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REPORT
Nº 137/99
CASE 11,863 ANDRES AYLWIN AZOCAR ET AL.
CHILE
December 27, 1999
I.
SUMMARY
1.
On January 9, 1998, the Inter-American Commission on Human Rights
(hereinafter the "Commission") received a petition against the
Republic of Chile (hereinafter "the State," "the Chilean
State," or "Chile") alleging violations of human rights set forth
in the American Convention on Human Rights (hereinafter "the American
Convention"), in particular political rights (Article 23) and the right to
equal protection (Article 24), to the detriment of Chilean society, and in
particular of the following persons identified as victims and petitioners in
this case: Andrés
Aylwin Azócar, Jaime Castillo Velasco, Roberto Garretón Merino, Alejandro González
Poblete, Alejandro Hales Jamarne, Jorge Mera Figueroa, Hernán Montealegre
Klenner, Manuel Sanhueza Cruz, Eugenio Velasco Letelier, Adolfo Veloso Figueroa,
and Martita Woerner Tapia (hereinafter "the petitioners").
2.
The petitioners allege that the provision on senator-for-life (General
Augusto Pinochet) and designated senators, found at Article 45 of the Chilean
Constitution, thwarts the expression of popular sovereignty, implying that
elections are no longer "genuine" in the terms required by Article
23(1)(b) of the American Convention, and that for the same reasons it violates
the essence of the institutional framework of representative democracy, which is
the basis and foundation for the entire human rights system now in force.
Petitioners also allege that the designation of senators in the manner
provided for under the new constitutional order in Chile constitutes an
institution that violates the right to equality in voting, is inimical to
popular sovereignty, and represents an obstacle making it practically impossible
to change the non-democratic institutions established in the Chilean
Constitution.
3.
In addition, petitioners argue that the provision on designated senators
violates Articles 23(1)(c) and 24 of the Convention, which set forth "the
right and opportunity" "to have access, under general conditions of
equality," to the public functions of the state.
In this respect, the petitioners note that such equality of rights and
opportunities is not to be found in a system in which some of the persons
elected to occupy positions in the legislative branch are designated
exclusively, and in an exclusionary manner, by a very small group of people.
4.
The state has called into question the contentious nature of the
petition, noting that it refers to Chile's internal political situation; that
these are not facts that "describe or characterize a violation of the
rights guaranteed by the Convention," and that "the fact that there
are political and legal aspects that are deemed obstacles to the full
development of democracy, or to an ideal concept of it, cannot be equated with
violations"; and that instead "the petition describes a situation that
is strictly political in nature," and that is not within the Commission's
jurisdiction.
5.
After analyzing the arguments put forth by the parties, the rights
established in the Convention, and the rest of the evidence and documents that
appear in the record, the Commission concludes that by establishing what are
called designated senators and senator-for-life Augusto Pinochet, in Article 45
of the Chilean Constitution, and by its application by the authorities
indicated, the human rights to political participation and to equality without
discrimination as set forth in the American Convention (Articles 23 and 24) have
been violated in respect of the victims in this case. Consequently, the
Commission decides to recommend to the Chilean State that it adopt the necessary
measures to bring its internal legal order into line with the provisions of the
American Convention, so as to fully ensure all Chilean citizens, including the
victims in this case, the exercise of the right to vote and to be elected in
general conditions of equality in accordance with Articles 23 and 24 of the
American Convention, in the determination of the composition of the Senate, as a
bicameral legislative organ of popular representation in the Chilean Congress.
II.
PROCESSING BY THE COMMISSION
6.
The Commission opened the case on January 23, 1998; it forwarded the
pertinent parts of the complaint to the Chilean State and asked that it provide
information within 90 days.
In that same communication, the Commission called on the Chilean State to
participate in a hearing on admissibility issues, along with the petitioners'
representatives, to be held February 27, 1998, during the 98th regular session
of the Commission.
The state answered the notice of hearing on February 19, 1998, indicating
that it would not participate, and that instead it would provide its arguments
in writing within the period set by the Commission's Regulations.
7.
On March 16, 1998, the Chilean State requested a 60-day extension for
submitting its observations on the complaint.
This extension was granted on April 8, 1998.
Said observations were submitted on June 16, 1998; the pertinent parts
were transmitted to the petitioners three days later.
On August 14, 1998, the petitioners submitted a brief with observations,
whose pertinent parts were forwarded to the state on September 9, 1998.
8.
On October 5, 1998, the Chilean State requested a new extension for
answering the observations submitted by petitioners, which was granted on
October 14, 1998.
On December 8, 1998, the Chilean State submitted its brief with
observations on the latest brief submitted by petitioners.
9.
On December 9, 1998, and once the requirements in Articles 46 and 47 of
the American Convention were analyzed, the Commission, meeting in its 101st
special session, approved Report 95/98, declaring the admissibility of the
complaint submitted by the petitioners.
On that occasion the Commission analyzed the arguments of the parties on
admissibility of the petition; therefore, here the Commission will only analyze
the arguments on the merits.
10.
On December 11, 1998, the admissibility decision was communicated to the
petitioners and to the Chilean State, and it was agreed to make it public and to
include it in the Commission's Annual Report.
On December 28, 1998, the Commission forwarded the pertinent parts of the
last brief submitted by the Chilean State; likewise, the Secretariat of the
Commission sent a letter to the parties, informing them that the Commission was
putting itself at their disposal with a view to seeking a possible friendly
settlement. On
April 22, 1999, the Commission was notified by the petitioners of their decision
not to pursue the friendly settlement process.
III.
POSITION OF THE PARTIES
A.
The petitioners
11.
The petitioners indicate in their complaint that the designation of
senators outside of the provisions on universal suffrage at Article 45(a)
through (f) of the Chilean Constitution[1]
violates the concept of "equal suffrage" set forth at Article 23(1)(b)
of the American Convention.
This is because the "designated" senators, in order to reach
the Senate, are chosen by a very small number of persons (1 to 17), while the
senators elected by popular vote require the endorsement of approximately
120,000 citizens.
12.
They state that the provision on designated senators is a breach of
Article 23(1)(c) of the American Convention, which enshrines "the right and
opportunity" "to have access, under general conditions of
equality" to the public service of his or her country.
In this respect, the petitioners note that such equality of rights and
opportunities is not to be found in an electoral system in which some of the
persons elected to occupy posts in the legislative branch are selected by a very
small group of persons (for example: three or four former commanders-in-chief of
the Army, Navy, or Air Force; three or four former comptrollers-general of the
Republic), while other candidates are selected by hundreds of thousands or
millions of citizens.
13.
In addition, the petitioners note that the inequality in the worth of the
vote and in access to public service also constitutes an open violation of
Article 24 of the American Convention, which establishes: "All persons are
equal before the law."
14.
The petitioners also consider that the designation of 20 percent of the
Chilean Senate by corporatist procedures and without regard to universal
suffrage works an evident usurpation of an equivalent quota of natural power
from the sovereignty of the people, which means that elections cease to be
"genuine" in the terms required by Article 23(1)(b) of the Convention,
and therefore represent a rupture with the essential basis of a democratic
institutional arrangement, which constitutes the basis and foundation of the
entire human rights system now in place. They argue that the seriously
diminished sovereignty and the requirement of supermajorities for making
decisions constitute an aberrant situation in which apparently democratic forms
are overtaken by a reality in which the exercise of popular sovereignty is
practically impossible in relation to the issues that are most important and
crucial to society.
15.
The petitioners point out that the privilege enjoyed by some, of acceding
to the Chilean Senate apart from the popular vote; the excessive power of those
who designate them (a small group of authorities), and the diminished value of
the vote of the large majority constitute open discrimination, which is
prohibited by Articles 1 and 24 of the American Convention.
They further state that the inadvisability and illegitimacy of the
designated senators were fully shown with the nine senators designated in 1990,
who included one former interior minister under the government of Augusto
Pinochet, three high-level military or police officials who acted under his
orders, and one judge who stood out for his failure to protect human rights.
16.
They are of the view that the designated senators are in themselves an
undemocratic expression, and tend to help maintain an undemocratic
political-juridical reality, or an undefined "transition to"
democracy. The
petitioners understand the institution of the designated senators as violative
of the principle of equality of the vote and popular sovereignty, and also
constitutes a lock that makes it practically impossible to modify the
non-democratic institutions established in the Chilean Constitution.
17.
The petitioners request that the Commission declare: (1) that the
existence of senators not elected by the people, whether designated or
senators-for-life, especially in numbers such that it works a significant
alteration of the popular will, as provided by Article 45(a) through (f) of the
1980 Chilean Constitution, constitute a violation of the right to equal vote
enshrined in Article 23(1)(b) of the American Convention; (2) that said
provision of the Chilean Constitution, insofar as it provides for privileged
electoral bodies made up of an insignificant number of candidates to the
position of senator, is contrary to and incompatible with Article 23(1)(c) of
the Convention, which enshrines the right of all citizens to have access (under
general conditions of equality) to the public posts in their country; (3) that
the inequality of the vote and access to public posts violates Article 24 of the
Convention, which affirms that all persons are equal before the law; (4) that
the appointment of senators who account for approximately 20 percent of the
members of the Senate, without regard for the popular will, constitutes a
usurpation of such magnitude that the elections cease to be genuine,
constituting a flagrant violation of Article 23(1)(b) of the Convention, and an
attack on the essence of democratic institutional arrangements; (5) that the
privilege bestowed on some of being designated senators without regard for the
popular will constitutes discrimination, which is prohibited by Article 1 of the
Convention, which guarantees all persons the (free and full) exercise of their
human rights; (6) that the incorporation in the Chilean Senate of a member as
former President of the Republic, without him having been elected to that post
by the people, constitutes a violation of the prohibition on discrimination
enshrined in the Convention; (7) that not only the persons who come before the
Commission as petitioners, but all Chileans who have the right to vote, are
victims of these human rights violations and of these acts of discrimination.
18.
In addition, they ask that the Commission formulate the following
recommendations:
(1) that the Chilean State bring its Constitution and organic laws into
line with the standards of the American Convention, to which it is a party, with
respect to the prohibition on discrimination; political participation in equal
conditions in access to public functions; and, in general, the restriction on
the right to participation in an entirely democratic fashion; and, specifically,
(2) that Article 45(3) of the 1980 Constitution be derogated, as it is contrary
to the provisions of Articles 1(1), 23(1)(a),(b), and (c), and 24 of the
American Convention.
B.
The State
19.
The Chilean State, in due course, raised in opposition a series of
arguments alleging inadmissibility, which were considered and dismissed by the
Commission when it issued its decision on the admissibility of the petition.[2]
The State's arguments on the merits can be summarized as follows:
20.
In response to the allegations formulated by the petitioners, the Chilean
state argues that it has committed no violation nor does it have any
responsibility whatsoever for the alleged violation of human rights that is at
the origin of this case. It states that the present-day constitutional
government cannot be required to violate the institutional order it inherited or
to seek to modify it by means that are outside of that same legal order.
21.
The representatives of the State affirm that the legislative initiatives
submitted by the democratic governments to reform the Constitution should be
taken into account in order to do away with the situation that is the subject
matter of this complaint.
On three occasions the Senate rejected the bills submitted by the
Executive aimed at suppressing the institution of the designated senators and
senator-for-life been called into question here.
It is impossible to modify the Constitution currently in force by means
other than what is established in the Constitution itself.
22.
The State questions the contentious nature of the petition and says that
it is not evident, and that instead it raises matters related to Chile's
political situation; that they are not facts that "describe or characterize
a violation of the rights guaranteed by the Convention" and that "the
fact that political and juridical aspects are considered obstacles to the full
development of democracy, or of an ideal concept thereof, cannot be equated to
facts that constitute violations"; and that, instead, "the petition
describes a situation strictly political in nature," over which the
Commission has no jurisdiction.
23.
The Chilean State argues that the ways in which the various states
parties to the Convention enshrine political rights may differ, but that this is
not grounds for considering a basis for calling into question those democratic
traditions.
24.
Based on the foregoing considerations, the representatives of the Chilean
State asked the Commission to declare itself without jurisdiction to take
cognizance of this dispute, or, should it not do so, to declare that the
presumed violations alleged by the petitioners cannot be attributed to it and
that it has no responsibility.
IV.
ADMISSIBILITY OF THIS CASE
25.
As noted above, on December 9, 1998, the Commission approved Report 95/98[3],
by which it declared the admissibility of the complaint submitted by the
petitioners. In that Report, the Commission noted that it had prima
facie jurisdiction to examine the petition, considering that the facts
alleged, if true, could constitute a violation of the rights established in the
American Convention.
26.
In addition, the Commission rejected the argument on lack of jurisdiction
ratione temporis presented by the
Chilean State, noting that while the provisions called into question were issued
prior to Chile's ratification of the American Convention, the violation alleged
has continued and remained current after the date of ratification of the
Convention, since it is occurring now, at a time when the obligation to respect
and ensure the rights established in the Convention has come into effect, and
consequently its obligation to bring its legal order into line with the terms of
the Convention (Article 2), are binding on the Chilean State.
27.
Finally, and in relation to the grounds of inadmissibility contained in
Article 46(1)(b) of the Convention, which was alleged by the Chilean State and
referred to the six-month period for submitting the complaint, the Commission
indicated that the consequences or the legal and factual effects of the
Constitutional provisions that have been called into question, as well as their
invariable and continuing application during the democratic administrations
since 1990, extend to the date of submission of the complaint and even
afterwards, which definitely makes the provisions of the American Convention
invoked by petitioners applicable to this situation.[4]
The Commission decided the admissibility of this case based on the
foregoing considerations.
V.
ANALYSIS OF THE MERITS
28.
As can be observed in the arguments of the parties, the dispute in this
case revolves around the violation of human rights enshrined in the American
Convention, by virtue of the establishment, in the 1980 Chilean Constitution,
and their consequent application by the respective authorities, of what are
called the designated senators and the senator-for-life, General Augusto
Pinochet. Article
45 of the Constitution provides that in addition to the senators elected by
direct vote by each of the 13 regions of the country, the following shall also
be members of the Senate:
(1) those former Presidents of the Republic who have held said post for
six years continuously (senators for life); (2) two former justices of the
Supreme Court, elected by the Supreme Court in successive votes, so long as they
have held their posts for at least two years continuously; (3) one former
comptroller-general of the Republic, also elected by the Supreme Court, so long
as he or she has held the post for at least two years; (4) one former
commander-in-chief of the Army, one commander-in-chief of the Navy, and another
commander-in-chief of the Air Force, plus one former director general of the
Carabineros, elected by the National Security Council, so long as they have held
the respective posts for at least two years; (5) one former president of a state
university or a university recognized by the state, designated by the President
of the Republic, so long as he or she has held said post for a period not less
than two years; and (6) one former cabinet minister who served under a previous
presidential administration or administrations, also designated by the President
of the Republic, who has held said post for more than two years continuously.
29.
The petitioners allege that the effects and application of the provision
called into question entail a diminishing of the system of representative
democracy and involve a violation of their political rights as set forth in the
American Convention.
For its part, the Chilean State considers that the Commission does not
have jurisdiction to review said provision, considering that there is no
flagrant contradiction with the provisions of the American Convention, but that,
instead, the provision debated represents one of many possible ways of complying
with the international provisions enshrining political rights.
30.
For this reason, as an introductory point, the Commission deems it
necessary to establish the link between representative democracy and the
protection of human rights, as well as its own jurisdiction to decide individual
cases that involve political rights enshrined in the American Convention.
A.
Representative democracy and human rights
31.
On several occasions the Commission has noted the close relationship
between representative democracy and the protection of human rights.[5]
In effect, the Commission has said that representative
democracy--one of whose key elements is the popular election of those who
hold political power--is the form of organization of the state explicitly
adopted by the member states of the Organization of American States.[6]
In contrast to the United Nations, the inter-American system has incorporated an
express provision in its Charter, Article 3(d), according to which the
solidarity of the American states and the high aims of the Charter require a
form of political organization based on the effective exercise of
representative democracy (Commission's emphasis).
32.
This article complements the invocation, in the Preamble of the Charter
of the Organization of American States, by the Representatives:
Confident
that the true significance of American solidarity and good neighborliness can
only mean the consolidation on this continent, within the framework of
democratic institutions, of a system of individual liberty and social justice
based on respect for the essential rights of man...
33.
This text is of special importance as it links democracy to individual
liberties and human rights, an idea that had already been incorporated into the
preambular part of the Inter-American Treaty of Reciprocal Assistance, of 1947,
when it notes:
That
the American regional community affirms as a manifest truth that juridical
organization is a necessary prerequisite of security and peace, and that peace
is founded on justice and moral order and, consequently, on the international
recognition and protection of human rights and freedoms, on the indispensable
well-being of the people, and on the effectiveness of democracy for the
international realization of justice and security.
34.
In the amendment to the Charter of the OAS introduced by the Protocol of
Cartagena of 1985, the concept of representative
democracy was incorporated into the Preamble in these terms:
"Convinced that representative democracy is an indispensable
condition for the stability, peace and development of the region."
And Article 2(b) established as essential purposes of the Organization
"To promote and consolidate representative democracy, with due respect for
the principle of non-intervention."
35.
The relationship between representative democracy and the observance of
human rights has been reaffirmed in various meetings of consultation,
inter-American conferences, additional protocols, and resolutions of the General
Assembly of the Organization of American States.
In effect, the General Assembly of the Organization has reaffirmed on
several occasions the relationship between representative democracy and human
rights, emphasizing the need for the exercise of political rights so as to be
able to elect the government authorities. In this vein, the General Assembly has
recommended "to the member states that have not yet done so that they
reestablish and perfect the democratic system of government, in which the
exercise of power derives from the legitimate and free expression of the will of
the people, in accordance with the particular characteristics and circumstances
of each country."[7]
36.
More specifically, in Resolution 837 (XVI-O/86), the General Assembly
noted:
The
Inter-American Commission on Human Rights, in its annual report for the period
1985-86 presented to this regular session of the General Assembly for
consideration, recommended "that it reaffirm the urgent need for the
governments that have not yet reestablished representative democracy as their
system of government to put in place the relevant institutional mechanisms for
restoring that system in as short a period of time as possible by means of free,
secret and informed elections, since democracy is the best guarantee for the
observance of human rights and the basis of solidarity among the states of the
hemisphere"....
37.
In the operative part, the General Assembly resolved:
To
reaffirm the inalienable right of all the peoples of the Americas freely to
determine their political, economic and social system without outside
interference, through a genuine democratic process and within a framework of
social justice in which all sectors of the population will enjoy the guarantees
necessary to participate freely and effectively through the exercise of
universal suffrage.
38.
The Commission has also noted that it is not unusual for the hemisphere's
legal framework to insist on the existence of direct relationship between the
exercise of political rights so defined and the concept of democracy as a form
of organization of the state, which in turn implies the effective observance of
other fundamental human rights.
In effect, in the view of the Commission, the concept of representative
democracy is grounded on the principle that political sovereignty vests in the
people, who elect their representatives to exercise political power.
These representatives, moreover, are elected by the citizens to apply
certain political measures, which in turn implies that there has been a
wide-ranging debate on the nature of the policies to be adopted (freedom of
expression) among organized political groups (freedom of association) that have
had the opportunity to express themselves and meet publicly (right to assembly).[8]
39.
The analysis of the human rights situation in the states to which the
Commission has referred in prior years leads it to state that only through the
effective exercise of representative democracy can human rights be fully
guaranteed. It
is not just a question of noting the organic relationship between representative
democracy and human rights as arises from the Charter of the OAS and other
instruments of the inter-American system.
The Commission's experience, as borne out in the facts, is that grave
human rights violations in some countries of the Americas originate in the need
to improve the operation of the institutions, and the rule of law.
40.
Thus, for example, in its Report on the Situation of Human Rights in
Paraguay of 1987, the Commission conceived of
the
exercise of political rights in the larger context of the system of
representative democracy. The hemisphere's legal tradition and the Commission's
experience lead to the belief that the exercise of such rights implies
participation by the population in the conduct of public affairs, either
directly or through representatives elected in periodic and genuine elections
featuring universal suffrage and secret ballot, to ensure the free expression of
the electors' will.
The voters must be given access, on general conditions of equality, to
public functions.
This
hemispheric vision of the exercise of political rights within the context of a
democratic system of government is completed by the requisite development and
promotion of economic, social and cultural rights.
Without them, the exercise of political rights is severely limited and
the very permanence of the democratic regime is seriously threatened.
41.
This explains the legitimate concern of the inter-American system,
especially as of 1948, to ensure the full exercise of representative democracy
as a legitimate and necessary means of attaining respect for human rights.
In this regard, the Commission, as a principal organ of the OAS Charter,
has been invested with the function of promoting the observance and defense of
human rights in all member states.[9]
Before the entry into force of the American Convention, and even
afterwards in relation to those states that are not party to it, the human
rights whose observance and defense have been entrusted to the Commission since
its creation in 1959 are those set forth in the American Declaration on the
Rights and Duties of Man ("American Declaration").[10]
In this regard, as of 1948 the member states recognized as a human right
"the right to vote and to participate in government," in Article XX of
the American Declaration in the following terms:
Article
XX. Every
person having legal capacity is entitled to participate in the right to vote and
to participate in government of his country, directly or through his
representatives, and to take part in popular elections, which shall be by secret
ballot, and shall be honest, periodic and free.
42.
As a complement, in the second chapter of the Declaration, Article XXXII
established the "duty to vote" in these terms:
"It is the duty of every person to vote in the popular elections of
the country of which he is a national, when he is legally capable of doing
so."[11]
43.
This situation was reiterated and developed even further under the
American Convention, which confirmed as its main function "to promote
respect for and defense of human rights"[12];
taking into account "their intention to consolidate in this hemisphere,
within the framework of democratic institutions, a system of personal liberty
and social justice based on respect for the essential rights of man."[13]
It is precisely within those essential rights of man as human rights that
the American Convention sets forth the political rights inherent to
representative democracy in Article 23, which provides as follows:
Article
23. Right
to Participate in Government
1.
Every citizen shall enjoy the following rights and opportunities:
a.
to take part in the conduct of public affairs, directly or through freely
chosen representatives;
b.
to vote and to be elected in genuine periodic elections, which shall be
by universal and equal suffrage and by secret ballot that guarantees the free
expression of the will of the voters; and
c.
to have access, under general conditions of equality, to the public
service of his country.
2.
The law may regulate the exercise of the rights and opportunities
referred to in the preceding paragraph only on the basis of age, nationality,
residence, language, education, civil and mental capacity, or sentencing by a
competent court in criminal proceedings.
44.
The impact of this provision of the American Convention and its essential
impact on the consolidation of representative democracy was expressed by the
Inter-American Court in crystal-clear terms:
Representative
democracy is determinant in the whole system of which the Convention is part.[14]
45.
The concept of representative democracy and its protection is so
important and such an essential part of the hemispheric system that it not only
sets it forth in its texts, from the first documents, but an entire mechanism of
hemispheric protection has been put in place to address a breakdown of democracy
in any of the member states.
This is the purpose and mandate of General Assembly Resolution 1080,
adopted in 1991 in Santiago, Chile, and of the Protocol of Washington, of 1993,
which merited an amendment to the Charter to enshrine this purpose of the
Organization of American States, which entered into force in 1997.
46.
Consequently, there is a conception in the inter-American system of the
fundamental importance of representative democracy as a legitimate mechanism for
achieving the realization of and respect for human rights; and as a human right
itself, whose observance and defense was entrusted to the Commission.
47.
Along these lines, the Commission has reiterated that it is
"empowered to verify, with respect to these rights, whether the holding of
periodic, genuine elections, with universal, equal, and secret suffrage takes
place within the framework of the necessary guarantees so that the results
represent the popular will, including the possibility that the voters could, if
necessary, effectively take appeal of an electoral process that they consider
fraudulent, defective, and irregular or that ignores the right to access, under
general conditions of equality, to the public functions of their country."[15]
48.
Some domestic high courts have also had occasion to establish guiding
interpretive principles in this regard.
The U.S. Supreme Court, for example, has also noted the importance of
representative democracy in protecting all other fundamental rights.
In this regard, it has indicated that the right to vote is the
fundamental guarantee of representative democracy, and all other rights, even
the most basic, would be illusory or in jeopardy if the right to vote were
diminished. The
right to vote and representative democracy constitute the guarantee of all other
rights.[16]
49.
This principle of participatory democracy, as an expression of the
content of the human right to political participation and as a legitimate system
for attaining the realization of all other human rights, has also been
recognized by international human rights instruments.
For example, the Universal Declaration of Human Rights,[17]
at its Article 21, establishes:
1.
Everyone has the right to take part in the government of his country,
directly or through freely chosen representatives.
2.
Everyone has the right to equal access to public service in his country.
3.
The will of the people shall be the basis of the authority of government;
this will shall be expressed in periodic and genuine elections which shall be by
universal and equal suffrage and shall be held by secret vote or by equivalent
free voting procedures.
50.
Similarly, the International Covenant on Civil and Political Rights, in
language very similar to the American Convention, sets forth the human right to
political participation in the following terms at Article 25:
Every
citizen shall have the right and the opportunity, without any of the
distinctions mentioned in article 2 and without unreasonable restrictions:
(a)
To take part in the conduct of public affairs, directly or through freely
chosen representatives;
(b)
To vote and to be elected at genuine periodic elections which shall be by
universal and equal suffrage and shall be held by secret ballot, guaranteeing
the free expression of the will of the electors;
(c)
To have access, on general terms of equality, to public service in his
country.
51.
In addition, several international and intergovernmental agencies have
adopted resolutions and decisions on the essential and indivisible linkage
between the right to political participation and representative democracy as the
only legitimate and suitable mechanism for attaining the observance of human
rights. Thus,
for example, the treaty-based human rights organs of the United Nations (Human
Rights Committee, Committee on Economic, Social and Economic Rights, Committee
for the Elimination of Racial Discrimination, and the Committee for the
Elimination of Discrimination against Women), in their recommendations and
general comments on the right to political participation set forth in the
international instruments cited, have considered the following interpretive
guidelines:
10.
The right to vote in elections and referenda should be established
by law and may be subject only to reasonable restrictions, such as
setting a minimum age to be able to exercise it.
It is not reasonable to restrict the right to vote for reasons of
physical disability nor to impose requirements or restrictions related to the
ability to read and write, level of schooling, or economic situation.
Affiliation to a party cannot be a condition or impediment for voting.
15. The effective realization of the
right and the ability to run for elective office guarantees that all persons
with the right to vote may choose among different candidates.
All restrictions on the right to run for election, such as setting
a minimum age, must be based on objective and reasonable criteria.
The persons who otherwise meet the conditions required for running for
elective office should not be excluded by the imposition of unreasonable or
discriminatory requirements, such as level of schooling, place of residence,
or descent, or because of political affiliation.
No one should be subject to discrimination or suffer disadvantages of any
type because of their candidacy. The
States Parties should indicate and explain the legislative provisions by virtue
of which a group or category of persons may be deprived of the possibility of
holding elective office.
21.
Although the Covenant does not impose any specific electoral system, any
electoral system in place in a State Party must be compatible with the rights
protected by Article 25 and guarantee and give effect to the free expression of
the will of the voters. The
principle of one person-one vote should be applied, and, in the context of the
electoral system of each of the States, the vote of one voter should be equal in
value to that of any other. The
delimitation of electoral districts and the method of allocating votes should
not distort the distribution of voters or entail any discrimination against any
group, nor unreasonably exclude or restrict citizens’ right to freely elect
their representatives.
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