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THE JUDICIARY UNDER THE DICTATORSHIP
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ROLE OF THE JUDICIARY DURING THE MILITARY REGIME
Background
The military rulers who came to power on September 11, 1973 closed down the National Congress and created an all-powerful executive branch vested with legislative authority. The judiciary, however, was the only branch of government in which they did not directly intervene.
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.
Habeas Corpus Under Siege
Habeas corpus is a legal injunction intended to protect the freedom and personal safety of individuals in custody as well as those who fear an arrest without cause or a threat to their physical well-being. Of the 5,400 habeas corpus writs sought in the period between 1973 and 1983, only ten were conferred, according to the Inter American Human Rights Commission of the Organization of American States. Human rights organization CODEPU estimates that 40,000 Chileans were denied this legal recourse throughout the 17-year military regime.
Amnesty and Impunity
The 1978 Amnesty Law exculpates from criminal responsibility all persons who committed crimes, were accomplices in crimes or had covered-up crimes between the day of the military coup, September 11, 1973 and March 10, 1978, when the state of siege was lifted.
Bowing to Military Courts
Throughout the military regime, the jurisdiction of the military courts broadened while the civilian court's authority was increasingly subject to unchallenged restrictions and intrusions.
Dissidence within the Judiciary
Judges Carlos Cerda, Jose Canovas and Rene Garcia all suffered sanctions for asserting their judiciary independence during the military regime.
BACKGROUND
The military rulers who came to power on September 11, 1973 closed down the National Congress and created an all-powerful executive branch vested with legislative authority.
The judiciary was the only branch of government in which they did not directly intervene. The declaration proclaiming the Governing Junta, the day after the coup, included a clause that stated that "the Junta's mission shall guarantee the judicial branch full exercise of its authority."
On September 26, 1973, when the four Junta members visited the Supreme Court, Augusto Pinochet told the judges: "The Junta which I have the honor of presiding has wished to come to this solemn edifice to pledge the respect we feel for the judiciary, a symbol of Chilean law and justice." However, as Pinochet was giving his word to respect judiciary integrity, the Junta he headed was already in the process of dismantling Chile's legal and institutional framework. The Junta claimed the military takeover was necessary to restore constitutional order, which it accused the Popular Unity government of violating, but it soon began to present that very system as obsolete and in need of replacement.
Within the context of a national emergency produced by the alleged state of war, constitutional guarantees were suspended by decree laws published in the same Diario Oficial which previous to the military regime was the public record for laws approved by Congress.
Shortly after the military Junta took power, it appointed a Constitutional Commission, initially charged with restoring institutional normality in preparation for the eventual transfer of power back to civilians, pending elections. When it became evident, however, that its real goal was to draft a Constitution suited to promote the interests of the military regime, several members deserted the Commission.
The new institutional legal framework that was created with the 1980 Constitution and its transitory articles was tailor-made to fit Pinochet and his policies of state terrorism.
Just as a patina of legality was bestowed upon Pinochet through his being named "President" of the Junta in 1973, and "President of the Republic" by decree in 1976, the 1980 Constitution provided a "legal" framework within which the regime could carry out its repressive policies.
Another example of the regime's carefully constructed legal framework was Decree Law 187 (DL187). The law, which established procedural guarantees for persons under arrest and in custody, was proclaimed in January 1976 as a direct response to international criticism of its human rights record. The regime often invoked this law as proof that it respected human rights. The fact that the provision was never put into practice was justified by the state of siege, and, later, by the special state of emergency created in Transitory Article 24 to the Constitution.
Secret Laws
Parallel to the apparent legitimacy provided by decree laws and the amended Constitution, the regime authorized itself (DL991, April 1975) to create legislation which is "secret or reserved in nature." The first legislative act under the 1980 Constitution -also the first to carry the title of "law" rather than "decree law"- established lawmaking regulations. Its article 34 made the secret laws official and confirmed their existence. The secret laws were known only to a select group of officials beyond Gen. Pinochet, Junta members, and the corresponding Cabinet minister.
Little was known about this body of law, which numbered more than 100, except for an occasional reference in a public law or by inference. Since the advent in 1990 of the first democratic transitional government, opponents of the military regime have demanded that the secret laws be made public.
In November 1983, the existence of one of these secret laws was unintentionally confirmed, when the Santiago Appeals Court accepted a habeas corpus petition on behalf of a person for whom the CNI (Central Nacional de Informaciones) secret police had issued an arrest order. In accepting the petition, the Court argued that Decree Law 1878, which in 1977 created the CNI, did not authorize it to issue arrest warrants. The Interior Ministry rejected this argument on the basis that the Court had cited only the decree law, and had failed to consider later modifications to the law. As no such modifications had ever been published, the Interior Ministry inadvertently confirmed a secret law the court had no way of knowing existed.
Supreme Court
The actions of the Supreme Court throughout the period of military rule have led many to conclude that it compromised its independence and, in fact, was biased in favor of the de facto government.
In March 1974, seven months after the coup, Supreme Court president Enrique Urrutia Manzano declared: "... the courts have functioned normally in accordance to law, the administrative authority abides by our decisions, and our judges are respected with the decorum they deserve."
As the government's National Truth and Reconciliation Commission pointed out in 1991, if Urrutia's words had indeed been accurate, human rights would have been better safeguarded. Rather, the Commission report found: "The attitude the judiciary adopted during the military regime... aggravated the ... systematic violation of human rights, ....by failing to grant immediate protection to persons arrested, and by according repressive agents impunity for their criminal actions, regardless of the methods of aggression used."
continue with:
Supreme Court Legitimizes the Regime
Habeas Corpus Under Siege
Amnesty and Impunity
Bowing to Military Courts
Dissidence within the Judiciary
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