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The following note is related to the constitutional reform initiated by the opposition to enable a second withdrawal of funds, which ended in a mixed commission in parliament and was declared unconstitutional. It is not related to the second withdrawal of the Government that was finally approved and is in full force.
After the divided ruling of the Constitutional Court at the request of the Executive to review the unconstitutionality of the second withdrawal of 10% promoted by the opposition, experts pointed out that a conflict could be generated between the Legislative and Judicial powers. In addition, parliamentarians are preparing for a possible motion for the third withdrawal of pension funds.
Experts in constitutional law agreed on the need to wait for the ruling of the Constitutional Court to see the reasons for the vote, although they advanced possible dilemmas between the powers of the State.
The foregoing, after last December 21 the Constitutional Court announced the ruling before the Executive’s request to endorse the unconstitutionality of the second withdrawal of funds from the AFPs.
The divided vote of the ministers, with 5 votes in favor and 5 against, gave way to the vote of María Luisa Brahm, president of the organization, who settled the tie, agreeing to the request of the Government.
The requirement, which was promoted by the former Minister of Finance, Ignacio Briones, stated that the conflict occurred in a quorum of 3/5 when it should have been 2/3; legal matters on social security as an exclusive power of the President; and the use of a temporary constitutional reform for permanent modifications.
The constitutional law expert of the Autonomous University, Pablo Contreras, points out that we still have to wait for the ruling to see the reasons for the vote, if it is based on quorum issues or if it is a substantive reason for the rule as the exclusive powers of the President .
“If it is a question of a quorum issue then the motion is not unconstitutional as long as the quorum that the Constitutional Court would require is met, which would be 2/3 of the deputies and senators in office. If they are other substantive reasons, such as certain clauses of the Constitution that cannot be modified, then it would be necessary to see what those reasons are to determine whether or not a third withdrawal project is unconstitutional, Held.
His counterpart, Héctor Humeres, an expert lawyer in constitutionality and social security matters at the University of Chile, points out that the future Constitutional Convention will be key to avoid confrontations between powers of the State. Meanwhile, he is against a third withdrawal due to the effects that it would generate.
“It is true that there have been tensions between the court (…), but I hope that the new Constitution that is made, that is elaborated, overcomes this difference, but it is not convenient that there are two courts that are constantly in collision “he declared.
Along these lines, and with respect to the withdrawal, he assured not to be “in favor of a third withdrawal. At this point there are many people who have been left with zero funds and they ask, What are these people going to do in the future?
The truth is that the parliamentarian Pamela Jiles, author of the motion for the second withdrawal of 10%, announced that she will seek a third withdrawal identical to the previous ones, with a minimum withdrawal of 35 UF and a maximum of 150 UF; something that did not seem to worry the Government after the ruling of the TC.
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