The first aspect to consider is the delivery of the Tribunal in determining the legal boundaries of the risk tables rather than the legislature itself had resolved the issue. The Court determined in its decision that "the determination of structure factor tables and the setting of the factors of each one of them must conform to establish, in exercise of its powers, the co-legislators to comply with the resolved in this decision "(paragraph 163 º). With this, the Court chose not to resolve the matter but make way for the deliberative process and democratically expressed in the processing of a bill. This strategy is consistent theories those who observe constitutional democratic deficit or counter-majoritarian difficulty of making important policy decisions by courts or lack of democratic legitimacy of a representative composition of the various political sensitivities of a society. In this regard, the Court's decision corresponds to what Cass Sunstein has called minimalism, that is, the ability to decide as little as possible, leaving the maximum for the political process. This does not mean that the Court thereby waived to intervene in the process, it is more, may allow influence more effectively by giving them the ability to define the terms of discussion and questions that the political process should respond.
is why it becomes of great interest that this decision constitutes the first meaningful process of constitutional adjudication that the government has taken part Sebastián Piñera. Under the Constitution, laws governing the exercise of the right to social security shall quorum, its processing can only be initiated by submitting a project by the President, and may not be delegated to the executive rules through Decree with Force of Law In other words, the initiative belongs to President, but it can not bypass the involvement of Congress and you must get a majority of senators and deputies to legislate. What can we expect from the eventual Executive Bill? The very participation of the Chair in the process of constitutional adjudication under discussion allows us to know what perspective. According to the Court, in this instance, the President declared that "seek absolute equality, regardless of sex or age of the people, it would be prudent only in respect of matters such as dignity or within the that the same President of the Republic referred to as a 'minimum common ethical'. "In a" democratic society based on individual initiative and a subsidiary state, "said the presidency would be impossible to ignore" the particularities of each individual, which no doubt can arise from their sex or age. " These statements certainly are troubling for those who adopt the perspective of the expansion of social security as a way to create a more egalitarian society and worthy and should alert the parliamentarians who identify with this vision.
Mention alternative state by the Presidency us to the second issue in question: the reformulation of the discussion on rights speech at the Chilean Constitution. After three decades in which he spoke of the subsidiarity of the state as a key to talk about the decline of the state, the Constitutional Court first introduced into the discussion the notion of social rights.
contextualize this issue is necessary to appreciate the full extent of the novelty of this statement. Recital 90 degrees to the statement invokes a series of classifications of the rights contained in the Constitution (equalities and freedoms, guarantees and rights, political rights, economic, social, and cultural individual rights and constitutional rights of the target members and fundamental rights and economic rights), not to mention the only classification which can actually say that the architecture structure of constitutional rights contained in Article 19 of the Constitution. I mean the distinction between rights Jaime Guzmán was itself such rights and, by extension or analogy (ie, rights and non-rights). According to Guzman, as we read in the notes of his lectures published by Gonzalo Rojas, the rights themselves such are those whose validity depends on the removal of an obstacle by the judge while the rights by extension or analogy depends on the disbursement of funds by the State. Thus, property rights or free enterprise under the former, while the right to work and the right to education, ie the so-called social rights "under the latter. This distinction is enshrined in Article 20 of the Constitution, which provides the protection the injunction to the first category of rights while the latter denies. I will not say that this distinction is false (because, better or for worse, who is one to go around saying things which are false and which not?), But at least it's easy from the moment deconstructible that the implementation of individualistic property rights, as we recalled the post-quake looting, dependent on the presence of the state apparatus and thus a display of its resources. The distinction de Guzman points rather to something else: to reduce the size of the state-administration, which the Chilean constitutionalism considered, along with Reagan, part of the problem rather than the solution. Expression of this has been the notion of subsidiarity of the State, drawn from the Catholic philosophy and that Guzman and his followers have been reinterpreted as an affirmation of the primacy almost insurmountable civil society-that is, market forces-for on any regulatory action or direct the state comptroller.
Instead of this speech rights and the rule for expansion alternative, the Court in its ruling repeatedly invoked the notion of "major social rights that the Constitution guarantees all persons" who receive its "from the ability to access a particular benefit (Recital 114 º). The Court reminds us that to ensure "access to those benefits," the Constitution assigned "roles the state and individuals," which guzmaniana root constitutionalism tend to forget the time. Even Moreover, the Court stated that "the validity of the numbers 1, 2, 3 and 4 of the third paragraph of Article 38 ter said, shows a situation contrary to the principles of solidarity and fairness that inform not only the social security but the whole set of fundamental social rights guaranteed in our Constitution, which requires the Judiciary declared as opposed to it "(paragraph 161 º). The truth is that until the publication of this ruling, have been very difficult to talk to property "set of fundamental social rights guaranteed in our Constitution" and that whether whether our Constitution guarantees a set of fundamental social rights. The Court, of course, has interpretive authority to realize that interpretation operate not only on constitutional interpretation but also about public speaking. This creates the opportunity for progressives to structure the public debate and legislative debate in the light of this statement by the Constitutional Court. While it is expected that the government insists on appeal to the state alternative, progressive sectors depends not miss the opportunity of discourse and policy so that the Court has opened.
Finally, it is important to highlight that in this case, the Court departed from the sense with which he had used his power to declare laws unconstitutional provisions, removing the legal system. Only three times had exercised this power in one of them at the request of various contributors to eliminate the tax courts of first instance dependent on the Internal Revenue Service, and in another, at the request of the Bar Association for the removal of lawyers obligation to deliver professional care available to those who could not hire a lawyer. The sense of "class" of these rulings of the Court seem to confirm the thesis by Eduardo Novoa peaked in the 60 'in the sense that the administration of justice in Chile favors only the more affluent sectors. This time, however, the Court questioned a matter-of-risk chart directly harm the most vulnerable economically from taxpayers Isapres thus deserves at least a minimum value on our part.
In short, the Constitutional Court does not solve the problems Isapres system users. However, this is not its role, and if the Court understood that their role is to settle public issues through its judgments, would undermine their prestige and hence their ability to influence. The Court itself has started a political debate and legislative and gave as a framework the notion of fundamental social rights, two contributions should be welcomed by those who believe at the same time the importance of the democratic political process and the need to move towards a society of security, greater equality and dignity.
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