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“What do I propose? Include in the Constitution the right to develop any economic activity, without limitations based on morality, public order and national security “, said a graph that rose to Instagram the team of the UDI candidate for constituency Constance Hube (District 11, La Reina, Las Condes, Lo Barnechea, Peñalolén, Vitacura). It cost the lawyer and professor of Constitutional Law at the Catholic University a controversy when it went viral on social networks.
In the end, they lowered the graph in Hube’s profile and then uploaded it corrected.
“It’s a bad graph (…), it was a human error on the part of our team and it didn’t happen for me”, explains Hube to The Third PM. Minutes before, through the social network he had clarified that “the speed of the campaigns played a trick on us and as a team we made a writing error. We learn from mistakes”. But questions arose in between.
The amended version that they uploaded later says something else: “What do I propose? Include in the Constitution the right to develop any economic activity (freedom of entrepreneurship), always respecting the limitations established by law, such as those based on national security, public order and others ”.
Hube is part of the Freedom and Development (LyD) study center. There she worked as a researcher for the Legislative Program for Freedom and Development and has been a member of the Public Policy Council since May 2020. And one of the points is that her first graphic corresponded to one of the constituent proposals of LyD, called “With control of changes ”.
In the category “On the rights of people”, in “economic rights and freedoms” you can read in point two: “Free initiative in economic matters. It is proposed to eliminate the limitations based on morality, public order and national security, as the constitutional proposal of President Bachelet did. In the rest, the current text is maintained ”.
The point on economic rights and freedoms refers to Article 28 of Michelle Bachelet’s proposal on the right to carry out economic activities respecting the legal norms that regulate it: “The State and its bodies may carry out business activities or participate in them with prior authorization from the law”.
Consulted by The Third PM How the final graph differs from the constituent proposal of the Instituto Libertad y Desarrollo, Constanza Hube affirms that “what it proposes is that you do not necessarily have to invoke the cause, because there may be more causes by which you limit. What matters is that the limitation is in the law: that is the proposal “. Otherwise, the constituent candidate indicated that “it is at the discretion of the judicial authority to define when something can and when not.”
According to Claudio Alvarado, Executive Director of IES and Constitutionalist Professor at UC, there are two discussions that follow from this. The first is that “There is a conceptual discussion that applies to different rights. Whether or not we agree that there are realities such as public order and morality that limit the exercise of fundamental rights, such as the right to economic freedom ”.
On the other hand, the constitutional lawyer points out that another situation that is linked after the Hube controversy is the constitutional technique to be implemented. For Alvarado, there is a position for which “it is not convenient to put those concepts, such as morality or public order, because what should be avoided is putting ambiguous political concepts in the Constitution. For them, it means leaving an open field for judicial discretion ”.
From Alvarado’s perspective, the exercise of rights is limited by a series of realities, such as public order and morals.
The lawyer and doctor of Philosophy Hugo Eduardo Herrera, assumes that “the text in the L&D proposal is an error, since the economy cannot be about public order, national security or seriously harmful moral conduct “.
For Herrera, if the limitation were removed “The sale of sensitive information on defense matters to foreign countries may be allowed, unless the law says otherwise”.
Can limitations to the development of economic activity be established only in a law? Herrera responds that no, affirms that the Constitution must guarantee them.
“The idea at the base of the establishment of a political-constitutional regime is that the economic activity is developed within an adequate legal and political framework, in which there is peace, order and certain conditions demanded by life in common are met ”, he assures.
Finally, the lawyer and doctor of philosophy clarifies that the current Constitution establishes limitations, for reasons of security, order, public utility and that the discussion is not about whether or not there are restrictions on economic activity, “but what they are” .
