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On December 21, thanks to the vote of President María Luisa Brahm, the Constitutional Court (TC) approved the requirement presented by the President of the Republic Sebastián Piñera against the parliamentary reform project, promoted by the humanist deputy Pamela Jiles, to a second withdrawal of 10% of the funds from the AFPs.
After a tie at five, the TC declared the motion unconstitutional, in a result where the vote of the former adviser and former head of the Second Floor in the first Piñera government tipped the balance. The ministers Iván Aróstica Maldonado, Cristián Letelier Aguilar, José Ignacio Vásquez Márquez and Miguel Ángel Fernández González also voted in favor of the requirement.
Only this Wednesday was the final sentence known, with the arguments put forward by the members of the TC to declare this project unconstitutional. This detail was expected with expectation by the Executive and the Congress, due to the struggle that this issue aroused between both Powers of the State and the precedent that it could set for future bills that may be controversial for La Moneda.
In fact, the Government is betting that the ruling is a “keep in mind” against the idea of a third withdrawal of funds or other projects such as the extension of the payment of commercial patents and the tax on the super rich that promotes the PC bench .
The explanations of the ministers
In essence, the ruling defends the thesis that parliamentarians cannot present bills that are the exclusive initiative of the President, one of the fundamental theses of the presentation of La Moneda.
The TC starts by stating that it has full jurisdiction to resolve this dispute: “The sovereignty of the derivative constituent is doubly limited, both by the unrestricted subjection that it owes to the principles of legality and separation of powers, and by the comprehensive respect that it owes to fundamental rights ”.
Regarding the project of the second withdrawal, they conclude that it violates articles 6 and 7 of the Constitution as well as articles 63, number 14 and 65, fourth paragraph number 6, which refer to the fact that “no magistracy or authority is allowed to appropriate of the attributions established in another organ of the same State, not even under the pretext of extraordinary circumstances ”.
It’s more. According to the TC ministers who were about to accept Piñera’s request, this reform now includes articles 1, fourth paragraph, 19 number 18, and 127 of the Constitution, “since the project under examination affects the right to social security involved, by threatening its practical effectiveness and emptying it of real content ”.
Message to Congress
In this struggle between the Executive Power and the Legislative Power for this second withdrawal project, the TC takes sides, since in the fourth recital it indicates that it cannot be concluded that it is “ignoring the parliamentary powers to promote constitutional reforms”, since ” They are not what is being questioned here, but rather the specific exercise of said power through the referred project ”.
“The single appeal to the majority does not bring with it a title of immunity or exemption from liability. Less in this forum and in this jurisdictional process, where issues related to the supremacy of the constitutional rule of law are debated, and in which no one can claim the absolute embodiment of democracy; The same that supposes, moreover, that the government and the opposition must respect the mutually inviolable spheres of action ”, they add.
Subsequently, the conclusion of the TC, specifically in recital 22, hits Congress again: “In this understanding, the Constitutional Court believes that the objected bill absorbs a competence that is expressly given to be exercised only by means of a quorum law qualified as an exclusive presidential initiative, without the parliamentary bodies being able to capture it under the pretext of an ‘exceptional’ situation or arguing the aphorism that ‘if you can do the most (reform the Constitution), you can do the least (legislate ) ‘, as this completely distorts the pre-copied constitutional precepts, which have the quality of norms of public law and not of private law, where it is possible to do everything that is not expressly prohibited ”.
“The parliamentary reform work, developed as a derivative constituent, implies assuming one of the highest and most delicate functions recognized by constitutional democracy, which is why it must be carried out with great zeal and careful adherence to the Fundamental Charter, avoiding the creation of regulations that , in the form of amendments, they end up denaturing or misrepresenting the current supreme text, as it does not have the proper consonance with its principles and mandates ”, they close.
Dissent
Meanwhile, the sentence also records the arguments of the ministers Gonzalo García Pino, Nelson Pozo Silva, María Pía Silva Gallinato and Rodrigo Pica Flores, who were about to reject Piñera’s appeal, in addition to the private vote of Juan José Romero Guzmán, who did Rather, it rejected the requirement, it made its own arguments because it does not rule out that possible future constitutional reform projects may violate the Fundamental Charter.
Specifically, the dissenting vote expresses that the presidential appeal today lacks purpose and opportunity; that Article 127 of the Constitution is not affected since it has adhered to its forms; that there is no exclusive initiative of the President of the Republic regarding the constitutional reform law, and that the social security of the withdrawals of funds is in the same circumstance as the recently approved Law No. 21,295 that authorized a second withdrawal.
“Neither are the future rules of action of the power to review the reform of Congress or the power of substitution of the Constitutional Convention at stake,” they emphasize, adding that “this is not a case that compromises democracy or the standard of guarantees of the human dignity and fundamental rights ”.
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