12
embodied in the Convention by incorporating this treaty de jure into its domestic
law. However, in view of the failure of the Judiciary to interpret it adequately, it
should be understood that there is an additional obligation for the Legislature to
guarantee that interpretation.
This will be achieved by domestic legislation
indicating that the international law should be understood to be incorporated into
domestic law. If complied with, this obligation to guarantee could affect reparation
but not legal responsibility. In his opinion, the reform of article 19(12) of the
Chilean Constitution does not help, because it will not produce the effect of
preventing the Judiciary from censoring films, books or other artistic manifestations,
using permanent precautionary measures. Moreover, the proposed reform “includes
an element that distorts the international criteria”; this is the further difficulty that it
is incorporated into the Criminal Code regarding crimes when it is committed “in
contempt of or offending public authorities.”
The Cinematographic Censorship Council has prohibited many films. In some cases
it has revised the classification and allowed films that it had censored to be shown.
Using the right to honor as a basis for prohibiting the exhibition of a film is “an
indirect and undue use of legal provisions that have been developed for other
situations, in order to adapt them to the feelings of the Court.” When the judgment
states that honor is identified with the capacity for self-determination, according to a
person’s values and beliefs, it is, at the very least, confusing honor with the freedom
to believe, which is religion.
d.
Expert
report
of
Humberto
constitutional law expert.
Nogueira
Alcalá,
lawyer,
The Chilean Constitution does not establish any norm concerning the rank of
international treaty law and international common law in relation to domestic law; it
only establishes the system of incorporation and applicability of international treaty
law to domestic law. Articles 32(17) and 50(1) of the Constitution indicate that the
President of the Republic negotiates and concludes treaties, Congress adopts or
rejects them, but does not have the authority to introduce amendments and,
subsequently, the President of the Republic ratifies them. The Chilean legal system,
applied in good faith and according to the corresponding hermeneutics criteria,
recognized the primacy of international law over domestic law when it ratified the
Vienna Convention on the Law of Treaties; that took place before the Constitution
entered into effect. Consequently, should there be normative conflicts between
domestic law and international law, Chile is obliged to ensure that international law
prevails.
With regard to admission of international human rights law into the Chilean legal
system being a limitation to sovereignty, the text of article 5(1) of the 1980
Constitution established that sovereignty was inherent in the Nation and was
exercised by the people and by the authorities established in accordance with the
constitutional system. Article 5(2) established the essential rights emanating from
human nature as the limit to sovereignty. In the process of transition from the
authoritarian regime to democracy, 54 constitutional reforms were made and one of
them was to article 5(2), by adding a phrase which stated “that the organs of the
State must respect and promote the rights contained in the Constitution, and also in
the international treaties that Chile has ratified and that are in force.” This phrase
consolidated the notion that the essential human rights constitute a system with a
dual source in the Chilean legal system: one of a domestic nature - the Constitution -