Chile’s Bar Association (“El Colegio de Abogados”) recently filled a petition before the Constitutional Court, arguing the unconstitutionality of mandatory free legal advice (article 595 of the C.O.T.). According to a legal regulation which lasted almost 60 years – but which can be traced back in the Middle Ages, according to Fernando Orellana Torres – lawyers were bound to provide free legal assistance to people living in conditions of poverty who could not afford a private lawyer. Lawyers were designated by a lot conducted by the Judiciary and, once assigned, were “on duty” for a month – and were required to continue providing legal advice until the end of their client’s case. In practical terms, free legal advice never posed a serious demand on lawyers since it coexisted with the Legal Assistance Service – a government-rooted office, which also provides legal counsel to people who cannot afford a private lawyer. In this latter case, law students – who did not get paid – carried out most of the work. (In fact, this so-called “legal practice” lasts for six months, and is a necessary requirement to becoming a lawyer in Chile.)

Criminal cases (including those before military trials) might have presented a different situation; lawyers designated to their “on duty” role were normally consulted in criminal cases, while in labor and civil cases, people preferred to ask the Legal Assistance Service. Currently, free legal advice in criminal cases is assumed by a public office (“Defensoría Penal Pública”) – implemented with the reform to the criminal proceedings which started in 2000.

What were the Bar’s main arguments? It basically claimed the violation of two constitutional rights. First, that mandatory legal duties were violations of the equality clause, since the mandatory free legal advice imposed disproportionate legal duties on a specific class of people, namely lawyers – when compared with other mandatory legal charges for which people get paid (i.e. military service). Secondly, it also claimed the violation of the right to get fairly retributed (meaning paid) for a job, a right that – so the Colegio claimed – emanates from the liberty to conduct economic enterprises, a right recognized in the Chilean Constitution.

The field was in some way prepared. The Court had previously declared the inapplicability of the same institution – a requirement needed to be met in order to ask for the nullification of a law – so that the “Colegio” relied heavily on the Court’s previous decision. According to this previous decision (Constitutional Court, Rol No 755, 24th June, 2008), the Constitutional Court decided that the duty’s lack of payment was unconstitutional, though the purposes sought by the government (that of providing free legal advice to those who cannot pay private counsel) were not. In implementing that decision, the Supreme Court essentially designated the lawyers “on duty” anyway, by asking them to sue the government for recovering the salary due because of their job. The Bar also claimed this was a new undue public charge on lawyers, who would face new costs in suing the recovery.

The Court limited its decision to the duty’s payment – according to the previous inapplicability decision – and also remarked that the unconstitutionality of the law was something exceptional, considering the “respect towards the legislator’s labor”. In that light, it struck down the duty’s lack of payment, therefore ordering the legislator to regulate the way designated lawyers working “on duty” will get paid. The Court’s main arguments were the following.

Regarding the right to equality before the law

According to the Court, people are treated with equal respect and consideration as long as they receive same governmental treatment when under the same circumstances. Therefore, those in different circumstances may receive different legal treatment. The Court did find reasons to justify lawyers’ different legal treatment. As the Court said, when analyzing other liberal professions we found no other workers being legally required to work freely to satisfy a governmental end. However, lawyers, who are invested by the judiciary, fulfill a quite different social role: that of being actual justice’s assistants.

Even when the distinction was reasonably justified (on the grounds of considering lawyers to play a crucial social role), the Court decided to determine whether the State was by means of this distinction pursuing a constitutional (and legitimate) end. The Court again concluded that it was. The state was legitimately and constitutionally seeking to provide every people who cannot afford private counsel with legal advice. That end was itself established in the Constitution.

Equality before the law, however said the Court, demanded much more than just reasonable distinctions and the pursuing of constitutional ends – already fulfilled. It also demanded the analysis of the means by which the ends were to be achieved. According to the Court, equality before the law is affected when the right’s regulation (in this case the reasonable distinction) is inadequate, unnecessary, and intolerable. In other words, the Court decided to evaluate the proportionality of the restriction imposed on the right (the unequal legal treatment). In assessing the proportionality the Court insisted on the end’s legitimacy while it rejected the means used. Lack of payment – the court argued – posed on lawyers an unreasonable charge their social role was not meant to bear.

Was the “duty” a disproportionate public charge too? Chile’s Constitutional system allows the imposition of public charges, understood – as the Court quoted – as “personal or patrimonial charges being not taxes, the law may impose on people in pursuing ethic, moral and legal ends.” Military service is an example of personal charge. According to the Constitution, however, public charges were to be imposed equally, meaning charges cannot be discriminatory duties imposed only on a certain class of people. The “duty” of mandatory free legal advice imposed upon lawyers, the Court said recalling its previous arguments on equality, was discriminatory since it was a public charge not remunerated – as it does occur with military service. Curiously enough, the Court decided public charges impose on the State the duty to remunerate them, a constitutional duty it extracted from the mere fact other public charges were.

Did the gratuity of the “duty” also affect the right to work? The Court said it did; since lawyers were not allowed to charge their honoraries, the “duty” had become – so the Court said – a sort of forced work, which the Constitution forbids. Declaring these legal duties to be within constitutional bounds would eventually lead to the total abrogation of the autonomy to determine whether to perform a work (or not) and what work. Besides that, it was (and is) the Constitution itself that enshrines the right to a fair retribution – even when the work is legally imposed.

The Constitutional Court decided that the State acted pursuing a constitutional end, which also was a constitutional duty. In fact, the Court argued the State not only acted well in trying to provide the worst-off with legal advice, but also acted in that way because the Constitution itself imposed that obligation. However, the means chosen by the State were measures that affected lawyers’ rights in a disproportionate way. Being forced not to charge for their legal advise meant, the Court said, that the State discharged its obligation (of providing free legal counsel to the worst-off) on lawyers who, after all, are private people like any other.

Though noticing the “duty” had become a default assistance and barely used, its lack of payment proved to be highly violating of several constitutional rights – as showed above. One of the factors had caused a decreasing use was that of the implementation of public legal assistance services (in criminal, family law, and labor rights proceedings); hence the Court called upon the legislator to implement a public service alike. This decision – the Court was clear – should not be interpreted as constitutionally allowing lawyers to charge their clients with a fee, but to seek its professional retribution from the state.

By early 2006, the Chilean Government announced that the pill would be made freely available through the public health system to any woman over 14 years-old who requested it. {{For young women between the ages of 14 and 18 a mandatory session of medical counseling was a precondition to obtaining the pill.}} The rationale for this policy was to ensure equal access to fertility control mechanisms. In fact, by 2006, the pill was already available in local pharmacies to any woman with a prescription. But for many of the woman who rely on the public health system such prescriptions are simply not affordable. The distribution of these pills through the public health system comes under the authority of the military. Eventually, several right-wing majors decided not to distribute the pill arguing it was against their religious beliefs, effectively claiming a conscientious objection to participating in their distribution. (A claim that was rather ironic, given that these same majors have consistently rejected the idea that conscientious objections can excuse conscripts from mandatory military service.) In response to that refusal, the Ministry of Health issued a decree making it mandatory for majors to freely distribute the pill in municipal medical centers. In response to that decree 36 members of congress, all part of the right-wing coalition, filed a writ of unconstitutionality before the Constitutional Court. In a 5-4 decision the Court struck down the Ministry of Health’s decree.

The majority held the pill’s effects on women have not been medically determined. Thus, and according to the pro-homine principle, in presence of a medical doubt about the pill’s effects the Court decided in favor of the right to life— a right that it viewed as beginning at the time of conception. Based on a rather suspect scientific foundation,{{Mainly based on an Amicus Curiae brief filed by the Pontifical Catholic University of Chile Center for Bioethics.}} the Court concluded there was medical agreement (1) on the fact the pill inhibits or delays ovulation, and (2) on the fact it also alters the transport of gametes, thus avoiding conception. Claimants also argued the pill caused a third effect: preventing implantation of a fertilized ovule, thus causing abortion of a “new life.” {{Of course abortion occurs only if one accepts life begins with conception—but that is a hard philosophical, scientific and moral debate.}}

What did the Court say about this third possible effect? It reasoned that—as the claimants argued—should this third effect be proved, this would be “decisive of the decision this Court must take . . . .” It is clear that the Court, when announcing the core of the dispute, had already taken its decision about how to understand the right to life: life begins at conception, {{Otherwise this third effect wouldn’t be unconstitutional.}} so that any medicine affecting a fertilized ovule infringes the constitutional right.

The first part of the decision reviews the findings from those studies concerning the pill’s medical effects—which were all filed before the Court. Having decided that all scientific studies agreed on the first two effects of the pill, the Court concluded there is large disagreement over the third (its alleged postimplantation effect). Indeed, some studies suggested there is no medical evidence about effects on the fertilized ovule (based on scientific tests conducted on monkeys and rats). These studies had been criticized in some unpublished papers because they were based on animal rather than human subjects. Fastening on that critique, the Court concluded that it must ban the pill given that there is no conclusive proof about its effects on the embryo. The Court gave the unpublished papers equal status with scientific studies that had been published in reputable scientific journals. The Court reasoned:

There is equivalence in the arguments in favor and against the statement [about the third alleged effect]: there is equality, both in quality as well as in quantity, between studies asserting or denying the statement. …[Both positions] are equivalent since they support their viewpoint with identical strength and conviction.

It is important to emphasize that the claimants did not actually prove the pill’s effects on fertilized ovule, only that there is a disagreement about it. The Court seemed especially concerned by the fact that the findings in the studies that have been undertaken had involved animal and not human subjects. {{Which raises a concern about the Court’s competency to assess the validity of the scientific methodology employed in these studies.}}

In the second half of its judgment the Court focuses on why the right to life should be protected from conception. According to the Court, Chilean scholars as well as the Court’s own jurisprudence agree on this point. In supporting this claim the Court quoted from traditional Chilean legal scholarship — mostly published by scholars from the Pontifical Catholic University—and cited (only) one previous Supreme Court decision— its prior decision from 2001 banning the licensing of this very pill. It also quoted selective paragraphs from the debates held during the drafting of the Constitution which, it is worth noting, were discussed within a committee appointed by the Military Junta under Pinochet’s regime. According to the Court, it is possible to rebuild the spirit and intent of the Constitution exclusively referring to these debates{{I’m deliberately avoiding using the words ‘founding fathers’ since, as I said, members of the committee who discussed and drafted the Constitution were exclusively appointed by Pinochet—and the Charter later reviewed and amended by Pinochet himself. Usually the Court quotes these debates in order to determine which was the constituent power intent (“la intención del constituyente”).}} — concluding, again, that life should be protected from conception.{{Even though a close analysis of these debates actually shows members of the committee disagreed about the formula to be used in recognizing the right to life, precisely because they did not agree on whether or not abortion should be constitutionally banned. Rodolfo Figueroa, Concepto de Persona, Titularidad del Derecho a la Vida y Aborto, 20 REVISTA DE DERECHO 95, 124- 26 (2007).}} The Court also (conspicuously) misquoted the American Convention on Human Rights. For instance, in supporting its conclusion that life must be protected from conception, the Court stated that article 4.1 of the American Convention on Human Rights guarantees “[e]very person . . . the right to have his life respected. This right shall be protected by law from the moment of conception. No one shall be arbitrarily deprived of his life.” Actually that articles states “[t]his right shall be protected by law and, in general, from the moment of conception” (my emphasis).{{It was the Commission itself who determined how this article should be interpreted—in any case as the claimants and the Court did in this case. See, Baby Boy, Res. 23/81 Case 2141, 6th of March, 1981.}} Finally, the Court concluded by arguing that the right to life has absolute preference over any other right. Curiously the Court did not mention any other right opposing that of the embryo. In fact, as Judge Vodanovic mentioned in his dissenting opinion, the majority of the Court did not weigh the right to life against the sexual and reproductive rights of women.

The Court’s decision in this case shouldn’t take anyone by surprise. Chilean courts have affirmed that, “no one can deny the existence of Jesus;” {{When censuring Scorsese’s Last Temptation of Christ.}} that life is “a natural right only recognized in the Constitution;” and that children have “the right to live and develop in a family regularly structured and socially appreciated.” {{When depriving a lesbian mother of her custody over her daughters.}} That this comes as no surprise does not mean that there is no reason to be outraged. Chilean courts have thought themselves as the guardians of morals, and as the exclusive interpreters of the Constitution. If that exclusivity will mean taking moral debates away from the people, then there are good reasons to protest against the Court’s decisions—as thousands of women have done in the weeks following this judgment — and question its faculties.

The “Military Junta”—headed by Pinochet—passed an amnesty decree on April of 1978, declaring the amnesty of all crimes committed between September 11th of 1973, and March 10th of 1978—the Junta’s most violent period.

The first set of cases I consider were filed before Chilean courts (early 1990s) seeking criminal responsibilities for perpetrators, faced an emphatic rejection from courts. Resting on the amnesty decree, courts declared they had no faculty to investigate these violations. In spite of the plaintiffs’ arguments about the inapplicability of the decree in these cases—according to Geneva Conventions—the Supreme Court ruled that these conventions were applicable only in cases of international wars, “but not for internal conflicts.”

A second set of cases were decided under an interpretation of the decree promoted by former President Patricio Aylwin, who urged courts to investigate and to determine who were the criminal offenders, but to finally dismiss such cases on the basis of the amnesty decree. According to this interpretation the amnesty decree forbids criminal responsibilities, but does not forbid investigations directed to determine who were (at least politically) responsible for human rights violations.

In a third set of cases (beginning by mid 1996) Chilean courts established criminal responsibilities in spite of the amnesty decree. Courts that convict perpetrators have followed two different ways—a situation that persists until now.

(1) On the one hand, courts have accepted the primacy of the international law of human rights over domestic legislation. In deciding landmark cases on human rights violations, the Supreme Court has held that:

States are under the duty of adopting all legislative measures in order to establish criminal sanctions to those who commits, to those who have committed, or to those who have ordered to commit serious crimes against humanity, as defined in Geneva Conventions (Rol No 3125-2004, March 13th, 2007).

In this case the Court overruled its decisions from the 1990s—where it held that Geneva Conventions where supposedly applicable only in international wars—by saying that:

It is not admissible that the same people who declared the existence of a war [the "Military Junta"] to use its consequences against the regime opposition. . . expects now to step back in order to ignore the legal and international consequences of that declaration concerning the sanctions imposed for those cases by the Geneva Conventions (Id.)

In this case the Supreme Court held that domestic legislation couldn’t serve as an excuse to break international agreements reached with other nations and organizations. So that if a State wants to guarantee impunity based on domestic legislation, it is not only breaking international agreements, but also failing to recognize international law primacy in deciding crimes against humanity.

This doctrine has been repeatedly held by the Supreme Court, particularly resting on the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (1968). In deciding a new case on March of 2007 the Supreme Court settled that:

Taking into account the amnesty decree, defendants have argued that its approval sought to resolve those social conflicts that remained from the dictatorship . . . [we have to acknowledge that] using that decree in cases of gross human rights violations would be against international treatises and conventions ratified by or country (Rol No 6528-2006, March 18th, 2007).

(2) On the other hand, courts have argued that kidnapping is a crime which may be charged so long as the murder of the missing individual cannot be proved. There are several cases where the Supreme Court has declared the inapplicability of the amnesty decree while bodies do not appear. Under this doctrine the decree may have force only once the bodies are found or once the murders are proved—which has taken several perpetrators to start declaring their murders.

The Supreme Court recently declared that:

It is not possible for this court to apply the amnesty decree, since we have no notice about the exact date in which the kidnapping would have been committed . . . in fact, the crime is still being committed (Rol No 1427-2005, January).

Chilean courts do not regularly make decisions on the basis of international law. In spite of the rich and broad evolution several areas of human rights have had, Chilean courts do not pay that evolution any attention. Though this situation may be explained considering “Chilean legal culture,” the important fact is that a change has began in human rights landmark cases—those filed by relatives of those disappeared and killed by the Pinochet regime. Chilean courts have started to look and consider Chile’s international obligations in deciding these landmark cases, having an important impact on the political system.