CHAPTER IV. GOVERNMENT
PRESIDENT OF THE REPUBLIC
The government and the administration of the State correspond to the President of the Republic, who is the Head of State.
His authority extends to everything that concerns the preservation of public order in the interior and external security of the Republic, in accordance with the Constitution and the laws.
The 1st of June of each year, the President of the Republic shall report the administrative and political state of the Nation to the country before the Plenary Congress.
To be elected President of the Republic it is required to have the Chilean nationality in accordance with the provisions of the numbers 1 or 2 of article 10; to have at least 35 years of age and to possess the other necessary qualities to be a citizen with the right to vote.
The President of the Republic shall exercise his functions for a period of four years and may not be reelected for the next period.
The President of the Republic shall not leave the Country for more than thirty days or counting from the day stated in the first paragraph of the following article, without approval of the Senate.
In any case, the President of the Republic shall communicate to the Senate his decision to leave the territory and the reasons or it, with due anticipation.
The President of the Republic will be elected by direct vote and by absolute majority of the votes validly cast. The election will be made in conjunction with that of the parliamentarians, in the manner determined by the respective constitutional organic law, the third Sunday of November of the year preceding that in which that who is in office must cease.
If more than two candidates present themselves to the election of the President of the Republic and none of them obtain more than half of the votes validly cast, there shall be a second vote that shall be restricted to the candidates who obtained the two highest relative majorities and, in it, the candidate that obtains the highest number of votes will result elected. This new vote will be held, in the manner prescribed by law, on the fourth Sunday following the first round.
For the purposes of the provisions of the two preceding paragraphs, the blank and invalid votes shall be deemed not cast.
In case of the death of one or both candidates to which the second paragraph refers, the President of the Republic shall call a new election within ten days from the date of the death. The election shall be held ninety days after the call if that day corresponds to a Sunday. If that is not the case, the election will be held on the immediately following Sunday.
If the mandate of the President of the Republic in office expired before the date of assumption of the President elected in accordance with the preceding paragraph, the norm contained in the first paragraph of article 28 shall apply where appropriate.
The qualification process of the presidential election shall be concluded within the next fifteen days in the case of the first vote or within thirty days in the case of the second vote.
The Election Qualifying Court shall immediately notify the proclamation of the elected President, which it has executed, to the President of the Senate.
The Plenary Congress, convened in public session the day in which the incumbent President must cease in office and with the members that assist, will take cognizance of the resolution under which the Election Qualifying Court proclaims the elected President.
At this same event, the elected President will take, before the President of the Senate, oath or promise to faithfully execute the office of President of the Republic, preserve the independence of the Nation, observe and enforce the Constitution and the law, and will immediately assume his functions.
If the elected President is unable to take office, meanwhile, the President of the Senate will assume with the title of Vice President of the Republic; in absence of him, the President of the House of Representative, and in absence of him, the President of the Supreme Court.
However, if the impediment of the elected President is absolute or should last indefinitely, the Vice President, in the ten days following the agreement of the Senate adopted in accordance with article 53 number 7, shall call a new presidential election to be held ninety days after the call if that day corresponds to a Sunday. If that is not the case, the election will take place the immediately following Sunday. The President of the Republic, thus elected, will take office at the time prescribed by this law, and will remain in exercise until the day in which it would have corresponded to the elected who could not assume to cease in office and whose impediment gave rise to the new election.
If because of a temporary impediment, either because of illness, absence from the country or another serious reason, the President of the Republic found himself unable to perform his duties, he shall be replaced with the title of Vice President of the Republic, by the incumbent Minister to whom it corresponds according to the order of legal precedence. In his absence, the replacement will correspond to the incumbent Minister who follows in the order of precedence and, in the absence of all of them the replacement will correspond –successively- to the President of the Senate, the President of the House of Representatives and the Chief Justice of the Supreme Court.
In case of vacancy in the office of President of the Republic, the substitution will be produced as in the cases of the preceding paragraph, and it will proceed to elect a successor in accordance with the rules of the following paragraphs.
If the vacancy is produced with less than two years left for the next presidential election, the President shall be elected by the Plenary Congress by the absolute majority of the Senators and Representative in exercise. The election by the Congress shall be made within ten days from the date of the vacancy and the elected will take office within the next thirty days.
If the vacancy is produced with more than two years left for the next presidential election, the Vice President, within the first ten days in office, will call the citizens for a presidential election to take place one-hundred and twenty days after the call, if that day corresponds to a Sunday. If that is not the case, the election will take place the immediately following Sunday. The elected President will take office the tenth day after his proclamation.
The elected President in accordance with any of the foregoing paragraphs shall remain in office until he completes the term that remained to the person replaced and will not be able to run as a candidate for the next presidential election.
The President shall cease to hold office the same day that he completes his term and will be succeeded by the newly elected.
He who has held this office for the entire term, shall assume, immediately and of right, the official dignity of Former President of the Republic.
In virtue of this quality, the provisions of the second, third and fourth paragraphs of article 61 and article 62 shall apply to him.
[This dignity] will not be reached by the citizen who fills the position of President of the Republic because of vacancy of the office or he who has been convicted in a political trial against him.
The former President of the Republic that assumes some remunerated function with public funds will cease, as long as he performs it, to perceive the allowance, maintaining, in any case, the privilege [fuero]. Teaching jobs and functions or commissions of equal character of superior, secondary and special education are excluded.
The President appointed by the Plenary Congress or, in its case, the Vice President of the Republic will have all the powers that this Constitution gives to the President of the Republic.
The special powers of the President of the Republic are:
- To concur in the making of statutes in accordance with the Constitution, approved and promulgate them;
- Request, indicating the reasons, that any of the Houses of the National Congress be called to session. In this case, the session must be held as soon as possible;
- To issue, with the previous delegation of powers from the Congress, decrees with force of law on the matters that the Constitution indicates;
- To convoke a plebiscite in the cases of article 128;
- To declare states of constitutional exception in the cases and forms prescribed in this Constitution;
- To exercise the regulatory power in all of those matters that are not part of the legal domain, notwithstanding the power to issue the other regulations, decrees and instructions that he deems convenient for the implementation of the laws;
- To appoint and remove the Ministers of State, undersecretaries, regional presidential delegates and provincial presidential delegates at his will;
- To appoint ambassadors and diplomatic ministers, and the representatives to international organizations. Both of these officials as well as those outlined in number 7 above, will be of exclusive confidence of the President of the Republic and will remain in office as long as they count with it;
- To appoint the Comptroller General of the Republic with agreement of the Senate;
- To appoint and remove officials that the law considers as of his exclusive confidence and to fill the other civil positions in accordance with the law. The removal of the other officials will be made in accordance with the provisions established in it;
- To grant pensions, retirements, widows’ pensions and grace pensions, with accordance with the laws;
- To appoint the Justices and judicial prosecutors of the Courts of Appeals and the career judges, on the proposal of the Supreme Court and the Courts of Appeals, respectively; the members of the Constitutional Court that it corresponds to him to designate; and the Justices and judicial prosecutors of the Supreme Court and the National Prosecutor, on the proposal of the said Court and with agreement of the Senate, all as prescribed in this Constitution;
- To ensure the ministerial conduct of the judges and other employees of the Judiciary and, to that effect, request the Supreme Court so that, if it proceeds, it declares their misbehavior, or the public ministry, to claim disciplinary measures of the competent court, or, if there was sufficient evidence, file the corresponding charges;
- To grant particular pardons in the circumstances and manner specified by law. The pardon will be inadmissible as long as no final sentence has been pronounced in the respective process. Officials accused by the House of Representatives and condemned by the Senate, may only be pardoned by the Congress;
- To conduct political relations with foreign powers and international organizations, and conduct negotiations; conclude, sign and ratify the treaties that it deems appropriate to the interests of the country, which shall be submitted for Congressional approval as prescribed in article 54 number 1. The discussions and deliberations on these matters shall be secret if the President of the Republic so demands it;
- To appoint and remove the Commanders in Chief of the Army, Navy, and Air Force and the General Director of the Carabineros [Police] in accordance with article 104, and to arrange the appointments, promotions and retirements of the Officers of the Armed Forces and of the Carabineros [Police] as specified in article 105;
- To deploy the forces of air, sea and land, and to organize and distribute them in accordance with the needs of the national security;
- To assume, in case of war, the supreme leadership of the Armed Forces;
- To declare war, subject to previous authorization by the law, having to place in record the fact of having heard the National Security Council, and
- To take care of the collection of public revenue and to decree its expenditure in accordance with the law. The President of the Republic, with the signature of all the Ministers of State, may decree payments not authorized by law, to address needs that cannot be postponed arising from public calamities, foreign aggression, internal commotion, serious harm or danger to national security or the depletion of resources destined to maintain services that cannot be paralyzed without serious damage to the country. The total of the commitments made with these objectives shall not exceed a two per cent (2%) of the amount of expenditure authorized by the Budget Law. Employees may be hired with charge to this same law, but the respective item cannot be increased or reduced through transfers. The Ministers of State or officials that authorize or approve expenditures which contravene the provisions of this number, will be jointly and personally liable for their reimbursement, and guilty of the crime of embezzlement of public funds.
MINISTERS OF STATE
The Ministers of State are the direct and immediate collaborators of the President of the Republic in the government and administration of the State.
The law shall determine the number and organization of the Ministers, as well as the order of precedence of the incumbent Ministers.
The President of the Republic may request one or more Ministers the coordination of the work that corresponds to the Secretaries of State and government relations with the National Congress.
To be appointed as Minister it is required to be Chilean, to have at least twenty one years of age and to meet the general requirements for admission into the Public Administration.
In the cases of absence, impediment, or resignation of a Minister, or when for other reason the vacancy of the office occurs, he will be replaced in the manner established by law.
The regulations and decrees of the President of the Republic shall be signed by the respective Minster and will not be obeyed without this essential requirement.
The decrees and instructions may be issued with the sole signature of the respective Minister, by order of the President of the Republic, in accordance with standards to be established by law.
The Ministers shall be individually responsible for the acts that they sign and jointly responsible for the ones that they subscribe or agree with the other Ministers.
The Ministers may, when they consider it appropriate, attend to the sessions of the House of Representatives or the Senate, and take part in their debates, with preference to speak, but with no right to vote. During the voting they may, however, rectify the concepts voiced by any representative or senator as the basis of his vote.
Notwithstanding the foregoing, the Ministers shall concur personally to the special sessions that the House of Representatives or Senate convene to inform themselves about matters that, belonging to the scope of powers of the corresponding Secretaries of State, they agree to treat.
ARTICLE 37 BIS
The incompatibilities established in the first paragraph of article 58 will be applicable to the Ministers. By the mere fact of accepting the appointment, the Minister will cease to hold office, employment, function or commission incompatible with his duties.
During their term, the Ministers will be subject to the prohibition of celebrating or secure contracts with the State, act as lawyers or agents in any kind of trial or as a procurator or agent in particular actions of an administrative character, to be director if banks or of some stock company and to exercise positions of similar importance in these activities.
GENERAL RULES FOR THE ADMINISTRATION OF THE STATE
A constitutional organic law shall determine the basic organization of the Public Administration, will guarantee the civil service career and the principles of technical and professional character in which it must be based, and will ensure equal opportunities of access to it as well as the training and improvement of its members.
Any person who is disrupted in his rights by the Administration of the State, its organisms or municipalities, will be able to complain before the courts that the law establishes, notwithstanding the responsibility which could affect the functionary that caused the damage.
ARTICLE 38 BIS
The salaries of the President of the Republic, of the senators and representatives, of the regional governors, of the officials of exclusive trust of the Head of State indicated by numbers 7 and 10 of article 32 and of those hired on the basis of fees that directly advise the aforementioned governmental authorities will be appointed, every four years and at least eighteen months before the end of a presidential term, by a commission whose operation, organization, functions and powers will establish a constitutional organic law.
The commission will be made up of the following people:
- A former Minister of Finance.
- A former Director of the Central Bank.
- A former Comptroller or Deputy Comptroller of the Comptroller General of the Republic.
- A former President of one of the branches of the National Congress.
- A former National Director of the Civil Service.
Its members will be appointed by the President of the Republic with the agreement of two-thirds of the senators in office.
The agreements of the commission will be public, will be based on technical data and must establish a remuneration that guarantees adequate remuneration for the responsibility of the position and the independence to fulfill functions and powers.
STATES OF CONSTITUTIONAL EXCEPTION
The exercise of the rights and guarantees that this Constitution assures to all persons can only be affected under the following emergency situations: external or internal war, internal commotion, emergency and public calamity, when they seriously affect the normal development of the State institutions.
The state of assembly, in case of an external war, and the state of siege, in case of an internal war or grave internal commotion, will be declared by the President of the Republic, with the agreement of the National Congress. The declaration shall determine the zones affected by the corresponding state of exception.
The National Congress, within five days from the date on which the President submitted the declaration of a state of assembly or siege to its consideration, shall pronounce itself accepting or rejecting the proposition, but may not introduce amendments to it. If the Congress fails to pronounce itself within that period it shall be deemed that it approves the President’s proposition.
However, the President of the Republic may apply a state of assembly or of siege immediately while the Congress decides on the statement, but in the latter state [he] may only restrict the exercise of the right of assembly. The measures taken by the President of the Republic while the National Congress does not meet, may be subject to revision by the courts of justice, with what is established in article 45 not being applicable.
The declaration of a state of siege shall only be made for a period of fifteen days, notwithstanding that the President of the Republic requests its extension. The state of assembly will remain in effect for as long as the situation of external war extends, unless the President of the Republic provides its suspension before.
The state of catastrophe, in case of public calamity, will be declared by the President of the Republic, determining the affected zone.
The President of the Republic will be obliged to inform the National Congress of the measures adopted in virtue of the state of catastrophe. The National Congress may waive the declaration when one-hundred and eighty days have elapsed, if the reasons for it have ceased absolutely. However, the President of the Republic may declare the state of Catastrophe for a period superior to one year with the consent of the National Congress. The said agreement shall be processed in the manner established in the second paragraph of article 40.
Once the state of catastrophe has been declared, the respective zones will be under the immediate control of the Chief of National Defense appointed by the President of the Republic. He will assume the direction and supervision of his jurisdiction with the powers and duties established by law.
The state of exception, in case of grave alteration of the public order or serious damage to the security of the Nation, shall be declared by the President of the Republic, determining the zones affected by such circumstances. The state of exception will not last more than fifteen days, notwithstanding that the President of the Republic can renew it for the same period of time. However, for successive extensions, the President will always require the agreement of the National Congress. The said agreement shall be processed in the manner prescribed in the second paragraph of article 40.
Once the state of exception is declared, the respective zones will be under the immediate control of the Chief of the National Defense appointed by the President of the Republic. He will assume the direction and supervision of his jurisdiction with the powers and duties established by law.
The President of the Republic will be obliged to inform the National Congress of the measures taken in virtue of the state of exception.
By declaring a state of assembly, the President of the Republic is empowered to suspend or restrict personal freedom, freedom of assembly and freedom to work. He will also be able to restrict the exercise of the right of association, intercept, open or register documents and all class of communications, provide for the confiscation of assets and establish limitations to the exercise of the right of property.
By declaring a state of siege, the President of the Republic may restrict freedom of movement and arrest people in their own dwellings or places determined by law and which are not prisons nor are they destined to the detention or imprisonment of common prisoners. He may also suspend or restrict the exercise of the right of assembly.
By declaring a state of catastrophe, the President of the Republic may restrict the freedoms of movement and assembly. He may, likewise, provide for confiscation of assets, establish limitations on the exercise of the right of property and adopt extraordinary measures of administrative character that are necessary for the speedy restoration of normalcy in the affected zone.
By declaring a state of exception, the President of the Republic may restrict the liberties of movement and assembly.
A constitutional organic law shall regulate the states of exception, as their declaration and implementation of legal and administrative measures that it proceeds to adopt under them. That law shall contemplate what is strictly necessary for the prompt restoration of constitutional normality and will not affect the powers and the functioning of the constitutional bodies or the rights and immunities of their respective incumbents.
The measures taken during the states of exception may not, under any circumstances, be extended beyond the period of those states.
The courts of justice may not qualify the bases or the factual circumstances invoked by the authority to declare states of exception, notwithstanding what is established in article 39. However, with regards to particular measures that affect constitutional rights, there shall always the right to appeal before the judicial authorities through the appropriate remedies.
Confiscations that are made shall give rise to compensations in accordance with the law. Compensation is due when limitations imposed to the property rights involving deprivation of any of their essential attributes or faculties and thereby caused harm.