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on the incident "Barrancones"

days ago a student surprised me with a question about the conduct observed by the President to "settle" the dispute installed around the approval of the environmental study submitted to a power plant could operate at near an ecological reserve. With the urgency of the news (that just happened) I did not know too much to say, especially since at the beginning of the one-semester course of my general administrative law, regularity typical formal administrative law under the rule of law is the main message you try to inoculate students. Simply, it was anomalous that the President of the Republic to meddle in the decision of a collegial body that, as a body with decision-making power is sovereign to resolve as it deems appropriate (even more on environmental issues, considering the institutional design system of environmental impact assessment, which are strongly dependent on considerations of expediency). In technical legal issue raised by the intervention of the President is limited to whether, in the case of the environmental permit, the authority exercised hierarchical control of the Regional Commission for the Environment. As it does not, the intervention of the President is then understood as a purely de facto management.

this conclusion is that diverse opinions abound today in the press, criticism of the way the matter had been resolved. Carlos Pena estimated simply unacceptable. Suggestively, Jorge Correa titled his letter to the Mercury "The worst way of governing." Goes on.

shocked I do not know if it fits well. Beyond the impact that the management of the President is in the public or the press (and although it is possible that this impact has been the main motivation of this maneuver), it seems quite clear that in this way has got to stop in time a severe disruption of ecosystems protected, something that naturally integrates the equation defining the public interest. The industry expected argument will emphasize that in any case a power plant pollution, and then that the development assumes that man appropriates the environment and transform, but not be overlooked here is invulnerable has tried to keep protected wilderness area and, as pointed Luis Cordero, in these circumstances the risk of irreparable harm can not be run lightly.

Beyond the lack of elegance that conclude (because can be assumed that the President was not at great political risk to timely instruct the Mayor and the Governors - "natural and immediate representatives" own "them to vote against the project), this incident reveals the precariousness of the system of environmental permits. The intervention of the President should be understood as a sign of alarm at the lack of sensitivity that the system of environmental impact assessment may have against the environmental preservation of protected sites. One would expect that such considerations par excellence respond to the idea of \u200b\u200benvironmental impact. Apparently, the system is evaluating the projects themselves, ignoring the context circumstantial involved in the project.

The order establishing protection zones for different areas - natural or intended for infrastructure facilities (spa, railways, etc.).. In itself, a national reserve area for marine reserve and carries a certain level of protection, but that degree of protection alone is not absolute exclusion of extractive labor, industrial or other measures as may be established in the vicinity. The next step, apparently, is on strengthening the perimeters of protection built into rational planning instruments, similar to those that exist for the management cities. This solution also helps to provide legal certainty, that good that so many miss these days.

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Chronicle VII Conference of Administrative Law

Between 19 and 20 August this year, there have been the VII Conference of Administrative Law. They have had as its theme the "Current trends in the special administrative law." This year the conference was organized by the Faculty of Juridical Sciences the University of Atacama and developed in the Oral Judgement Hall of the Faculty.

The purpose of the VII Conference of administrative law was elicit the study and reflection that creates the impression of a special administrative law, administrative law versus general or standard that serves as a basic structure.

Thus the conference was structured in three modules of topics. The first, called "Content and features special administrative law", involved with their papers the following teachers: Eduardo Cordero Quinzacara (Catholic University of Valparaiso), "Regulated markets and the rule of public passenger transport. Police activity in the setting of a public service, Juan Carlos Flores Rivas (Universidad de Los Andes) "Considerations General Administrative Building Concessions Law Public Works, and, James O. Montt and Luis Cordero V. (University of Chile) with "a renewed vision of administrative sanctions."

The second module, "The special administrative disputes, involving teachers: Miguel Angel Reyes Poblete (Universidad Arcis)," The Need for Clear Rules: Reiterating the need for litigation generally applied in the context of the ongoing reform process in Chile and Latin America ", Alejandro Vergara B. (P. Universidad Catolica de Chile) "Joint Model Chilean administrative law" Raul Letelier W. (Universidad Alberto Hurtado) "The State to the Court of the Commonwealth competition" Vinaixa Julia Poblete (Universidad de Concepcion) "Amendments to the Public Works Concession: 20,140 Commission Act arbitration panel of experts and counsel of concessions" , Francisco Rodríguez Pinilla (Universidad de Atacama) "Features of the new environmental litigation," and, Juan Carlos Ferrada Bórquez (Valparaiso University) "The administrative procedures in Chilean law: principles and general characteristics."

In the third "special administrative and regulatory bodies particular, was represented by Professors: Manuel Núñez P. (Universidad Catolica del Norte) " Administration and the promotion and protection of human rights. National Organization of Human Rights, Jose Miguel Valdivia (Universidad Adolfo Ibáñez), "The administrative law of the state enterprises" Cristian Román Cordero (Universidad de Chile) "Law and CONAF native forest, and, Henry M. Rajevic (Universidad Alberto Hurtado) "The Labour Code and employment status groups: Lights and shadows."

The event featured the participation of lawyers from the free exercise and various public institutions.

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Miners, risk society, and in tort competition

The recent misfortune of which were the 33 miners in the mine San José and its subsequent encounter with life should be targeted risk situations that abound in our social environment. To address this problem, the law provides as a tool of liability for damage or liability, and eventual social discussion on the need to recalibrate the risks they expose us modern life requires us to rethink the validity and effectiveness of our responses on current tort law.

Is our right to match current challenges? If we assume that society expects of the legal system predictable and efficient solutions to their problems, the answer is probably no. In Chile, the rules governing contractual liability is largely in the hands of judges, as the law applicable extra-Articles 1437, 2284, and 2314 of the Civil Code determines in broad terms the legal elements that give rise to damages. In turn, the lack of uniform legal criteria, due perhaps to the absence of a system of precedents and the misuse of the appeal on the merits, uncertainty remains regarding the regulatory elements that make up the liability and the amounts to which victims are allowed. This leads to stability is generated by interpreting legal doctrine, usually inspired by the German or French doctrine of the late nineteenth or early twentieth century, in other words, in times and places very different from our reality.

The problem is compounded by the existence of risk much closer to those posed by the collapse of a mine. Ours is certainly a risk society, many of which are preventable. One example is the practice of many supermarkets carry cars on the same escalator passing their customers, putting their own clients to falls and accidents at a fraction of those who carry such negligence cars. If, as is the trend in the United States, such everyday risks must be addressed through exemplary damages awarded by judges, is something that remains to be seen. What is clear is that tort law is a tool to increase its usefulness in the near future to address the risks that surround us.

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Does Transparency Council to oversee public companies?

This issue is being discussed in various fora.

For businesses, information is particularly valuable competitive advantage. For example, withhold the salaries of its top executives to avoid the risk of competition entice you with fantastic deals. This explains why some of them have deployed an aggressive legal strategy aimed at preventing an increase in standards of transparency. Because public, public enterprises are subject to certain requirements of transparency active (in very particular conditions described in article ten-ordinal-law 20 285). Are they also subject to control for the Council for Transparency on, in general, public services?

While the Council has considered competent, sparking legal challenges that have been taken even before the Constitutional Court, the Comptroller decided a few days ago, on the contrary, the Council has no such competition, as legal texts are expressly attributed it as it was necessary to be binding on public companies ( Opinion No. 44462 of August 5, 2010 ). Attended

another important recent innovation administrative case law, this solution may be tensile even non-business organizations, as set up forms of private law (eg., Corporations), in which the State has pre-eminence due to its monetary contributions. Among other things, is CIMM game status, Sercotec or Cyrene (despite what it think). So require, says Comptroller with a somewhat cryptic formula, "the basic management principles of public law themselves, one of which is, indeed, that of transparency."

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social rights ... moi?

The Constitutional Court released its ruling on August 6 in the case No. 1710/2010 role, announcing that the mechanism of risk tables referred to in Article 38 ter of Law N ° 18,933 or Private Health Insurance Act is unconstitutional. The Court decision was a complex, characterized by the "virtue" without going forward or as far, declaring the existence of social rights without taking the trouble to implement, passing the ball to the co-legislators. This result lends itself readily to caricature, but I would suggest that the sentence should be a nuanced assessment that takes into account the role that courts should take in the political process, both in terms of guiding the process and in terms their ability to define the terms of the discussion. Therefore, in my opinion, we should assess the delivery of determining risk tables in the legislative process, and we should value the statement by the Constitutional Court about social rights until August 5 were not part of the Chilean constitutional discourse.

The first aspect to consider is the delivery of the Tribunal in determining the legal boundaries of the risk tables rather than the legislature itself had resolved the issue. The Court determined in its decision that "the determination of structure factor tables and the setting of the factors of each one of them must conform to establish, in exercise of its powers, the co-legislators to comply with the resolved in this decision "(paragraph 163 º). With this, the Court chose not to resolve the matter but make way for the deliberative process and democratically expressed in the processing of a bill. This strategy is consistent theories those who observe constitutional democratic deficit or counter-majoritarian difficulty of making important policy decisions by courts or lack of democratic legitimacy of a representative composition of the various political sensitivities of a society. In this regard, the Court's decision corresponds to what Cass Sunstein has called minimalism, that is, the ability to decide as little as possible, leaving the maximum for the political process. This does not mean that the Court thereby waived to intervene in the process, it is more, may allow influence more effectively by giving them the ability to define the terms of discussion and questions that the political process should respond.

is why it becomes of great interest that this decision constitutes the first meaningful process of constitutional adjudication that the government has taken part Sebastián Piñera. Under the Constitution, laws governing the exercise of the right to social security shall quorum, its processing can only be initiated by submitting a project by the President, and may not be delegated to the executive rules through Decree with Force of Law In other words, the initiative belongs to President, but it can not bypass the involvement of Congress and you must get a majority of senators and deputies to legislate. What can we expect from the eventual Executive Bill? The very participation of the Chair in the process of constitutional adjudication under discussion allows us to know what perspective. According to the Court, in this instance, the President declared that "seek absolute equality, regardless of sex or age of the people, it would be prudent only in respect of matters such as dignity or within the that the same President of the Republic referred to as a 'minimum common ethical'. "In a" democratic society based on individual initiative and a subsidiary state, "said the presidency would be impossible to ignore" the particularities of each individual, which no doubt can arise from their sex or age. " These statements certainly are troubling for those who adopt the perspective of the expansion of social security as a way to create a more egalitarian society and worthy and should alert the parliamentarians who identify with this vision.

Mention alternative state by the Presidency us to the second issue in question: the reformulation of the discussion on rights speech at the Chilean Constitution. After three decades in which he spoke of the subsidiarity of the state as a key to talk about the decline of the state, the Constitutional Court first introduced into the discussion the notion of social rights.

contextualize this issue is necessary to appreciate the full extent of the novelty of this statement. Recital 90 degrees to the statement invokes a series of classifications of the rights contained in the Constitution (equalities and freedoms, guarantees and rights, political rights, economic, social, and cultural individual rights and constitutional rights of the target members and fundamental rights and economic rights), not to mention the only classification which can actually say that the architecture structure of constitutional rights contained in Article 19 of the Constitution. I mean the distinction between rights Jaime Guzmán was itself such rights and, by extension or analogy (ie, rights and non-rights). According to Guzman, as we read in the notes of his lectures published by Gonzalo Rojas, the rights themselves such are those whose validity depends on the removal of an obstacle by the judge while the rights by extension or analogy depends on the disbursement of funds by the State. Thus, property rights or free enterprise under the former, while the right to work and the right to education, ie the so-called social rights "under the latter. This distinction is enshrined in Article 20 of the Constitution, which provides the protection the injunction to the first category of rights while the latter denies. I will not say that this distinction is false (because, better or for worse, who is one to go around saying things which are false and which not?), But at least it's easy from the moment deconstructible that the implementation of individualistic property rights, as we recalled the post-quake looting, dependent on the presence of the state apparatus and thus a display of its resources. The distinction de Guzman points rather to something else: to reduce the size of the state-administration, which the Chilean constitutionalism considered, along with Reagan, part of the problem rather than the solution. Expression of this has been the notion of subsidiarity of the State, drawn from the Catholic philosophy and that Guzman and his followers have been reinterpreted as an affirmation of the primacy almost insurmountable civil society-that is, market forces-for on any regulatory action or direct the state comptroller.

Instead of this speech rights and the rule for expansion alternative, the Court in its ruling repeatedly invoked the notion of "major social rights that the Constitution guarantees all persons" who receive its "from the ability to access a particular benefit (Recital 114 º). The Court reminds us that to ensure "access to those benefits," the Constitution assigned "roles the state and individuals," which guzmaniana root constitutionalism tend to forget the time. Even Moreover, the Court stated that "the validity of the numbers 1, 2, 3 and 4 of the third paragraph of Article 38 ter said, shows a situation contrary to the principles of solidarity and fairness that inform not only the social security but the whole set of fundamental social rights guaranteed in our Constitution, which requires the Judiciary declared as opposed to it "(paragraph 161 º). The truth is that until the publication of this ruling, have been very difficult to talk to property "set of fundamental social rights guaranteed in our Constitution" and that whether whether our Constitution guarantees a set of fundamental social rights. The Court, of course, has interpretive authority to realize that interpretation operate not only on constitutional interpretation but also about public speaking. This creates the opportunity for progressives to structure the public debate and legislative debate in the light of this statement by the Constitutional Court. While it is expected that the government insists on appeal to the state alternative, progressive sectors depends not miss the opportunity of discourse and policy so that the Court has opened.

Finally, it is important to highlight that in this case, the Court departed from the sense with which he had used his power to declare laws unconstitutional provisions, removing the legal system. Only three times had exercised this power in one of them at the request of various contributors to eliminate the tax courts of first instance dependent on the Internal Revenue Service, and in another, at the request of the Bar Association for the removal of lawyers obligation to deliver professional care available to those who could not hire a lawyer. The sense of "class" of these rulings of the Court seem to confirm the thesis by Eduardo Novoa peaked in the 60 'in the sense that the administration of justice in Chile favors only the more affluent sectors. This time, however, the Court questioned a matter-of-risk chart directly harm the most vulnerable economically from taxpayers Isapres thus deserves at least a minimum value on our part.

In short, the Constitutional Court does not solve the problems Isapres system users. However, this is not its role, and if the Court understood that their role is to settle public issues through its judgments, would undermine their prestige and hence their ability to influence. The Court itself has started a political debate and legislative and gave as a framework the notion of fundamental social rights, two contributions should be welcomed by those who believe at the same time the importance of the democratic political process and the need to move towards a society of security, greater equality and dignity.