9 September 1985
Original:  Spanish



          44.          Decree Law No. 3,168, published in the Official Gazette of February 6, 1980, authorized the President to order, during the state of emergency, the enforced residence of any person in a specified locality of the national territory for a maximum period of 90 days.  It also provided that the respective decree may be signed y the Minister of Interior “by order of the President”.


          45.          Decree Law No. 3,451 of July 17, 1980 specified that the period of detention envisaged in Decree Law No. 1,877 could be extended for up to twenty days.  “When offenses against the security of the state from which the death, injury or kidnapping of persons results are being investigated”; without requiring any link between the activity of the person detained and the death, injury or kidnapping.


          46.          It should be pointed out that the successive modification introduced into this state of emergency, prior to the entry into force of the 1980 Constitution.  Because of this it appeared to some extent superfluous during the period prior to the enactment of the 1980 Constitution and was therefore not renewed, which left only the state of emergency in effect.


          47.          As may be seen, throughout this initial stage, the legislation promulgated entailed both a significant expansions of the rights affected under the states of emergency and a clear weakening of the guarantees and remedies necessary for protecting them.  It also represented a marked concentration of powers in the President and a pronounced expansion of military jurisdiction.  The powers assumed by the Government Junta enabled it to introduce at its discretion all the modifications that it deemed necessary for achieving the objectives proposed and therefore the recognition of the basic rights of individuals were subordinated to the political will of that Government Junta.




          a.          The Rights Recognized


          48.          An effort was made to overcome the irregular juridical situation whereby the rights recognized and their corresponding guarantees were subordinated to the political power by enacting a new constitution.  The purpose was thus to establish a juridical system arising from the will of the people, as an authority superior to the Government Junta.  When the Constitution had been drawn up, it was submitted to a plebiscite in 1980 and came into effect on March 11, 1981, as already mentioned in Chapter I of this report.


          49.          The 1980 Constitution is based on the rights recognized by the 1925 Constitution and more directly on Constitutional Act. No. 3, which, it perfects.  This Constitution also starts from the fundamental notion that “The State is at the service of the individual” (Article 1) from which it must be deuced that the rights of the individual take precedence over those of the State.


          50.          Chapter III of the Constitution deals with constitutional rights and duties.  Article 19 of that Chapter enumerates those rights in 25 paragraphs: Article 10-18, for their part, deals with nationality and citizenship.


          51.          Article 19 (1) recognizes the right to life and to physical and mental integrity.  Accordingly, it protects the life of the unborn child and prohibits the unlawful coercion of prisoners.  The death penalty is maintained when it is instituted by “a law approved by qualified quorum”.  In this regard, the 1980 Constitution does not embody modern legal thinking, which tends to abolish capital punishment.  The scope of this provision in specific situations will be considered in detail in the Chapter dealing with the right to life.


          52.          Article 19 (2) embodies the right to equality before the law and paragraph 3, the right to due process.  In connection with the right to due process, the Constitution recognizes the right of the accused to defend himself and stipulates that the exercise of that right may not be impeded, restricted or breached.  It also embodies the presumption of innocence and the principle of non-retroactivity of laws except in the case of those that are more favorable to the accused.  It prohibits trials by special commissions and specifies that the competent court is that established by law prior to the occurrence of the cause and makes it the responsibility of the legislation to establish the guarantees of “a rational and just procedure”.  It also recognizes the principle that no law may establish penalties for crimes not defined in it.


          53.          Paragraph 4 of Article 19 recognizes respect for and protection of public and private life and of the honor of the individual and his family.  In that connection it regulates the actions that may be instituted for infringement of that right by the information media.  Paragraph 5 of this Article provides for the inviolability of the home and of “any form of private communication” and stipulates that the search of homes and interception of correspondence must be in accordance with the law.


          54.          The right to religious freedom and worship is recognized in paragraph 6 of Article 19, with the usual limitation regarding morals, good behavior and public order.  With respect to personal freedom and security, paragraph 7 recognizes the right to residence and movement and establishes a series of guarantees, consonant with those usually prescribed by a series of guarantees, and consonant with those usually prescribed by international law.  Of the ways in which arrests must be made and detentions carried out.  The only exception in this respect is the extension for up to 10 days of arrest without the person arrested being brought before a competent judge when terrorist acts are being investigated.  Also noteworthy is item g of this paragraph 7, which permits the confiscation of property in the case of “unlawful association”, which, as a general principle, is prohibited by the 1925 Constitution.


          55.          A positive innovation of paragraphs 8 and 9 is the recognition of the right to live in a pollution-free environment and the right to health, respectively.  The right to education, embodied in paragraph 10, is complemented by the recognition of the right to freedom of education in paragraph 11.  With respect to the freedom of expression, embodied in Article 19 (12), the constitutional rule states that a system of censorship shall be established “for the exhibition and publicity of motion picture production”.


          56.          Paragraph 13 of Article 19 recognizes the right to assembly and paragraph 14, the right to petition.  For its part, paragraph 15 provides for the right to association but prohibits the establishment of associations “contrary to morals, the public order, and the security of the State”.  This paragraph also deals with political parties, concerning which it stipulates that, they “may not take part in activities alien to them”“ without specifying what they are.


          57.          Paragraph 16 embodies the right to work within the framework of freedom of contract and choice of work.  This paragraph recognizes collective bargaining except when a law expressly prohibits it.  It also recognizes the right to strike, indirectly, when it specifically indicates the situations in which work stoppages will not be lawful.


          58.          Paragraph 17 recognizes the right to admission to all-public functions and post “without other requirements than those imposed by the Constitution and by Law”.  Paragraph 18 embodies the right to social security and confers on the state the oversight of the exercise of that right.


          59.          Paragraph 19 recognizes the right to voluntary union affiliation and specifies that “trade unions and their leaders may not take part in party political ties”.


          60.          Paragraph 20 of Article 19, for its part, establishes the right to the equal distribution of tax burdens while paragraph 29 recognizes “the right to undertake any economic activity, provided it is not contrary to morals, public order or national security”.  Paragraph 22 prohibits “arbitrary discrimination in economic matters by the state and its organs”.  Paragraph 23 and 24 embody the right to ownership and its various limitations while paragraph 25 deals with artistic, intellectual, and industrial property.


          b.          Guarantees of the exercise of the rights


          61.          The 1980 Constitution, like Constitutional Act. No. 3 provides the same remedies for guaranteeing the exercise of the rights recognized the remedy of amparo or habeas corpus for personal freedom and integrity and the remedy of protection for all the other rights.  The validity of the two remedies, however, is affected when states of emergency are in effect and therefore it will be dealt with in the following section.


          c.          Restrictions on rights


          62.          The restrictions on the exercise of human rights in the 1980 Constitution may be divided into three classes:  Those established generically by the constitutional text, those included as part of the same rule that recognizes the right whose exercises is restricted, and those derived from the existence of states of emergency.  Given the limits assigned to this chapter, in which the generic limitations included in the Constitution and those deriving from the existence of states of emergency will be next dealt with, the limitations on the specific rights will be the subject matter of the respective chapters.


                    i.          Generic Limitations


          63.          With respect to the generic limitations incorporated into the text of the Constitution it should first be pointed out that various rights recognized in it include the usual restriction arising from morality and public order.  This applies to the freedom of conscience, and worship recognized in Article 19, paragraph 6.  However, it is necessary to emphasize the inclusion of a new idea that limits the rights recognized in the Constitution, namely that of national security.


          64.          National security as the sole justification of restrictions of rights is used in paragraph 24 of Article 19 relating to the right to ownership.  In other instances it is used together with morality and public order, as in the case of freedom of education (Article 11);  in the case of the right to freedom to association, the expression “State security” is used, together with morality and public order Paragraph 15); as a restriction on the right to strike, the idea of national security is used together with other grounds derived from the adverse effects for society or for the operation of the state apparatus that may arise from labor stoppages (paragraph 160); finally, this idea also restricts the right to engage in economic activities, together with morality and public order (paragraph 21).  In addition, Article 1 of the Constitution makes it the duty of the State to safeguard national security and Article 22 makes it a duty of all Chileans to defend that national security.


          65.          This idea of national security is vaguely defined and its scope in practice is not clearly specified.  It should also be pointed out that this idea of national security is at present strongly impregnated with ideological connotations: the National Directorate (DINA), for example, was established for the purpose of gathering information that would make it possible “to adopt measures for safeguarding national security”.  It is for these reasons that it is clearly negative to restrict the exercise of five rights, at the highest normative level, on the basis of an idea that suffers from juridical vagueness.


          66.          A generic restriction incorporated into the constitutional text is that established by Article 8 of the Constitution, when it declares that it is unlawful “to spread doctrines that attack the family, advocate violence or a conception of society.  The State of the juridical system that is totalitarian in nature or based on the class struggle”.  Notwithstanding the detailed analysis to be made of this provision in the chapter relating establishes discrimination based on political beliefs.  Since what the Chilean constituent power has prescribes is not acts of violence--as it could legitimately have don--but the mere spread of doctrines, which come to include ideas as vague and general as that of attacking the family”.  Which could come to include, as has been pointed out by Chilean lawyer, “those who advocate a reform of the marriage property system or the equality of rights of legitimate and illegitimate children or a less severe penalty for abortion or for regulations governing divorce a vinculo matrimonii”.  [7]


          67.          Other generic restrictions incorporated into the Constitution relate to activities that certain groups may undertake in the exercise of their rights.  Thus, paragraph 16 of Article 19 stipulates that political parties may not take part in activities alien to them, without specifying what they are; paragraph 19 prohibits the intervention of trade union organizations and their leaders in party “political activities”.  Article 23, for its part, stipulates:    


Intermediate groups of the community and their leaders who make ill use of the autonomy accorded by the Constitution, shall be penalized in conformance with the law.  The position of trade union leader will be incompatible with militancy in a political party.


The law will establish the corresponding sanctions to be applied to union leaders who intervene in political-partisan activities and to the leaders of political parties who interfere in the functioning of union organizations and other intermediate groups indicated by law.


          68.          The constitutional text reproduced does not define what is to be understood by “misuse” of the independence accorded to those groups.  In addition, it imposes a broad restriction on the activities of trade union organizations and leaders that involves a serious impairment of the exercise of political rights.


          69.          Directly linked to the restrictions to which the rights recognized by the Constitution may be subject is the rule contained in paragraph 26 of Article 19, which specifies:


The assurance that the legal precepts which, by mandate of the Constitution, regulate or complement the guarantees established therein or which should limit them in the cases authorizes by the Constitution, may not affect the rights in their essence nor impose conditions, taxes or requirements which prevent their free exercise.


The norms relative to conditions of constitutional exception and other, which the Constitution itself contemplates, are accepted.


          70.          As may be seen, the provision reproduced affords the possibility that the rights recognized may be “affected in their essence” by the rules relating to the states of constitutional emergency.  It is a generic rule that is highly questionable since in practice it subordinates the rule relating to human rights to the provisions established in the framework of states of emergency.  In addition, it should be recalled that the constituent power continues to be one of the attributions of the government Junta, which helps to increase the juridical uncertainty this rule causes.  The dimension of the restrictions on the rights recognized when states of constitutional emergency prevail will make it possible to evaluate the scope of this provision.  It is dealt within the next section.


                    ii.          Limitations under states of emergency


          71.          With respect to the states of emergency it should be pointed out that the 1980 Constitution imposes a new modifications of the system regulating them.  In it is necessary to distinguish the articles incorporated into the permanent text from the transitory provisions that will be in force up to March 11, 1989.  Articles 39-40 of the permanent text regulate the states of constitutional emergency; transitory provision 24 confers extraordinary powers of the President.


          72.          Article 39 establishes four emergency situations: external or internal war, internal disturbances, emergency and public calamity.  Article 40 regulates the different states that may be declared in each emergency situation.  In the event of external war, the President may declare a state of alert, for which purpose he must have the agreement of the Government Junta.  When the situation of internal war or internal disturbances occurs, he may declare a state of siege, also with the agreement of the Government Junta and for a renewable period of ninety days.  When serious disturbances of public order or harm or danger for national security, because of either internal or external causes, occur, the President may, on his own authority, declare a state of emergency, also for a renewable period of ninety days.  In the case of public calamity, the President may declare a state of disaster, also on his own authority.  The declaration of the above-mentioned states of emergency by the President is regulated by transitory provision 15 of the Constitution. 


          73.          For the purpose of this report, it is pertinent to refer only to the restriction of rights under the states of siege and emergency.  Article 41 (2) establishes the powers conferred on the President of the republic under the state of siege.  With respect to Constitutional Act. No. 4, which was described earlier, the following differences should be pointed our:  the power of the President to take away nationality is eliminated, which is a positive development; however, new powers are included and related to the transfer of persons from one point to another of the national territory and their expulsion form it, the prohibition of the entry or exit from the country of specified persons and restriction on freedom of movement.


          74.          These new powers of the President of the Republic are thus added to those he already possessed and are maintained: to detain persons; to suspend or restrict the right of assembly, freedom of information and opinion; to restrict the right of association and trade union affiliation and to impose censorship on correspondence and communications.  As may be seen, it is a significant expansion of the powers of the President under the state of siege, with the corresponding restriction of the scope of individual rights.


          75.          With respect to the state of emergency, paragraph 4 of Article 41 stipulates, that the powers conferred on the President of the Republic will be those pertinent under the state of siege.  “With the exception of the detention of person, of their transfer from one point to another of the territory, of expulsion from the country and of the restriction of the exercise of the rights of association and of trade union organization.  With respect to freedom of information and opinion, they may only be restricted”.


          76.          As for the duration of the measures adopted under the states of emergency, paragraph 7 of Article 4 stipulates, that those measures that do not have a specified duration will be extended for such time as the state under which they were adopted lasts.  With the exception of the measures of expulsion from the country and of prohibition of entry to it, which will continue in effect until the authority that ordered them expressly rescinds them.


          77.          With respect to the guarantees of the exercise of the rights recognized, paragraph 3 of Article 41 provides that during the state of siege the remedy of amparo or habeas corpus will not be valid.  In no state of exception will the remedy of protection be valid when it relates to rights whose restriction or suspension is valid in accordance with the constitutional provisions.  This rule also stipulates that “The Courts of Justice may, in no case, determine the factual bases of the measures the authority has adopted in the exercise of its powers”.  This last mentioned provision means in practice that the individuals have no defense whatsoever against the measures adopted by the political pow3r.  It should also be pointed out that Article 40 (5) empowers the President “to simultaneously decree two or more states of emergency if the grounds for them should concur”.


          78.          The rules described, incorporated into the permanent text of the Constitution, are supplemented by transitory provision 24, which will be in force until 1989. [8]  This provision has been in effect uninterruptedly since March 11, 1981, which calls for detailed consideration.  This provision stipulates that when acts of violence intended to disturb the public order occur or there is a danger of disturbance of the internal peace, the President shall so declare and, for a period of six months, which is renewable, shall have the following powers:


a.       To arrest persons for up to five days in their own homes or in places other than jails.  Upon occurrence of terrorist acts of grave consequences, he may extend this period for 15 additional days;


b.       To restrict the right of assembly and the freedom of information, the latter only with reference to the founding, editing or circulating of new publications;


c.       To prohibit the entry into the national territory or to expel therefrom those who propagate doctrines alluded to in Article 8 of the Constitution, those accused of being or have reputed to have been activist on behalf of such doctrines, as well as those who act contrary to the interest of Chile or constitute a danger for internal peace; and


d.       To order the mandatory permanence of certain persons in an urban locality of the national territory or a period not exceeding three months.


The Powers contemplated in this provision will be exercised by the President, pursuant to a supreme decree signed by the Minister of the Interior, pursuant to the instructions “By Order of the President”.  The measures adopted pursuant thereto will not be subject to any appeal, except reconsideration by the authorities, which have imposed them.


          79.          Transitory provision 24, like the norms that generally regulate the states of emergency, is an expression of the exercise of discretionary power.  By its very nature, this discretionality requires a precise framework of juridical and institutional limitations in order to prevent its exercise from going beyond the ambit proper to it and entering the field of arbitrariness that is contrary to law.  The juridical formalization of the social situations that give rise to the exercise of discretionary power, the powers considered in relation to the rights affected, and the limitations imposed on the exercise of those powers are the elements that must be taken into account in correctly appraising transitory provision 24.


          80.          With respect to the situations that give rise to the exercise of the discretionary power this transitory provision provides for, it establishes their validity when “acts of violence intended to disturb the public order occur or where is danger of disturbance of the internal peace”.  In this regard it should be pointed out that it is an extremely broad formulation in the case of disturbance of internal peace> it is not necessary for it to have occurred; but only that there should be a mere danger that it will occur.  Nor is its necessary for the disturbance of the public peace to have occurred; but only that the acts of violence were “intended” to cause it.


          81.          This comprehensive juridical formulation is that which serves as a basis for the adoption of measures affecting many individual rights.  Thus, persons may be detained for five days and up to twenty days when “terrorist acts with serious consequences” have occurred, which seriously affect the right to personal freedom, due process and seriously endangers the right of personal integrity;  the right of assembly and that of information may also be restricted; the right of residence and movement of persons characterized in accordance with an extremely broad criterion --”…those that are known or reputed to be activist…”--and, finally, power was given to send persons into enforced residence in urban localities in any part of the national territory for ninety days.  As may be seen, these are powers those scope is unprecedented in the Chilean constitutional system prior to September 11, 1973.


          82.          Furthermore, the limitations imposed on the exercise of those powers other than those envisaged in the text itself are virtually non-existent.  The powers are the exclusive prerogative of the President, in whom is also vested the power to confer them on himself by a mere declaration that the existing situation warrants it.  The agreement of the Government Junta is not required nor is there any need to explain the factual bases of the declaration of that state of emergency.  Those powers are exercised through a supreme decree of the Minister of the Interior.  The temporary limitation of six months incorporated into the text is of no importance since the measure is renewable indefinitely.


          83.          The lack of limitations becomes obvious when it is prescribed that “the measures adopted pursuant to this provision shall not be subject to any remedy save that of reconsideration by the authority that ordered them”.  The measures that may be adopted by the President make up, in most cases, veritable sanctions applied without process of any kind and in the face of which the person affected lacks any remedy save that of reconsideration, which thus becomes a mere petition for grace.


          84.          The range of human rights affected by transitory provision 24, the absence of controls on the exercise of the powers it confers on the President.  The lack of remedies on the part of the persons affected, and the virtual non-existence of requirements connected with the legal formalization of the situations in which it may be applied, are all considerations that lead the Commission to believed, that transitory provision seriously infringes the international system for the protection of human rights.


          85.          Insofar as it relates to states of emergency in Chile the evolution described since the military coup of September 11, 1973, makes it possible to point it two fundamental trends:  the first is the sustained expansion of the powers of the State, which implies, as a counterpart, the restriction of human rights and the weakening of the remedies instituted for protecting them; the second is the progressive concentration of those powers in the President.


          86.          With respect to the restrictions on human rights in the face of the increase in the powers of the State, it should be pointed out that the right to life is affected by the significant expansion of the jurisdiction of the military courts when states of emergency are in effect.  With the consequent possibility of application of the death penalty.  The right to personal freedom has been restricted by the successive increases in the period during which a person may be detained without being brought before a competent judge; the right to due process also suffers as a result of the combined effect of the two situations.  In addition, the right to personal integrity is threatened both by the prolonged periods of deprivation of liberty and by the lack of remedies for guaranteeing it;  this situation also infringes the right to a fair trial, by removing from the ordinary jurisdiction a number of powers that are prerogatives of the judiciary in a constitutional State.  Freedom of expression, opinion and information are severely compromised, as are the rights of association and assembly.  The right of residence and movement is subject to indefinite suspension.


          87.          The second trend is that relating to the progressive concentration of these broad powers in the President.  A comparison of the attributions of the President in the system of the 1925 Constitution with those conferred on hum by the Constitution of 1980 shows that the President is entitled, on his own authority, to declare a state of emergency and to assume the powers granted him by transitory provision 24;  he may also declare a state of siege, with the agreement of the Government Junta.  In the exercise of his powers during states of emergency the President may apply veritable sanctions without trial or any substantiation;  nor does he have to give reasons about the factual bases of his measures, which, furthermore, only he may reconsider.






          88.          Chile is founding member of the United Nations and of the Organization of American States.  With respect to the United Nations, Chile in addition to having contributed to the adoption of the Universal Declaration of Human Rights, is a party to the International Covenants of 1966 both that on Economic, Social and Cultural Rights and that on Civil and Political Rights.  Chile ratified those covenants on February 10, 1972 and promulgated the International Covenant on Civil and Political Rights as a law of the Republic under Decree No. 778 of November 30, 1976.  However, the Government has refused to publish it in the Official Gazette, which has made possible the interpretation of the Supreme Court that, because of that omission, that Covenant can not be invoked as law in force in Chile.  In this regard it should be pointed out that, according to the writings of jurists in that country, the publication of the law would not be required if it has been duly promulgated. [9]


          89.          In addition, at the world level, Chile is a State Party to the following treaties on human rights, among others: Convention on the Prevention and Punishment of the Crime of Genocide, 1948; the Convention relating to the Status of Refugees, 1951 and its 1967 Protocol; Convention Against Discrimination in Education, 1960;  International Convention on the Elimination of all Forms of Racial Discrimination, 1965;  International Convention on the Suppression and Punishment of the Crime of Apartheid, 1973.  Chile is also a party to the four Geneva Conventions of 1949 as well as to many conventions of the International Labour Organization and several instruments of the United Nations and of the Inter-American system for the protection of the rights of women.


          90.          In the regional sphere, on the other hand, Chile has not yet ratified the American Convention on Human Rights, which it did sign at the end of the Specialized Conference of San Jose, Costa Rica, in 1969.  The only human rights treaty of the Inter-American system in force for Chile is the 1933 Montevideo Convention on Political Asylum.


          91.          Nevertheless, as a member state of the Organization of American States, Chile is bound by the 1948 American Declaration on the Rights and Duties of Man.  An instrument that both the former and present Statute of the Inter-American Commission on Human Rights consider to be applicable law for the member states of the Organization.  [10]


          92.          The rules contained in the international instruments that bind Chile, specially the American Declaration on the Rights and Duties of Man, will be examined in the chapters of this report that deal with each right in particular.  It is therefore in order in this section to refer to the limitations that may be imposed on the exercise of certain rights under states of emergency, which are envisaged in the international instruments if the recognition and respect of the rights of other individuals is thereby ensured and if those limitations are established taking into account the requirements of morality, public order and the general welfare in a democratic society.  [11]


          93.          Indeed, internationals law--as formalized in Article 4 of the International Covenant on Civil and Political Rights [12].  To which Chile is a party, and Article 27 of the American Convention on Human Rights. 13 Which embodies the most received doctrine on this subject--has imposed a series of requirements and exigencies if a State is to limit the exercise of the rights and freedoms that are internationally recognized.  These exigencies, in general, tend to emphasize the exceptional and temporary nature of the suspension of the individual guarantees.


          94.          In the first place, suspension of rights must be due to extremely serious situations.  The International Convention on Civil and Political Rights speaks of “time of public emergency which threatens the life of the nation”.  The American Convention, for its part, refers to “war, public danger or other emergency that threatens the independence or security of the State Party”.  That is not the case in the various situations in which the 1980 Constitution of Chile authorizes the suspension or restriction of certain rights.


          95.          Indeed, as was seen in the preceding section of this chapter, transitory provision 24 does not require that there be an actual disturbance of the internal peace but only that there be a danger of that occurring.  Nor does it required that a disturbance of the public order has occurred in practice as a result of acts of violence but only that the acts of violence that occurred were intended to cause that disturbance.


          96.          The scope of internal disturbances as a grounds for the declaration of a state of siege--Article 40 of the Constitution--can only be appraised by the President and by the Government Junta but the courts of justice may not “determine the factual bases” on which that evaluation rests.  The same occurs with the decision of the President to institute a state of emergency “in serious cases of disturbance of the public order, harm or danger to public security”.


          97.          The other requirement demanded by international instruments for justifying the suspension of rights and liberties is that that suspension be strictly temporary.  Thus, the International Covenant on Civil and Political Rights accepts the restriction of rights and liberties, which it embodies only “to the extent strictly required by the exigencies of the situation”.  The American Convention, for its part, authorizes the suspension of such rights and liberties “to the extend and for the period of time strictly required by the exigencies of the situation”.


          98.          In practice, Chile has been living under states of emergency since September 11, 1973 to date.  Indeed, the state of siege was in effect from that date to December 1977 only to be reintroduced on November 6 1984 and rescinded on June 17, 1985.  The state of emergency has been in effect without interruption except for a short period between August 1983 and March 1984, when it again came into effect.  The extraordinary powers of the President granted by transitory provision 24 have been in force without interruption since March 1981 when the new Constitution entered into force.  This superposition of states of emergency is provided for in Article 40 (5) of the Constitution.


          99.          As may be seen, it is no exaggeration to say that Chile has been living in a permanent state of emergency since the data of the military coup, which contravenes the provisions of the above-mentioned international instruments that require those states to be temporary.    




          100.          The description in this chapter of the juridical system in effect in Chile for human rights leads to the conclusion that it shoes serious deficiencies deriving from the inadequate protection it affords those rights.  This system has been gradually coming into being as a result of the practice of the political power in special situations, which for a lengthy period determined the subordination of all human rights to the requirements deriving from that power.  A distinguishing feature of the changes that have taken place in that ambit is a progressive restriction of individual rights in the face of the advance of the powers granted to government organs and a gradual weakening of the remedies established for protecting them.  That situation is particularly pronounced when the states of emergency are in effect, as they have been in Chile uninterruptedly since September 11, 1973.


          101.          The Constitution in force since 1981 maintains that situation and accentuates some of its principal defects.  This is reflected, in particular, in the substantial limitation imposed on the Judiciary in emergency it permits and in generic restrictions on the exercise of many human rights, which allows the political powers a wide margin of discretionary action.  It may therefore by affirmed that the distinguishing features of the Chilean System in the matter of human rights do not adequately satisfy the requirements of the international instruments applicable to Chile.

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[7]         Alfredo Etcheberry, “El actual régimen jurídico-constitucional de Chile frente a las Normas internationals sobre derechos humanos” in Normas Internacionales sobre Derechos Humanos y Derecho Interno.  Andean Commission of Jurists, Lima 1984, p. 170.

[8]         This provision was not included in the Draft Constitution prepared by the Council of State.  According to Professor Lautaro Rios Alvarez, it was introduced by the Government Junta, acting in the exercise of the constituent power, between June 9 and August 8, 1980.  See the article by that author “La Disposición 24 Transitoria ante el Estado de Derecho” in Revista Chilena de Derecho, Vol. 10, No. 3, September-December 1983, Faculty of Law, Pontificia Universidad Catolica de Chile, p. 782.

[9]         Thus, for example, Professor Hugo Rosende states the following “The law is perfect and definitive from the time it has been approved by the competent agencies; that promulgation therefore does not give it executory force or condition the birth of the new statute established by the legislator; finally, that promulgation adds nothing to the law.  Now, if these conclusions are admissible with respect to the act of promulgation, they apply with even greater force to publication, which is logically subsequent to promulgation and a mere consequence of it”.  Promulgación y Publicación de Ley.  Editorial Nacimento, Santiago 1941, p. 165.

[10]           Article 2 of the former Statute of the Commission, approved by the Council of the Organization at its meetings held on May 25 and July 8, 1969, stipulated‑.  “For the purposes of this Statute, human rights are understood to be those set forth in the American Declaration of the Rights and Duties of Man”; for its part, the present Statute of the Commission, approved under resolution 447 adopted by the General Assembly of the OAS on October 31, 1979 provides in article 1, paragraph 2: “For the purposes of the Statute human rights are understood to be:

a.          The rights set forth in the American Convention on Human Rights, in relation to the States Parties thereto;

b.       The right set forth in the American Declaration of the Rights and Duties of Men, in relation to the other member states.”

[11]         For an examination of the states of emergency and international law, see Rosalyn Higgins “Derogation’s under Human Rights Treaties” in British Yearbook of International Law, Vol. 48, 1978, pp. 281-307; Joan Hartman “Derogation from Human Rights Treaties in Public Emergencies” in Harvard International Law Journal, Vol. 22, No. 1, Winter 1981, pp. 1-51; the report of the Rapporteur Mrs. N. Questiaux to the Subcommittee on the Prevention of Discrimination and Protection of Minorities, relating to the situations known as states of siege or emergency.  United Nations Economic and Social Council, E/CN.4/Sub.2/1982/15; and Claudio Grossman, “Algunas consideraciones sobre el régimen de situaciones de excepción bajo la Convención Americana sobre Derechos Humanos” in Derechos Humanos en las Americas, Homenaje a la memoria del Prof. Carlos A. Dunshee de Abranches, Washington, D.C., 1984, pp. 121-134.

[12]           Article 4 (1) of the International Convention on Civil and Political Rights provides:

In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Convention may take measures derogating from their obligations under the present Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with the their other obligations under international law and do not involve discrimination solely on the ground of race, color, sex, language, religion or social origin.

17.          Article 27 (1) of the American Convention on Human Rights provides:

“In time of war, public danger or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion or social origin.