- Justice Systems arise from enshrining Legal Pluralism and recognizing the existence of Indigenous Peoples’ legal systems. Such systems shall exist on an equal footing with the National Justice System.
An essential function: to know, judge and enforce what has been decided.
In general, it is the Courts that exercise jurisdiction, i.e. they hear disputes of legal relevance, decide them and have the power to enforce their decisions, even against the will of those affected.
In Chile, traditionally, this function has been carried out by the judiciary, deciding disputes on the basis of a single piece of legislation, applicable to all the country’s inhabitants. As we shall see, the Proposal drawn up by the Constitutional Convention radically changes this paradigm.
Legal Pluralism and Justice Systems
The Proposal makes an unprecedented recognition to the Legal Pluralism, i.e. the fact that there would not be a single legal system but several. This results from acknowledging the existence of the legal systems of Indigenous Peoples, and the Proposal provides that their authorities will also exercise jurisdiction.
Indigenous Peoples’ juridical systems will exist on an equal footing with the National Justice System. The Proposal does not indicate who can or should be subject to such jurisdictions, nor does it circumscribe them to a specific territory. These definitions were left to the law, which should determine the mechanisms for coordination, cooperation, and resolution of conflicts of jurisdiction that may arise.
So, who will exercise jurisdiction?
According to the constitutional Proposal, it is possible to distinguish:
1) The authorities of indigenous peoples recognized by the Constitution or laws; and,
2) The Courts that compose the National Justice System, which are the following:
| Supreme Court | • With jurisdiction over the whole country, its function is to ensure the correct application of the law and to standardize its interpretation. • It will resolve challenges against decisions of the indigenous jurisdiction, in a specialized room and assisted by a technical council of experts in their own culture and rights. • Composed of 21 members, who will serve for 14 years. |
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| Court of Appeals | • With jurisdiction over a region or part of a region, their main function is to rule on challenges to judgments of courts of first instance. | |
| Courts of First Instance | • Civil, criminal, family and labor Courts | |
| • Criminal Enforcement Courts | • These new courts will ensure the rights of convicted persons and the rights and benefits of inmates. • They shall exercise judicial control over prison authorities in the exercise of their disciplinary powers. |
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| • Administrative Courts | • The draft proposes to create these tribunals to hear claims against or brought by the state administration.
• There will be at least one per region |
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| • Environmental Courts | • They will rule on the legality of administrative acts in environmental matters, the action for the protection of environmental and nature rights, the action for the reparation of environmental damage, among others. • While three such tribunals already exist, the draft proposes that there should be at least one per region. |
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| County Justice1 | • It will be composed of County Courts and County Justice centers. • There shall be at least one County Court in each borough that has a municipality (City Hall). It shall hear legal disputes at the county level that do not fall under the jurisdiction of another court, in a brief, simple, oral, and expeditious procedure. |
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A real paradigm shift
Legal pluralism and diverse justice systems represent a paradigm shift within the framework of a traditionally unitary state as Chile.
Many questions remain as to how indigenous justice will be applied and what law they will apply to resolve the conflicts they hear: the Proposal only indicates that they must respect the fundamental rights set out in the Constitution and international human rights treaties.
The incorporation of Administrative Courts and Criminal Enforcement Courts is noteworthy.
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Footnotes
1 While paragraph 366 of the Draft indicates that these courts are also courts of instance, paragraph 362 treats them separately.
