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THE JUDICIARY UNDER THE DICTATORSHIP
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THE SUPREME COURT LEGITIMIZES THE REGIME
Throughout the period of military rule, the Supreme Court lent legitimacy to the military regime through symbolic actions, public speeches, and through its resolutions.
ACTS OF SUPPORT
On September 28, 1973, the four Junta members went to the courthouse to receive formal greetings from the judges. On behalf of his peers, Supreme Court president Enrique Urrutia Manzano, expressed his "satisfaction for the military pronunciamiento ("proclamation" or coup) and the change in government."
In November 1973, two months later, Supreme Court Judge Jose Maria Eyzaguirre, traveled to Europe as part of the first political delegation intended to promote the pronunciamiento abroad and improve the Junta's international image.
On November 13, 1973 the Supreme Court declared itself incompetent to review military court rulings in time of war, reaffirming this position in December 1973 and again in August 21, 1974. The Court also empowered judges sympathetic to the regime to work with the military courts in time of war.
Such was the case of Hernan Cereceda, then Santiago Court of Appeals judge (who was later appointed to the Supreme Court and then impeached). He acted as legal council to the Air Force War Time military judge. Although Cereceda is credited with having influenced the repeal of death penalties issued by the Air Force War Council, he also construed, by way of Transitory Article 24 to the Constitution, as crimes of "treason to the nation" and "sedition," what prior to the coup were simply political opinions.
In December 4, 1974 the judiciary further compromised its independence by accepting Decree Law 778 (DL778), which validated all acts and extra-legislative provisions outside the confines of the Constitution, and which could be applied retroactively. DL778 stated: "...decree laws dictated... by the Junta, which may be different or contrary ... to some precept of the Constitution have been considered to be modifying regulations, whether expressly or tacitly, partially or in whole, of the corresponding precept of the Constitution."
By accepting this decree, the Supreme Court gave up its authority to declare laws unconstitutional.
Alejandro Hales, former Attorneys Guild president, commenting on DL 778: It represents "an extraordinary cynicism, in that it [the military government] acknowledges the lack of legitimacy of its own decrees."
In 1974, during the ceremony that marked the enactment of Decree Law 527, which ratified the governing military junta, Supreme Court Chief Justice Enrique Urrutia Manzano personally placed the Presidential Sash (Banda Presidencial) over Pinochet.
On March 1, 1975, after the second resolution from the United Nations condemning Chile's disregard for human rights, Supreme Court president Urrutia Manzano inaugurated the judicial year with the following words: "Chile, contrary to what bad patriots or foreigners with political interests say abroad, is not a land of barbarians... As far as torture and other atrocities, I can affirm that there are no firing squads, or iron curtains, and any affirmation to the contrary is a result of a press that proselytizes ideas that could not and shall not prosper in our nation."
PRO-REGIME RESOLUTIONS
The Supreme Court judges avowed political nonpartisanship, but their rulings were influenced by the political ideology of the military regime as expressed in the Doctrine of National Security, which considered Communism and Marxism as the "internal enemy" to be eliminated through "war" and the suspension of peacetime norms.
Right To Public Assembly
Article 6 of the State Security Law prohibited mass public events in streets, squares and other public places. A motion filed October 16, 1985 on behalf of union leaders Manuel Bustos, Arturo Martinez, Rodolfo Seguel, and Jose Rivera, all of whom were arrested during a public rally, challenged the constitutionality of this law. The petitioners contended that the clause violated Article 19 of the Constitution, which guarantees the right to peaceful public assembly.
With but a single dissenting vote, the Supreme Court rejected the motion with the argument that "the exercise of human rights is subject to the limitations imposed by authority to protect... the public order, the common good and State security." These contingencies brought about by the threat to national security, the judges argued, justified suspending Article 19.
"Dangerous" Individuals
Through some of its rulings, the Supreme Court also supported the regime's contention that membership in the Communist Party constituted a threat to national security. This justified banning a person from entering the country.
In 1984 former Communist Party Senator Julieta Campusano filed a motion against the Interior Ministry's prohibition banning her from returning to Chile. At the time Interior Minister Sergio Fernandez, who later became a senator for the Independent Democratic Union, argued that:
"...the person in question entered the Communist Party in 1936 and since that time on... occupied the highest positions in that organization... From abroad she has engaged in campaigns against the government to discredit its authorities and attempt to isolate the Republic internationally. Based upon the doctrine of international Marxism, these facts lead us to conclude that the return to the country of the petitioner would present a danger for the nation's internal peace."
The Supreme Court upheld the ban on May 28, 1984.
Professional Confidentiality
In 1986, Vicaria of Solidarity medical doctors assisted a wounded member of the Manuel Rodriguez Patriotic Front (FPMR), Hugo Gomez Peña. Peña, it was later learned, had participated in an armed assault on a bakery. Several Vicaria staff members were subsequently arrested, accused of being "assistants to an armed combat group."
The Military Court ordered the Catholic human rights agency to turn over its legal and medical files, particularly of persons assisted for bullet wounds over the previous two years, as well as information on its funding sources, personnel rolls, and activities. Vicaria director Sergio Valech refused to turn over the medical and legal files, arguing it would be a violation of professional confidentiality.
The insistence of Military Prosecutor Fernando Torres Silva, assigned to the case in May 1986, led the organization to file a disciplinary complaint, arguing that the requested files had no relevance to the bakery assault case under investigation.
The Military Court agreed that Torres Silva had overstepped his authority, but the Supreme Court overruled the decision. The need to solve crimes that affect national security, the court ruled, prevails over the obligation to maintain professional confidentiality.
The Vicaria still refused to hand over the files to police. The Military Court did not insist and the Vicaria never did relinquish its files.
continue:
Habeas Corpus Under Siege
Amnesty and Impunity
Bowing to Military Courts
Dissidence within the Judiciary
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