Chilean Supreme Court: Attending mass in-person cannot be prohibited

In January 2021, Chile’s Ministry of Health adopted Exempt Resolution No.43, which provides for health measures by Covid-19 outbreak and establishes the new “Step by Step” plan. This resolution, among other things, mandates a ban on holding and attending “public events where attendees have fixed locations” in communes under the category of “quarantine” and “transition”.

The text of the rule prohibits face-to-face worship celebrations, including Holy Mass. In the face of these measures, citing arbitrary restrictions on the right to religious freedom, the Community and Justice Corporation filed around 15 remedies against the Minister of Health in various appeals courts in the country.

On 8 March, the Arica Court of Appeals rejected one of the appeals, arguing that freedom of worship may be limited where it is necessary or indispensable to protect public health. In that regard, it noted that the legislation did not constitute an action to be corrected.

However, this decision was overturned by the Third Chamber of the Supreme Court. In the ruling, the Court held that it assists the appellant “the fundamental right to attend Sunday worship in-person, the respective authority must establish a system of permits for this purpose, which allows movement for this purpose, and the maximum capacity determined by the authority with health reasons must be met in the respective religious ceremony. (…)

Among the arguments held by the members of the Chamber, it is noted that the Sunday in-person Mass is inextricably linked to the manifestation of the deepest religious convictions of Catholics. They also recognize that the possibility of participating in-person in Sunday Mass cannot be suspended. In any case, the restriction can be generated in light of the maximum number of people who attend at the time of their service, i.e. the capacity. Therefore, respecting this maximum capacity the right can be exercised without any other restriction.

The decision of the Chamber sets a precedent of paramount importance in the country and is in conformity with the International Covenant on Civil and Political Rights, which states that it is possible to limit the freedom to manifest religion or belief in order to protect public security, order, health or morals, or the fundamental rights and freedoms of others, provided that such limitations are prescribed by law and are strictly necessary.

In other words, limitations cannot be imposed for discriminatory purposes and may not be applied in a discriminatory manner.

On the other hand, this pact also notes that exceptionally, a state may suspend its obligations with respect to certain rights. But even in these circumstances, for example, when a government declares a state of emergency, that is, when it is legitimate for a government to suspend or limit the exercise of certain constitutional rights, the suspension of the right of thought, conscience, and religion is not authorized.

On the grounds of preventing the spread of the virus and safeguarding public health, most countries in Latin America banned religious services. However, and paradoxically, the premise of avoiding agglomerations to prevent contagion did not apply in the same way to all sectors.

In more than one Latin American country, the authorities’ discretion for the authorization of certain activities has been inclined to economic and material benefits, to that which is tangible. Unfortunately, the religious dimension of citizenship has not been addressed in the same way as in many countries worship activities are still not allowed even though the religious denomination in question has security protocols.

The judgment in question may initiate a reversal of this trend and open the door for proper protection of the right to religious freedom in times of pandemics. Let us hope that not only in Chile but also in the region.

 

The Observatory of Religious Freedom in Latin America is a program of the Foundation Platform for Social Transformation, a registered charity in Voorburg, The Netherlands under Chamber of Commerce #50264249.

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