¿Es la separación de poderes suficiente?

On November of 2018 the Supreme Court of Chile ordered the State to finance an expensive medical treatment for a child who had a rare disease. The medical treatment was not listed among the ones that, by law, the State must finance; but the Supreme Court argued that not financing the treatment was a violation to the right to life and physical and mental integrity of the child. Cases like this are commonly criticized arguing that, by not applying the legislation, the judges violate the separation of powers: they create a public policy and decide a financial issue that concerns to the Congress and the Government. But the separation of powers is a general principle that is insufficient to tackle this kind of problems. In this paper I argue that there are other categories required by the Rule of Law useful to approach these problems, for example, the institutional capacity of the courts. To conclude the previous, I analyze the sentence of the Supreme Court and identify its main tensions.

Seguridad alimentaria en Brasil – Análisis bajo el enfoque del ciclo de las políticas públicas

Proper nutrition is recognized as a basic human right since the Universal Declaration of Human Rights and is guaranteed by art. 6 of the Federal Constitution of the Federative Republic of Brazil. The first Provisional Measure by the current government, MP No. 870/2019, extinguished the National Council for Food and Nutrition Security (Consea), a consultative body for guidelines and budget. This extinction can lead to the emptying of social participation in the evaluation of that public policy. The objective of this research will be to analyze the policy from the perspective of the public policies cycle. To do a review of the literature of public policies, nutrition, law, the documents by the Brazilian Federal Government, from 2004 to 2019, on the public budget. In the case of public budget analysis and the fiscal austerity that began in 2016. It is of great importance to determine whether vulnerable social groups are having their rights to food security and nutrition reduced in Brazil.

El Rol del Tribunal Constitucional Peruano y la Eficacia de los Derechos Sociales

The Peruvian Constitution includes many socio-economic rights like health care, housing and social security; but difficulties emerge in the practical application of social rights by the Peruvian Constitutional Court. The main purpose of this paper is to answer some of the main questions arisen by the social fundamental rights critiques as (i) who are the beneficiaries of the social fundamental rights protections?, (ii) should the Constitutional Peruvian Court be the guardianship of those rights, and if this true, to what extent?; and finally (ii) do the social fundamental rights has a transformative effect?

El reconocimiento del derecho de acceso a la información de interés público como derecho fundamental, en la jurisprudencia constitucional y administrativa chilena a 10 años de la promulgación de la Ley Nº 20.285 sobre acceso a la información pública.

The principles of probity, transparency and especially the right of access to public information are control mechanisms of the authority. In 2008, Chile established a new regulatory framework for this right with the promulgation of Law No. 20,285. In 2018, the presentation of a new Bill aimed at modernizing institutional management and strengthening probity and transparency in the Forces of Order and Public Security. As a result of this and from the concept of fundamental right that is proposed, this paper aims to examine the regulation of the right of access to public information in Chile, its importance, legal nature and jurisprudential recognition given to it by the Chilean Constitutional Court . The foregoing, to then point out the main challenges to which this right is still faced and whose compliance will strengthen public management, open government and democracy.

Los impactos de la matriz histórico-jurídica producida en el contexto de las diásporas afrobrasileñas sobre los derechos de las comunidades quilombolas

The paper seeks a critical reappropriation of constitutional history for an interpretation of the Brazilian Constitution of 1988 that is capable of confronting the constitutive racial inequalities of Brazilian social formation. The official narrative has erased the impact of the quilombos’ experience in their struggle for freedom, equality, and access to land. In this sense it is fundamental to face the past. The problem of the effectiveness of rights is confronted by the tension over the narrative of constitutional history from a displacement based on the historical-legal matrix produced by Afro-Brazilian diasporas. The trajectory of the quilombos as struggles for autonomy is rescued, since the abstract, universal and open character of the fundamental rights needs a historical rootedness in the movements of affirmation of equality, freedom and citizenship, by reshaping constitutional principles on a more pluralistic and democratic basis.

Derechos Implícitos y su desarrollo en la Jurisprudencia Constitucional Chilena

Implicit rights and their development in Chilean constitutional jurisprudence

This paper analyzes the development of the so-called “implicit rights” in Chilean constitutional law. Such rights, which lake expressed recognition in the Fundamental Charter, have been developed by constitutional jurisprudence on positive rights. Examples of implicit rights are the right to personal identity, the right to one’s own image, the right to be forgotten, and the right to receive information