Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Chile (Ratification: 1971)

1. Article 8 of the national Constitution. In its previous observations the Committee requested the Government to provide information on any measure taken or envisaged to amend or repeal article 8 of the Constitution in order to ensure observance of the policy of non-discrimination on grounds of political opinion set forth in the Convention. Under this article any organisations or political movements or parties that, by their aims or by the activities of their followers were intended to propagate certain doctrines, including those advocating a conception of society, the State or law "of a totalitarian character or based on class war" were unconstitutional. Persons who had committed these offences were barred for ten years from access to any public post or position, automatically lost any such employment or office they might hold, and might not during the same period be directors or principals of educational establishments, teachers or trade union leaders, nor could they exercise any function in the mass media relating to the publication or dissemination of opinions or information.

The Committee notes with satisfaction that, by virtue of the constitutional reform, enacted by Act No. 18825 of 16 August 1989, article 8 of the Constitution was repealed. By virtue of the amendments to article 19(15) of the Constitution, under the same Act, it is still possible for parties and organisations to be declared unconstitutional by the Constitutional Court if their objectives or activities do not respect the basic principles of the democratic and constitutional order. However, persons who have participated in activities that have been declared unconstitutional are only disqualified from a limited number of high positions in the Government and in a number of public institutions.

2. Act No. 18662 of 27 October 1987. The Committee also notes the Government's statement that it will be necessary to refer to the courts the question of whether this Act remains in force and is constitutional, since it refers to former article 8 of the Constitution. Information will be supplied to the Committee of Experts on this point in due course. The Committee hopes that the Government will take the necessary measures to clarify the situation and that the next report will indicate the outcome of this re-examination.

3. Labour Code. In its previous comments, the Committee noted that, under section 157(6) of the Labour Code, an employment contract lapses immediately and without entitlement to compensation when the employer terminates it on the grounds that an offence has been committed under Act No. 12927 of 1958 on State security, as amended by Act No. 18256 of 26 October 1983, which defines as offences, inter alia, the unauthorised calling of collective public acts in public places, and incitement to any other kind of public demonstration permitting or facilitating the disturbance of public tranquillity. The Government states once again that the grounds for revoking an employment contract are that an offence that is punishable under the law has been committed, which has a direct bearing on work, and that the above legal provisions never sanction the expression of political opinion. It states that action has not been taken in application of section 157(6) of the Labour Code. The Committee refers to its previous comments on this matter and trusts that in the near future the Government will take the appropriate measures to repeal section 157(6) of the Labour Code.

4. Decrees relating to universities. In its previous observation, the Committee once again requested the Government to explicitly repeal Decrees Nos. 112 and 139 of 1973, Decrees Nos. 473 and 762 of 1974 and Decrees Nos. 1321 and 1412 of 1976, which grant broad discretionary powers to university rectors (whom, in most cases, are directly appointed by the Government) to dismiss teaching and administrative staff. The Government repeats its statement that these Decrees are no longer in force nor applied since the universities in the country, under their own statutes, have independently issued their own rules which have been duly published. It adds, nevertheless, that the Committee's request has been transmitted to the authorities of the Ministry of Education. The Committee therefore trusts that the Government will take the necessary measures to formally repeal the above Decrees so that no ambiguity may persist in this connection.

The Committee had also requested the Government to take the necessary measures to repeal or amend section 55 of Legislative Decree No. 153 (Statute of the University of Chile) and section 35 of Legislative Decree No. 149 (Statute of the University of Santiago de Chile) in order to ensure that, in conformity with the Convention, no one is refused admission to universities and other educational institutions, nor expelled from such establishments, whether as students, or as teaching or administrative staff, for expressing a political opinion. The Committee notes the Government's statement that no one can be expelled from an educational institution on the grounds of their political ideas or of having demonstrated or expressed these ideas. A situation of this type is incompatible with the provisions of the Constitution and the laws in force. The freedom to express opinions is laid down as a constitutional guarantee, and recourse known as a protective appeal may be made to the competent Court of Appeal. This channel of appeal re-establishes the rule of the law and guarantees due protection to the persons concerned. The Committee notes, nevertheless, that under section 55 of Legislative Decree No. 153, teaching staff, students and administrative staff can be expelled from, or refused admission to, the University of Chile if they have been expelled from another higher education institution for having breached the legal order. It also notes that section 35 of Legislative Decree No. 149 provides that persons participating in party political activities with a view to disturbing the public order who have been punished by the competent authority cannot be admitted to the University of Santiago de Chile, even if they have all the necessary qualifications for studying there. The Committee therefore once again requests the Government to take the necessary measures to repeal or amend section 55 of Legislative Decree No. 153 and section 35 of Legislative Decree No. 149 to bring national law and practice into full conformity with the Convention.