17
the American Convention concerning the protection of children and to adapt the
Constitution to international treaties ratified and in force in Chile.
Up until 1980, there was a precedent of not declaring the urgency of draft reforms.
As of 1980, in view of the number of draft constitutional and legal reforms that were
required by the transition to democracy and its consolidation, the Government had to
use declarations of urgency. There are three types of urgency: “simple urgency”,
which implies than each branch must process a draft reform within 30 days; “great
urgency”, where the period is 10 days, and “immediate discussion” when a draft
reform must be processed in three days in each branch. The Government of
President Eduardo Frei Ruiz-Tagle declared the urgency of the draft constitutional
reform of Article 19(12) as that of “immediate discussion”, so that it should be dealt
with by the Senate in three days. This urgency was declared as soon as it was
certain that the adoption of the constitutional reform could be achieved. However, if
the Senate introduces amendments, the reform is returned to the Chamber of
Deputies with the urgency of “immediate discussion” and that Chamber will have to
take a decision under the third procedure in three days. If there is no agreement,
then there is no constitutional reform and if there is agreement, there is
constitutional reform and it goes to the President of the Republic for him to sanction
or veto it, and if there is a veto, the Chamber and the Senate can insist on their
position, in which case, the President may call the citizens to a plebiscite. Moreover,
the draft laws required to make this reform applicable with regard to the decree-law
on cinematographic censorship and the law on television must be submitted.
It became evident that a constitutional reform was necessary when the Court of
Appeal admitted a remedy for protection prohibiting the exhibition of the film “The
Last Temptation of Christ.” The intention was to resolve the problem of the
interpretation by the Court of Appeal and the Supreme Court and also to be able to
comply with the American Convention and the Convention on the Rights of the Child,
concerning the protection of children. Since the Governments of President Patricio
Aylwin and President Eduardo Frei Ruiz-Tagle did not agree with the grounds for the
decisions of the Chilean courts, they had to resolve the situation within the
framework of the Constitution, and the only way to do this was by submitting a draft
constitutional reform, since, once this had been approved, it would give legal
certainty and could be required of all the organs of the State.
Once the constitutional reform has been approved, all Chileans who have attained
their majority will obviously be able to see the film “The Last Temptation of Christ.”
The remedy for protection produces relative res judicata so that an action could have
been brought against the State under internal law and recourse could have been had
to “inapplicability due to unconstitutionality”, if it was felt that the decree-law on
cinematographic censorship was unconstitutional because it infringed article 19(12)
of the Constitution or the American Convention.
The difficulty that arose with the Supreme Court was due to a problem of
interpretation, inasmuch as that Court gave preference to applying the right to honor
over freedom of opinion, following the trend of some foreign courts and doctrine that
makes a distinction between human rights that correspond to the dignity of the
individual such as the right to life, to honor and to intimacy, and human rights
concerning means, such as freedom of opinion and information.