Entitlement to rights is underpinned by international human rights agreements and standards, but each country’s constitution is the instrument that determines the rank of those treaties within its domestic legal system (ECLAC, 2006). In general, the rights set forth in international treaties are integrated into constitutional provisions either through interpretation or explicit incorporation. When older persons’ rights are constitutionalized, then the legal system, public policies, the institutional structure and the actions taken by government authorities must all be adapted to and aligned with those rights.
While older persons are, of course, entitled to all the rights and guarantees set forth in national constitutions, there are cases in which their rights are specifically recognized, as well. The constitutions of the Bolivarian Republic of Venezuela, Brazil, Costa Rica, Colombia, the Dominican Republic, Honduras, Nicaragua, Panama, Paraguay and the Plurinational State of Bolivia expressly state that older persons are entitled to special types of protection by the State. These States are joined by Guatemala in guaranteeing comprehensive protection to older persons and recognizing certain economic and social rights, which range from health care, food, decent living conditions and housing to the more general perspective of the welfare State. In all of them there is a positive obligation to adopt policies and programmes for the effective exercise of rights and recognize the State’s duty to promote and implement such measures. In other cases, States pledge to take legislative action to protect older persons. In Argentina, for example, it is the State’s duty to enact and promote affirmative action legislation to ensure genuine equal opportunities and treatment for older persons, along with the full enjoyment and exercise of the rights enshrined in international treaties.
The protection of certain economic, social and cultural rights, such as the right to social security, is provided for in all the national constitutions that were examined, although the scope of the relevant
provisions varies from country to country. Brazil’s constitution expressly guarantees a minimum wage to all older persons who need it, regardless of whether they have paid into the social security system. The Colombian constitution provides that the State shall guarantee a meals subsidy for indigent older persons, while the Cuban constitution explicitly states that social assistance will be provided to older persons who lack resources or support.
The Brazilian constitution classifies older persons as a vulnerable group and affords them priority, with that requirement being binding in cases of domestic violence. The constitutions of Brazil and Mexico prohibit discrimination on the basis of age, in general, while those of the Bolivarian Republic of Venezuela, Panama and Paraguay ban it in the workplace. The constitutions of Brazil and Colombia expressly guarantee the right of older persons to be involved and be a part of community life.
Constitutional recognition of the rights of older persons gives rise to the obligation for government authorities to ensure that those rights are upheld. While it would be desirable for specific laws to be adopted to protect such rights, the fact that they figure in a given country’s constitution renders them enforceable, and they are therefore directly applicable. This is a binding obligation for government authorities, who may therefore not violate those rights either by action or by omission.
The fact that ageing is becoming an increasingly important issue in the region is attested to by the recently approved constitutions of Ecuador, the Plurinational State of Bolivia and the Dominican Republic, all of which deal far more extensively with the rights of older persons (see box V.1).
Box V.1
THE RIGHTS OF OLDER PERSONS IN THE CONSTITUTIONS OF ECUADOR, THE PLURINATIONAL STATE OF BOLIVIA
AND THE DOMINICAN REPUBLIC
The new constitutions of Ecuador, the Plurinational State of Bolivia and the Dominican Republic, which were adopted in 2008, 2009 and 2010, respectively, contain much more extensive provisions concerning the rights of older persons.
Chapter Five of the constitution of the Plurinational State of Bolivia, for example, which deals with social and economic rights, establishes that all older persons have the right to dignity, a quality life and human warmth and that the State will provide a lifelong old-age pension under the country’s comprehensive social security system as provided for by law.
In addition, the State is to adopt public policies for the protection, care, recreation, leisure and participation in society of older persons in accordance with their capacities and abilities. Any form of mistreatment, abandonment, violence or discrimination against them is to be prohibited and punished.
Article 36 of Ecuador’s constitution states that older persons shall receive specialized attention on a priority basis in both the public and private sectors, especially in regard to their inclusion in social and economic affairs and protection against violence.
The State also guarantees specialized health care and medicines for older persons free of charge, gainful employment in accordance with their capabilities while taking into account their limitations, universal retirement coverage, and access to housing that will ensure their ability to live with dignity in a setting in which their views are respected and to which they consent. They are also, among other benefits and guarantees, to be accorded preferential treatment in the event of disasters, armed conflict or any other type of emergency, as well as special assistance, care and protection if they fall victim to chronic or degenerative diseases.
Article 57 of the constitution of the Dominican Republic, on protection for older persons, provides that the family, society and the State will render protection and assistance to older persons and will promote their involvement in economic and community affairs. It also provides that the State will guarantee comprehensive social security services and food subsidies for indigent older persons.
Source: Constituent Assembly, Constitución política de la República del Ecuador, Quito,
2008; Constituent Assembly, Constitución Política del Estado Plurinacional de Bolivia, 2009; National Assembly, Constitución de la República Dominicana, Gaceta Oficial,
No. 10561, 26 January 2010.
2. Laws affording special protection for the rights