers of the Central Bank.
- Organization of the Armed Forces and the Police (Carabineros de Chile).
- Organization and powers of the Comptroller General’s Office of the Republic.
- Organization and powers of the Public Prosecutor’s Office.
- Organization, procedures and workings of the Constitutional Court.