[eng] Camila Troncoso and Lieta Vivaldi - Human Rights and Gender in Chile’s New Constitution

The new Constitution represents a substantial advance in the protection of human rights, overcoming the shortcomings and absences of the current constitutional text. It is also key to consider that international human rights law has recognized and protected key rights for children and adolescents, women and people of sexual diversity and dissidence. A country like Chile, which has faced human rights violations, and in which there has been permanent discrimination against historically excluded groups, must be based on a social pact that does not generate doubts regarding the commitment to respect, protect and guarantee human rights, and that establishes general and special mandates to the different State agencies. 

The proposal recognizes human rights as the foundation and guide for the actions of the State (art. 1°), which implies that they will guide the purposes of the State and will serve as interpretative and guiding criteria in the creation of future norms and public actions. In addition, this approach is incorporated transversally in the constitutional text, permeating various public agencies and including the Armed Forces and the Police. In the same sense, the promotion of and respect for human rights in the State's international relations is enshrined (Article 14).

On the other hand, it settles a doctrinal and jurisprudential debate regarding the hierarchy of international human rights law in our country, by considering that international human rights law is an integral part of the Constitution -in reference to the block of constitutionality- and enjoys constitutional rank (art. 15). In this sense, not only international human rights treaties are expressly incorporated, but also general principles (which are fundamental in human rights matters, such as the pro persona principle) and customary international law.

Another relevant element is the consecration of substantive equality, gender equality and the recognition of groups in a situation of structural discrimination that require the adoption of measures by the State in order to be able to exercise and enjoy rights under equal conditions. The new text recognizes the rights of persons with disabilities, neurodivergent persons, children and adolescents, persons deprived of their liberty, the elderly, women and sexual affective dissidence, as well as the recognition of native peoples and their individual and collective rights.

It also recognizes rights that were absent in the current constitution, such as the right to care, sexual and reproductive rights, the right to a life free of violence, the right to decent work, the right to water and the right to nature as a holder of rights, among others. In addition, an action for the protection of fundamental rights is established, which grants protection to all rights (including the right to education and health) and not only to some of them. 

In relation to the institutional framework, the Ombudsman's Office is created, an autonomous body whose function will be the promotion and protection of human rights (art. 123 and following), composed of the Ombudsman, elected by the Congress of Deputies and the Chamber of Regions, from a shortlist proposed by human rights organizations, in addition to being integrated by a Council. This institution comes to reinforce the protection that today is given to human rights. By enshrining in the Constitution the body whose purpose is their protection and increasing the effective protection that an institution with such purpose can provide.

The judiciary is also permeated by human rights. The new text establishes that the jurisdictional function will be exercised in accordance with international treaties and instruments on human rights to which Chile is a party, and will seek to ensure the respect and promotion of these. And not only that, but human rights and compliance with international obligations in the matter must guide the actions of the jurisdictional function, thus enshrining the control of conventionality. It also incorporates the gender perspective to the jurisdictional function, which provides a key methodological tool to materialize equality, since it allows considering the differences that exist between men and women and that may be relevant for each case in its various stages.

Finally, we cannot fail to mention the recognition of the right to memory, as part of the guarantees of non-repetition, and the role of transitional justice in the new constitution, which explicitly establishes that the State has the obligation -already recognized in international human rights law- to prevent, investigate, punish and fully redress human rights violations that occur in the State, with the aim of avoiding impunity.

In conclusion, the new constitutional text enshrines the commitment of the State of Chile to respect, protect and guarantee human rights in accordance with international human rights standards. It establishes an institutional design that ensures that it is not voluntary to comply or not with human rights, but is mandatory for the various branches of government to incorporate and apply human rights and international human rights law. These mandates have no other purpose than to guarantee that all people can exercise and enjoy their rights under equal conditions. In this sense, we also celebrate that the gender perspective has been incorporated in a transversal way in the constitutional text, both in the organic design and in the principles and rights recognized therein, bringing Chile closer to comply with international standards in this matter.

* Camila Troncoso, lawyer and Master in Gender and Cultural Studies at the University of Chile, PhD candidate in Gender Studies at the University of Valencia. She is part of the Association of Feminist Lawyers and was coordinator of the Human Rights Commission (ABOFEM). 

* Lieta Vivaldi, lawyer and graduate in Gender and Violence from the University of Chile, Master in Sociology from the London School of Economics and Political Sciences, and PhD in Sociology from Goldsmiths, University of London. She is an academic at the Universidad Alberto Hurtado in Chile, where she directs the Gender, Law and Social Justice program. Researcher at the Center for Applied Ethics Studies at the University of Chile. Advisor of the National Institute of Human Rights (INDH). She is part of ABOFEM where she co-coordinates the Academic Commission.

[1] Translated from the Spanish by Andrea Balart.

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