On August 31 the Constitutional Court has ruled on two cases related, roles 747 and 783. Each of these statements has many aspects of interest, which will be discussed hereafter in this column.
Because of its historical importance, beginning with the role 783. I say historic because it is two legal events that occur together for the first time. On the one hand, is the first time an agreed order higher courts is controlled by a body outside the supervision of the Supreme Court, at least in part, declared unconstitutional. (Incidentally, it seems fortunate that the case that motivated this decision has not been a high public profile or political controversy, nor been directed against an order of the Supreme Court agreed, in such a way to enable our institutional system assimilate gradually, not abruptly, this important development.) On the other hand, is the first time takes place and is welcomed by affecting a constitutional fundamental rights before the Constitutional Court.
For now, it is this second aspect of the decision which emerge a number of implications for the treatment gravitating fundamental rights in our Constitution, beginning with the fact that the court in its ruling does not discuss the admissibility of the action from the perspective of the requirements of Article 93 i. III CPR. At this point it is a pity as he realizes himself Court's ruling, the Santiago Appeals Court has not upheld its production rules (perhaps by a mistaken understanding of constitutional supremacy which leads her to note that "will be what the Constitutional Court ruling on matter, "thus giving his own role as interpreter-part in the respective constitutional process). But the fact is that you can conclude from this absence that the tribunal without which the action is against an order straightened agreed that may affect the fundamental rights of the applicant. Thus, the decision is more important in this for that silence is that what it says, namely:
a) it is assumed that, despite being an innovation in our constitutional language, the term "fundamental rights" used in art. 93 i. III CPR is coincident with the area covering the constitutional rights of Article 19 of the Charter. The question is not trivial considering that the terminology, where it has been used, has a base and positively defined areas (for example, the constitutions of Germany and Spain) while teaching at least three, but more likely understand the fundamental rights
b) is assimilated every precept within Article 19 CPR to the notion of a fundamental right, even in cases where the drafting of the Constitution itself does not lead to take the recognition of a right. This is because the court repeatedly argued on the allegation of injury "right" to a fair and rational procedure that enforces the applicant. However, if read with attention to Article 19 No. 3 i. V of the Charter, it appears that no such right but a duty to address the legislature. It follows, then, that the Court has not seemed to differentiate between "fundamental rights" and other provisions which, located in Article 19 of the Constitution does not establish rights but duties of government action;
c) Third, the court broadly interpreted the concept of "impact." As is clear from the minister minority vote Enrique Navarro Beltrán (not the background, I have not had the opportunity to learn), the date of delivery research the Court, which impinged on the precept that was supposed to affect the fundamental right to a fair and rational procedure was closed, the in trivial devenía action to exit the passage of the involvement of a fundamental right. Thus, the court's ruling does not take as relevant the possibility of injury specific to the rule in question can produce the right question but that it was sufficient consideration, in the abstract , its unconstitutionality;
d) finally, is interesting to note that the cause that motivates the declaration of unconstitutionality is not the precept (say, objective law) for the derecho fundamental (subjetivo) alegado, sino una disposición distinta, como lo es el art. 8º CPR en lo referente al principio de publicidad. De este modo, resulta del fallo en rol 783 que el Tribunal no estima necesario que exista conexión entre la afectación del derecho alegada por la parte requirente y el específico motivo de inconstitucionalidad en virtud del cual se pronunciará sobre la inconstitucionalidad del respectivo auto acordado.
Si llevamos a una expresión positiva los criterios que se desprenden de la ausencia de toda consideración sobre estos puntos, puede concluirse de este fallo que la expresión derechos fundamentales del art 93 i III de la Carta comprende al menos, y sin discusión, todo el content of his art. 19, regardless of whether the formula law is expressed in terms of individual rights or duties of state, that the concept of involvement is not subject to a requirement of effectiveness of the lesion, or principle of transcendence, but simply the normative contradiction with the Constitution, and that this contradiction is not limited to the breach by the respective banc a fundamental precept of law, but any constitutional provision into connection with the reasoning associated with the fundamental rights invoked.
Beyond these conclusions, which I think clearly the result of this failure lies in him an edge muy expuesto en el tema de los derechos fundamentales. En un sentido cercano a la prevención de la ministra Marisol Peña Torres sobre la falta de pronunciamiento del Tribunal sobre todos los argumentos de inconstitucionalidad hechos valer por la requirente, es particularmente notable la absoluta falta de comentario, por parte del Tribunal, en relación con las permanente referencias al Pacto de San José de Costa Rica en la argumentación de la requirente. Esto porque, siendo la primera vez que el Tribunal se pronunciaba sobre una acción de amparo constitucional de derechos, hubiese sido deseable delimitar el campo de futuras acciones vía art. 93 i. I Nº 2 - i. III CPR . La decisión en el rol 346, si bien rechaza la tesis de la jerarquía constitutional law of international treaties on the rights of people, adds nothing to the question of how an allegation of the bases of rights contained in those treaties should be handled in light of the obligation contained in art. 5 º i. II of the Constitution. The question becomes especially sensitive when considering the manner in which the Court faced the issue conceptually, in terms of fundamental rights. Can they be made, in light of art. 5 º above, and given the difference in terminology with the art. 19 CPR, a broader scope than the constitutional rights, and include in those, for example, to the rights contained in the Pact of San José de Costa Rica, and others? The Court could have the land surveyed with boundaries marked here. However, the field remains open.
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