Derechos Humanos y poder constituyente: Las fronteras del poder soberano en el actual proceso constituyente chileno

Abstract

This text aims towards reflecting from a theoretical point of view about what has been denominated as the primacy of the human rights norms in the context of the current construction of a democratic Constitution in Chile. Thus, this study is developed with a dogmatic methodology, tackling the issue from a theoretical-philosophical perspective. The current judicial debate happens within the Chilean contingency upon the limitations of the constituent organism, its original or derived character, leads to a revision of the background and foundational limitations of the sovereign power. Understanding that the Chilean constituent organism is subject to a transition right, the study holds that, beyond that normative framework, within the Democratic Constitutional States of Law there are frontiers that must limit all the public powers, including the constitutional power. The study concludes it is before an original Constituent Power; nonetheless, it does not lead to affirm that such a power is unlimited, but, all the contrary, the study proposes a substantial limit. The human rights and, in particular, the international standards of the Human Rights, are an impassable limit, a forbidden preserve for the public powers, even for the sovereign power.