The Constitutional Tribunal
Although the comptroller general serves as an effective watchdog over government officials and functionaries, definitive and binding decisions on constitutional matters are made by the Constitutional Tribunal. The tribunal was created by the constitutional reforms of 1970 (Law 17,284) to provide the country with a body that would serve as final arbiter on constitutional matters and thus prevent the adoption of unconstitutional laws or decrees. Like other "neutral" institutions, such as the military and the courts, the tribunal was highly politicized by the crisis of the Allende years. It was unable to serve as an effective arbiter as the institutional conflict--between the government and its opposition and between the presidency and Congress--as well as the political conflict escalated beyond the point of no return.
Under the 1980 constitution, the Constitutional Tribunal consists of seven members appointed on a staggered basis to eightyear terms. The Supreme Court selects three, Cosena two, and the president and Senate one each. The tribunal possesses broad powers to judge the constitutionality of laws at all points in the legislative process. It can also declare unconstitutional any decrees issued by the president of the republic and rule on the constitutionality of a plebiscite. The tribunal resolves disputes among government ministers, legislators, and the executive and can rule on complaints presented by the president or members of either of the legislative chambers, provided that at least one-fourth of the members agree to register a formal grievance. The tribunal also rules on constitutional challenges to the legality of political parties (Article 19).
The Constitutional Tribunal is the court of last resort on constitutional matters. Article 83 of the constitution provides that "no appeal whatsoever shall apply against the decisions of the Constitutional Tribunal." The article adds that "once the court has decided that a specific legal precept is constitutional, the Supreme Court may not declare it inapplicable on the same grounds on which the decision was based."
The parties represented in the Aylwin coalition were not comfortable with the tribunal's broad jurisdiction. In their view, the tribunal's far-reaching powers to determine the constitutionality of laws, presidential decrees, and other government decisions made it a highly undemocratic body, particularly given that its members are appointed almost entirely by nonelected bodies. The Aylwin government favored constitutional reforms that would give the president and Congress the right to appoint a substantial majority of the tribunal members. The government also sought to limit the tribunal's power to decide the constitutionality of laws approved by Congress and signed by the president.
Reforms seemed unlikely in the immediate future because the parties of the right argued that a tribunal designed to protect the supremacy of the constitution would be undermined, should it be constituted by those very bodies that would be scrutinized. In addition, those accepting the status of the tribunal pointed to the positive role it played in settling the dispute over the status of independent candidates in the 1992 municipal elections. They contended that the tribunal's role in settling the dispute helped avert a major political dispute that might have delayed the elections.
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