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La Moneda’s political decision to appeal to the Constitutional Court (TC) against the project for the second retirement of pension funds has been severely criticized by the opposition and even the ruling party. But in addition, the constitutional foundations that motivated the Government to activate this strategy have been questioned, as the constitutional lawyer Patricio Zapata (DC) pointed out.
In statements to Cooperative radio, the academic was convinced that the reform that establishes the second withdrawal of 10% is constitutional, since the vote established in Congress complies with the quorums and, “although it has to do with social security, it strictly does not modify the structure of fundamental rights “.
With this, Zapata rejected some of the arguments made by the Government before the TC, which in its request appealed that the project is “unconstitutional, violates our legal system and the rule of law, and does not respect fundamental institutions of our Constitutional order, as the exclusive initiative of the President in matters of public spending, social security and taxes ”.
According to the constitutional lawyer, “in short, the project as it is is a bad idea, but not all bad ideas are unconstitutional.”
Zapata pointed out that “if this bill is voted with the quorums required by the Constitution, two-thirds or three-fifths, I have convinced myself that it requires three-fifths because it does not strictly modify the structure of the fundamental rights at stake, it has to do with social security, such as pensions, but it does not alter the way in which article 19, number 18, of the Constitution recognizes or configures the right to social security ”.
“There are people who stop their analysis there and say that, if the constituent meets the quorum, there is no more to talk, because the Constitution is being changed in the way that the Constitution itself admits,” he said.
For this reason, he argues that in his move before the TC “the Government runs a huge risk, because it would be the first time in the history of Chile that a constitutional reform is declared unconstitutional, having met the quorum.”
Likewise, Zapata recalled that there is another project in process, which allows the return of funds in the case of people suffering from terminal illnesses, promoted by the Socialist deputy Marcos Ilabaca. “It is going to cost the Government to explain why it is directed against this transitory constitutional reform and not against another one that is being processed in parallel, by Congressman Ilabaca, which allows people in danger of death to withdraw one hundred percent. The principle is the same in both cases. What complicates the government is that the exclusive initiative on spending is overlooked. Why did they go against this project and not against the other? ”, He asked.
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