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IV Congress Student

Although already several days ago, I would like to share with you some observations and reflections made during the Fourth Congress Student of law and constitutional theory. This conference is the largest gathering of its kind nationwide (maybe even within Latin America), where issues are discussed both constitutional law and the law in general. I think the issues raised are of great interest not only for law students but for anyone who is interested in public / political and anxious that issues related to the fundamental rights established in our Constitution.

Then leave some notes I took during the plenary. Unfortunately I get only two of the four, but I think that I could go, they took the juice and learned a lot. Gladly share what I could salvage from each presentation:

Day 2: Judges and Democracy: the role of the judge and the institutional setup of the judiciary in contemporary democracies.

Eduardo Aldunate (PUC Valpo):

• Historically, the judge and rule have been united (kings, judges)
• The law is conceived as an object of a human decision (act will). This will set out in regulatory bodies, mainly in the law. The rules embodied mandates that judges must follow. ---> Building
• law Ideological Construction of rationalistic concept of the body governed and the role of the citizen has various ways of being analyzed and corrected. This construction relies heavily on the language as a means of law (language element). But the possibility of accurate transmission of the message delivered by the legislature to judge almost zero, because of the role of the linguistic interpretation of the rule (the difference between literal meaning and tone of the standard).
• The issue of judges and democracy there by role of the judge before the application of the rule in the context of a democracy.
• Our culture does not easily accept that the judicial system is human and we remove the judge of politics and humanity, to accept the trial as something separate from us, abstracting the statement of context "human "---> fallacy of judicial construction.
• However, we seek that the judge did not hinder democracy as a dichotomy remains unresolved.
• Any judge is human and will have a political bias. Thus, the question should not be whether or not the political issue in the judiciary, but how to regulate the organic level of court decisions, without affecting their autonomy. It must find ways to implement the responsibility to judge their decisions.
• must accept the linguistic value judgment action by the judiciary when interpreting a rule. Make stabilizing political role in pursuit of rationality.

Reflection: It seems very interesting linguistic element analysis by Professor Aldunate, I have always drawn much attention to the relationship between language and behavior. I think it would be interesting to delve into this subject at another time and see how the use of language has affected the normative creation and interpretation of it. During the presentation, this presentation was the most questioned by the public, so that gave me the impression that they had some logical gaps in the argument of Professor Aldunate. However, it seemed a valid and correct position on the role of judges to democracy.

Luis Cordero (U. de Chile)

• modern constitutional texts, for historical reasons (world wars ...), have sought to limit the powers of certain elements of society and politics --- > check and balance systems. Features
• judge: Adjudication and enforcement. Technical Professional. Independence and autonomy. Efficiency and Effectiveness.
• Los parlamentos han dejado parte de las decisiones de políticas públicas a las agencias administrativas del sistema político, a través de mecanismos jurídicos.
• Los jueces han tenido que especializarse cada vez más y se desconfía cada vez más de los jueces generales. Se buscan sentencias más técnicas y, por ende, irrevocables.
• Crítica al poder interpretativo de la Contraloría ---> tiene poder para interpretar tanto la ley como la Constitución y su jurisdicción y jurisprudencia es obligatoria. Tiene un rol de legislador positivo.
• Rol del juez y la democracia se determina en el diseño institucional.

Reflexión: Muy buena presentation. I found very interesting criticism of the Comptroller, for his immense power of interpretation that goes unnoticed. I totally agree they are needed most effective institutional designs to effectively support democracy. But the question remains is who is responsible for this design? What interests you respond? Where do you start? Moreover, the issue of specialization of courts is very modern, with the work process reform and the creation of several specialized courts in economic matters and the like. Much food for thought ...

Day 4: Amnesty. Criminal legal treatment of rape human rights. The right against state terror.

Juan Antonio Lascelles (U. Autonoma de Madrid, English Judge TC)

• The amnesty has been a tool both positive and negative, in different contexts. Questioned the legitimacy of the amnesty as a rule, in relation to democracy.
• should differentiate between the penalty, the legalization and amnesty. The amnesty does not repeal, but "forgets" the sanction of a offense for a specific case (related to "amnesia").
• Principles of Criminal Standards Validity:

- Legality
- Proportionality
- No inhuman or degrading
- Equal ---> No discrimination in the penalty
- Guilt ---> Implementation of the offending
Amnesty

• should be a law (of a democratic legislature) provided, to be considered democratic.
• Amnesty is criticized as an intrusion of the legislature in the area of \u200b\u200bjurisdiction.
• DL 2191 ("Amnesty Law") ---> Not respected the principle that "the victim must forgive."
• The amnesty for crimes against the fundamental rights is equivalent to carrying out the same crime. Have a great constitutional conflict because invalidate specific fundamental right, violates the essence of the right.

Reflection: This was perhaps one of the most controversial presentations. As in Chile, it is difficult to see amnesty with a vision that is not negative. The English case seems to seek to justify the amnesty in certain cases of "minor crimes" which in practical terms could have some positive (less asino in prisons, for example). But constitutional dilemmas of the subject make it impossible to see the amnesty as a truly legitimate "forgive" (and not become a "perdonazo" that violates fundamental rights). A presentation given to think and discuss ...

Juan Pablo Mañalich (U. Adolfo Ibanez - U. de Chile)

• The punishment of a crime involving the reconciliation of a past that still disturbs the present.
• The amnesty means that the amnesty has a responsibility in the action / crime amnestied. The LD 2191 is a demonstration of the responsibility of States for wave violence of the dictatorship. Schmitt
• ---> The amnesty is an act of oblivion bilateral reciprocal. It relates to reconciliation. The DL 2191 does not fit into this logic.
• The amnesty only form and not the substance of a law, because it involves the retroactivity, which goes against the definition of law and legal doctrine
• An act of grace can not be considered a just law, because specifically invalidate a criminal law provision that seeks to create justice.

Reflection: Excellent presentation by Professor Mañalich. Masterfully raised arguments and demonstrated the great constitutional conflict amnesty. Also demonstrated, very clearly, DL 2191 notes how, in practice, the responsibility of the military regime of violence and torture during the dictatorship. If not, no need of Decree Law's explanation of punishment, in addition, The Hague great. Even more to think about!

Elizabeth Lira (Universidad Alberto Hurtado)

• Amnesties have been used historically to achieve good governance, rather than the pursuit of political justice.
• Political reconciliation has always been based on the use of amnesty and oblivion, towards the improvement of life. The
• If the military dictatorship has not followed historical logic was not clear how the current solution for political reconciliation.

Reflection: Professor Lira has performed a valuable historical perspective to the discussion (large, my teacher!). Clearly demonstrated that forgetting is the ultimate political tool in our history to "move on" with the government. It is therefore important that the consequences left by the dictatorship, not follow the logic of "forgetting" and to really learn from the past. The wounds are not closed for failing to watch them ...

In conclusion, it was a great experience to Congress. I enjoyed it very much and I left several important lessons. I hope these ideas I share with you serve and enable them to also make their own reflections. Thanks for reading!