Proposals for Judicial Reform in Chile
582 FORDHAMINTERNATIONAL LA WJOURNAL [Vol. 16:577
Fordham International Law Journal
Robert G. Vaughn
Copyright c 1992 by the authors. Fordham International Law Journal is produced by The
Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
Robert G. Vaughn
This Article explores the implications of different proposals for reforms by emphasizing a
perspective that relates the proposals to the performance of the judiciary during the military regime
in Chile. Part I of this Article describes the role of the judiciary prior to the coup and discusses its
response to the human rights abuses of the military regime. Part II presents the principal proposals
for reform and discusses them against this historic background. Part III of this Article suggests that
these proposals offer a more radical change in the role of the judiciary in Chile than an examination
of the individual proposals might suggest.
Introduction ................ ...................
I. The Courts and the Military Government ..........
A. The Judiciary Prior to the Coup ................
B. The Judiciary During the Military Regime ......
II. Proposals for Judicial Reform ......................
A. General Proposals .............................
1. Proposals Addressing Specific Failures of
the Judiciary During the Military Regime ...
* This Article is based on research conducted while the author was the
CoDirector of the Washington College of Law's Law Program in Chile in June and July
1991. The research was supported by the Washington College of Law's Alumni
Development Fund whose support the author gratefully acknowledges. Too many
lawyers, professors, and government officials helped the author in understanding
judicial reform proposals in Chile to name fairly. Special appreciation, however,
goes to Professor Jorge Correa Sutil, Professor of Law at the School of Law of the
University of Diego Portales in Santiago, Chile and Secretary of the Commission on
Truth and Reconciliation. This project rests heavily upon his advice, assistance, and
generosity. The author also thanks Francisco Cumplido, the Minister of Justice of
the Republic of Chile and Gisella von Mullenbrock, the Chief of Staff of the Ministry
ofJustice for their insights into judicial reform. Of course, none of the persons who
assisted the author is responsible for any error that might appear in the Article nor
does the Article necessarily reflect the views of any of these persons. The author
acknowledges the assistance of Carlos Tornero and David Jaffe in research and in
translating the Spanish materials.
** A. Allen King Scholar and Professor of Law, Washington College of Law,
The American University.
The independence of the nations of Eastern Europe, the
fall of the Soviet Union and Soviet communism, the acceptance
of free market principles, and the growing attraction of
democracy to former Soviet dominated states have heralded
momentous ideological and economic changes. Although receiving
less attention, similar significant changes have occurred in
South America. The fall of military governments as well as the
rejection of planned economies have created a number of
democratic, market-oriented states in the Southern Cone of
The establishment of democratic governments in these
states requires particular attention to the preservation of
individual rights and liberties. In the United States, the judiciary
has played an important role in this preservation of individual
liberties. Not surprisingly, judicial reform has emerged as an
important issue in South America. The proposals for judicial
reform in Chile offer the opportunity to examine the context
and content of a specific group of reforms. Examination of the
proposals also highlights the attributes of the judiciary in the
civil law countries of South America, attributes that influence
the character and likely success of these reforms.
Proposals for judicial reform in Chile suggest a number of
changes in Chile's judicial system. These changes address the
composition, structure, training, procedure, and role of the
Chilean judiciary, particularly the Chilean Supreme Court (the
"Supreme Court" or "Court"), and respond to varying
critiques of the judiciary. Viewed from one perspective, such
reforms represent differing, often conflicting, visions of the
Viewed from another perspective, however, these
proposals reflect the political and legal context emerging from the
military coup of 1973 and the inability of the courts to protect
human rights and to preserve the liberties of Chileans during
the repression that followed the coup. From this perspective,
the proposals represent a more unified and consistent attempt
to alter the characteristics and role of the judiciary in the
democracy that will follow the transition government.
This Article explores the implications of these proposals
for reform by emphasizing the second perspective that relates
the proposals to the performance of the judiciary during the
military regime in Chile. Part I of this Article describes the
role of the judiciary prior to the coup and discusses its
response to the human rights abuses of the military regime. Part
II presents the principal proposals for reform and discusses
them against this historical background. Part III of this Article
suggests that these proposals offer a more radical change in
the role of the judiciary in Chile than an examination of the
individual proposals might suggest. This Article concludes
that a change in the role of the judiciary speaks to attempts at
judicial reform elsewhere.
I. THE COURTS AND THE MILITARY GOVERNMENT
In 1973, a military coup ousted the elected government of
Salvador Allende, ending one of the oldest democratic
governments in South America. In the repression following the coup,
thousands of Chileans were killed, tortured, imprisoned, or
exiled.' For a variety of reasons, human rights advocates, under
the protection of the Roman Catholic Church, sought to use
the courts to publicize and prevent these violations.2 The
courts, particularly the Supreme Court, failed to restrain the
military government.3 The failure of the judiciary forms the
basis for much of the criticism of the judiciary as well as the
proposals for its reform.
An examination of the role of the judiciary in Chilean
society and the conduct of the judiciary prior to the coup provides
FORDHAM INTERNATIONAL LA WJOURNAL
a basis for evaluating its performance during the military
regime. This examination begins with some general
observations about the judiciary in Chile and ends with a more specific
discussion of the judicial system immediately prior to the coup.
A. The Judiciary Prior to the Coup
The Chilean judiciary shared the attributes of the judiciary
in many civil law systems. Of these attributes, the two most
important concerned the view of the judiciary as a state
bureaucracy and the formalism of Chilean law. In Chile, a
judicial career separates the judge from other legal actors and
places the judge in a bureaucracy where appointment,
assignment, pay, and promotion are controlled or significantly
influenced by judges higher in the judicial hierarchy. The Supreme
Court exercises personnel authority over the lower courts,
including the evaluation of judges.4 In many ways the judiciary
is a self-perpetuating bureaucracy. The concept of a judicial
career makes seniority at various levels within the hierarchy an
important element in advancement.5 Generally, members of
the courts of appeal come from the trial level and members of
the Supreme Court come from the senior members of the
courts of appeal.6
Moreover, the Supreme Court, despite the power and
influence of the President, plays a major role in the selection of
members of the Court. The Supreme Court submits a list of
five candidates (the "quinas") to the President.7 The President
4. Codigo Organico de Tribunales [Organic Code of Tribunals] § 4, art. 96
[hereinafter Organic Code of Tribunals]; Richard B. Cappalli, ComparativeSouth
American Civil Procedure: A Chilean Perspective, 21 U. MIAMI INTER-AM. L. REV. 239, 289
(1990) (discussing writ of grievance that provides disciplinary authority to Supreme
5. Comisi6n de Estudios del Sistema Judicial Chileno, Designacidnde Los Miembros
de Los Tibunales Superiores dejusticiay Abogados Integrantes [Designationof the Members of
The Higher Courts ofJustice and Integrated Attorneys] [hereinafter Designation of the
Members of Higher Courts], in PROPOSICIONES PARA LA REFORMAJUDICIAL
[PRoPOSITIONS FORJUDICIAL REFORM] 45-52 (Eugenio Valenzuela S. ed., 1991).
6. Id. at 45. Lawyers who have practiced twelve to fifteen years may be
appointed, without judicial experience, to courts of appeal sitting in other than
provincial capitals. Therefore, all of the members of the courts of appeal in the major cities
in Chile must have served as lower court judges. Organic Code of Tribunals, supra
note 4, arts. 284, 286. Members of the Supreme Court are selected from the courts
of appeal in major cities, such as Santiago. Therefore, advancement to the Supreme
Court is open primarily to those who had served as lower court judges.
7. Juan Ignacio Correa Amunitegui, Por una Modernizacidndel PoderJudicial [For a
then fills the vacancy from that list of candidates.8 The
combination of the importance of seniority in the judicial hierarchy
and the role of the Supreme Court in selecting its own
members9 insulates the judicial bureaucracy and, like all
bureaucracies, permits the development of informal standards, rules, and
practices that may vary from the more formal and articulated
Chilean law reflects the dominance of the civil code. In
Chile, law consists of a set of norms that can be formally,
almost mechanically, applied." This tradition separates law
from politics, philosophy, and ethics. Law is evaluated almost
solely by its content rather than its effects.' 2 By emphasizing
the importance of formal norms and their mechanical
application, it creates judges who perceive their law-making function
as extremely limited.' 3
The dominance of the civil code in Chile, as in other civil
law countries, reduces the importance of precedent. 4 The
weak influence of precedent ironically increases the discretion
ofjudges by permitting varying applications of statutory
provisions and emphasizes the supervision of lower courts by the
Supreme Court. Through use of its personnel authority and
the enforcement of informal rules, the Supreme Court can
create many of the effects of precedent without the restraints that
Modernizationof theJudiciary],in PROPOSICIONES PARA LA REFORMA JUDICIAL, supra note
9. See generally Jorge Correa Sutil, Formacion dejuecespara la Democracia [Formation
ofJudgesfor Democracy], in FILOSOFIA DEL DERECHO Y DEMOCRACIA EN IBEROAMERICA,
REVISTA DE CIENCIAS SOCIALES 271 (1991). Indeed, the Organic Code of Tribunals
sets out no guidelines or procedures for selecting qualified applicants for judgeships.
Also, the criteria for selection of candidates is vague: "[T]hose [candidates]
interested should make evident those accomplishments which justify their merit.
Organic Code of Tribunals, supra note 4, art. 279.
10. Professor Correa argues that the judiciary suffered from many of the
pathologies of bureaucracy-concern with secrecy, isolation, belief in its own
expertise, and a failure to consider the implications of its decisions. Jorge Correa Sutil,
supra note 9.
14. Richard Cappalli, supra note 4, at 278-82 (discussing Chilean view of
precedent showing little modification of traditional civil law rejection of precedent).
"Chilean judges are little inclined to bend to the principles of equality, and the concept of
precedent rarely appears in Chilean appellate decisions." Id. at 279.
reliance on precedent imposes. 15
Chilean courts follow the models of procedure contained
in the earliest civil codes.16 For example, judges operate in an
inquisitorial rather than adversarial model. 17 This model
places the management and development of the case in the
hands of the judge. As in some other civil law countries, the
model relies primarily upon documentary rather than oral
proof.'8 It removes the case from control of the parties and
distances the parties from the judicial process.
The Chilean judiciary consisted of a hierarchical state
bureaucracy committed to a formalistic view of law relying upon
an inquisitorial model of judicial behavior. A risk of such a
judiciary is that it will develop informal standards of judicial
behavior based upon the biases of those within the
bureaucracy, particularly the Supreme Court. '9 Therefore, formalism
could be used most effectively to support a conservatism that
restricts the scope of judicial action consistent with these
biases. As an isolated bureaucracy, the procedural models of the
civil law could further distance it from the majority of society
and deprive it of the tasks likely to temper its biases and
During the Allende administration, the courts functioned
in an increasingly divisive environment, an environment in
which the judiciary itself came under attack.20 The ideological
divisions in Chilean society seemed to require the selection of
sides and the judiciary was perceived as conservative if not
During this period, the courts were seen as irrelevant to
the lives of a vast majority of Chileans. Official attempts were
made to modify procedure and to make the courts more
accessible to Chileans of lower economic and social status.22 Also, a
15. Jorge Correa Sutil, supra note 9.
17. JOHN HENRY MERRYMAN, THE CIVIL LAw TRADITION: AN INTRODUCTION TO
THE LEGAL SYSTEMS OF WESTERN EUROPE AND LATIN AMERICA 114 (1985).
19. Risk does not mean inevitability. Similarly structured judicial systems need
not necessarily develop these characteristics but the structure so inclines them.
20. La Corte Suprema Analizd CrlicasA la Justicia [The Supreme Court Analyzes
Criticisms of the Justice System], EL MERCURIO, Apr. 15, 1970, at 25.
21. See, e.g., INFORME, supra note 1, at 34, 37.
22. See JACK SPENCE, SEARCH FOR JUSTICE: NEIGHBORHOOD COURTS IN ALLENDE'S
variety of unofficial "neighborhood courts" arose in poorer
areas including communities created by the seizure of lands. 23
The response of the courts to a number of actions of the
Allende government, particularly those involving the seizure of
private property, embroiled the judiciary in conflicts with that
government. 24 In some instances, executive officials refused to
follow or implement judgments and judicial orders.25 Near the
end of the Allende government and prior to the coup,2 6 the
Supreme Court denounced the elected government in terms so
strong that the denunciation could have been interpreted, in
the environment of the time, as a call for the overthrow of the
The Supreme Court certainly held legitimate concerns
regarding the failure of government officials to follow the law as
declared by the courts. The Supreme Court's statements,
however, subsequently permitted a contrast between its response
to the actions of the Allende government and to the serious
human rights violations of the military regime.
B. The Judiciary During the Military Regime
During the military regime, the judiciary, particularly the
Supreme Court, failed to protect adequately persons seeking
redress. The judiciary also appeared to condone the abuses of
the military and created doubt that the judiciary would guard
personal rights and liberties. These judgments, entered by the
National Commission of Truth and Reconciliation, appointed
by the transition government to study human rights abuses,28
rest upon several grounds.
In its first decree, the military junta guaranteed the
indeCHILE 65-68 (1979) (describing Audiencias Populares used by Allende administration
to bring judicial services to larger segments of population). These Audiencias
Populares were created by the Supreme Court. Id.
23. Id.; Comisi6n de Estudios del Sistemajudicial Chileno,Juzgadosde Paz Vecinal
y Redistribucidn de Competencia [Courts of Neighborhood Peace and Redistribution
ofJurisdiction] [hereinafter Courts of Neighborhood Peace], in PROPOSICIONES PARA LA REFORMA
JUDICIAL, supra note 5, at 77 (discussing courts of this period).
24. Luis Ribalta Puig, La DenunciadaJusticiade Clases [The Denounced ClassJustice
System], EL MERCURIO, Apr. 21, 1970, at 3; INFORME, supra note 1, at 37.
25. INFORME, supra note 1, at 37.
26. Id. at 34.
27. Id. at 96.
28. Id. at VII (decree creating the Commission).
pendence of the judiciary. 29 The junta stated that any criticism
that it had of the behavior of the courts would be taken to the
Supreme Court in private." The junta's treatment of the
judiciary rested in part on a desire to establish the legitimacy of the
regime, one of whose asserted grounds for action was to
protect the rule of law. 3 ' The respect of legal rules in Chilean
society increased the importance of preserving the appearance
of an independent judiciary.
Human rights advocates soon tested the effectiveness of'
the courts by bringing before them petitions for habeas
corpus, petitions that would eventually number in the
thousands. Attorneys turned to the judiciary, despite its
reputation for conservatism, because these lawyers believed "that
the judiciary was the last institutional remnant of the
liberaldemocratic state."'3 2 Few of these petitions were granted 33 and
the courts routinely accepted, at face value, official
explanations that were seemingly incredible. 4
Although some dispute exists regarding the powers of the
judiciary to examine the reasons for detentions during times of
exception, the judiciary seemed passive in asserting any
judicial role. In addition, the judiciary failed to apply principles
more firmly established, including time limits for responding
to writs, the requirement of proper delegations of authority to
arresting officials, regulations regarding places of detention,
and conditions of house arrest. 35
Moreover, the Supreme Court punished judges who
sustained investigations of the regime's abuses of human rights.
Perhaps the two best-known cases are those of judges Carlos
Cerda and Rene Garcia Villegas. Carlos Cerda investigated
the detention and disappearance of ten communist party
members during the last, months of 1976. The Supreme Court had
accepted writs of habeas corpus filed on their behalf but
adopted the government's official version that the individuals
had fled to Argentina. Minister (Judge) Cerda reopened the
investigation, and eventually indicted thirty-eight members of
the armed forces involved in their disappearance.3 6 During the
investigations a number of threats to and attempts on his life
were made and the Supreme Court attempted to halt the
investigation 37 including issuing writs of protection ("Recursos de
Queja") to enjoin Judge Cerda from "rough treatment" of
military personnel who refused to comply with his orders.3 8 Judge
Villegas, who investigated allegations of torture by the
military, suffered similar threats and harassments.3 9 The Supreme
Court eventually removed him from judicial office.4°
The junta assumed to itself both the constitutional and
legislative authority of the state and used this power to change
laws and provisions that stood in the way of military.4 ' Still,
the judiciary failed to assert its own prerogatives4 2 and
acquiesced to the creation of a system of military courts, over which
the Supreme Court surrendered supervisory authority. By the
end of the military regime, these military courts exercised
jurisdiction over more civilians than military personnel.4"
Not only did the courts permit jurisdiction affecting the
human rights of individuals to be separated from the
functioningjudiciary, but the Supreme Court commended the military
for preserving the integrity of the judiciary." Perhaps more
harmful to the reputation of the judiciary were statements by
the Supreme Court that denied the existence of human rights
abuses in Chile and criticized the practice of filing writs of
habeas corpus with the courts.4 5
During the eighteen years of the military regime, General
Pinochet appointed a substantial majority of the present
members of the Supreme Court.4 6
General Pinochet had used his
authority over the civil service to remove persons with
ideologically unacceptable beliefs and to appoint persons sympathetic
to the regime.4 7
Although not asserting the same authority
over the courts, General Pinochet was unlikely to appoint
individuals thought to be unwilling to support the regime. 4 8
Moreover, in 1984, the number of members of the Supreme Court
was increased from thirteen to seventeen.4"
The military regime also made substantial use of
"inte43. Id. at 204.
44. Id. at 230. As of 1974, the Supreme Court relinquished power over the
military courts claiming that in times of war, military tribunals should not answer to any
court. Id. This decision supported the exclusion of military tribunals during times of
war from the Supreme Court's authority under Article 79 of the Constitution of
1980. Id. This unprecedented exclusion by the court denied civilians any recourse
outside the military courts during much of the military rule. Id.
45. INFORME, supra note 1, at 96; see Supreme Court President, Opening of the
Judicial Year (Mar. 1, 1975) (on file with FordhamInternationalLaw Journal).
46. Comisi6n de Estudios del Sistema Judicial Chileno, Corte Suprema [Supreme
Court], in PROPOSICIONES PARA LA REFORMA JUDICIAL, supra note 5,at 34. Fourteen of
the 17 ministers (judges) of the Supreme Court were appointed by Pinochet; twelve
of these ministers were appointed between 1985 and 1989. Id.
47. By decree, the military government provided that all public employees
served at the confidence of the president, rendering most public employees
temporary ones. OAS REPORT, supra note 1, at 12.
48. The readily apparent proposition that Pinochet had appointed such persons
was also specifically articulated. Antonio Martinez, Los "allegados" de laJusticia [The
"Partisans" of the Judiciary], Hoy, Dec. 16-22, 1985, at 15.
49. Supreme Court of Chile, Response to Proposed Bill Regarding Reform of
the Judicial Administration System 27 (Aug. 1991) [hereinafter Supreme Court
grated lawyers," practicing attorneys who temporarily served
in the absence of judges to hear cases in the courts of appeal
and in the Supreme Court.5" This practice increased General
Pinochet's influence over the judiciary because the
appointments of these "integrated lawyers" were limited to a period of
two years subject to reappointment.5" This practice also
created significant conflict of interest problems regarding
"integrated attorneys" who themselves or whose firms continued to
practice before the court in which they served.
The composition of the judiciary during this period also
raised issues regarding nepotism. Relatives of members of the
Supreme Court appeared prominently in other positions in the
judiciary.52 The charges of nepotism reinforced the view of
the judiciary as a closed, perhaps self-serving, bureaucracy.5"
Given the history of the judiciary and the performance of
the judiciary during the military regime, the Supreme Court's
first interpretations of amnesty laws further tarnished its
image. The amnesty provisions barred punishment of uniformed
persons involved in violations of human rights from
September 1973 to March 1978." 4 The Supreme Court dismissed
investigations of human rights abuses alleged to have occurred
during this period, asserting that the amnesty provision not
only barred punishment but prevented investigation of the
abuses as well. 55 The Commission on Truth and
Reconciliation found this interpretation antithetical to the general
provisions of the criminal code that required investigation prior to
the termination of criminal action even on the grounds of
amnesty.56 In addition, one of the judges sanctioned by the
50. Organic Code of Tribunals, supra note 4, art. 101. Integrated lawyers are
appointed to work for appellate tribunals and for the Supreme Court. Id. The
lawyers are placed on lists, presented to the Supreme Court, and then to the President of
Chile, who decides who should become an integrated attorney. Id. art. 219.
52. Monica Gonzalez, HayJueces de laSupremaque tienen 30 d 40 ParientesColocados
en el PoderJudicial [There areJudges in the Supreme Court that have 30 or 40 Relatives
Employed in the JudicialBranch], LA EPOCA, May 9, 1989, at 12.
53. Id. at 13. Few commentators believe that the Chilean judiciary is corrupt in
the sense of some Latin American judiciaries where bribery and favoritism play
important roles in the judicial process. Id
54. Decree Law No. 2191, Codigo deJusticiaMilitar [Code of MilitaryJustice],DIARIO
OFICIAL, Apr. 19, 1978.
55. INFORME, supra note 1,at 103.
Supreme Court had taken an opposing view and aggressively
investigated allegations of abuse by military personnel.
Not surprisingly, given this history, one commonly held
view of the judiciary saw it as an isolated hierarchy removed
from the interests of the majority of the people that had used
formalism to justify its conservative biases, causing it to ignore
or to condone significant human rights abuses occurring
during the military regime. This picture is permitted by the
character of the Chilean judiciary prior to the coup and by the
evidence of its performance during the military regime. Such a
judiciary would seem ill-suited to serve a democratic
government. Public opinion polls show that the judiciary is not highly
but rather distrusted by a sizeable portion of the
In addition, surveys of attorneys in Chile
gest that attorneys believe that judges represent less qualified
law graduates and that the quality of the judiciary raises
II. PROPOSALS FOR JUDICIAL REFORM
A. General Proposals
A variety of proposals for judicial reform followed the
in57. See supra notes 36-38 and accompanying text (discussing indictment of 38
members of armed forces).
58. Orlando Aqueveque, Pocos Creen en la Independencia de los Tribunales [Few
Believe in the Independence of theJudiciary],LA EPOCA, Aug. 2, 1989, at 13. In the poll only
26% of Chileans responded that they believe that the judiciary is independent. Id.
The lack of respect arises not so much from judicial corruption but from a distrust of
the judiciary created by the performance of the judiciary during the military regime.
59. Carlos Pefia Gonziles, Los Abogados y la Administracidn dejusticia: Resultados de
una EncuestaSobre el Funcionamientodel PoderJudicial[The Lawyers and the Administrationof
Justice: Results from a Poll on the Functioningof theJudiciary], in PROPOSICIONES PARA LA
REFORMA JUDICIAL, supra note 5, at 374.
Of course, salaries can influence the quality of persons attracted to the judiciary.
Surprisingly, information on judicial salaries is difficult to obtain. The information is
public in the sense it is passed by word of mouth and can be gleaned from Congress,
from Associations of Magistrates, and from the Ministry of Public Works. Sources,
however, are unwilling to have figures attributed to them. From a variety of sources,
an estimate of a salary of approximately US$22,000 a year for members of the
Supreme Court seems reasonable. The US$22,000 would represent the salary after
deductions of approximately 22% for income tax, health, and retirement. Based on
conversations with attorneys in Santiago, members of the largest law firms would
expect to make several times this salary.
stallation of the transition government. 60 These proposals
were presented by academics and members of the transition
government as well as supporters of the Supreme Court.
Therefore, these proposals range from those that seem
technical or procedural to those changing more substantially the
structure of the judiciary. At that time, the proposals of the
Ministry of Justice embodied the government's view.6 ' This
section examines these general proposals.
Because of the highly-charged and political character of
some aspects of the debate, arguments are often couched in
more neutral terms of judicial efficiency.62 The models relied
upon are more likely to be European rather than North or
South American. 63 At first, the proposals seem a welter of
unrelated ideas motivated by varying political or practical goals.
Just a brief listing of some of the suggestions conveys this
impression. Some of the more commonly suggested reforms
include increasing the size of the Supreme Court,64 creating a
national judicial council 65 similar to ones in Spain and Italy,
establishing neighborhood courts to serve lower income
citizens, 6 6 modifying procedures including changes in the
appellate jurisdiction of the Supreme Court, providing less reliance
60. See, e.g., infra notes 76-90 (discussing proposals that address specific failures
of judiciary during military regime).
61. Meeting with Francisco Cumplido, Minister of Justice of the Republic of
Chile, at the Ministry ofJustice (June 24, 1991) (notes of meeting on file with Fordham
InternationalLaw Journal) [hereinafter Meeting with the Minister of Justice]. Among
the most important items of reform mentioned by the Minister ofJustice are creation
of a judicial council, increasing the number of members of the Supreme Court, and
changes in procedure, particularly greater use of oral presentations and provision of
judicial service for poorer Chileans. Id. The national judicial council would assume
many of the functions of the Supreme Court, including personnel authority of the
lower courts. Id. Such a national council would also provide a voice for the judiciary
in government. Id.
62. Comisi6n de Estudios del Sistema Judicial Chileno, Analisis Cnrico de Usos y
PrdcticasJudicialesy Eficiencia del PoderJudicial[CriticalAnalysis of the Uses and Practicesand
Efficiency of theJudiciary],in PROPOSICIONES PARA LA REFORMAJUDICIAL, supra note 5, at
upon documentary evidence, creating informal procedures for
certain classes of cases, 67 changing the nature of judicial
careers, 68 altering evaluation standards and procedures for
judges, 69 addressing the role of "integrated attorneys, ' 70
setting maximum ages for judges, 7' creating a judicial school, 72
dividing the Supreme Court into more specialized divisions, 73
amending the Chilean concept of separation of powers, 74 and
adding modern technology and other techniques to the
management of the courts.75
These proposals, however, possess considerable
coherency. When examined against the history of the Chilean
judiciary over the past two decades, the proposals form a body of
suggestions directed to the failure of the courts in a time of
crisis. They speak to different aspects of the problem. Some
address more general characteristics of the judiciary that
predisposed it to the role it played during the military regime.
Others address more specific failures of the judiciary and of
the Supreme Court during that period. The distinction
usefully permits organization of the proposals from different
perspectives and illustrates how these proposals struggle with the
role of the judiciary in a democratic society dedicated to the
preservation of human rights.
1. Proposals Addressing Specific Failures of the Judiciary
During the Military Regime
Some of the proposals for reform of the judiciary identify
problems created during the military regime. Others tend to
personalize the problems by focusing upon the composition of
the Supreme Court. In these ways, the proposals can be
viewed as seeking to address specific weaknesses of the
judiciary that can be resolved within the present judiciary form.
The Pinochet regime vastly expanded the jurisdiction of
the military courts. By one estimate, approximately ninety-five
percent of the persons prosecuted in the military courts for
non-military crimes were civilians. 7 6 These courts exercise
such broad jurisdiction over civilians that military courts
handle more civilian than military cases." The lack of any
constitutional provision limiting military court jurisdiction 78 and a
variety of statutes giving criminal jurisdiction to those courts 79
creates a scope of military jurisdiction that now exceeds that in
any other Latin American democracy.
Proposals regarding the military courts advocate changes
that would radically modify the jurisdiction of those courts.
For example, one set of proposals seeks to reduce substantially
the jurisdiction of the courts.8 0 Another set attempts to
reassert supervision of military courts by civilian ones.8 '
These proposals would return criminal jurisdiction to
civilian courts and, in so doing, remedy the difficulties created
for a democratic government by this expansive military
jurisdiction. They would reduce the perception of the military as
an autonomous power within a democratic government and
therefore have both practical and symbolic importance for the
return to democracy.
Recent legislation addresses reduction in the jurisdiction
76. Pedro Aylwin Chiorrini, supra note 42, at 199.
77. Id. at 200.
78. Id. at 201.
79. Id. at 215-34.
80. These proposals seek to revise the military code to reduce its jurisdiction
particularly in the most notorious provisions regarding "terrorist conduct," "control
of arms," and "national security," used to bring civilians under military jurisdiction.
Other reformers seek the goal of leaving the military courts with jurisdiction only
over members of the armed forces. Mario Verdugo Marinkovic, Jurisdiccidn Penal
Militar: Proposiciones [Military PenalJurisdiction: Propositions], in POLiTICA JUDiCIAL,
supra note 34, at 293.
81. Id. The deference given to the military regime by the courts, particularly the
Supreme Court, removed any supervisory authority of the military courts. Id.
Supervisory jurisdiction over the military courts should be returned to civilian courts. Id.
FORDHAMINTERNATIONAL L4 WJOURNAL
of the military courts.8 2 The legislation, however, leaves a
considerable scope for military jurisdiction and contains
inconsistencies and ambiguities8 3 that suggest the reduction
injurisdiction could have limited practical effect.8 4
Some proposals confront the power of the conservatives
that control the Supreme Court.8 5 This group is viewed in
some quarters as responsible for the failure of the judiciary to
respond to the abuses of the military regime.8 6 Moreover, a
substantial majority of the members of the Supreme Court
were appointed to the Court during the military regime8 7 and
lack legitimacy in the eyes of many. Not surprisingly, one
prominent proposal seeks to add several members to the
Court, diluting the power and influence of the conservatives
on the Court. 88 Although justifications can be made for
increasing the size of the Court, particularly if it were to be
divided into divisions with specialized jurisdiction,8 9 the
proposal seems reminiscent of court-packing plans.
Other proposals would diminish the influence of the
Supreme Court but seem less addressed to the conservatives
now in control of the Court than to general alterations in the
role and function of the Supreme Court. One narrow example
recommends lowering the mandatory retirement age for
judges on the Supreme Court." More general examples,
including recommendations for a national judicial council, are
discussed in more detail in the following section.
These proposals seem motivated by the practical
difficulties confronting the transition government and subsequent
democratic governments in dealing with a Supreme Court
dominated by conservatives, the majority of whose members
were appointed by General Pinochet. The success of some
programs of these governments may turn on the actions of the
Supreme Court. These proposals are also important because
they admit the importance of the attitudes and beliefs of those
who serve in the judiciary, an admission that contradicts the
prevailing formalistic view of the role of judges.
2. Proposals Addressing the Character of the
Many of the proposals for reform address the character of
the judiciary in Chile. Such proposals would alter some of the
fundamental aspects of the judiciary, often drawing upon
models from other civil law countries. Taken together, however,
these proposals suggest a more radical reexamination of the
assumptions underlying the judiciary and of the role ofjudges.
A useful way of illustrating their importance is to organize
them around the characteristics of the Chilean judiciary
The Chilean judiciary exists as a state bureaucracy
regulated by a Supreme Court with extensive personnel powers
a bureaucracy that emphasizes seniority and appears isolated
from society. As noted, such a bureaucracy has a tendency to
develop its own standards and procedures that can conflict
with more formal expectations regarding its role.
Many proposals focus upon the selection procedures for
judges of the Supreme Court and for the courts of appeal.
Some proposals outline changes in existing procedures, such
as clear standards for the evaluation of judges by the Supreme
90. Id. at 56; Monica Gonzalez, supra note 71, at 13.
Court and a more open process of evaluation. 9' Many other
proposals, however, reduce the influence of the Supreme
Court in selecting lower court judges. A common suggestion
substitutes an external commission, variously composed,92 for
the Supreme Court in the evaluation and recommendation of
candidates for judicial appointment. 93 These proposals would
not only reduce the authority of the Supreme Court but also
would bring some outside influences to bear on the
appointment ofjudges of the courts of appeal. As a result, the
judiciary would become less of a hierarchical bureaucracy.
Suggestions for greater involvement of the political branches,
particularly the legislature, in the selection of Supreme Court
judges94 accompany the more detailed proposals regarding the
selection of lower court judges.
The proposals display greater reluctance in displacing the
disciplinary functions of the Supreme Court. Suggestions to
place this authority in some outside body raise significant
issues ofjudicial independence.95 Therefore, the proposals seek
to restrict the Supreme Court by imposing procedural and
other requirements that limit its discretion in discipline.
The proposals also challenge the closed nature of a
judicial career where advancement to the courts of appeal of major
cities or to the Supreme Court requires prior service in the
judiciary. 96 Although the proposals advocate restricting or
eliminating the use of "integrated attorneys," 97 these proposals
recognize the importance of permitting persons outside the
judiciary to compete for appointment to the courts of appeal.
One proposal allows up to twenty percent of the members of
the courts of appeal to consist of persons appointed from
outside the judicial hierarchy. 98 These proposals do not
dress the Supreme Court and seem limited; they do, however,
represent a significant break with a narrow conception of a
judicial career and they would open the judiciary at the appellate
levels to persons who had not begun their careers in the
judiciary. 9 9
The judicial commission or national council ofjustice is an
institutional reform often used to implement the proposals
discussed above. Generally, such a commission patterned after
similar commissions in Italy and Spain would play a role in the
selection and perhaps in the evaluation and discipline of
judges.' 00 The commission could conduct judicial training and
play a role in the administration of the courts, providing
managerial direction and making fiscal recommendations.' 0 ' To an
extent, the national council would assume some of the
functions now exercised by the Ministry ofJustice. 0 2 The national
council would be the institutional embodiment of the decision
to reduce the role of the Supreme Court and to open the
judiciary to other influences.
An important group of proposals concerns the extension
of the judiciary to groups in Chilean society who now enjoy
little access to the courts. Although these proposals could be
viewed as somewhat distinct, addressing service of the courts
to a wider population, these proposals also seek to expose the
judiciary to other groups in society and to their problems and
perspectives. 0 3 In this sense, these proposals fit easily with
the ideas seeking to alter the character of the judiciary and
contain a variety of institutional mechanisms to accomplish this
goal. 0t 4 Previous experience with the use of judges in
neighborhood courts during the Allende government indicates that
99. See supra note 6. These proposals also could affect nepotism within the
judiciary by reducing the importance of the initial appointment to the judiciary.
100. NationalCouncil ofJustice, supra note 65, at 117.
101. Id. at 120-28.
102. Id. at 134. The Minister ofJustice believed that such an institution would
insure a voice for the judiciary in the government. Meeting with the Minister
ofJustice, supra note 61.
103. Jorge Correa Sutil, supra note 9, at 23.
104. Courts of Neighborhood Peace, supra note 23, at 82-89. One suggestion is to
replace Local Police Tribunals, created in 1887 to deal with minor infractions. These
police tribunals, not particularly effective, could be eliminated and their
infrastructure used to establish neighborhood courts. Other suggestions propose less formal
structures and the use of oral methods of presentation of evidence and arguments.
Id. at 73.
the transition for the judiciary would not be easy,' 0 5 but
thereby demonstrates the importance of these services to
changing the perspectives of judges.1 16
The proposals indicate some concern with the judiciary's,
particularly the Supreme Court's, use of formalism. The
discussions of the appellate jurisdiction of the Supreme Court
suggest that the Court has been too rigid in its application of
jurisdictional requirements 107 and that its use of formalism
has affected adversely its review functions. 0 8 Often repeated
is the necessity that the judiciary take a broader view of the law
involving human rights and personal liberty.'0 9 In a sense, the
argument for a broader view recognizes that several
approaches to interpretation are possible and advocates one that
focuses more on provisions protecting human rights.
The proposals also begin to suggest that, at least in some
very limited areas, precedent should be given greater weight
by the courts. The writ of inapplicability is the principal
example."O Through this writ, the Supreme Court can declare that
the application of a statute in a specific case violates the
constitution.I' The decision applies only to the individual case and
105. JACK SPENCE, supra note 22, at 74-80 (noting the unwillingness ofjudges to
dispense with much of formality that distanced courts from poorer litigants and
describing bureaucratic flavor of proceedings).
106. Because these activities compel judges to alter practices and perceptions,
they can play an important role in educating judges about the problems of the poor
and create a broader view of the function of the law and of the courts.
107. Hernin Correa de la Cerda, supra note 72, at 279.
108. Designation of Members of Higher Courts, supra note 5, at 32-33.
109. Carlos Cerda Fernindez, El Perfil delJuez [TheJudges Profile], in POLiTICA
JUDICIAL, supra note 34; Jorge Correa Sutil, supra note 9. There is also a call for
broader interpretation of the law to consider the purposes of the law and the social
and political context in which the rule will operate; judges are asked to consider the
goals and effects of the law.
Although the Director of the Vicaria of Solidarity also emphasized the
importance of the courts in protecting human rights, he believed that an important element
of change in the judiciary was the termination of the self-perpetuating hierarchy of
the judiciary by altering the nature of a judicial career by emphasizing merit in
selection and promotion and by requiring additional education forjudges. The Supreme
Court should become an appellate body of last resort rather than a major political
actor. As did many other Chileans, he expressed concern for the quality of
thejudiciary and was prepared to support salary increases for judges if such increases would
improve the quality of persons appointed to thejudiciary. Meeting with the Director
of the Vicaria of Solidarity, supra note 34. For a discussion ofjudicial salaries, see
supra note 59.
110. See CONSTITUCI6N POLiTICA DE LA REPOBLICA DE CHILE DE 1980 art. 80.
is not binding in other cases."t2 Although arguments could be
made that, as a practical matter, such a holding acts as
precedent," 3 neither the Supreme Court nor the lower courts are
bound by determinations regarding a writ of inapplicability.
Some proposals recommend that when the Court has applied
the writ three times in similar circumstances, finding the
statute to be constitutional, such decisions should apply
This provision seems motivated by a desire to reduce the
ability of the Supreme Court to interfere with legislation
because the alternative proposal is to remove the writ of
inapplicability from the Supreme Court's jurisdiction altogether." 5
These concerns with formalism appear particularly significant
in light of the importance attached to formalism in the Chilean
judiciary. Such concerns, however, are limited compared to
more general doubts about formalism.
The desire to modify the attitudes of judges, to somehow
inculcate them with democratic values, runs through many of
the proposals. Proposals for training of judges" t 6 and for
changes in legal education" 7 represent specific proposals
directed to this goal. In addition, most of the proposals
discussed thus far could be similarly interpreted: they seek to
change the attitudes and beliefs that can arise in an isolated
The emphasis on altering the attitude ofjudges represents
the beginning of an important reassessment of the role of the
judge. Implicitly, an emphasis on the attitudes of judges
assumes that judges do not mechanically apply the law; it accepts
that the opinions and beliefs of judges can significantly
influ112. Eugenio Valenzuela Somarriva, LaborJurisdiccionalde la Corte Suprema
[urisdictional Duties of the Supreme Court], in PROPOSICIONES PARA LA REFORMA JUDICIAL,
supra note 5.
113. Id. at 167. Attorneys could have an incentive to use the decision to advise
clients acting in similar circumstances. The application of the writ provides a basis
for predicting future action by the courts and therefore serves a function analogous
to precedent. Also, the personnel authority of the Supreme Court over lower court
judges increases the likelihood that these judges will be guided by the Supreme
Court's action without regard to the formal rules of precedent.
114. Id. at 172.
115. Id. at 173.
116. Carlos Cerda Fernindez, supra note 109, at 23-45.
117. Hernin Correa de la Cerda, supra note 72, at 277.
598 FORDHAMINTERNATIONAL LAWJOURNAL
ence outcomes. Judges with democratic attitudes and beliefs
can more effectively protect human rights than those who do
not have democratic perspectives.
The recognition of the importance of judicial discretion
may not seem particularly radical, but in the context of the
Chilean judiciary this recognition challenges the dominance of
formalism and echoes the hard won victories of American legal
realists some five decades ago. Indeed, some Chilean
commentators openly call for a rejection of the view that a judge
mechanically applies the code.11 The history of the judiciary
during the military regime demonstrates that the commitment
of judges to democratic values is crucial.
B. Legislative Proposals
Many of the suggestions for reform are now contained in
legislative proposals. These legislative proposals reflect firmly
held views of the transition government regarding reform and
have provoked a largely negative reaction from the Supreme
1. Proposals of the Transition Government
Relying upon many of the general proposals for judicial
reform, the transition government introduced legislation in
1991."' The legislation addressed many of the proposals
discussed above, including increasing the size of the Supreme
Court,'20 creating a national judicial council,' 21 modifying
certain court procedures, 22 imposing restrictions on the hiring of
of judges, 2 3
jeusdtagbelsi,s2hi4ngabaoljiusdhiicnigal thceolluesgee.o1f26"integrated attorneys ' , 25 and
The most important proposal would establish the National
Council ofJustice. t 27 This proposal provides a mechanism to
bring outside influences to bear on the judiciary, particularly in
the selection ofjudges. t28 In submitting this legislation,
President Alywin articulated a view of the judiciary consistent with
that underlying many of the general proposals. The judiciary
is in severe crisis, lacking public respect and beset by delay in
addition to being plagued by suspicions regarding its
independence.129 It is viewed as a public service acting by rote, too
reliant on the letter of the law and docile to the influences of
power. 13 0
According to the President, the response to this crisis
requires the autonomy of a judiciary free from political influence
but committed to a more expansive view of its role.' The
National Council of Justice is necessary to the true
independence of the judiciary.3 2
2. The Reaction of the Supreme Court
The Supreme Court responded negatively to most of the
legislative proposals presented by the transition
government.13 3 The Court's most extensive criticism concerned the
proposal to establish a National Council of Justice with powers
to set judicial policy including the selection of judges. The
Court believed that this body would be unconstitutional
because it would interfere with the responsibility of the Supreme
Court under the Constitution. 3 4 Based upon the experience
from 1833 to 1925 with a State Council, seen by the Court as
analogous to the National Council of Justice, the Court
believed that the judicial selection process would become
politicized and the judiciary demoralized. M35 The power of
nomination ofjudges is inherent in the judiciary and the
placement of that power in a National Council of Justice would
infringe upon the hierarchical control of the judiciary upon
which judicial independence stands.
The Court rests most of its criticism on the assertion that
the reforms would undermine the independence of the judicial
branch. 3 6 Ironically, the Supreme Court cites in support of its
independence the first decree law of the military junta
guaranteeing the judiciary's independence. 3 7 This citation,
combined with an emphasis on the maintenance of hierarchical
control, suggests a rather formal definition of independence.
Indeed, the transition government and the Supreme
Court seem to view judicial independence in differing, perhaps
inconsistent, ways. Contrasted to the Supreme Court's rather
formal definition, the transition government emphasizes the
lack of effectiveness of the judiciary in protecting individual
rights. Therefore, both sides of the legislative debate base
their argument on the concept of judicial independence.
The future of many of these proposals appears uncertain.
Practical difficulties may prevent enactment even of those less
controversial proposals regarding which there seems to be
wide agreement. Many of the recommended changes,
including alterations in the method of selection of judges and the
creation of a national judicial council, require modification of
the organic law of the courts. 3 s A majority of the Supreme
Court and four-sevenths of each house of parliament must
approve modifications in the organic laws.' 39 The Supreme
Court, therefore, remains a significant obstacle to many of the
reforms. In addition, the composition of the Senate makes
attainment of the necessary majority unlikely without the assent
135. Id. at 5.
136. Id. at 3.
137. Id. at 8; see supra notes 28-59 and accompanying text (discussing judiciary
during military regime).
138. Mario Verdugo Marinkovic, supra note 80; Meeting with the Minister of
Justice, supra note 61.
139. CONSTITUCI6N POLiTICA DE LA REP6BLICA DE CHILE DE 1980 art. 82.
C. The Importance of the Proposals
Despite the difficulties ahead, the reform proposals frame
the issues dominating the debate about the role of the
judiciary. They offer insights to the future of the judiciary for they
represent changes in the perceptions of the judiciary that are
likely to guide discussion for several years.
Viewed from the perspective of the character of the
Chilean judiciary, the proposals for judicial reform constitute a
coherent body of recommendations. These recommendations
seek to alter the character of the Chilean judiciary and in doing
so challenge some of the underlying tenets of the civil law
around which the Chilean system is constructed. The conduct
of the judiciary during the military regime has forced a
reassessment of the role of the judiciary. It seems unlikely that all
of the conventions regarding the Chilean judiciary will survive
III. IMPLICATIONS OF THE PROPOSALS
The proposals for judicial reform in Chile speak to issues
beyond modification of the Chilean judiciary. Particularly, the
transition government and the Supreme Court have presented
different visions of judicial independence. These proposals
have implications for the attempts at judicial reform in Latin
America, for the role ofjudiciaries in the transition to
democracy, particularly in Latin America and in Eastern Europe, and
for the role of the courts in preserving individual liberty.
Judicial reform in Latin America is closely related to the
transition to democracy. For example, U.S.-sponsored judicial
reform efforts were linked, particularly in Central America, to
movements toward democracy.' 4 ' The judiciary was assumed
to have a central role in protecting individual liberties,
restoring popular faith in the processes of government, and limiting
the abuses of the military and other autocratic groups only
reluctantly or incompletely yielding power to civilian
govern140. Meeting with the Minister of Justice, supra note 61.
141. UNITED STATES INTERNATIONAL DEVELOPMENT COOPERATION AGENCY,
AGENCY FOR INTERNATIONAL DEVELOPMENT, PROJECT PAPER: REGIONAL
ADMINISTRATION OF JUSTICE 1-2 (undated) [hereinafter REGIONAL ADMINISTRATION OF JUSTICE].
ments. t4 2 A successful transition to democracy required
sufficient judicial independence to permit the judiciary to fulfill its
role in the transition.
Therefore, judicial reform in Latin America assumes that
the establishment of democracy requires an independent
judiciary. The experience in Chile cautions that judicial
independence can be conceived in a variety of ways. Varying concepts
of judicial independence identify different problems and
suggest different solutions. Proposals for judicial reform in Chile
illustrate the usefulness of individual case studies and
emphasize the need for reforms specifically tailored to the conditions
in which the judiciary of a country actually functions.
Although judicial independence can be conceived in many
ways,' 43 the experience in Chile suggests the usefulness of
examining the concept of judicial independence. This
examination, in the context of the reform proposals in Chile, offers
142. See generally KENNETH ANDERSON FOR THE INTERNATIONAL HUMAN RIGHTS
LAW GROUP, MAXIMIZING DENIABILITY: THE JUSTICE SYSTEM AND HUMAN RIGHTS IN
GUATEMALA (1989) [hereinafter MAXIMIZING DENIABILITY]; LAWYERS COMMITTEE FOR
HUMAN RIGHTS, UNDERWRITING INJUSTICE: AID AND EL SALVADOR'S JUDICIAL REFORM
PROGRAM (1989) [hereinafter UNDERWRITING INJUSTICE]; WORKSHOP REPORT OF
CONFERENCE SPONSORED BY THE AMERICAN UNIVERSITY SCHOOL OF INTERNATIONAL
SERVICE AND THE WASHINGTON OFFICE ON LATIN AMERICA, ELUSIVE JUSTICE: THE U.S.
ADMINISTRATION OF JUSTICE PROGRAM IN LATIN AMERICA (1990) [hereinafter ELUSIVE
143. Two U.N. documents address the independence of the judiciary: a 1985
action by the General Assembly endorsing standards developed at the Seventh U.N.
Congress on the Prevention of Crime and the Treatment of Offenders- UNITED
NATIONS BASIC PRINCIPLES ON THE INDEPENDENCE OF THE JUDICIARY A/REs/40/32 (Nov.
29, 1985)- and procedures for implementing these principles adopted by the
Economic and Social Council and endorsed by the General Assembly in 1989-
PROCEDURES OF THE IMPLEMENTATION OF THE BASIC PRINCIPLES ON THE INDEPENDENCE OF
THE JUDICIARY, GENERAL ASSEMBLY RESOLUTION 44/162 (Dec. 15, 1989).
These documents reflect activity both by the crime control committees of the
United Nations and human rights organizations. Generally, the 20 principles address
the need to guarantee the independence and impartiality of the judiciary and to free
it from unwarranted interference. These principles also define a right to be tried
before ordinary tribunals. Other principles concern freedom of expression and
association within the judiciary, qualifications, selection, and training ofjudges including
legal protection of their tenure, professional secrecy and immunity, and regulation of
discipline, suspension and removal. Although these criteria emphasize operational
independence, they are closely related to the preservation of individual and human
rights. These documents as well as other related ones can be found in Centerfor the
Independenceofludges and Lawyers, The IndependenceofJudges and Lawyers: A Compilationof
InternationalStandards, CENTER FOR THE INDEPENDENCE OF JUDGES AND LAWYERS
BULLETIN (Apr.-Oct. 1990).
some lessons for judicial reform as part of a transition to
democracy and demonstrates that efforts at judicial reform
embody differing, occasionally conflicting, views of judicial
The independence of a judiciary requires that it be able to
function as a judiciary. It must be secure from physical
violence and be able to resolve cases without fear of retaliation.
In some Latin American countries, the intimidation of judges
through threats and violence challenges this fundamental
concept ofjudicial independence.' 4 4 Intimidation can result from
action by agents of the executive or by groups operating
outside of the government. In either case, the unwillingness or
inability of the executive to protect the judiciary can prevent
the courts from operating as restraints on power.
Moreover, repressive regimes can intimidate judges with
little or no physical violence. The fear of retaliation, a
retaliation observed to have been applied to other groups in society,
can effectively disable the judiciary. Astute judges adopt
attitudes or approaches that reduce the risk of antagonizing
government officials. Also, in a judicial bureaucracy, the attitudes
of those senior in the hierarchy inordinately influence the
values of the judiciary.
The operational independence of the judiciary can also be
challenged in less dramatic ways. Courts without resources,
judges without training, or a judiciary without the capability of
resolving the disputes brought before it cannot implement the
judicial power.'4 5 In some of Latin America, these challenges
to judicial independence are as disabling as any physical or
psychological attack on the judiciary. 146
These challenges to judicial independence represent
external limitations on a judiciary. Although the effectiveness of
these external forces may rely on intimidation and therefore
changes in the behavior of judges, they interfere with the
ability of the judiciary to implement the judicial function. The
response to these challenges more likely focuses on the nature of
the external limitations than on the judiciary. For example, the
144. ELUSIVE JUSTICE, supra note 142, at 20-22, 30-31, 40; MAXIMIZING
DENIABILITY, supra note 142, at 9-10, 25, 53; UNDERWRITING INJUSTICE, supra note
142, at 3-14.
145. REGIONAL ADMINISTRATION OF JUSTICE, supra note 141, at 10-11.
characteristics of the executive rather than the characteristics
of the judiciary may require modification. 147
To an extent, the Chilean experience fits this concept of
judicial independence, based heavily on analysis ofjudicial
failures in Central America. The Chilean judiciary failed to
protect individual rights in those political cases where human
rights abuses entrenched the power of the military
government. The evidence would support the conclusion that the
failure rested on the unwillingness of the military government
to permit the courts to interfere with its policies and the
.example of repression applied to other groups and institutions.
In Central America, close connections seem to exist
between the failure of the courts in "political cases" and the
inability of the judiciary to resolve more ordinary disputes
involving the civil and criminal law.' 48 The judiciary is disabled
by its own failures and by public distrust; this disability
contributes to an expanding cycle of violence.
In Chile, the failure of the judiciary to provide protection
from and redress against the military regime did not disable
the courts nor is it clear that failure resulted solely from
external restraint. Despite public opinion polls documenting
widespread distrust and disdain for the judiciary' 49 and the
irrelevance of the judicial process to large number of Chileans, 5 '
the criminal justice system did not break down in Chile nor
does Chilean culture seem less concerned with legality than
before the coup. As discussed above the composition and
attributes of the judiciary seem remarkably similar over the last
twenty-five years.' 5' Indeed, the reform proposals address
long-standing aspects of the Chilean judiciary.
This picture of an intact, functioning judiciary is belied by
the extensive jurisdiction of the military courts. 152 These
courts exercised extensive jurisdiction over civilians during the
148. Id. at 1-2, 5-6; MAXIMIZING DENIABILITY, supra note 142, at 9-10.
149. See supra note 58 and accompanying text (discussing public opinion
150. See supra note 22 and accompanying text (discussing attempts to modify
Chilean court system).
151. See supra notes 4-27 and accompanying text (discussing judiciary prior to
152. See supra notes 44-45, 76-84 and accompanying text (discussing judiciary
response to coup).
military regime, a jurisdiction that continues and speaks
eloquently of the semi-autonomous status of the military in
These conflicting perspectives on the failure of the
Chilean judiciary arise in part because the civilian courts in Chile
never were agents of the repression. The complicity of the
courts lay in acquiescence and inaction rather than in
commission. The judiciary consciously distanced itself from the
repression and in doing so sought to separate "political cases"
from the ordinary work of the courts. To do so, the judiciary
first acquiesced in the creation of military courts of broad
jurisdiction and also denied writs of habeas corpus and other pleas
for relief, pleas that would have brought it into conflict with
the military regime.
In part, as noted above, this strategy played some role in
preserving the ordinary functions of the courts. Additionally,
however, this strategy purchased the antipathy of the majority
of Chileans and suggests another perspective from which to
examine the independence of the judiciary. The Chilean
courts did enjoy independence, an independence guaranteed
by the military. The judiciary operated throughout the military
regime and the continuity and viability of the judiciary attests
to its independence. The civil law system and the formalism of
Chilean law helped preserve this independence.
The tradition of a limited role for judges permitted the
judiciary to withdraw from the conflicts regarding human
rights and individual liberties. The Chilean civil law system
rests heavily upon the French Civil Code. In the context of the
French Revolution, the formalism of the law and the
restrictions on judges sought to protect democratic development
from an unpopular judiciary closely connected with the ancient
regime.1 53 Ironically, in Chile, these techniques to preserve
democracy prevented the courts from responding to the
violation of democratic norms and allowed the courts to ignore
significant human rights abuses.
The fear of courts in a democratic society continually
inclines restrictions on the function of courts in order to protect
153. JOHN HENRY MERRYMAN & DAVID SCOTT CLARK, COMPARATIVE LAW:
WESTERN EUROPEAN AND LATIN AMERICAN LEGAL SYSTEMS 183-85 (1978) (citingJOHN
PHILLIPPE DAWSON, THE ORACLES OF THE LAW 369-71 (1968)).
democratic decision making. A formalistic model inculcating a
narrow view of legality accomplishes such restrictions. This
model, however, isolates the judiciary and reduces its ability to
respond to abuses by the custodians or the usurpers of
democratic forms. This model denies the judiciary a significant role
in preserving individual rights and eventually undermines faith
in the judiciary. In this context, little is gained by emphasizing
the independence of the judiciary.
In Chile, the restrictions on the judiciary and its isolation
may also have created judicial attitudes and beliefs inconsistent
with, if not hostile to, democratic values. Once held by the
Supreme Court, such beliefs and attitudes could easily become
the values of the judiciary, ones difficult to change or to
Even assuming that the judiciary were able to continue its
ordinary activities, could it be called an independent judiciary?
The Chilean experience and the proposals for reform force
consideration ofjudicial independence in terms other than
operational independence; they require a consideration of goals
as well as techniques.
Despite the variety of proposals, the thrust of reform
addresses the purpose of the judiciary. The judiciary must hold
democratic values which a fair reading of the reform proposals
equates with a desire to protect individual liberties and human
rights and to serve a larger proportion of the population. The
proposals themselves seem modest adjustments of the judicial
system in response to failures of the judiciary during the
military regime. The implications of the proposals, however, are
Proposals for judicial reform regarding a transition to
democracy can expect both too much and too little of the
judiciary. Proposals that emphasize operational independence can
place on the courts too much responsibility for democratic
reform. On the other hand, the emphasis on operational
independence can substitute autonomy for effectiveness in
preserving human rights. The Chilean experience demonstrates that
an autonomous judicial system can be ineffective in protecting
human rights; it demonstrates that an autonomous judiciary
may not be an independent one. 54
154. "When ajudicial power loses its vision of its own historical mission as
The proposals for judicial reform in Chile should be
understood in the context of the performance of the judiciary
during the military regime. The characteristics of the judiciary
prior to the coup influenced that performance. The failure of
the judiciary, particularly the Supreme Court, to protect
human rights motivated a number of proposals for reform.
These proposals address a variety of issues and concerns.
These proposals, however, suggest important changes in the
conventions underlying the Chilean judiciary. Particularly,
they challenge the formalism of Chilean law.
The Chilean experience tempers approaches to reform
centered in Central America and requires an examination of
the concept ofjudicial independence. The reform proposals in
Chile address the inculcation of democratic values in an
autonomous and viable judiciary. Chile offers a case study against
which to evaluate judicial reforms in Latin America and in
governments in transition to democracy.
2. Proposals Addressing the Character of the Chilean Judiciary ...........................
1. Proposals of the Transition Government ....
2. The Reaction of the Supreme Court ........
29. Id . at 95 (discussing preserving powers and autonomy ofjudiciary in section three of Decree Law One) .
30. Id . at 58 , 95 - 96 .
31. Id . at 96.
32. Hugo Friihling, supra note 2 , at 359.
33. Id . at 359 , 363 - 66 ; INFORME, supra note 1, at 97; see THE VICARIA OF SOLIDARiTY, EXTENT OF WORK IN OVERALL FIGURES ( 1990 ) (describing the use of petitions for habeas corpus) (copy of report on file with Fordham InternationalLaw Journal) .
34. Hugo Friuhling, supra note 2 , at 364 ( "[T]he courts acted as if government officials were always telling the truth, particularly when they denied having detained somebody.") (citation omitted); Roberto Garret6n Merino , ElPoderjudicialchilenoyla violacidn de los Derechos Humanos [ The ChileanJudiciaryand the Violation of Human Rights] , in PROYECTO DE CAPACITACI6N, FORMACI6N , PERFECCIONAMIENTO, Y POLiTICA JUDICIAL: DOCUMENTOS Y MATERIALES [PROJECT OF PREPARATION, FORMATION, IMPROVEMENT, AND JUDICIAL POLICY: DOCUMENTS AND ESSAYS] 111 , 120 - 30 ( 1990 ) [hereinafter POLiTICAJUDICIAL]. The Director of the Vicaria of Solidarity, the principal human rights organization operating during the military regime, also noted that the courts did little to monitor or verify statements by government officials. Meeting with Rene Gonzalez, Director of the Vicaria of Solidarity , in Santiago, Chile (June 27 , 1991 ) (meeting notes on file with Fordham International Law Journal) [hereinafter Meeting with the Director of the Vicaria of Solidarity]. For example, many writs were answered with the response that the individual had been released although the person was never seen again by friends or relatives . Id.
35. Roberto Garret6n Merino, supra note 34, at 124-25.
36. Pamela Jiles , Fallo Histdrico del Ministro Cerda [HistoricJudgment of Minister Cerda], ANALIsIs , Aug. 19 , 1986 , at 7.
37. Maria Eugenia Camus, Campatia Contra el Ministro Cerda [Campaign Against Minister Cerda], ANALISis, Apr. 15 , 1986 , at 20.
38. Id . at 21. Judge Cerda was sanctioned by the Supreme Court . See generally Jorge Correa Sutil, A Propositionde Una Sancion , GACETAJURIDICA , No. 76 , at 3 ( 1986 ).
39. Patricia Politzer , Rene Garcia Villegas, Juez del Crimen: Har mi trabajo aunque me cueste la vida [Rene Garcia Villegas, CriminalJudge: I Shall Do My Job Even If It Means My Life] , LA EPOCA , Nov . 15 , 1987 , at 17; Juez Rene Garcia Villegas , Se Me Acusa de Violar ProhibicidnaJueces De Actuar en Pol 'tica [I am Accused of Violating Provisions ofJudges Regarding Taking Part in Politics] , EL MERCURIO , Sept . 14 , 1988 , at 5D. As suggested above, not all observers believed that Judge Villegas's dismissal was unrelated to his competence.
40. Rene Garcia Villegas, supra note 39 , at 5D.
41. INFORME, supra note 1, at 42.
42. Pedro Aylwin Chiorrini,Jurisdiccidn Penal Militar: Diagndstico [Diagnosis: Military PenalJurisdiction],in POLiTICA JUDICIAL, supra note 34, at 199.
63. Juan Ignacio Correa Amuntegui, supra note 7.
64. Designation of the Members of Higher Courts, supra note 5 .
65. Comisi6n de Estudios del Sistema Judicial Chileno , Consejo Nacional de La Justicia [National Council ofJustice] [hereinafter National Council of Justice] , in PROPOSICLONES PARA LA REFORMA JUDICIAL, supra note 5 , at 106.
66. Id . at 89; Nancy de la Fuente Hernindez, PerspectivaJudicialde la Administracidn de Justicia [ Perspective on the Administration of Justice], in JUSTICIA Y LIBERTAD EN CHILE [JUSTICE AND LIBERTY IN CHILE] 77 ( Guillermo E . Martinez ed., 1992 ).
67. Mauricio Carvallo , La Justicia Llega Tarde [Justice Arrives Late], Hoy, July 25 , 1988 at 29.
68. Jorge Correa Sutil, supra note 9.
69. Id .
70. Abogados Integrantes Preocupana los Colegios Profesionales [ IntegratedLawyers Raise Concerns in the College of Professionals] , LA TERCERA , Dec . 13 , 1985 , at 35.
71. Monica Gonzalez , El Problemaestd en cdmo se Generan losJueces [The Problem Rests in How Judges are Chosen] , LA EPOCA , Apr . 25 , 1989 , at 13.
72. Hernin Correa de laCerda, Proposicionesparauna EscuelaJudicialen Chile [ Propositionsfor a Judicial School in Chile] , in PROPOSICIONES PARA LA REFORMA JUDICIAL, supra note 5 , at 275.
73. Designation of the Members of Higher Courts, supra note 5 .
74. Separation of powers focuses more on the autonomy of a branch regarding its operations than it does on restricting the powers of other branches of government.
75. Gonzalo Pica Pemjean, Informdtica Aplicada A La Gestidn De Tribunales: La Experiencia Chilena [Information Pertinent to the Administration of the Courts: The Chilean Experience] , in POLITICA JUDICIAL, supra note 34 , at 329.
82. Ley No. 19 .047, Publicada En El Diario Oficial 151 , 14 de Febrero de 1991 . The law seeks to limit the jurisdiction of military courts by restricting military jurisdiction to crimes committed by military personnel, crimes committed jointly by military personnel and civilians, and crimes with a distinctive military character . Id . The law also seeks to eliminate military jurisdiction for crimes committed by civilians in threatening, slandering, or offending any member of the armed forces . Id.
83. An analysis of the reform argues that Law No . 19 . 047 contains the same limitations as a law enacted in 1975 , Law No. 12 .927, and therefore Law No. 19 . 047 adds little . Also, a contradiction exists between Law No. 12.927 (and 19 .047) and Article 3 of the Code of Military Justice. The contradiction would most likely be resolved in favor of No. 12 .927 (and No. 19 .047) under the civil law rule that the more specific statute governs. Another outcome is possible depending upon an interpretation that Article 3 is the more specific provision . CRISTOBAL EYZAGUIRRE B ., LEYES CUMPLIDO: ANALISISJURIDICO DE LA LEY No . 19 .047 [ COMPLETED LAWS : LEGAL ANALYSIS OF LAw No . 19 .047] 151 ( Ediarconosur Ltda ., 1991 ).
84. The interpretative problem creates the possibility of continued abuse of military jurisdiction and suggests that Congress was cautious in adjusting the jurisdiction of the military courts .
85. Designation of the Members of Higher Courts, supra note 5 .
86. Id .
87. Id .
88. Id . at 35. Increasing the number ofjustices on the Supreme Court was one of the priorities of the Ministry ofJustice. Meeting with the Minister ofJustice , supra note 61.
89. Designation of the Members of Higher Courts, supra note 5 , at 36. At present, the Supreme Court sits in panels, but these panels, which vary in their membership, do not specialize in particular types of cases or appeals . Id.
91. Germin Hermosilla Arriagada, Informe Sobre Los Procedimientos de Designacidn, Calificaciony Ascenso de losJueces y de Integracionde los Tribunales Superiores: SituacionActual y Proposiciones [The Procedures by Which Judges are Designated, Qualified, and Promotedand Integrationof the High Tribunals,the Current Situationand Proposals] , in POLiTICA JUDICIAL, supra note 34 , at 395.
92. Designation of the Members of Higher Courts, supra note 5, at 51 (describing possible composition of these tribunals).
93. Id . at 52.
94. National Council ofJustice, supra note 65 , at 130-31.
95. Id . at 133.
96. Organic Code of Tribunals, supra note 6 , arts. 284 , 286 .
97. Germin Hermosilla Arriagada, supra note 91 , at 408-09.
98. Designation of the Members of Higher Courts, supra note 5 , at 57.
118. Designation of the Members of Higher Courts, supra note 5 , at 32.
119. PROYECTO DE LEY SOBRE REFORMA AL SISTEMA DE ADMINISTRACION DEJUSTICIA [PROPOSED LAW REGARDING REFORM OF THE JUDICIAL ADMINISTRATION SYSTEM ] (Apr . 1991 ).
120. Id . tit. II, art. 2 ( 21 members).
121. Id . tit. I. The National Council ofJustice would consist of the President of the Supreme Court who would preside, two additional members of the Supreme Court, two members from the Courts of Appeal, the President of the National Association of Magistrates, two judges of the courts in Santiago, two Senators, one member from the National Board of the College of Lawyers, one member from the Boards of Colleges of Lawyers outside the Santiago metropolitan area, three members appointed by the President from a list provided by the Council of Rectors of universities with law schools at least ten years old .
122. See , e.g., id. tit. II (dividing the Supreme Court into four divisions with specialized jurisdiction).
123. Id . titI.II.
124. Id .
125. Id .
126. Id . tit. VIII.
127. Id . tit. I.
128. Id .
129. President Patricio Aylwin, President of the Republic of Chile, Introductory Remarks upon remitting to the Chamber of Deputies for consideration the proposed law regarding Judicial Reform (Apr . 1, 1991 ).
130. Id .
131. Id .
132. Id .
133. Supreme Court Response, supra note 49.
134. Id . at 9.