On March 18th, the Chilean government resolved, via an executive order, a state of constitutional catastrophe or calamity in response to the novel Coronavirus. Article 32, No. 5 of Chile’s constitution establishes the possibility to suspend certain civil rights based on exceptional circumstances.
Declaring a state of calamity allows the government to adopt a series of measures in the context of the pandemic which include, inter alia, restrictions to freedom of movement and freedom of assembly. The state of exception can last for up to 90 days and could be extended.
Three days later, the government ordered a national curfew, imposing restriction of movement between 10 pm to 5 am every night. There are permits, accessible through the internet, to leave home for very specific reasons.
The government also put a ban on any gathering with more than 50 people, which affects, among other things, religious worship. (In Concepción, the regional authority had allowed religious gatherings of less than 50 people, however, a court recently revoked that administrative measure.)
During a celebration of International Workers’ Day in Santiago attended by less than 50 union representatives, ten were arrested, along with reporters from different media outlets, on an invocation of the sanitary order. In addition, more 200 protesters rallied in a square in Santiago used from mid-October onward during months of social and political unrest, and 57 were arrested. One of them was COVID-19 positive and under quarantine, though not in compliance.
Different parts of the Chilean territory have been declared under confinement, in a system called progressive quarantine. Just as with curfew, there are special permits to leave home for instance for grocery shopping, medical appointments, court proceedings, for walks for people affected with autism or cognitive disability and their carers, and pet walking as well. The rationale to declare quarantine for a specific geographic area is based on the ratio of persons affected per square kilometer and the speed of the spread of the virus there.
Some cities have been put under strict lockdown. There, residents are not allowed to leave the city, and, if they are returning, they cannot enter. Vehicles transporting essential goods, however, can cross the sanitary border controls or cordon sanitaires.
Chile’s international borders have remained open for Chileans, residents, and visitors to enter and leave, although as a protective measure people arriving into the country must remain in quarantine for 14 days.
Many local authorities, mostly from small, rural communities, have resorted to the courts to get the government to act — hoping their communities will be placed under confinement, or offered means to improve or adopt sanitary controls between cities. The mayor of a small town argued his community, one of the poorest in the country, was particularly vulnerable, with more than 2,000 elderly and mostly indigenous peoples, and requested a quarantine or the installation of a cordon sanitaire.
Residents — mostly poor — from small, rural communities fear the consequences of the pandemic for their fragile primary health care units. They block the roads or impose “social” sanitary checkpoints in order to deter non-residents who come from large cities to stay in their summer houses during long weekends. This has prompted greater police control and military-established health checkpoints.
In Valparaíso and Concepción, Chile’s two largest cities after the capital city of Santiago, both Courts of Appeals dismissed filed legal actions. The Court of Valparaíso unanimously declared the writ inadmissible to declare confinement, and same happened at the Court of Appeals of Concepción, which turned down a request by a Senator to extend the lockdown for two boroughs in the metropolitan region of Concepción. The Court unanimously declared the writ inadmissible, stating it was within the purview of the executive branch to order sanitary confinements.
The constitutional exception also permits the government to restrict rights of property. The government issued an order to control the administration of private health care intensive care units and acquire influenza vaccines from drugstore chains to prioritize a vaccination campaign for police, the military, and all individuals who are under confinement, such as prisoners, people in elderly homes, and institutions that house those in custody of child protective services.
The Ministry of Health has implemented a registry for those who are COVID-19 positive, which is used as a surveillance system. If there is a random check of a geographical area, particularly one under lockdown, the police can verify if a person is complying with sanitary measures. Individuals who are not in compliance have been summoned to court and risk hefty fines. There are a few cases of COVID-19 positive individuals who have been ordered under house arrest for two weeks for breaking, on numerous occasions, the quarantine, or driven to special health hostels to comply with the confinement.
Confinement has especially affected the poor who rely on informal economies, many of whom are immigrants. Sometimes, when people do not have a safe home in which to remain confined, they are placed in sanitary hostels for the quarantine period.
Some local governments have issued regulations restricting the hours of operation for liquor stores, while supermarkets that also sell wine and spirits are not affected. The basis for the restriction has been the rise of alcohol consumption and its relation to cases of violence against women and children. Small businesses challenged these measures in court without any success.
Lidia Casas Becerra is director of the Center for Human Rights at Diego Portales University.