El borrador de la nueva Constitución establece que Chile es un Estado laico, asegurando, por ende, que no existe una religión oficial y la limitación impuesta a esta libertad de culto, está dada solo por la Constitución y las leyes, lo cual ha sido una redacción bastante acertada a la luz del fallo a favor de Sandra Pavez Pavez contra el Estado de Chile.
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La actual Constitución asegura, en su numeral 6° artículo 19, la libertad de culto, expresando, en su inciso primero, lo siguiente: “La libertad de conciencia, la manifestación de todas las creencias y el ejercicio libre de todos los cultos que no se opongan a la moral, a las buenas costumbres o al orden público.” Este derecho, hasta ahora, garantiza profesar la creencia religiosa que libremente se elija o no profesar ninguna; manifestarla libremente o abstenerse de hacerlo; o cambiar o abandonar la que profesaba; practicar en público o en privado, individual o colectivamente, actos de oración o de culto; conmemorar sus festividades; celebrar sus ritos; tener su día religioso de descanso semanal; recibir a su muerte una sepultura digna, sin discriminación por razones religiosas; no ser obligada a practicar actos de culto o a recibir asistencia religiosa, contraria a sus convicciones personales y no ser perturbada en el ejercicio de estos derechos; recibir asistencia religiosa de su propia religión donde quiera que se encuentre; recibir e impartir enseñanza o información religiosa por cualquier medio; elegir para sí -y los padres para los menores o personas bajo tuición y cuidado-, la educación religiosa y moral que esté de acuerdo con sus propias convicciones, y reunirse o manifestarse públicamente con fines religiosos y asociarse para desarrollar comunitariamente sus actividades religiosas, de conformidad con el ordenamiento jurídico general y con la propia ley de culto. Con todo ello, se puede visualizar un Estado abierto a que las personas ejerzan la libertad de culto, estableciendo solo como límite la moral, las buenas costumbres o el orden público; no obstante, la propuesta Constitucional quiso ir más allá al garantizar este derecho.
En efecto, el actual artículo 9, ha proscrito, en primer lugar, que Chile es un Estado laico, asegurando, por ende, que no existe una religión oficial, por lo que no hay un culto por sobre otro; por otro lado, la limitación impuesta a esta libertad de culto, esta vez, está dada solo por la Constitución y las leyes, lo cual ha sido una redacción bastante acertada. Seamos claros, si a usted le dicen que su derecho se limita por la moral o las buenas costumbres, ¿sería capaz de reconocer claramente y sin duda que es lo que no podría hacer? En este punto, es interesante lo ocurrido a una profesora de religión que no pudo seguir impartiendo clases, dado que se le quitó el certificado que la habilitaba. Esto, a simple vista, puede leerse como una facultad potestativa de las autoridades religiosas, o coherentes con los requisitos exigidos para que alguien imparta esa asignatura; pero ¿qué pasa si la idoneidad para impartir las clases es dejada sin efecto por la orientación sexual de la persona?, ¿no encontramos ahí y elemento discriminatorio? La respuesta es que sí, y no solo constituye un atentado a los derechos de las personas en su dignidad humana, sino que también vemos afectada la libertad de culto, una esfera que en la actual Constitución vemos que se puede restringir arbitrariamente, con límites tan vagos como la moral y las buenas costumbres. Por ello, la importancia de la actual redacción que elimina esas restricciones vagas, limitándose exclusivamente a lo que establezca la Constitución y las leyes, dando certeza jurídica a las restricciones de este derecho. Por ejemplo, una religión no podría autorizar un matrimonio de menores de 16 años, pues nuestra legislación actual solo permite los matrimonios a contar de los 16 años de edad, con autorización de uno de los padres, o tampoco podría permitirse un sacrificio humano para una deidad, pues nos enfrentaríamos a delitos penales y violación de los derechos humanos.
En el ejemplo de la profesora, encontramos la Sentencia de la Corte Interamericana de Derechos Humanos, de fecha 4 de febrero de 2022, del caso Pavez Pavez con Chile, declarando la responsabilidad internacional del Estado de Chile por la violación a los derechos a la igualdad y no discriminación, a la libertad personal, a la vida privada y al trabajo en perjuicio de Sandra Pavez Pavez, quien era profesora de religión católica en un colegio público (https://www.corteidh.or.cr/docs/comunicados/cp_21_2022.pdf). Se concluye que la separación de su cargo de profesora de religión católica, luego que fuera revocado su certificado de idoneidad por parte de la Vicaría para la Educación, constituyó una diferencia de trato basada en la orientación sexual, que resultó discriminatoria y que afectó sus derechos ya indicados anteriormente. Un considerando importante estableció lo siguiente: “Que la libertad de religión es un derecho con una dimensión individual y otra colectiva, que comprende varias garantías, una de las cuales consiste en el derecho para los padres, y en su caso los tutores, a que sus hijos o pupilos reciban la educación religiosa y moral que esté de acuerdo con sus propias convicciones. Agregó que lo anterior puede implicar, según el diseño normativo de cada Estado, que las autoridades religiosas tengan la posibilidad de seleccionar a las profesoras y a los profesores de religión que dicten clase sobre su doctrina. Esa habilitación podría materializarse a través de certificados de idoneidad como es el caso en Chile”.
“Sin perjuicio de lo anterior, el Tribunal constató que el citado Decreto no establece, de forma expresa, ningún medio por el cual la decisión de conceder o no un certificado de idoneidad por parte de las autoridades religiosas pueda estar sujeta a un control posterior por parte de las autoridades administrativas o a recursos idóneos y efectivos ante las autoridades jurisdiccionales para proteger los derechos de las personas contra actos discriminatorios o arbitrarios contrarios a la Convención.
Agregó que, si bien no cabe duda de que las comunidades religiosas pueden designar a quienes van a impartir la enseñanza sobre su propio credo, cuando ésta tiene lugar en establecimientos públicos, el Estado debe habilitar el acceso para las personas eventualmente perjudicadas en sus derechos, a una vía administrativa o jurisdiccional que permita revisar esas decisiones en cuanto habilitación para el ejercicio de la docencia. Sostuvo, asimismo que el Estado no puede renunciar a su función de control sobre los derechos eventualmente afectados en estos actos dictados por delegación y tiene la obligación de establecer reglas claras y eficaces para la protección de los derechos.
“La Corte indicó que las autoridades religiosas chilenas cuentan con una autonomía amplia a la hora de otorgar un certificado de idoneidad para dictar clases de religión, sin embargo, por ser una asignatura que forma parte de los planes de educación de niñas y niños, esas facultades que derivan directamente del derecho a la libertad religiosa, deben adecuarse a los otros derechos y obligaciones vigentes en materia de igualdad y no discriminación. Esta competencia de las autoridades religiosas se predica también para revocar el certificado de idoneidad, siempre y cuando se respeten los derechos y obligaciones que son de imperativo cumplimiento por parte del Estado en el ámbito de la educación pública.
En este sentido, el tribunal consideró que la excepción ministerial y la discrecionalidad de las decisiones de las comunidades religiosas no son de aplicación en el ámbito de la educación en establecimientos públicos.”
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