Fundamental Rights: Life and Equality in the Chilean Constitution
Unit II: The Fundamental Right to Life
This is conferred in Article 19, number 1 of the Constitution of the Republic.
The Constitutional Court has stated that human life begins from the moment of conception, Postinor Case 2 (2008). The court’s decision is consistent with the provisions of the American Convention on Human Rights, which stipulates that states must protect the life of the unborn from the moment of conception.
When Life Ends
The Constitutional Court ruled in the sentence handed down in the law on organ transplantation (role 220 years 1996), where it distinguished between biological death (cessation of activity of all organs and cells of the body) and clinical death (total and irreversible cessation of brain function). The court determined that legally a person has died at the time of clinical death. It would therefore be a standard of accuracy.
In relation to clause 3, on the death penalty, law 9734, 2001, generally abolished the death penalty in the Chilean legal system and replaced it with another penalty: qualified life imprisonment. The death penalty exists in Chile for certain military crimes in wartime.
Unit III: Fundamental Right to Equality
1) The Constitution: Article 19
- N° 2: Equality before the law
- N° 3: Equal protection before the law
- N° 9: The State protects free and equal access to health and rehabilitation
- N° 16 3°: Non-discrimination inc.
- N° 18: Benefits
- N° 20: Tax equity
- N° 22: Economic equality
2) Concept of Equality
It mandates that legal rules should apply equally to all persons who are in the same circumstances and, consequentially, demand different treatment for those who are in different situations. A question is sent equally to those who are actually equal. A question is sent unevenly to those who are actually mixed.
3) Identity, Equality, and Likeness (Paolo Comanducci)
Identity means that two objects, people, or situations compared agree in 100% of their properties or characterization. In the real world, it would only exist in ideal situations such as mathematics. It is descriptive because you should not make any assessment to determine if the elements are identical.
Elements are considered equal if the compared elements agree on all of their relevant properties. It is not descriptive but values relevant properties. Irrelevant properties do not matter when determining equality.
Similarity means that compared elements coincide and diverge in some of their relevant properties. It is an evaluative term.
4) The Trial of Equality (Alexy)
Elements of value judgments:
a) The relevant property is the feature that shows a person, object, or situation. E.g., age, sex.
b) Treatment for which the property is relevant relates to the regulations or acts to submit a person, object, or situation. Ex., ban on selling Indian lands.
c) The criterion for asserting that property is relevant to that treatment is the reason or justification of the relevance of the property. Ex., Chilean votes abroad.
Why does Alexy say it is necessary to consider the 3 elements?
Necessarily, all agree on at least one property, and all of us diverge necessarily on at least one property. So we need a criterion to consider certain property or characteristic is relevant to a certain treatment. If we lack such an approach, properties and treatments would be associated absurdly.
The legislator or the judge are the ones who determine if the criterion is rational or consistent with regard to ownership and management.
5) Classes of Equality
a) Equality of Equalization and Differentiation:
- Equality and equality is to treat people with a difference the same way, such as sex at the time of the vote.
- The equality of differentiation is to try different ways to people who are in a different situation, such distinction in the race for admission to U.S. universities.
Problem: Consider the political component of equal or egalitarian objectives intended for equality.
- Equality and equality is to treat groups (social groups) the same way that could eventually be treated unequally in order that these groups are equal. Therefore, they are not treated the same way for being different but because between them there are no relevant properties that diverge.
- The equality of differentiation is to try different ways to groups that differ in some relevant property for the purpose of achieving equality between these groups.
b) Equality and Discrimination
Discrimination can be understood in three aspects:
- In a negative sense, it is to establish arbitrary, unfair, irrational, or unjustified differences.
- It has a positive effect on the intellectual capacity to distinguish between objects or situations and choose the best.
- It has a neutral sense and is synonymous with distinguishing or differentiating.
6) Equality in Law and Law Enforcement
Equality in the law is reflected in Article 19 N° 2 and the equal application of law in Article 19 N° 3.
Equality in law is a constitutional mandate addressed to the legislature in that the rules adopted should apply equally to all persons who are in the same situation and should be different for people who are in a different situation.
The equal application of law is a mandate addressed to the bodies responsible for enforcing the law (especially judges) and means that all cases that match their relevant properties must be resolved in the same way, and cases that do not match their relevant properties must be resolved differently.
Relationship between the equal application of law and formal and material justice:
Formal justice is to resolve individual cases whose facts are the same in the same way. Justification of formal justice: legal certainty requires that the first case resolved in a manner other cases with identical facts are resolved in the same direction. Problems that can happen is that the implementation of formal justice may undermine material justice.
Material justice is to resolve each case in accordance with what at that time the judges in that case consider it as fair or as right, no matter what is resolved in previous cases equal to the current. Justification: fair or correct. Problem: legal uncertainty, not knowing how to settle the cases.
Relationship: Equal application of the law means to apply or respect formal justice, and formal justice means respecting the equal application of the law. There is no relationship between the equal application of the law and material justice.