Andres
Aylwin Azocar and Otros v. Chile, Case 11.863, Report Nº 137/99, OEA/Ser.L/V/II.106
Doc. 3 rev. at
536 (1999).
REPORT
Nº 137/99
CASE 11,863 ANDRES AYLWIN AZOCAR ET AL.
CHILE
December 27, 1999
I.
SUMMARY
1.
On January 9, 1998, the Inter-American Commission on Human Rights (hereinafter
the "Commission") received a petition against the Republic of Chile
(hereinafter "the State," "the Chilean State," or "Chile")
alleging violations of human rights set forth in the American Convention on
Human Rights (hereinafter "the American Convention"), in particular
political rights (Article 23) and the right to equal protection (Article 24),
to the detriment of Chilean society, and in particular of the following persons
identified as victims and petitioners in this case:
Andrés Aylwin Azócar, Jaime Castillo Velasco, Roberto Garretón Merino,
Alejandro González Poblete, Alejandro Hales Jamarne, Jorge Mera Figueroa,
Hernán Montealegre Klenner, Manuel Sanhueza Cruz, Eugenio Velasco Letelier,
Adolfo Veloso Figueroa, and Martita Woerner Tapia (hereinafter "the petitioners").
2.
The petitioners allege that the provision on senator-for-life (General
Augusto Pinochet) and designated senators, found at Article 45 of the Chilean
Constitution, thwarts the expression of popular sovereignty, implying that
elections are no longer "genuine" in the terms required by Article
23(1)(b) of the American Convention, and that for the same reasons it violates
the essence of the institutional framework of representative democracy, which
is the basis and foundation for the entire human rights system now in force.
Petitioners also allege that the designation of senators in the manner
provided for under the new constitutional order in Chile constitutes an institution
that violates the right to equality in voting, is inimical to popular sovereignty,
and represents an obstacle making it practically impossible to change the
non-democratic institutions established in the Chilean Constitution.
3.
In addition, petitioners argue that the provision on designated senators
violates Articles 23(1)(c) and 24 of the Convention, which set forth "the
right and opportunity" "to have access, under general conditions
of equality," to the public functions of the state.
In this respect, the petitioners note that such equality of rights
and opportunities is not to be found in a system in which some of the persons
elected to occupy positions in the legislative branch are designated exclusively,
and in an exclusionary manner, by a very small group of people.
4.
The state has called into question the contentious nature of the petition,
noting that it refers to Chile's internal political situation; that these
are not facts that "describe or characterize a violation of the rights
guaranteed by the Convention," and that "the fact that there are
political and legal aspects that are deemed obstacles to the full development
of democracy, or to an ideal concept of it, cannot be equated with violations";
and that instead "the petition describes a situation that is strictly
political in nature," and that is not within the Commission's jurisdiction.
5.
After analyzing the arguments put forth by the parties, the rights
established in the Convention, and the rest of the evidence and documents
that appear in the record, the Commission concludes that by establishing what
are called designated senators and senator-for-life Augusto Pinochet, in Article
45 of the Chilean Constitution, and by its application by the authorities
indicated, the human rights to political participation and to equality without
discrimination as set forth in the American Convention (Articles 23 and 24)
have been violated in respect of the victims in this case. Consequently, the
Commission decides to recommend to the Chilean State that it adopt the necessary
measures to bring its internal legal order into line with the provisions of
the American Convention, so as to fully ensure all Chilean citizens, including
the victims in this case, the exercise of the right to vote and to be elected
in general conditions of equality in accordance with Articles 23 and 24 of
the American Convention, in the determination of the composition of the Senate,
as a bicameral legislative organ of popular representation in the Chilean
Congress.
II.
PROCESSING BY THE COMMISSION
6.
The Commission opened the case on January 23, 1998; it forwarded the
pertinent parts of the complaint to the Chilean State and asked that it provide
information within 90 days.
In that same communication, the Commission called on the Chilean State
to participate in a hearing on admissibility issues, along with the petitioners'
representatives, to be held February 27, 1998, during the 98th regular session
of the Commission.
The state answered the notice of hearing on February 19, 1998, indicating
that it would not participate, and that instead it would provide its arguments
in writing within the period set by the Commission's Regulations.
7.
On March 16, 1998, the Chilean State requested a 60-day extension for
submitting its observations on the complaint.
This extension was granted on April 8, 1998.
Said observations were submitted on June 16, 1998; the pertinent parts
were transmitted to the petitioners three days later.
On August 14, 1998, the petitioners submitted a brief with observations,
whose pertinent parts were forwarded to the state on September 9, 1998.
8.
On October 5, 1998, the Chilean State requested a new extension for
answering the observations submitted by petitioners, which was granted on
October 14, 1998.
On December 8, 1998, the Chilean State submitted its brief with observations
on the latest brief submitted by petitioners.
9.
On December 9, 1998, and once the requirements in Articles 46 and 47
of the American Convention were analyzed, the Commission, meeting in its 101st
special session, approved Report 95/98, declaring the admissibility of the
complaint submitted by the petitioners.
On that occasion the Commission analyzed the arguments of the parties
on admissibility of the petition; therefore, here the Commission will only
analyze the arguments on the merits.
10.
On December 11, 1998, the admissibility decision was communicated to
the petitioners and to the Chilean State, and it was agreed to make it public
and to include it in the Commission's Annual Report.
On December 28, 1998, the Commission forwarded the pertinent parts
of the last brief submitted by the Chilean State; likewise, the Secretariat
of the Commission sent a letter to the parties, informing them that the Commission
was putting itself at their disposal with a view to seeking a possible friendly
settlement.
On April 22, 1999, the Commission was notified by the petitioners of
their decision not to pursue the friendly settlement process.
III.
POSITION OF THE PARTIES
A.
The petitioners
11.
The petitioners indicate in their complaint that the designation of
senators outside of the provisions on universal suffrage at Article 45(a)
through (f) of the Chilean Constitution[1]
violates the concept of "equal suffrage" set forth at Article 23(1)(b)
of the American Convention.
This is because the "designated" senators, in order to reach
the Senate, are chosen by a very small number of persons (1 to 17), while
the senators elected by popular vote require the endorsement of approximately
120,000 citizens.
12.
They state that the provision on designated senators is a breach of
Article 23(1)(c) of the American Convention, which enshrines "the right
and opportunity" "to have access, under general conditions of equality"
to the public service of his or her country.
In this respect, the petitioners note that such equality of rights
and opportunities is not to be found in an electoral system in which some
of the persons elected to occupy posts in the legislative branch are selected
by a very small group of persons (for example: three or four former commanders-in-chief
of the Army, Navy, or Air Force; three or four former comptrollers-general
of the Republic), while other candidates are selected by hundreds of thousands
or millions of citizens.
13.
In addition, the petitioners note that the inequality in the worth
of the vote and in access to public service also constitutes an open violation
of Article 24 of the American Convention, which establishes: "All persons
are equal before the law."
14.
The petitioners also consider that the designation of 20 percent of
the Chilean Senate by corporatist procedures and without regard to universal
suffrage works an evident usurpation of an equivalent quota of natural power
from the sovereignty of the people, which means that elections cease to be
"genuine" in the terms required by Article 23(1)(b) of the Convention,
and therefore represent a rupture with the essential basis of a democratic
institutional arrangement, which constitutes the basis and foundation of the
entire human rights system now in place. They argue that the seriously diminished
sovereignty and the requirement of supermajorities for making decisions constitute
an aberrant situation in which apparently democratic forms are overtaken by
a reality in which the exercise of popular sovereignty is practically impossible
in relation to the issues that are most important and crucial to society.
15.
The petitioners point out that the privilege enjoyed by some, of acceding
to the Chilean Senate apart from the popular vote; the excessive power of
those who designate them (a small group of authorities), and the diminished
value of the vote of the large majority constitute open discrimination, which
is prohibited by Articles 1 and 24 of the American Convention.
They further state that the inadvisability and illegitimacy of the
designated senators were fully shown with the nine senators designated in
1990, who included one former interior minister under the government of Augusto
Pinochet, three high-level military or police officials who acted under his
orders, and one judge who stood out for his failure to protect human rights.
16.
They are of the view that the designated senators are in themselves
an undemocratic expression, and tend to help maintain an undemocratic political-juridical
reality, or an undefined "transition to" democracy.
The petitioners understand the institution of the designated senators
as violative of the principle of equality of the vote and popular sovereignty,
and also constitutes a lock that makes it practically impossible to modify
the non-democratic institutions established in the Chilean Constitution.
17.
The petitioners request that the Commission declare: (1) that the existence
of senators not elected by the people, whether designated or senators-for-life,
especially in numbers such that it works a significant alteration of the popular
will, as provided by Article 45(a) through (f) of the 1980 Chilean Constitution,
constitute a violation of the right to equal vote enshrined in Article 23(1)(b)
of the American Convention; (2) that said provision of the Chilean Constitution,
insofar as it provides for privileged electoral bodies made up of an insignificant
number of candidates to the position of senator, is contrary to and incompatible
with Article 23(1)(c) of the Convention, which enshrines the right of all
citizens to have access (under general conditions of equality) to the public
posts in their country; (3) that the inequality of the vote and access to
public posts violates Article 24 of the Convention, which affirms that all
persons are equal before the law; (4) that the appointment of senators who
account for approximately 20 percent of the members of the Senate, without
regard for the popular will, constitutes a usurpation of such magnitude that
the elections cease to be genuine, constituting a flagrant violation of Article
23(1)(b) of the Convention, and an attack on the essence of democratic institutional
arrangements; (5) that the privilege bestowed on some of being designated
senators without regard for the popular will constitutes discrimination, which
is prohibited by Article 1 of the Convention, which guarantees all persons
the (free and full) exercise of their human rights; (6) that the incorporation
in the Chilean Senate of a member as former President of the Republic, without
him having been elected to that post by the people, constitutes a violation
of the prohibition on discrimination enshrined in the Convention; (7) that
not only the persons who come before the Commission as petitioners, but all
Chileans who have the right to vote, are victims of these human rights violations
and of these acts of discrimination.
18.
In addition, they ask that the Commission formulate the following recommendations:
(1) that the Chilean State bring its Constitution and organic laws
into line with the standards of the American Convention, to which it is a
party, with respect to the prohibition on discrimination; political participation
in equal conditions in access to public functions; and, in general, the restriction
on the right to participation in an entirely democratic fashion; and, specifically,
(2) that Article 45(3) of the 1980 Constitution be derogated, as it is contrary
to the provisions of Articles 1(1), 23(1)(a),(b), and (c), and 24 of the American
Convention.
B.
The State
19.
The Chilean State, in due course, raised in opposition a series of
arguments alleging inadmissibility, which were considered and dismissed by
the Commission when it issued its decision on the admissibility of the petition.[2]
The State's arguments on the merits can be summarized as follows:
20.
In response to the allegations formulated by the petitioners, the Chilean
state argues that it has committed no violation nor does it have any responsibility
whatsoever for the alleged violation of human rights that is at the origin
of this case. It states that the present-day constitutional government cannot
be required to violate the institutional order it inherited or to seek to
modify it by means that are outside of that same legal order.
21.
The representatives of the State affirm that the legislative initiatives
submitted by the democratic governments to reform the Constitution should
be taken into account in order to do away with the situation that is the subject
matter of this complaint.
On three occasions the Senate rejected the bills submitted by the Executive
aimed at suppressing the institution of the designated senators and senator-for-life
been called into question here.
It is impossible to modify the Constitution currently in force by means
other than what is established in the Constitution itself.
22.
The State questions the contentious nature of the petition and says
that it is not evident, and that instead it raises matters related to Chile's
political situation; that they are not facts that "describe or characterize
a violation of the rights guaranteed by the Convention" and that "the
fact that political and juridical aspects are considered obstacles to the
full development of democracy, or of an ideal concept thereof, cannot be equated
to facts that constitute violations"; and that, instead, "the petition
describes a situation strictly political in nature," over which the Commission
has no jurisdiction.
23.
The Chilean State argues that the ways in which the various states
parties to the Convention enshrine political rights may differ, but that this
is not grounds for considering a basis for calling into question those democratic
traditions.
24.
Based on the foregoing considerations, the representatives of the Chilean
State asked the Commission to declare itself without jurisdiction to take
cognizance of this dispute, or, should it not do so, to declare that the presumed
violations alleged by the petitioners cannot be attributed to it and that
it has no responsibility.
IV.
ADMISSIBILITY OF THIS CASE
25.
As noted above, on December 9, 1998, the Commission approved Report
95/98[3],
by which it declared the admissibility of the complaint submitted by the petitioners.
In that Report, the Commission noted that it had prima
facie jurisdiction to examine the petition, considering that the facts
alleged, if true, could constitute a violation of the rights established in
the American Convention.
26.
In addition, the Commission rejected the argument on lack of jurisdiction
ratione temporis presented by the
Chilean State, noting that while the provisions called into question were
issued prior to Chile's ratification of the American Convention, the violation
alleged has continued and remained current after the date of ratification
of the Convention, since it is occurring now, at a time when the obligation
to respect and ensure the rights established in the Convention has come into
effect, and consequently its obligation to bring its legal order into line
with the terms of the Convention (Article 2), are binding on the Chilean State.
27.
Finally, and in relation to the grounds of inadmissibility contained
in Article 46(1)(b) of the Convention, which was alleged by the Chilean State
and referred to the six-month period for submitting the complaint, the Commission
indicated that the consequences or the legal and factual effects of the Constitutional
provisions that have been called into question, as well as their invariable
and continuing application during the democratic administrations since 1990,
extend to the date of submission of the complaint and even afterwards, which
definitely makes the provisions of the American Convention invoked by petitioners
applicable to this situation.[4]
The Commission decided the admissibility of this case based on the
foregoing considerations.
V.
ANALYSIS OF THE MERITS
28.
As can be observed in the arguments of the parties, the dispute in
this case revolves around the violation of human rights enshrined in the American
Convention, by virtue of the establishment, in the 1980 Chilean Constitution,
and their consequent application by the respective authorities, of what are
called the designated senators and the senator-for-life, General Augusto Pinochet.
Article 45 of the Constitution provides that in addition to the senators
elected by direct vote by each of the 13 regions of the country, the following
shall also be members of the Senate:
(1) those former Presidents of the Republic who have held said post
for six years continuously (senators for life); (2) two former justices of
the Supreme Court, elected by the Supreme Court in successive votes, so long
as they have held their posts for at least two years continuously; (3) one
former comptroller-general of the Republic, also elected by the Supreme Court,
so long as he or she has held the post for at least two years; (4) one former
commander-in-chief of the Army, one commander-in-chief of the Navy, and another
commander-in-chief of the Air Force, plus one former director general of the
Carabineros, elected by the National Security Council, so long as they have
held the respective posts for at least two years; (5) one former president
of a state university or a university recognized by the state, designated
by the President of the Republic, so long as he or she has held said post
for a period not less than two years; and (6) one former cabinet minister
who served under a previous presidential administration or administrations,
also designated by the President of the Republic, who has held said post for
more than two years continuously.
29.
The petitioners allege that the effects and application of the provision
called into question entail a diminishing of the system of representative
democracy and involve a violation of their political rights as set forth in
the American Convention.
For its part, the Chilean State considers that the Commission does
not have jurisdiction to review said provision, considering that there is
no flagrant contradiction with the provisions of the American Convention,
but that, instead, the provision debated represents one of many possible ways
of complying with the international provisions enshrining political rights.
30.
For this reason, as an introductory point, the Commission deems it
necessary to establish the link between representative democracy and the protection
of human rights, as well as its own jurisdiction to decide individual cases
that involve political rights enshrined in the American Convention.
A.
Representative democracy and human rights
31.
On several occasions the Commission has noted the close relationship
between representative democracy and the protection of human rights.[5]
In effect, the Commission has said that representative
democracy--one of whose key elements is the popular election of those
who hold political power--is the form of organization of the state explicitly
adopted by the member states of the Organization of American States.[6]
In contrast to the United Nations, the inter-American system has incorporated
an express provision in its Charter, Article 3(d), according to which the
solidarity of the American states and the high aims of the Charter require
a form of political organization based on the effective exercise of representative
democracy (Commission's emphasis).
32.
This article complements the invocation, in the Preamble of the Charter
of the Organization of American States, by the Representatives:
Confident
that the true significance of American solidarity and good neighborliness
can only mean the consolidation on this continent, within the framework of
democratic institutions, of a system of individual liberty and social justice
based on respect for the essential rights of man...
33.
This text is of special importance as it links democracy to individual
liberties and human rights, an idea that had already been incorporated into
the preambular part of the Inter-American Treaty of Reciprocal Assistance,
of 1947, when it notes:
That
the American regional community affirms as a manifest truth that juridical
organization is a necessary prerequisite of security and peace, and that peace
is founded on justice and moral order and, consequently, on the international
recognition and protection of human rights and freedoms, on the indispensable
well-being of the people, and on the effectiveness of democracy for the international
realization of justice and security.
34.
In the amendment to the Charter of the OAS introduced by the Protocol
of Cartagena of 1985, the concept of representative
democracy was incorporated into the Preamble in these terms:
"Convinced that representative democracy is an indispensable condition
for the stability, peace and development of the region."
And Article 2(b) established as essential purposes of the Organization
"To promote and consolidate representative democracy, with due respect
for the principle of non-intervention."
35.
The relationship between representative democracy and the observance
of human rights has been reaffirmed in various meetings of consultation, inter-American
conferences, additional protocols, and resolutions of the General Assembly
of the Organization of American States.
In effect, the General Assembly of the Organization has reaffirmed
on several occasions the relationship between representative democracy and
human rights, emphasizing the need for the exercise of political rights so
as to be able to elect the government authorities. In this vein, the General
Assembly has recommended "to the member states that have not yet done
so that they reestablish and perfect the democratic system of government,
in which the exercise of power derives from the legitimate and free expression
of the will of the people, in accordance with the particular characteristics
and circumstances of each country."[7]
36.
More specifically, in Resolution 837 (XVI-O/86), the General Assembly
noted:
The
Inter-American Commission on Human Rights, in its annual report for the period
1985-86 presented to this regular session of the General Assembly for consideration,
recommended "that it reaffirm the urgent need for the governments that
have not yet reestablished representative democracy as their system of government
to put in place the relevant institutional mechanisms for restoring that system
in as short a period of time as possible by means of free, secret and informed
elections, since democracy is the best guarantee for the observance of human
rights and the basis of solidarity among the states of the hemisphere"....
37.
In the operative part, the General Assembly resolved:
To
reaffirm the inalienable right of all the peoples of the Americas freely to
determine their political, economic and social system without outside interference,
through a genuine democratic process and within a framework of social justice
in which all sectors of the population will enjoy the guarantees necessary
to participate freely and effectively through the exercise of universal suffrage.
38.
The Commission has also noted that it is not unusual for the hemisphere's
legal framework to insist on the existence of direct relationship between
the exercise of political rights so defined and the concept of democracy as
a form of organization of the state, which in turn implies the effective observance
of other fundamental human rights.
In effect, in the view of the Commission, the concept of representative
democracy is grounded on the principle that political sovereignty vests in
the people, who elect their representatives to exercise political power.
These representatives, moreover, are elected by the citizens to apply
certain political measures, which in turn implies that there has been a wide-ranging
debate on the nature of the policies to be adopted (freedom of expression)
among organized political groups (freedom of association) that have had the
opportunity to express themselves and meet publicly (right to assembly).[8]
39.
The analysis of the human rights situation in the states to which the
Commission has referred in prior years leads it to state that only through
the effective exercise of representative democracy can human rights be fully
guaranteed.
It is not just a question of noting the organic relationship between
representative democracy and human rights as arises from the Charter of the
OAS and other instruments of the inter-American system.
The Commission's experience, as borne out in the facts, is that grave
human rights violations in some countries of the Americas originate in the
need to improve the operation of the institutions, and the rule of law.
40.
Thus, for example, in its Report on the Situation of Human Rights in
Paraguay of 1987, the Commission conceived of
the
exercise of political rights in the larger context of the system of representative
democracy. The hemisphere's legal tradition and the Commission's experience
lead to the belief that the exercise of such rights implies participation
by the population in the conduct of public affairs, either directly or through
representatives elected in periodic and genuine elections featuring universal
suffrage and secret ballot, to ensure the free expression of the electors'
will. The
voters must be given access, on general conditions of equality, to public
functions.
This
hemispheric vision of the exercise of political rights within the context
of a democratic system of government is completed by the requisite development
and promotion of economic, social and cultural rights.
Without them, the exercise of political rights is severely limited
and the very permanence of the democratic regime is seriously threatened.
41.
This explains the legitimate concern of the inter-American system,
especially as of 1948, to ensure the full exercise of representative democracy
as a legitimate and necessary means of attaining respect for human rights.
In this regard, the Commission, as a principal organ of the OAS Charter,
has been invested with the function of promoting the observance and defense
of human rights in all member states.[9]
Before the entry into force of the American Convention, and even afterwards
in relation to those states that are not party to it, the human rights whose
observance and defense have been entrusted to the Commission since its creation
in 1959 are those set forth in the American Declaration on the Rights and
Duties of Man ("American Declaration").[10]
In this regard, as of 1948 the member states recognized as a human
right "the right to vote and to participate in government," in Article
XX of the American Declaration in the following terms:
Article
XX. Every
person having legal capacity is entitled to participate in the right to vote
and to participate in government of his country, directly or through his representatives,
and to take part in popular elections, which shall be by secret ballot, and
shall be honest, periodic and free.
42.
As a complement, in the second chapter of the Declaration, Article
XXXII established the "duty to vote" in these terms:
"It is the duty of every person to vote in the popular elections
of the country of which he is a national, when he is legally capable of doing
so."[11]
43.
This situation was reiterated and developed even further under the
American Convention, which confirmed as its main function "to promote
respect for and defense of human rights"[12];
taking into account "their intention to consolidate in this hemisphere,
within the framework of democratic institutions, a system of personal liberty
and social justice based on respect for the essential rights of man."[13]
It is precisely within those essential rights of man as human rights
that the American Convention sets forth the political rights inherent to representative
democracy in Article 23, which provides as follows:
Article
23. Right
to Participate in Government
1.
Every citizen shall enjoy the following rights and opportunities:
a.
to take part in the conduct of public affairs, directly or through
freely chosen representatives;
b.
to vote and to be elected in genuine periodic elections, which shall
be by universal and equal suffrage and by secret ballot that guarantees the
free expression of the will of the voters; and
c.
to have access, under general conditions of equality, to the public
service of his country.
2.
The law may regulate the exercise of the rights and opportunities referred
to in the preceding paragraph only on the basis of age, nationality, residence,
language, education, civil and mental capacity, or sentencing by a competent
court in criminal proceedings.
44.
The impact of this provision of the American Convention and its essential
impact on the consolidation of representative democracy was expressed by the
Inter-American Court in crystal-clear terms:
Representative
democracy is determinant in the whole system of which the Convention is part.[14]
45.
The concept of representative democracy and its protection is so important
and such an essential part of the hemispheric system that it not only sets
it forth in its texts, from the first documents, but an entire mechanism of
hemispheric protection has been put in place to address a breakdown of democracy
in any of the member states.
This is the purpose and mandate of General Assembly Resolution 1080,
adopted in 1991 in Santiago, Chile, and of the Protocol of Washington, of
1993, which merited an amendment to the Charter to enshrine this purpose of
the Organization of American States, which entered into force in 1997.
46.
Consequently, there is a conception in the inter-American system of
the fundamental importance of representative democracy as a legitimate mechanism
for achieving the realization of and respect for human rights; and as a human
right itself, whose observance and defense was entrusted to the Commission.
47.
Along these lines, the Commission has reiterated that it is "empowered
to verify, with respect to these rights, whether the holding of periodic,
genuine elections, with universal, equal, and secret suffrage takes place
within the framework of the necessary guarantees so that the results represent
the popular will, including the possibility that the voters could, if necessary,
effectively take appeal of an electoral process that they consider fraudulent,
defective, and irregular or that ignores the right to access, under general
conditions of equality, to the public functions of their country."[15]
48.
Some domestic high courts have also had occasion to establish guiding
interpretive principles in this regard.
The U.S. Supreme Court, for example, has also noted the importance
of representative democracy in protecting all other fundamental rights.
In this regard, it has indicated that the right to vote is the fundamental
guarantee of representative democracy, and all other rights, even the most
basic, would be illusory or in jeopardy if the right to vote were diminished.
The right to vote and representative democracy constitute the guarantee
of all other rights.[16]
49.
This principle of participatory democracy, as an expression of the
content of the human right to political participation and as a legitimate
system for attaining the realization of all other human rights, has also been
recognized by international human rights instruments.
For example, the Universal Declaration of Human Rights,[17]
at its Article 21, establishes:
1.
Everyone has the right to take part in the government of his country,
directly or through freely chosen representatives.
2.
Everyone has the right to equal access to public service in his country.
3.
The will of the people shall be the basis of the authority of government;
this will shall be expressed in periodic and genuine elections which shall
be by universal and equal suffrage and shall be held by secret vote or by
equivalent free voting procedures.
50.
Similarly, the International Covenant on Civil and Political Rights,
in language very similar to the American Convention, sets forth the human
right to political participation in the following terms at Article 25:
Every
citizen shall have the right and the opportunity, without any of the distinctions
mentioned in article 2 and without unreasonable restrictions:
(a)
To take part in the conduct of public affairs, directly or through
freely chosen representatives;
(b)
To vote and to be elected at genuine periodic elections which shall
be by universal and equal suffrage and shall be held by secret ballot, guaranteeing
the free expression of the will of the electors;
(c)
To have access, on general terms of equality, to public service in
his country.
51.
In addition, several international and intergovernmental agencies have
adopted resolutions and decisions on the essential and indivisible linkage
between the right to political participation and representative democracy
as the only legitimate and suitable mechanism for attaining the observance
of human rights.
Thus, for example, the treaty-based human rights organs of the United
Nations (Human Rights Committee, Committee on Economic, Social and Economic
Rights, Committee for the Elimination of Racial Discrimination, and the Committee
for the Elimination of Discrimination against Women), in their recommendations
and general comments on the right to political participation set forth in
the international instruments cited, have considered the following interpretive
guidelines:
10.
The right to vote in elections and referenda should be established
by law and may be subject only to reasonable restrictions, such as
setting a minimum age to be able to exercise it.
It is not reasonable to restrict the right to vote for reasons of physical
disability nor to impose requirements or restrictions related to the ability
to read and write, level of schooling, or economic situation.
Affiliation to a party cannot be a condition or impediment for voting.
15. The effective realization
of the right and the ability to run for elective office guarantees that all
persons with the right to vote may choose among different candidates.
All restrictions on the right to run for election, such as setting
a minimum age, must be based on objective and reasonable criteria.
The persons who otherwise meet the conditions required for running
for elective office should not be excluded by the imposition of unreasonable
or discriminatory requirements, such as level of schooling, place of residence,
or descent, or because of political affiliation.
No one should be subject to discrimination or suffer disadvantages
of any type because of their candidacy.
The States Parties should indicate and explain the legislative provisions
by virtue of which a group or category of persons may be deprived of the possibility
of holding elective office.
21.
Although the Covenant does not impose any specific electoral system,
any electoral system in place in a State Party must be compatible with the
rights protected by Article 25 and guarantee and give effect to the free expression
of the will of the voters. The
principle of one person-one vote should be applied, and, in the context of
the electoral system of each of the States, the vote of one voter should be
equal in value to that of any other.
The delimitation of electoral districts and the method of allocating
votes should not distort the distribution of voters or entail any discrimination
against any group, nor unreasonably exclude or restrict citizens right to
freely elect their representatives.
The Chilean State did not answer the Commission within the time indicated
in Report 78/99 of May 9, 1999, nor did it request any extension for doing
so. Once
the time period the Commission gave the State to forward its answer had lapsed,
the Chilean State finally answered on September 29, 1999.
The Commission laments the failure to submit an answer to the report
within the time period indicated, which could have led it to reiterate its
conclusions and recommendations without having the information requested at
hand. Nonetheless,
the Commission shall now refer to the information provided by the State.
143.
In its answer the Chilean State argues as follows:
That
it values the Commission's efforts to reach a friendly settlement, but given
the nature of the complaints and the issues involved, it is not yet been possible
to reach a satisfactory result that would put an end to this controversy;
that it has had difficulties complying with the recommendations of the Commission's
report, but that the recommendations indicated have been carried out in part;
that it has expressed its will to amend the constitutional provision that
establishes designated and life-tenure senators, but that this has not been
possible, even though it is the will of the Government; that the communication
of the petitioners is on the borderline of what is understood to be the violation
of a right contained in the Convention; that the communication from the petitioners
is a legal consultation on a point of constitutional law; that citizens participated
in the 1988 elections in equal conditions and that the State has mobilized
all the means available to it to guarantee free access to the polls for all
of the country's citizens;
That
the fact that the Senate includes senators who are not elected does not evidence,
in itself, a denial of citizens' right to vote, but reflects, rather, a clearly
political issue linked to the representation or over-representation of a certain
group of senators; that it is a matter related to the domestic constitutional
legislation of the State, that falls outside the sphere of individual communications
established by the American Convention;
That
the IACHR's recommendation to guarantee fully to all Chilean citizens, including
the victims in this case, the exercise of their right to vote and to be elected
in general conditions of equality appears to be a redundancy, bearing in mind
that the State has guaranteed access to the polls for all citizens in conditions
of equality since the period of democratic normality resumed; that the right
to vote and to be elected in equal conditions is fully guaranteed; that all
Chilean citizens are able to vote and to elect their representatives, and
that no vote is privileged; that the acceptance or rejection of this procedure
for designating senators and the composition of the Senate has to do with
a political decision, more than a legal or human rights-related decision;
and, that the right to vote is not violated by this composition of the Senate;
That
the existence of unelected senators alters the political balance within the
Senate, but it is far from being a human rights violation, in particular the
right to vote set forth in the American Convention; that the same situation
could arise if some political force were predominant in the Senate.
Nor could one argue in that case that such an imbalance affects the
political rights of minorities; that the right to vote and to be elected is
not only fully guaranteed under Chilean law, but that since 1988 its practice
has been widespread and reiterated; that in these last 10 years seven elections
have been held;
That
the mixed nature of the upper chamber in the Chilean legislature, made up
of 38 elected senators and nine designated senators, is fully in line with
the Constitutional power; that according to the Human Development Report prepared
by the United Nations Development Program (UNDP) for this year, almost 50%
of the countries included in the index on political life have designated senators
in their respective Chambers (30 of 61); that of these 30 democracies, 17
have only designated senators, including democracies as solid as Canada, the
United Kingdom, Germany, and the English-speaking Caribbean countries.
A table is attached that details this information;
That
there is no indication that the European human rights system could consider
admissible a complaint for the violation of the rights of a group of persons
who felt their rights to be affected by the existence of designated senators
in the legislatures of:
Belgium, the United Kingdom, Germany, Italy, or Ireland, and which
is found is 20 of the countries with the highest level of human development
in the world; that the Government of Chile has the aim and the will to carry
out the constitutional reforms needed so that the composition of the Senate
and the representation of the people before the National Congress faithfully
reflect the citizen will and are more in line with Chile's democratic traditions;
that it also wishes to note that the existence of Constitutional provisions
that establish a certain mechanism for determining the composition of the
Senate, should not be understood as a violation of one or more human rights,
as it is a matter that pertains to the realm of the political, and in no way
casts a pale over the exercise of the human right to vote, as established
in the Convention.
144.
As is apparent, in its answer brief, the Chilean State admits that--despite
past efforts--it has not been able to implement fully the Commission's recommendations,
nor arrive at a satisfactory result aimed at reaching an understanding with
the petitioners to reach a friendly settlement in this case.
Considering this, the IACHR reiterates that this stage of the procedure
is not for debate regarding the admissibility of the case, which was determined
in due course, and no material mistakes have been raised in opposition to
this decision in this connection to justify such a consideration.
Consequently, it is clear that the Chilean State has not adopted the
measures necessary to carry out the recommendations set forth in Report No.
78/99. The
Commission reminds the State of what the Inter-American Court has established
in relation to the obligation of the States to carry out its recommendations:
In
accordance with the principle of good faith, embodied in the aforesaid Article
31(1) of the Vienna Convention, if a State signs and ratifies an international
treaty, especially one concerning human rights, such as the American Convention,
it has the obligation to make every effort to apply the recommendations of
a protection organ such as the Inter-American Commission, which is, indeed,
one of the principal organs of the Organization of American States, whose
function is "to promote the observance
and defense of human rights" in the hemisphere.[65]
145.
The Commission shall now undertake an analysis of the arguments made
by the State in its communication dated September 29, 1999.
146.
In relation to the argument made by the Chilean state at this stage
of the proceedings to the effect that the communication submitted by the petitioners
is "borderline" with respect to what is understood to constitute
an individual communication to report a specific violation of a human right
contained in the Convention, the Commission observes as follows:
First, the expression "borderline" used by the State should
lead to the following result:
In case of doubt, the ambiguity should be interpreted in favor of the
victims' rights.
This principle of pro-homine, as the Inter-American Court has stated, is a controlling
guideline for interpreting the Convention, and in human rights law in general.
Second, the State would appear to raise anew, at this stage, an issue
already decided by the Commission in Report No. 95/98, on the admissibility
of this case, with respect to personal jurisdiction.
In this regard, the Commission reiterates that the system provided
for in the American Convention is aimed at protecting the human person (Article
1(2)) from violations of their rights set forth in the Convention (Articles
1 and 44) by acts, deeds, or omissions imputable to a State party.
147.
With respect to the question of personal jurisdiction, the Commission
has previously provided[66]
that, in general, its jurisdiction to process individual cases refers to facts
that involve the rights of a specific person or specific persons.[67]
The Commission has broader jurisdiction pursuant to Article 41(b) of
the Convention to make recommendations to the member States to adopt progressive
measures in favor of the protection of human rights, which it may exercise
outside of the individual petition system.
148.
In this case, the petitioners, in their petition, designated Andrés
Aylwin Azócar, Jaime Castillo Velasco, Roberto Garretón Merino, Alejandro
González Poblete, Alejandro Hales Jamarne, Jorge Mera Figueroa, Hernán Montealegre
Klenner, Manuel Sanhueza Cruz, Eugenio Velasco Letelier, Adolfo Veloso Figueroa,
and Martita Woerner Tapia as specific victims.
As the Inter-American Court has explained, to initiate the proceedings
provided for in Articles 48 and 50 of the American Convention, the Commission
requires that a petition contain a complaint of a specific violation with
respect to one or more specific persons.[68]
149.
The Commission has found that in this case, the victims have experienced
and continue to experience violations of their rights to political participation
and equality, enshrined in Articles 23 and 24 of the American Convention,
in light of the rule on designated senators contained in Article 45 of the
Constitution and its continued and present-day application.
150.
With respect to the characterization of the petition as a "borderline"
case of an individual petition, the Commission must reiterate, first, that
in view of the nature of human rights as a public policy matter, including
the possible consent of the victim in the violation, the violative state act
neither validates nor detracts from the jurisdiction of the international
organ in which the States have entrusted the protection of such rights.
151.
In relation to the claims overall, the Commission observes that a legal
provision could affect different persons differently.
A law that does not apply directly or is not self-executing requires
that the authorities take measures pursuant to it in order for it to be applied
to a specific case.[69]
For its part, a law that does not require additional measures to be
applied (a law that applies directly, or is self-executing) could violate
a protected right by coming into force, if all the other requirements (for
example, personal jurisdiction) are satisfied. Therefore, and taking into
account the foregoing, "a norm that deprives a portion of the population
of some of its rights--for example, because of race--automatically injures
all the members of that race."[70]
152.
In this respect, the international case-law has established that a
law may violate the right of an individual, even in the absence of a specific
measure applied later, ordered by the authorities, in those cases in which
the persons are directly affected or run an imminent risk of being directly
affected by a legislative provision.[71]
Thus, for example, as the Commission has established in an earlier
case, "María Eugenia Morales de Sierra," challenged a legal situation--that
of a married woman covered by a certain part of the Civil Code--"which
affects them personally."[72]
The Commission considered that the direct effect of the legislative
provisions challenged on the rights and daily life of the victim had been
adequately alleged and shown for the purposes of admissibility.[73]
153.
In the instant case, the constitutional provisions contrary to the
Convention (Article 45) required acts of application to be current, which
denoted a continuing violation (see paragraphs 85 to 92) of the rights of
petitioners as Chilean citizens, and therefore of the rights of all other
Chilean citizens similarly situated, specifically of their political rights.
And in the instant case, the Commission has determined that the constitutional
provisions regarding senator-for-life General Augusto Pinochet and the designated
senators are not only contrary per se to the rights to political participation (rights to vote and
to be elected) in conditions of equality enshrined in Articles 23 and 24 of
the American Convention; but that, in addition, their continuing application
in respect of the victims identified in this case, through acts adopted by
the Chilean State in 1998 (see paragraphs 85 to 91 supra), has updated and concretized this violation.
In this regard, the Inter-American Court has established that laws
contrary to the Convention may constitute a per
se violation of the Convention, with all the members of said category,
and a simultaneous violation in the specific case that arises from its application
to the victims.[74]
154.
More recently, the Court has reiterated this case-law in the following
terms:[75]
As
the Court has held, States Parties to the Convention may not issue measures
that violate the rights and freedoms recognized in it.
(International Responsibility
for the Promulgation and Enforcement of Laws in Violation of the Convention
(Articles 1 and 2 of the American Convention on Human Rights)), Advisory
Opinion OC-14/94 of December 16, 1994. Series A No. 14, para. 36, Case
of Suárez Rosero, supra, note
80, para. 97.) The Court has
established that a norm may violate Article 2 of the Convention per se, independent of whether it has been applied in a concrete case
(Case of Suárez Rosero, supra,
note 80, para. 98).
The
Court holds that the State, on submitting the victims in this case to procedures
in which several provisions of the American Convention were violated, has
failed in its duty "to respect the rights and freedoms recognized herein
and to ensure ... the free and full exercise of those rights and freedoms,"
as provided by Article 1(1) of the Convention.
Furthermore,
the Court declares that the provisions contained in the emergency legislation
adopted by the State to address the phenomenon of terrorism, and in particular
Decree-Laws Nos. 25,475 and 25,659, applied to the victims in this case, infringe
Article 2 of the Convention, as the State has not taken adequate measures
of domestic law to make it possible to implement the rights enshrined in it,
and the Court so declares. The
general duty of Article 2 of the American Convention on Human Rights implies
adopting measures along two lines. First,
suppressing the norms and practices, whatever their nature, that entail a
violation of the guarantees provided for in the Convention.
And second, issuing norms and developing practices conducive to the
effective observance of those guarantees.
Evidently, the State has not done, in respect of the provisions applicable
to the trial of the accused, what it should do in light of Article 2 of the
Convention.
In
view of the foregoing, the Court declares that the State violated Articles
1(1) and 2 of the Convention.
155.
The rest of the State's arguments are time-barred at this stage of
the proceedings, as they make reference to the violation of the petitioners'
rights to political participation on equal terms set forth in the American
Convention (Articles 23 and 24) not having occurred, as all Chilean citizens
have exercised their right to vote and to be elected, in conditions of equality,
since 1988. The Commission reiterates
in this respect its doctrine and case-law contained in this report.
In effect, the right to vote and to be elected in equal conditions
provided for in the American Convention is violated with respect to the victims
in their capacity as Chilean citizens when they are not allowed to elect all
the members of the Chilean Senate, nor to be nominated for election to all
the posts in the Chilean Senate on an equal footing, and, to the contrary,
under the current system, only certain Chilean citizens have exclusive, preponderant,
and exclusionary access to that right, to the detriment of all other Chilean
citizens. In any event, it can
be shown by estoppel that the arguments of the Chilean State in its communication
to the Commission openly contradict and are rejected by the very arguments
used by Chilean Presidents Patricio Aylwin and Eduardo Frei, when they sent
their proposals to amend the constitutional article in question (Article 45)
to the Chilean Congress; these proposals included grounds based precisely
on "principles" (not on reasons of "convenience"), such
as "the effective and complete recovery of democracy," "the
complete re-establishment of popular sovereignty," "the entirety
of members of both Chambers be democratically elected."[76] It
is precisely these principles of representative democracy and popular sovereignty
that constitute the human right to vote and to be elected in equal conditions,
i.e., without discrimination or exclusions that are unreasonable because they
are illegitimate, enshrined in Articles 23 and 24 of the American Convention,
as the Commission has determined in this report.
156.
Furthermore, in its communication to the Commission, the Chilean State
claims to present a generic justification for the institution of designated
senators, making non-specific references--as they are imprecise--to other
jurisdictions. The Commission
observes that, apart from introducing elements alien to the case under analysis,
regarding the mentions of countries most of which are not even members of
the OAS, that argument of the Chilean State, in any event, has no basis whatsoever.
In effect, the Commission has not made a generic and universal determination
as to whether having designated senators is per
se violative of the rights set forth in the Convention. The analysis and the conclusion reached by the Commission in
the instant case are based on the elements and specific circumstances of fact
and law contained in it. For
example, one of the essential elements in reaching this determination, in
the reasoning of the Commission, has been the fully bicameral nature of the
Chilean Congress, and therefore of its Senate, which, as has been seen in
the European system, has also been conclusive for making determinations as
to the right to vote and to be elected in the legislative organs.
157.
The Commission once again rejects the State's argument that the matter
of designated senators is "political" and does not affect the human
right to vote, based on all the case law developed prior to and in this case,
according to which the Convention, in Article 23, enshrines the right to vote
and to be elected in conditions of equality, which constitutes a justiciable
human right essential for democracy and the rule of law.
Democracy has evolved as a human right in itself that contains a form
of political participation. In
this sense, a renowned scholar and former chairman of the IACHR, Professor
Michael Reisman, has argued that violations of the right to political participation
are not secondary, as they are very serious human rights violations:
Popular
government is an internationally prescribed human right.
Article 21(3) of the Universal Declaration on Human Rights provides:
"The will of the people shall be the basis of the authority of
government; this will shall be expressed in periodic and genuine elections
which shall be by universal and equal suffrage and shall be held by secret
vote or by equivalent free voting procedures." [Therefore, when the right
to democratic government is violated], all the other human rights that depend
on the lawful institutions of government become matters for the discretion
of the dictators.... Violations
of the right to popular government are not secondary or less important. They
are very, very serious human rights violations.
(W. Michael Reisman. Humanitarian
Intervention and Fledgling Democracies.
18 Fordham Int. L.J. 794, 795, 1995.)
158.
Finally, the Commission takes note of what was expressed by the Chilean
State in its communication regarding its purpose and its interest in bringing
about the constitutional reform necessary for the composition of the Senate
to reflect faithfully the citizen will and to be more in keeping with Chile's
democratic traditions. This expression,
by the State, coincides precisely with the recommendation made in this report
by the Commission to the Chilean State.
Consequently, the Commission values this expression of will and recognition,
and hopes that it may be concretized in the State's timely compliance with
its recommendation, so as to make reparation for the violations found.
VII.
CONCLUSIONS
159.
For the foregoing reasons, the Commission reiterates its conclusions,
adopted in Report 78/99, that the Chilean State, by establishing what have
been called designated senators and the senator-for-life, General Augusto
Pinochet, at Article 45 of the Chilean Constitution, and its application by
the authorities indicated, has violated the rights of Andrés Aylwin Azócar,
Jaime Castillo Velasco, Roberto Garretón Merino, Alejandro González Poblete,
Alejandro Hales Jamarne, Jorge Mera Figueroa, Hernán Montealegre Klenner,
Manuel Sanhueza Cruz, Eugenio Velasco Letelier, Adolfo Veloso Figueroa, and
Martita Woerner Tapia, the victims in this case, to political participation
and to equality without discrimination (Articles 23 and 24), enshrined in
the American Convention; as well as their obligation to adapt the legal order
to carry out its international commitments, so as to ensure the rights established
by the Convention, pursuant to Article 2.
160.
The Commission also reiterates its conclusions, contained in Report
No. 78/99, that the Chilean State has failed to implement the provisions of
Article 2 of the American Convention on Human Rights, as it has not adapted
its legislation on amnesty to the provisions of said Convention.
VIII. RECOMMENDATIONS
Based on the foregoing analysis and conclusions
THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS REITERATES
THE FOLLOWING RECOMMENDATIONS TO THE CHILEAN STATE
161.
That it adopt the measures necessary to bring its domestic legal order
into line with the provisions of the American Convention, so as to guarantee
fully, for all Chilean citizens, including the victims in this case, the exercise
of the right to vote and to be elected in general conditions of equality,
as set forth in Articles 23 and 24 of the American Convention, in respect
of the composition of the Chilean Senate, as a bicameral legislative organ
of popular representation of the Chilean Congress.
IX.
PUBLICATION
162.
On December 13, 1999, the IACHR forwarded Report No. 111/99 -- whose
text is the foregoing -- to the Chilean State, in keeping with Article 51(2)
of the American Convention, and gave it an additional 10 days to carry out
the foregoing recommendations. On
December 23, the State submitted to the IACHR a communication in which it
reiterated several considerations that it had expressed during the processing
of the case: it states its will
to carry out the reforms needed for the composition of the Senate to reflect
faithfully the citizen will and to be more in keeping with Chile's democratic
traditions. Nonetheless, it states
that neither the Executive nor the other organs of government can carry out
the Commission's recommendations; and it states its opposition to the additional
10-day period granted by the IACHR at this new stage.
163.
On referring to the recommendations formulated by the IACHR in Report
No. 111/99, the State, among other things, indicated:
As
has been explained in a previous response by the State to the IACHR, one finds
that the Executive branch has repeatedly stated its will to amend the constitutional
provision that establishes the so-called designated and life-tenure senators,
and to this end it has submitted the corresponding proposed amendments.
Nonetheless, it has not yet been possible to achieve this objective....
The State has repeatedly indicated that the communication of the petitioners
is on the borderline of what should be understood to be an individual communication.
In this regard, it is aware of the Commission's decision in its Report
on Admissibility 95/96, but it highlights one fact which in itself calls for
a more in-depth analysis. In
effect, as indicated earlier, for the State the communication from the petitioners
is a legal consultation on a point of constitutional law....
That
the fact that the Senate includes senators who are not elected does not evidence,
in itself, a denial of citizens' right to vote, as petitioners argue, but
reflects, rather, a clearly political issue linked to the representation or
over-representation of a certain group of senators in the Senate. Accordingly,
it is a matter related to the domestic constitutional legislation of the State,
that falls outside the sphere of individual communications established by
the American Convention....
The
IACHR's recommendation to "fully guarantee, for all Chilean citizens,
including the victims in this case, the exercise of the right to vote and
to be elected, in general conditions of equality, as set forth in Articles
23 and 24 of the American Convention," appears to be a redundancy, bearing
in mind that the State has guaranteed access to the polls for all citizens
in conditions of equality in every popular election that has taken place since
1988, i.e. since the period of democratic normality resumed.
All Chilean citizens are able to vote and to elect their representatives,
and no vote is privileged. It
is another matter, as indicated previously, that in addition to the senators
and deputies elected by suffrage, the Senate also includes senators not elected,
through a procedure that is regulated in the Constitution.
Accordingly, the acceptance or rejection of this procedure for designating
senators and the composition of the Senate has to do with a political decision,
more than a legal or human rights-related decision; and, that the right to
vote is not violated by this composition of the Senate.
It is, thus, a different situation....
No
doubt the existence of unelected senators alters the political balance within
the Senate, but it is far from being a human rights violation, in particular
the right to vote set forth at Article 23 of the American Convention on Human
Rights. The same situation could
arise if some political force were predominant in the Senate.
Nor could one argue in that case that such an imbalance affects the
political rights of minorities....
That
the mixed nature of the upper chamber in the Chilean legislature, made up
of 38 elected senators and nine designated senators, is fully in line with
the Constitutional power. In
this respect, it should be noted that according to the Human Development Report
prepared by the United Nations Development Program (UNDP) for this year, almost
50% of the countries included in the index on political life have designated
senators in their respective Chambers (30 of 61); that of these 30 democracies,
17 have only designated senators, including democracies as solid as Canada,
the United Kingdom, Germany, and the English-speaking Caribbean countries....
In
this regard, as the Government as well as Commissioner Goldman have stated,
it cannot reasonably be considered that the assignment of 20 percent of the
seats in the upper chamber constitutes a manifestly arbitrary situation that
entails emptying of content or undermining the effectiveness of the principle
of effective representation....
164.
In keeping with Article 51(3) of the American Convention, in this procedural
stage the Commission must evaluate whether the State has taken adequate measures
to carry out the recommendations so as to remedy the situation examined, with
respect to the violations established in its report presented for the second
time to the State, pursuant to Article 51(2) of the Convention.
In this regard, the IACHR finds that the State has not adopted the
actions needed for carrying our the recommendations of this report. Furthermore, the information provided by the State does not
reveal new facts or provide elements which--had they been provided in timely
fashion and proper form--could have modified the analysis and conclusions
of this report. In any event,
the arguments of fact and of law provided by the parties during the processing
of the case have already been sufficiently analyzed by the IACHR in Chapters
V and VI of this report.
165.
As for the 10-day term that the Chilean State cites as too brief for
being able to carry out the Commission's recommendations, it should be noted
that pursuant to Article 50 of the American Convention, the Commission forwarded
to the State, on May 13, 1999, Report No. 78/99 regarding this case, and that
since then more than six months have elapsed, without the State having carrying
out the Commission's recommendations.
166.
Finally, the Commission takes note once again of what the Chilean State
expressed in its communication with respect to its purpose and interest in
carrying out the constitutional reforms needed for the composition of the
Senate to reflect faithfully the will of the citizens, and to be more in accordance
with Chile's democratic traditions.
This expression by the State coincides precisely with the recommendation
made in this report by the Commission to the Chilean State.
Consequently, the Commission reiterates that it values this expression
of will and this acknowledgement, and hopes that it may be concretized in
timely compliance with its recommendation, so as to make reparation for the
violations established.
167.
In view of the foregoing considerations, and of the provisions of Article
51(3) of the American Convention and Article 48 of the Commission's Regulations,
the Commission decides to reiterate the conclusions and recommendations contained,
respectively, in Chapters VII and VIII supra;
to make public this report; and to include it in its Annual Report to the
OAS General Assembly. The IACHR,
pursuant to the provisions contained in the instruments that govern its mandate,
will continue to evaluate the measures adopted by the Chilean State with respect
to the recommendations, until they have been fully carried out by the State.
Done and signed by the Inter-American Commission on Human Rights, December
27, 1999. (Signed):
Robert K. Goldman, Chairman; Hélio Bicudo, Second Vice-Chairman; Commissioners:
Alvaro Tirado Mejía and Carlos Ayala Corao.
Commissioner Robert K. Goldman reiterated his dissenting opinion, which
is included immediately after this report.
DISSENTING
OPINION BY COMMISSIONER ROBERT KOGOD GOLDMAN
1.
I wish to begin the presentation of my grounds for dissenting by emphasizing
that I subscribe to those aspects of the majority's decision that refer to
the notion of representative democracy as an essential core and fundamental
basis for the protection and promotion of human rights in the inter-American
system. There is no doubt that
the domestic laws and practices of member states that uphold representative
democracy are subject to the scrutiny of the Commission under the principle
of the primacy of international law over domestic law.
This scrutiny extends to both those laws
and practices adopted under a democratic regime and those adopted by a
de facto regime and which continue
in force under democratic rule.[77]
2.
At the same time, it should be recalled that the protection provided
by the standards of the inter-American system has been designed as a subsidiary
mechanism, under which the primary responsibility for protecting human rights
is vested in the member States. The
supervisory organs of the system have the mandate to monitor and determine
whether the way in which these states carry out this task in their respective
jurisdictions is compatible with their international obligations.
3.
This case has been examined by the majority in light of the scope of
the obligation to respect and guarantee the political rights provided for
in Article 23 of the American Convention, in conjunction with the right to
equality before the law under Article 24 of the Convention.
Article 23 sets forth the right to vote and be elected, and mandates
that election laws provide for genuine and periodic elections, with universal
suffrage and secret ballot, to guarantee free expression of the voters' will.[78]
This provision does not, however, prescribe the specific type or modalities
of elections through which the members of the legislative organs are chosen,
such as proportional representation or a majority in one or two ballots.[79]
4.
Even though Article 23 assumes the existence of a government structure
that is democratic and representative in nature, it does not stipulate a definitive
model concerning how the state should be organized to institutionalize representative
democracy in an ideal fashion, much less how the seats in the legislative
branch should be distributed. Therefore, claims alleging the incompatibility
of a particular institutional model
with the principles underlying Article 23 should be analyzed with special
deference to the states parties, and the Commission must carefully consider
whether it is appropriate to take a position regarding the advisability of
a particular model. I believe that unless the institutional structure established
by the state impedes the effective expression of the will of the citizens
in a manifestly arbitrary manner, the Commission should in principle refrain
from passing judgment on that structure's proximity to an ideal model, at
least in the context of examining an individual case. In this regard, issues
concerning the advisability of particular models of political participation
more appropriately fall within the mandate of the Commission to promote human
rights. Accordingly, the Commission can recommend specific measures to improve
and strengthen such models in its country or special reports.
5.
The Commission has previously demonstrated a certain degree of deference
to state parties in interpreting Article 23.
In Report 30/93, for example, the Commission found that Articles 23 and
32 of the Convention authorized Guatemala to establish certain limitations
on the right to be elected, in light of the historical context which led to
their adoption.[80]
The European Court of Human Rights has likewise been amply deferential
in its interpretation of the obligations arising from the right to vote and
be elected under Article 3 of Protocol No. 1 to the European Convention on
Human Rights, indicating that it
will not interfere so long as the
state measures in question do not restrict those rights to "such an extent
as to impair [their] very essence and deprive [them] of [their] effectiveness."[81] Moreover, the European Court has acknowledged
that electoral legislation differs from place to place and over time[82],
and that all electoral systems should be evaluated in light of the political
development of the country in question. Accordingly, the European Court has
recognized that certain characteristics that are unacceptable in the context
of a given system can be justified in another so long as the free expression
of the voters' opinion is safeguarded in the election of the legislature.[83]
In its view, states enjoy considerable latitude to adopt provisions
regulating the status of legislators, including constitutional criteria for
their disqualification.[84] These
decisions reflect the fact that the absence of positive standards renders
it difficult to determine at what point the operation of particular institutional
structures violate certain expressly protected rights.[85]
In this connection, the Human Rights Committee of the United Nations
has also encountered serious difficulties evaluating respect for certain political
rights which require determinations concerning the "reasonability"
of certain structures of power that can only be analyzed in light of the context
in which they were designed and in which the political system in question
operates.[86]
6.
In the instant case the majority has concluded that the State is responsible
for violating the right to universal and equal suffrage set forth in Article
23(1)(c) in conjunction with Article 24 of the Convention because Chilean
citizens have been impeded from voting for the "designated senators"
and "senators for life",[87]
which it characterizes as "unwarranted discrimination."[88]
However, it does not appear from the petitioners' arguments in this
case that they were impeded from voting or being elected, or forced to participate
in the elections on an unequal footing with all other voters or candidates,
in respect of 80 percent of the vacancies in the upper chamber of Chile's
bicameral Congress. Rather, the petitioners allege that they were impeded from
voting for and being elected to the remaining 20 percent of vacancies, and
raise concerns regarding the possible effect of assigning Senate seats to
the senators with life tenure (such as General Pinochet) and the so-called
"designated" senators, as provided for in Article 45 of the Constitution.
7.
Therefore, the petitioners' allegations do not fundamentally relate
to the right to vote and to be elected, but rather to the advisability of
automatically assigning 20 percent of the seats in the upper chamber of the
legislature on the basis of certain criteria, mainly prior participation in
public office. It should be noted
that, apart from its origins and the processes undertaken to legitimize or
de-legitimize it, the arrangement provided for in the Chilean Constitution
is comparable to that found in several democratic systems in this hemisphere
and elsewhere, and, like these, is the result of historical, social, and political
factors.
8.
Throughout history, states have developed different models for social
comity and political participation that have provided particular accommodations
for certain groups based on, for example, ethnic criteria or prior experience
in governmental affairs. The
political arrangements by which States have progressively structured their
respective electoral systems and forms of political representation reflect
highly complex historical, political, and social realities.
I believe that judging the need, advisability, and purposes of these
arrangements in a given historical context generally lies outside the purview
of an international supervisory organ as they involve considerations that
are eminently political in nature. It is the role of states, and not of this
Commission, to make these kinds of delicate and complex determinations. Indeed,
in a sense the principle according to which the international protection and
promotion of human rights is subsidiary to the domestic protection and promotion
mechanisms is an expression of these limitations.
9.
Just as the Commission must avoid sitting as a fourth instance, or
court of last resort, with respect to domestic judicial decisions, it should
also avoid, insofar as is possible, assuming the role of a supraconstituent
assembly of the states with a view to "perfecting" their political
structures. Acting otherwise
compromises the very integrity of the system for the protection of human rights,
an aim which, as the Inter-American Court has stated since its first cases,
should guide the interpretation of the Convention.[89]
10.
As has already been noted, the deference which in principle should
be conceded in this area must not be absolute.
The Commission has the authority to determine whether the mechanism
of political representation adopted by a state party is manifestly
arbitrary. The various factors
that come into play with respect to an issue as complex as designing the legislative
organs and ensuring their compatibility with the American Convention require
a careful analysis of each particular case.
I am of the view that in this case assigning 20 percent of the seats
in the upper chamber, pursuant to the criteria set forth in Article 45 of
the Chilean Constitution, cannot be considered to be manifestly arbitrary,
since it does not appear to divest the principle of effective representation
of any content, or deprive it of its effectiveness.
11.
Finally, I am aware that the prominent role of a former dictator has
a highly-charged symbolic value that has provoked and continues to provoke
negative reactions, both in the Republic of Chile and abroad.
It is a view that I personally share, as well as the hope that the
Chilean people, themselves, will modify their constitutional structure, so
that a former dictator now senator for life will not continue by his mere
presence to discredit the legislative function and to offend numerous Chilean
men and women whose rights were systematically violated by a brutal government. Nonetheless, moral reproach cannot, in and of itself, justify
that an organ, such as the Commission, interfere with the prerogative
reserved, in principle, to each state to design its own system of political
representation, unless the arrangement adopted is manifestly arbitrary.
Done and signed by the Inter-American Commission on Human Rights, in
the city of Washington, D.C. October 6, 1999.
Robert
K. Goldman
Chairman |
Jorge
E. Taiana
Executive Secretary |
[1] Article
45. The Senate shall be made up of members elected by direct vote by each
of the country's thirteen regions.
Each region shall elect two senators, in the manner determined
by the respective constitutional organic law.
The
senators elected by direct vote shall serve a term of eight years, with
one-half up for election every four years, the representatives of the
odd-numbered regions one period, and those from the even-numbered regions
and the Metropolitan Region the next.
The
Senate shall also be made up of:
(a)
The former Presidents of the Republic who have held the post for
six years continuously, unless the condition provided for at Article 49(1)(3)
of this Constitution has occurred (referring to removal from office).
These senators shall be senators of their own right, and for life,
without prejudice to the disqualifications, incapacities, and grounds
for removal set forth at Articles 55, 56, 57 of this Constitution;
(b)
Two former justices of the Supreme Court, elected by the Supreme
Court in successive votes, who have held the position for at least two
years continuously;
(c)
One former comptroller-general of the Republic, who has held the
post for at least two years continuously, also elected by the Supreme
Court;
(d)
One former commander-in-chief of the Army, one of the Navy, and
one from the Air Force, in addition to one former director general of
the Carabineros, who have held the respective posts for at least two years,
elected by the National Security Council;
(e)
One former president of a state university or a university recognized
by the state who has held the post for a period not less than two years
continuously, designated by the President of the Republic; and
(f)
One former cabinet minister, who has held the post for more than two years
continuously, during presidential terms prior to that in which the appointment
is made, also designated by the President of the Republic.
The
senators to whom reference is made in paragraphs (b), (c), (d), (e), and
(f) of this article shall serve a term of eight years.
If there are no more than three persons who meet the characteristics
and requirements demanded by paragraphs (b) through (f) of this article,
the corresponding designation shall may be of citizens who have held other
relevant functions in the agencies, institutions, or services mentioned
in each of the paragraphs cited.
The
designation of these senators shall be made every eight years, within
15 days of the corresponding election of senators.
Any vacancies shall be filled within 15 days of the time they occur.
Those
who have been removed from the Senate pursuant to Article 49 of this Constitution
may not be designated senators.
[2] See Report
95/98, published in the Annual Report of the IACHR for 1998 to the General
Assembly of the Organization of American States.
[3] Published
in the 1998 Annual Report of the IACHR to the General Assembly.
[4] The Admissibility
Report notes that the violation alleged is continuing and updated as of
the date of ratification of the American Convention with the following
acts of designation of senators not elected directly by popular vote:
On March 11, 1998, the following assumed the office of senator:
(1) Former President
of the Republic Gen. Augusto Pinochet Ugarte; (2) former Supreme Court
justices Enrique Zurita Campos and Marcos Aburto Ochoa; (3) former comptroller-general
of the Republic Enrique Silva Cimma Ochoa; (4) former commanders-in-chief
of the Army, Gen. Julio Canesa Roberts; of the Navy, Admiral Jorge Martínez
Busch; of the Air Force, Gen. Ramón Vega; and former director general
of the Carabineros, Fernando Cordero Boeninger, all pursuant to Article
45 of the Chilean Constitution.
[5] See, for
example, ""Areas in which steps need to be taken towards full
observance of the human rights set forth in the American Declaration of
the Rights and Duties of Man and the American Convention on Human Rights,"
in the 1990-1991 Annual Report of the Inter-American Commission on Human
Rights, pp. 549 ff. In this
regard, John Stuart Mill had already argued that representative democracy
is the best form of government, because it is the appropriate way to meet
social needs through participation. of the people.
Consequently, the participation of the people is the foundation
of democracy. An elected
ruler has a duty to the voters to represent them in a responsible manner;
and the citizens hold in their hands the power to award or punish their
rulers through the suffrage. (John Stuart Mill, Consideration of the
Representative Government 85, Gernika ed., 1991).
This is why democracy implies adequate protection for human rights.
In this regard, democracy has itself brought about this form of political
participation as a distinct right. In this connection, a renowned professor
and former member of the IACHR has argued that violations of the right
to political participation are not of secondary importance, as they are
very serious violations of human rights:
Popular
government is an internationally prescribed human right.
Article 21(3) of the Universal Declaration on Human Rights provides:
"The will of the people shall be the basis of the authority
of government; this will shall be expressed in periodic and genuine elections
which shall be by universal and equal suffrage and shall be held by secret
vote or by equivalent free voting procedures." [Therefore, when the
right to democratic government is violated], all the other human rights
that depend on the lawful institutions of government become matters for
the discretion of the dictators....
Violations of the right to popular government are not secondary
or less important. They are very, very serious human rights violations.
(W. Michael Reisman.
Humanitarian Intervention and Fledgling Democracies.
18 Fordham Int. L.J. 794, 795, 1995.)
[7] Resolutions
510 (X-O/80); 543 (XI-O/81); 618 (XII-O/82); 666 (XIII-O/83); and 742
(XIV-O/84).
[9] See Article
106 of the Charter of the Organization of American States.
[10] IACHR Statute,
Article 1. See also Advisory
Opinion OC-10/89 on the value of these rights.
[11] The importance
of universal suffrage and its relationship with democracy was reiterated
in Resolution XXX, adopted at the Tenth International Conference of American
States at Caracas, in 1954, by which it was resolved "to pay tribute
to the countries that have incorporated in their legislation the right
to vote for the illiterate, thereby seeking to expand and strengthen the
institutions of representative democracy." (International Conferences of the American States.
Second Supplement 1945-1954, Legal Department, Pan American Union,
Washington, D.C., 1956, p. 312).
[12] See Article
41 of the American Convention.
[13] See Preamble
to the American Convention.
[14] See Advisory
Opinion OC-13, para. 34.
[15] Report
on Cases 9768, 9780, and 9828 (Mexico), 1990 Annual Report of the Inter-American
Commission on Human Rights, para. 95.
[16] On these
issues, see, among others, Yick
Wo v. Hopkins, 118 U.S. 356, 370 (1986) and Wesberry
v. Saunders, 376 U.S. 1, 17 (1964).
In the latter judgment, the Supreme Court noted: "No right
is more precious in a free country than that of having a voice in the
election of those who make the laws under which, as good citizens, we
must live." See also,
Erwin Chemerinsky, Constitutional Law, Principles and Policies, Aspen
Law & Business, 1997, pp. 710 ff.
[17] Adopted
by the United Nations General Assembly on December 10, 1948.
[18] As regards
the nature and purpose of the general comments, see Official Documents
of the General Assembly, thirty-sixth regular session, Supplement No.
40 (A/36/40), Annex VII, Introduction.
As regards the history of the issue, the method of preparation,
and the practical utility of the general comments, see id., Thirty-ninth
regular session, Supplement No. 40 (A/39/40 and Corr. 1 and 2), paras.
541 to 557. To consult the
text of the general comments already approved by the Committee, see id.,
thirty-sixth regular session, Supplement No. 40 (A/36/40), Annex
VII; id., thirty-seventh regular session, Supplement No. 40 (A/37/40),
Annex V; id., thirty-eighty regular session, Supplement No. 40
(A/38/40), Annex VI; id., thirty-ninth regular session, Supplement
No. 40 (A/39/40 and Corr. 1 and 2), Annex VI; id., fortieth regular
session, Supplement No. 40 (A/40/40), Annex VI;
id., forty-first regular session, Supplement No. 40 (A/41/40),
Annex VI; id., forty-third regular session, Supplement No. 40
(A/43/40), Annex VI; id., forty-fifth regular session, Supplement No.
40 (A/45/40), Annex VI; id., forty-seventh regular session, Supplement
No. 40 (A/47/40), Annex VI;
id., forty-ninth regular session, Supplement No. 40 (A/49/40),
Annex V; id., fiftieth regular session, Supplement No. 40 (A/50/50),
Annex V. They have also been
published in the documents CCPR/C/21/Rev.1/Add. 1 to 7.
[19] See, Yearbook
of the European Convention on Human Rights, 1958-59, petition 176/56,
p. 176.
[20] Universal
Declaration on Democracy, para. 12, Inter-Parliamentary Union.
Cairo, September 1997, in Positions Regarding Human Rights Issues.
I-PU. Geneva, 1998, p. 42.
[23] It should
be noted that pursuant to Article 42 of the Chilean Constitution, the
Senate is one of the two chambers that constitute the National Congress;
both participate in shaping the laws, pursuant to the provisions of that
same Constitution. In addition,
the Senate has other important attributes assigned exclusively to it (Article
49). Thus, the Senate has jurisdiction to hear accusations against
high-level officials of the Chilean government; judicial actions that
any person may initiate against any cabinet minister for damages suffered
by such an official in the performance of his or her duties; the jurisdictional
conflicts that may arise between the political or administrative authorities
and the superior courts of justice; to grant the restoration of one's
citizenship; to give or withhold its consent to the acts of the President
of the Republic in those cases where required by the Constitution; to
agree for the President of the Republic to leave the country for more
than 30 days or in the last 90 days of his term; to declare the disqualification
of the President of the Republic or of the President-elect when a physical
or mental impediment disqualifies him; and to give opinions to the President
of the Republic when he so requests.
As can be noted, the Senate has jurisdiction over matters of vital
importance to the democratic development of the country.
In addition, all the laws must be approved by both chambers, so
that its role is fundamental, a sine
qua non for passage of the laws.
[24] See, Eduardo
García de Enterría, Democracia, jueces y control de la Administración,
Civitas, Madrid, 1996, p. 52.
[26] On this
point, see The Federalist No. 57 (James Madison), pp. 383-385, B. Wright
ed. 1961.
[27] Even though
the 1980 Chilean Constitution was approved by a plebiscite, the vote itself
did not meet the electoral guidelines necessary for guaranteeing its transparency.
In this respect, the Commission stated in its Report on the Situation
of Human Rights in Chile (1985) that in that plebiscite "the lack
of electoral rolls, the existence of the state of emergency, the inactivity
of political parties, the practical disadvantages of opposition sectors
in access to the information media, and the absence of viable options
to the rejection of the proposal of the Government, are all elements that
seriously affect the credibility of that procedure."
In addition, in the conclusions of the chapter on the exercise
of political rights in that same Report on Chile, the Commission, referring
to the electoral consultation of 1978 and the plebiscite of 1980 stated
that on both occasions there were "restrictions arising from the
existence of states of constitutional emergency, which have had a negative
impact on the exercise of other human rights associated with the exercise
of political rights such as the right to freedom of expression and opinion,
the right of association, the right of assembly, and the right to personal
freedom. The Commission has
also been able to observe that, when those polls were held, political
parties were proscribed or dissolved and that a significant group of Chileans
was impeded from returning to the country.
The Commission has also been able to observe that when those polls
were held, the Government used all the resources at its disposal and put
the opposition in a clearly disadvantageous position.
In the opinion of the Commission, these serious restrictions violate
the principle of pluralism, which is characteristic of a regime of representative
democracy; they also affect the freedom and authenticity that are fundamental
characteristics of any poll in which the right to vote is exercised.
All these elements cast well-founded doubts on the credibility
of the two procedures."
[28] Lucas v. Colorado General Assembly, 377 U.S. 713 (1964).
[29] See in
this respect Advisory Opinion OC-4/84 of January 19, 1984, and Advisory
Opinion OC-14/94 of December 9, 1994.
[30] Advisory
Opinion OC-13/93 of July 16, 1993.
[31] Advisory
Opinion OC-14/94 of December 9, 1994.
[32] Report
95/98 of October 25, 1998.
[33] Report
Nº 24/98, Annual Report of the Inter-American Commission on Human Rights,
para. 13/18. ".... The
doctrine established by the European Commission and by the Human Rights
Committee established under the International Covenant on Civil and Political
Rights, according to which these organs have declared their jurisdiction
to hear facts pre-dating the entry into force of the Convention for a
given state, so long as such acts may result in a continuing violation
of the Convention that continues past that date, is applicable to the
inter-American system." (Andrés
Aguilar, Derechos Humanos en las Américas, note 8, p. 202).
[34] The European
Commission on Human Rights, in its decision of February 12, 1992, in the
case of Agrotexim Hellas et al.
v. Greece, considered that it had jurisdiction over the violations
alleged to have arisen from a series of measures adopted from 1979 to
1981, which gave rise to a continuing situation that endured, even though
the Government of Greece accepted the jurisdiction of the Commission on
November 20, 1985. Yearbook
of the European Convention for 1992, Application Nº 14807/89, p. 43.
[35] The European
Court has accepted the notion of a "continuing violation" of
the Convention and its effects on the reach in time of the jurisdiction
of the Convention organs. See,
among other decisions: Papamichalopoulos et al. v. Greece, June 24, 1993, Series A, No. 260-B,
pp. 69-70, 40, and 46; Agrotexim
et al. v. Greece, October 24, 1995, Series A, No. 330, pp. 22, 58;
and Loizidow v. Turkey, December
18, 1996.
[36] Human Rights
Committee, Torres Ramírez v. Uruguay, communication Nº 4/1977, para. 18;
and Millan Sequeira v. Uruguay, communication Nº 6/1977, paras. 16 and
17.
[37] IACHR, Doctrine of the Inter-American Commission on
Human Rights (1971-1981), in Ten Years of Activities 1971-1981,
Washington, D.C., 1982, p. 334.
[38] See Ferreira
Rubio, Delia, "Los sistemas electorales: el vínculo entre electores
y elegidos," in SEMINARIO SOBRE
ELECCIONES Y DERECHOS HUMANOS.
Inter-American Institute of Human Rights. San José, 1998.
[39] See, among
others, Nohlen, Dieter. SISTEMAS
ELECTORALES Y PARTIDOS POLÍTICOS.
Fondo de Cultura Económica.
Mexico City. 1994.
[40] Moreover,
it is clear that the explicit reference to representative democracy expresses
the opposition to other forms of government and representation, such as
corporatism. The supposed
theoreticians of this type of government, as well as its practice in other
societies such as Portugal under Oliveira Salazar, Italy under Mussolini,
or Spain under Franco, had a corporatist content.
In those systems representation stems not from the equal vote of
the citizens, but from institutions based on profession or occupational
group, including the military institution.
Designation by an interest group or social sector does not fit
in representative democracy, and deprives the citizenry of the right "to
take part in popular elections, which shall be by secret ballot, and shall
be honest, periodic and free," as provided for in the American Declaration.
[42] Advisory
Opinion OC-4/84, of January 19, 1984, para. 57.
[43] See "Dudgeon"
case, European Court of Human Rights, October 22, 1981; see discussion
in Theory and Practice of the European Convention on Human Rights, P.
van Dijk and G.I.H. van Hoof, The Hague, 1998.
[44] See P.
van Dijk and G.J.H. van Hoof et al.
Theory and Practice of the European Convention on Human Rights.
The Hague. 1998, pp.
659 and 660.
[45] Judgment
of March 2, 1987, Mathieu-Mohin and Clerfayt, A. 113, p. 23.
[47] See, P.
van Dijk and G.J.H. van Hoof et al.
Theory ..., op. cit., p. 660.
[48] See Articles
62 ff. of the Constitution of Chile.
[49] See Advisory
Opinion OC-6/86, of May 9, 1986, paras. 21 and 22.
[50] See OC-6/86,
para. 38.
[51] See, P.
van Dijk and G.J.H. van Hoof et al.
Theory and Practice of the European Convention on Human Rights.
The Hague. 1998, pp.
664 ff. Decisions cited:
Appls 6745 and 6746/74, W, X, Y and Z v. Belgium, in Yearbook xviii,
p. 236 (240-244).
[52] Advisory
Opinion OC-8/87, para. 24.
[53] Advisory
Opinion OC-13/93, para. 34.
[54] Advisory
Opinion OC-6/86 of May 9, 1986, para. 14.
[55] Advisory
Opinion OC-5/85 of November 13, 1985, para. 44.
[56] The Commission
is of the view that this does not preclude a new constitutional amendment,
under institutional and democratic parameters, to restore the institution
of senators-for-life; such an this institution, as noted supra,
may be perfectly legitimate, for if the people know of this privilege
beforehand, it is understood that upon democratically electing the President
of the Republic, they would also be electing a senator-for-life once his
presidential term is completed, so long as the constitutional requirements
established for this purpose are met.
[57] Inter-American
Court of Human Rights, Case of Velásquez Rodríguez, Judgment of July 29,
1988, para. 164.
[58] Reforma
de la Constitución Política de Chile de 1980, Carlos Andrade Geywitz,
p. 317, para. 1.
[59] Although
this amendment was focused on eliminating the designated senators (and
in respect of the senators-for-life it was proposed to reduce the years
required for former Presidents to become senators-for-life, with which
former President Aylwin, a democratically elected president, would have
qualified as a senator-for-life), the bases of the constitutional amendment
proposed by President Frei included a new argument on the "politicization"
of the institutions entrusted with designating such senators:
Our
objection to the institution of the designated senators is also rooted
in the certain risk of politicization of the institutions called on by
the Constitution to designate senators.
None of this seems positive to us for the future of the rule of
law in Chile. It is essential,
for the proper functioning of permanent institutions of the Republic,
such as the Armed Forces, the forces of order, and the Supreme Court,
to prevent all risk of potential politicization. Such risk--it would be in vain to refute this--is necessarily
present in the designation of senators who, especially in the current
political electoral scenario, shall be entrusted with swaying the Senate
majority one way or the other.
In
addition, in the motion made by deputies Valenzuela, Acuña, Rocha, Aníbal
Pérez, Luksic, and Morales, introduced in the session of Tuesday, October
7, 1997, they proposed, again unsuccessfully, to suppress the institution
of designated senators-for-life (boletín Nº 2098-07), with the following
explanation:
Considering:
1.
The need to enhance our institutional order for the purpose of
contributing to the full democratization of the country.
2.
That several steps have been taken, with that objective in mind,
beginning with the constitutional amendments of 1989, and including those
aimed at securing the popular election of mayors and municipal council
members.
3.
That this process of democratization has been supported repeatedly
by the citizenry at the polls, giving the Concertación
de Partidos por la Democracia broad popular support, which has won
it the absolute majority of votes in all the elections held in the country
since the 1988 plebiscite.
4.
Public opinion is aware of the firm will to achieve democratization
of the Governments of the Concertación Democrática, ratified by several efforts to amend the
Constitution for the purpose of eliminating the various authoritarian
enclaves of our institutional arrangement that impede the normal expression
of popular sovereignty which, however, have not won sufficient support
in the Senate of the Republic.
5.
The existence of these authoritarian enclaves, which thwart the
will of the citizenry, have a serious detrimental effect on democracy,
undermining its legitimacy in the face of public opinion by making it
difficult to meet the goals and objectives proposed by the authorities
to the country, and embraced by the citizens at the polls, thereby contributing
to discredit the system, as attaining these purposes is made difficult,
if not impossible, by the action of bodies that do not reflect the sense
of the majority of the population and which, therefore, need not be held
accountable to the electorate for their acts.
6.
These entities include, among others, the Constitutional Court,
the binominal electoral system, and, in particular, the composition of
the Senate of the Republic, which, according to the 1980 Constitution,
has members who are not popularly elected, but instead are designated
by various public organs or accede to the post for life for having served
as President of the Nation.
7.
The legitimacy of the designated senators and senators-for-life
is clearly questionable, from the most basic democratic analysis.
In
effect, except for the obvious and unquestioned principle of popular sovereignty,
there are those who bestow legitimacy on this institution based on comparative
law, arguing that it is an institution that exists in other nations in
which, nonetheless, it should be noted that they have never achieved the
influence they have in our country, where, with 20% of the upper chamber
of the legislature, the unelected senators become arbiters of political
decisions without regard to the will of the citizens.
Moreover,
another grave criticism of the existence of the designated senators can
be found in their origin, i.e., in the organs entrusted with making these
designations. In effect,
this procedure leads to the politicization of fundamental institutions
of the Republic, forcing their members to take sides, when making the
designations, and transforming their representative into an unofficial
unconstitutional agent of the political positions of the institutions
in each of the legislative decisions with which they are faced.
This is especially grave when some of the institutions represented
through the designated senators are, by constitutional mandate, subordinated
to the President of the Republic and disqualified from expressing political
opinions.
The
Armed Forces and the Judiciary have a fundamental role to play for the
country, the first safeguarding external security, and the second ensuring
the rights of all inhabitants of the Republic.
In view of the foregoing, their politicization is alien to their
objectives and clearly ill-advised.
8.
As regards the institution whereby former presidents become senators-for-life,
it is clearly arbitrary to extend the will of the citizens who elected
them to the presidency, supposing that the electorate had the intention
of also conferring a legislative mandate on them.
It is excessive.
This
institution could only find some justification when this consequence is
widely known by the electorate when electing the President of the Republic;
when it is applied uniformly to all those who have held the presidency,
whatever the duration of their term; and, especially, when the president
has been chosen as the result of the citizens' will, expressed in free,
open, and competitive elections.
9.
It is, therefore, essential that the Constitution be amended so
that the Legislature may be elected in its entirety by the people, fully
in line with the democratic principle, and thereby giving the authorities
the means they need to carry out the programmatic guidelines offered to
the country with no limitation other than the will of the citizenry expressed
in apportionment of the legislature.
10.
Approval of the Constitutional amendment that we propose would
constitute a new, albeit partial, advance in the democratization of the
country, as well as an unparalleled opportunity for political actors to
state to the citizens that they fully support democracy, expressed in
respect for popular sovereignty, eliminating the obstacles or limits to
its effective exercise.
In
view of the foregoing, the undersigned deputies submit the following:
PROPOSED
CONSTITUTIONAL AMENDMENT
Single
Article: The following modifications
are hereby made to the Constitution of Chile:
1.
Article 45 is amended as follows:
(a) The expression "elected by direct vote" is deleted from the
second paragraph;
(b) The third, fourth, fifth, and sixth paragraphs are deleted.
2.
The following modifications are hereby made to Article 47:
(a) The clause "who are to be elected by direct vote" is hereby
deleted from the second paragraph;
(b) The clause "elected by direct vote" is hereby deleted from
the third paragraph.
[60] Both petitioners
and the representatives of the Chilean State have agreed in noting that
on three occasions the Senate has rejected proposed constitutional reforms
that include deleting the provision on designated senators.
[61] Medina
Quiroga, Cecilia, "Constitución,
Tratados y Derechos Esenciales".
Corporación Nacional de Reparación y Reconciliación, Santiago,
Chile, 1994, p. 15.
[62] Report
36/96 against Chile, paragraph 84, and Report 34/96, paragraph 83, also
against Chile, in the 1996 Annual Report of the Inter-American Commission
on Human Rights. OEA/Ser.L/V/II.95
Doc.7 rev. of March 14, 1997.
[63] See Report
36/96, cited in the previous note.
[64] Positions.
I-PU, op. cit., p. 18.
[65]
Inter-American Court of Human Rights, Case of Loayza Tamayo, Judgment
of September 17, 1997, para. 80.
[66]
Report No. 28/98, Case of María Eugenia Morales v. Guatemala.
Annual Report of the IACHR 1998.
[67]
See, in general, IACHR, Case of Emérita Montoya González, Report
48/96, Case 11,553 (Costa Rica), in the Annual Report of the IACHR 1996,
OEA/Ser.L/V/II.95, Doc. 7 rev., March 14, 1997, paras. 28, 31.
[68]
Inter-American Court of Human Rights, Advisory Opinion OC-14/94,
"International Responsibility for the Promulgation and Enforcement
of Laws in Violation of the Convention (Articles 1 and 2 of the American
Convention on Human Rights," of December 9, 1994, para. 45, see also
paras. 46-47. With respect
to the other contentious mechanisms of the system, Article 61(2) of the
Convention provides, in addition: "In order for the Court to hear
a case, it is necessary that the procedures set forth in Articles 48 and
50 shall have been completed."
"The contentious jurisdiction of the Court is intended to
protect the rights and freedoms of specific individuals, not to resolve
abstract questions." Id.,
para. 49.
[69]
OC-14/94, supra, para. 41.
[71]
See, in general, European Court of Human Rights, Case of Klass
et al., judgment of June 6, 1979, Ser. A, Vol. 28, para. 33-38; European
Court of Human Rights, Case of Marckx, judgment of June 13, 1979, para.
27; see also, Human Rights Committee of the United Nations, Case of Ballantyne,
Davidson, and McIntyre v. Canada, 1993 Report, Vol. II, p. 102.
[72]
See Case of Marckx, supra, para. 27.
[73]
See Report 28/98, supra.
[74]
"As the Court has maintained, the States Parties to the Convention
may not order measures that violate the rights and freedoms recognized
therein (International Responsibility
for the Promulgation and Enforcement of Laws in Violation of the Convention
(Arts. 1 and 2 of the American Convention on Human Rights), Advisory
Opinion OC-14/94 of December 9, 1994.
Series A No. 14, para. 36).
Whereas the first two provisions of Article 114 bis of the Ecuadorian Criminal Code accord detained persons the right
to be released when the conditions indicated exist, the last paragraph
of the same article contains an exception to that law.
"The
Court considers that this exception deprives a part of the prison population
of a fundamental right, on the basis of the crime of which it is accused
and, hence, intrinsically injures everyone in that category.
This rule has been applied in the specific case of
Mr. Suárez-Rosero and has caused him undue harm.
The Court further observes that, in its opinion, this law violates
per se Article 2 of the American
Convention, whether or not it was enforced in the instant case.
"In
conclusion, the Court points out that the exception contained in the aforementioned
Article 114 bis violates Article
2 of the Convention in that Ecuador has not taken adequate measures under
its domestic law to give effect to the right enshrined in Article 7(5)
of the Convention." (Commission's emphasis.) (Inter-American Court
of Human Rights, Series C: Decisions and Judgments No. 35, Case of Suárez
Rosero, Judgment of November 12, 1997).
[75]
Inter-American Court of Human Rights, Case of Castillo Petruzzi
et al. Judgment of May 30,
1999, paras. 205 to 208.
[76]
See supra, para. 13.
[77]
The Commission has jurisdiction to determine whether any provision or
practice is incompatible with the Convention.
In addition, it is called on to analyze, in light of the American
Convention, the effects that any provision might have, independent of
its genesis or origins, in determining whether its contents violate the
Convention. See I/A Court H.R.,
Certain Attributes of the Inter-American Commission on Human Rights (Arts.
41, 42, 44, 46, 47, 50 and 51 of the American Convention on Human Rights),
Advisory Opinion OC-13/93, Annual Report 1993, para. 27.
[78]
See, in this regard, IACHR, Report
Nº 1/90, Annual Report of the IACHR 1989-90, para. 45.
[79]
The European Convention likewise does not provide for a specific form
of election. See Van Dijk and Van Hoof, Theory
and Practice of the European Convention on Human Rights, 1998, 657.
[80] Report 30/93, Case of Ríos Montt,
Annual Report of the IACHR 1993.
[81]
Eur. Court HR, Case of Mathieu-Mohin
and Clerfayt, Judgment of March 2, 1987, Series A Nº 113, para. 54;
Eur. Court HR, Case of Gitonas et
al. v. Greece, Judgment of July 1, 1997, para. 39.
See also P. Van Dijk
and G.J.H. Van Hoof, Theory and
Practice of the European Convention on Human Rights (1998), p. 659-
660.
[82]
Eur. Court HR, Case of Mathieu-Mohin
and Clerfayt, id., para. 54.
[84]
Eur. Court HR, Case of Gitonas et
al., id., para. 39.
[85]
Nowak, Manfred, UN Covenant on Civil
and Political Rights, CCPR Commentary (1993), p. 453-454.
[87]
Decision of the majority, para. 112.
[89]
I/A Court HR, In the Matter of Viviana
Gallardo et al., Decision of November 13, 1981, Nº 101/81, Series A,
para. 16.
