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this type of spectacle, in accordance with the principle of self-regulation and
freedom. This constitutional reform may be accompanied by complementary reforms
to the legislation.
Once the constitutional reform has been adopted, Chileans and all the country's
inhabitants will be constitutionally and legally able to attend freely the exhibition of
the film that was censored.
Under the principle of the supremacy of the
Constitution, once the constitutional reform has been adopted, its provisions become
mandatory immediately and directly, and the provisions currently in force, together
with the judicial decisions that are contrary to the reform are annulled.
With regard to freedom of conscience and religion, he considered that Article 12 of
the Convention should be respected; this refers to freedom to profess a religion, to
manifest one’s religious beliefs, not to be persecuted for one’s religion and to change
religions. Freedom of conscience is closely related to freedom of expression. In this
case, none of these conducts is codified or constituted, and therefore the abovementioned article was not violated.
The State’s proposal for a friendly settlement was based on three basic elements:
facilitating the exhibition of the film, creating a fund designed to promote freedom of
expression in Ibero-America and an invitation to the Special Rapporteur on Freedom
of Expression of the Organization of American States (OAS). The latter has already
occurred; the remaining points are subject to the fact that Chile is a democratic
State of law governed by the principle of the separation of powers, and the
competence of each Power cannot be disregarded. The State cannot facilitate the
exhibition of the film without previously reforming the Constitution. The State
authorities must carry out their obligations within the existing constitutional and
democratic context.
To the contrary, the President of the Republic could
immediately be accused of committing the crime of desacato (contempt for public
authorities) and could be politically indicted before the Chamber of Deputies for
disregarding the Chilean legal system.
Prior censorship is any unlawful impediment to the exercise of freedom of expression
in its generic or extensive meaning. However, not all impediments to the exercise of
freedom of expression may be qualified as censorship. Any unlawful impediment of
freedom of expression is contrary to the rule of law, democracy and human rights.
When, as a precautionary measure, the Judiciary prohibits the circulation of a book
or the exhibition of a film because they damage the honor of specific persons, it
incurs in a flagrant act of censorship. An opinion that harms the honor of a person
does not constitute an unlawful exercise of freedom of expression. Exercising a
“precautionary order” does not constitute a legal impediment to the publication of
pamphlets, leaflets or works that may irreversibly or permanently harm the honor of
an individual. In many cases, the Chilean courts of justice are unaware of the latest
advances in international human rights law.
Article 5(2) of the Constitution was reformed through the will of the constituent
power in a 1989 plebiscite, in the sense that the fundamental rights recognized in
the Convention and other international treaties ratified by Chile and in force in the
country and the procedural guarantees and remedies designed to make the
protection of those rights effective, constitute provisions of law and guarantees with
constitutional ranking. The preamble to the Convention states that international
protection should be understood in terms of reinforcing or complementing; the same
words are used in Chilean constitutional and juridical laws.
Consequently, a