Presidential Powers in Chile: Appointments, Judicial Oversight, and Military Command
Appointment of Authorities
Art 32 N° 7, 8, and 10 CPR: The President of the Republic appoints officials of his exclusive confidence, freely chosen without public tender and removable at will. These include Ministers of State, Secretaries of State, Mayors, Governors, Diplomatic Agents, and representatives to international organizations.
Other positions, like leaders of public services (excluding supervisors), are appointed as per specific laws.
Appointment of the Comptroller: (Art 32 N° 9 linked with Art 98 CPR) The President appoints the Comptroller General with Senate approval (3/5 of members in office). The Comptroller is not of the President’s exclusive confidence, ensuring the legality of administrative acts, including those of the President.
Judicial Control: The Comptroller oversees all state administrative bodies, including the President.
Faculty of Granting Pensions
Art 32 N° 11 CPR: The President grants pensions, retirement pensions, and grace pensions. Pensions of Mercy are granted to those ineligible for standard pensions but whose service to Chile merits recognition, as stipulated by law.
Judicial Powers
Art 32 N° 12 CPR: The President appoints Supreme Court Ministers, Court of Appeals Ministers, Fiscal Court Judges, Supreme Court Appeal Judges, and lawyers.
1998 Constitutional Reform: Increased Supreme Court members from 17 to 21, including 5 from outside the judiciary.
Appointment of Supreme Court Ministers
The President selects from a list of 5 candidates “Quin”) provided by the Supreme Court. Senate approval (2/3 of members in office) is required.
Vacancies:
- Judiciary member vacancies: Filled from a list of judicial candidates.
- Non-judiciary member vacancies: Filled from a list of external candidates via public tender.
Seniority fills one position; merit fills the rest.
Appointment of Court of Appeals Ministers
The President chooses from a shortlist “Tern”) prepared by the Supreme Court. One position is filled by seniority.
Appointment of Professional Judges
The President appoints from three candidates proposed by the respective Court of Appeals. One position is filled by the most senior Judge.
Appointment of National Fiscal Public Ministry
The President appoints from a list of five “Quin”) proposed by the Supreme Court, following a public competition. Senate approval (2/3 of members in office) is required.
Ensuring Judicial Conduct
Art 32 N° 13 CPR: The President ensures the official conduct of judges and judiciary employees, as per the Organic Constitutional Law on Government and Regional and Provincial Administration (Law 19175, 1992).
Mechanisms
(1) Presidential Request to Supreme Court: If the President believes a judge has acted improperly, they can request the Supreme Court to declare it. The Court can also act ex officio or upon request. The judge is summoned to a hearing, and the Supreme Court decides by an absolute majority. This process is expedited but less complex than the”Judgment of removability of judges”
Grounds for Bad Behavior:
- Not attending the office
- Acquiring goods in litigation
- Not residing in the designated place
- Leading a bohemian lifestyle
- Engaging in political activities inside the courthouse
(2) Fiscal Court of the Supreme Court: (Art 80 inc. 3° CPR) The President can use the Fiscal Court to implement the responsibility of a Minister of the Court of Review, a Prosecutor of the Court of Review, or a court lawyer.
Public Ministry Usage:
- To enforce a judge’s responsibility due to disciplinary isolation.
- In severe cases where a judge has committed a crime in the exercise of their duties.
The prosecutor can propose dismissal or accusation. A”Quarrel of chapter” may precede criminal proceedings, leading to suspension if the accusation is deemed serious.
Power of Pardon
A pardon acts on the sentence, not the crime, and requires a conviction. It can fully condone, decrease, or replace a sentence. Criminal records remain.
Types of Pardons:
- General: Granted by law to an undetermined number of people (e.g., amnesty).
- Individual: Granted by the President to specific individuals via Supreme Decree, following Law on Particular Pardons No. 18,050.
Requirements for Individual Pardons:
- Having served half the sentence
- Maintaining good conduct
- Making amends to the victim
Exception: Pardons for crimes related to impeachment are granted by Congress, not the President.
Military Powers
Art 32 N° 16 CPR: The President can:
(1) Appoint and Recall Commanders: Appoint and recall the Commanders-in-Chief of the Armed Forces and the Director General of Police.
Changes Over Time:
- Before 1980: The President had broad power to choose any general officer, with no term limits.
- 1980 Constitution: Selection limited to the 5 most senior general officers, with a 4-year term.
- 2005 Reform: The President can call for early retirement with Congressional approval.
(2) Appointments, Promotions, and Retirements: The President decrees appointments, promotions, and retirements of Armed Forces and Police officers.
Changes Over Time:
- Before 1980: The President had broad appointment powers and indefinite terms for commanders.
- 1980 Constitution: Limited selection, 4-year terms, and early retirement possible with National Security Council agreement.
- 2005 Reform: Early retirement requires Congressional notification and justification.
Art. 32 N° 16 in relation to Section 104 and 105 CPR
Special Presidential Powers
Art 32 N° 17 CPR: The President organizes and distributes air, land, and sea forces according to national security needs.
Art 32 N° 18 CPR: In a state of war, the President assumes supreme command of the Armed Forces.
Art 32 N° 19 CPR: The President declares war, authorized by law, after consulting the National Security Council (via Supreme Decree).