Judge Sergio Muñoz during an international colloquium in the Brazilian Senate in November 2014. Geraldo Magela (Agência Senado)
The third chamber of Chile’s Supreme Court, chaired by the influential judge Sergio Muñoz, is considered Chile’s most important court, and its judgments often cause headaches for government agencies and businesspeople. In dealing with constitutional matters, it must analyze key issues for citizens. For example, cases relating to the right to health, environmental protection, lawsuits due to a lack of safety, public liberties and, among other things, free competition. Several of his verdicts tend to arouse passions both for and against, sparking legal debates that are reflected in editorials, letters and columns in Chilean newspapers. This was precisely the case with the November 30, 2022 ruling that kept the isapres, the private health care insurers, in check by ordering them to reimburse their members for overpaid fees left by the government of President Gabriel Boric expects around 1,400 million dollars. It’s an amount the industry says it can’t afford, and it warns of a possible ending that could leave three million contributors from the South American country’s middle and upper classes on the back burner.
The third room is chaired by Judge Sergio Muñoz and is made up of Supreme Court Speaker Ángela Vivanco, Minister Adelita Ravanales and Judges Mario Carroza and Jean Pierre Matus. The five members were appointed by different governments, both right and left.
Muñoz is one of the most influential judges in the judiciary. Appointed to the Court in 2005 by Socialist President Ricardo Lagos (2000-2006), he has nine years left before he turns 75. Before joining the Supreme Court, he was a judge investigating cases including millionaire bank accounts found for ex-dictator Augusto Pinochet at Riggs Bank. It also investigated and solved the murder of union leader Tucapel Jiménez, who was assassinated by Pinochet’s security services in 1982.
Ángela Vivanco, Minister of the Supreme Court in her office at the Court Palace in Santiago, Chile. MAY 18, 2023. Sofia Yanjari
He is known for being one of those judges who believe the law is not applied literally. As he put it in a 2015 interview, “Today the judge has more background to determine the meaning and scope of the rule.” And in doing so, I have vowed to respect the Constitution and the living law, not the short one the wording of their regulations, but what inspired them. Its guarantees, its principles, in all aspects. So if there are some people who don’t like it, that’s unfortunate.” And he added, “It’s like painting. Before it was a cave, then a double plane. Then the perspective was created. Later, other forms such as realism and cubism emerged. Then it happens that you are the idea of a figure and not necessarily a form. That is the same. It’s an interpretation. Because interpreting the law is an art, not a science.”
His name and room outside of the judiciary cause controversy. For example, on May 7, lawyer Luis Silva, the constitutional adviser for the far-right Republican Party, was chosen to draft Chile’s new constitution in his 2021 book Between Justice and Law. An essay on the judicialization of politics, published by the Judicial Observatory, devoted a chapter to Judge Muñoz, in which he critically examined his decisions and his criteria on the isapres.
From health to environment
The Constitutional Chamber is a court that has been dealing with the hurdles of the right to health for years, not only in litigation but also in other cases. For example, in its rulings on rare diseases that require expensive medicines, it has indicated that the right to life takes precedence, even if these are not covered by the public system, Fonasa, or the private system. As Minister Vivanco explained to EL PAÍS, this criterion “was applied to people, especially children, who do not have access to a medicine because it is not covered by the system”. “If the process determines that if that drug is not administered, that person will die, then it will be administered for as long as it is prescribed,” he adds.
Minister Adelita Ravanales. With kind approval
That is not everything. The room is also in the lead in terms of its surroundings. For example, in May 2021, in the midst of the pandemic, he ordered two state agencies in the Municipality of Petorca, one of the most affected by drought in the country, to provide 100 liters of water per person per day. “Every human being, by virtue of his or her dignity as such, has the human right of access to drinking water on conditions of equality and non-discrimination; “Right that has as its counterpart the duty of the state to ensure access under the above conditions,” part of the resolution reads. And before Chile passed its first urban wetland law, promulgated in 2020, the third space stalled real estate projects pending an environmental impact study to protect them.
In 2019, meanwhile, it issued a landmark judgment when nine protection complaints were accepted in favor of residents of the municipalities of Quintero and Puchuncaví in the Valparaíso region, following a series of contamination episodes in one area. And it gave the government a year to “decide on the necessary measures to avoid the recurrence of contamination events”.
A long history with the Isapres
In the case of the Isapres, the conflict that reached the third space went back more than a decade, when Chileans began filing massive protection complaints against the insurers in the courts. Between 2010 and 2022, the Supreme Court ruled more than two million appeals in favor of affiliates, both for unilaterally increasing health insurance plans and for applying risk factor tables to users.
In parallel, both the first government of Sebastián Piñera (2010-2014), of the traditional right, and the second of the socialist government of Michel Bachelet (2014-2018), attempted reforms of the isapres, which, however, did not materialize for lack of unification political . This happened while in 2010 the Constitutional Court declared the table of sex and age factors unconstitutional and although it proposed legislation, it did not.
This is how the judgment of November 2022 came after an avalanche of appeals against the use of the various tables of risk factors provided for in the system. Because in addition to the state of health of the users, gender and age also varied and determined the basic price of the plans. That meant women and the elderly paid more than a healthy young man for decades. But everything changed in December 2021, when President Piñera decided to put an end to this discrimination two months after the country’s social revolt. And through an Administrative Circular, the Health Inspectorate decided that as of April 1, 2020, there would be only a single factor table, eliminating gender and age group bias.
Following this circular, as of 2020, the Isapres began applying this unified table of factors only to new subsidiaries, but not to old ones. This caused a new avalanche of resources and, faced with this scenario, the Constitutional Chamber decided to draft a doctrine – which it had already done in August 2022 in another ruling due to the increased cost of the plans – and ordered the Superintendent to find a way to apply the judgment and also to benefit users retrospectively.
Minister Mario Carroza. With kind approval
Minister Vivanco explains: “There are several reasons for an agreement. First, when the situations are massive and you realize that the country needs a solution because these are not isolated cases; there is a general problem. Another because it aims to reduce judicialization. This is important as it reduces costs for both claimants and beneficiaries.”
The judge explains that the third room now had to resolve this matter because the matter was not resolved in any other way. “And because we judges have a principle of inexcusability that prevents us from saying, ‘Ah, what a pity, because it hasn’t been resolved, and neither have we.’ If they are arguing that there has been a violation of people’s rights, we need to resolve this case. And it will be solved in the cases of hundreds of thousands of people who have complained about this situation. And what is being done is that in relation to all these causes, a jurisprudential criterion is established that mandates the Superintendent to advance it, precisely to avoid it being a matter of perpetual jurisdiction”.
A controversy through the newspapers
Because of its scope, the 2022 judgment against the Isapres has been criticized by several columnists. One of the most influential is Carlos Peña, rector of Diego Portales University, who published a text entitled Institutional Bad Health in the newspaper El Mercurio on May 17. “The decision may actually be fair from the point of view of each individual member of an isapre or, if desired, from a contractual point of view; But from an institutional point of view, it’s obviously bad. Because? The reason is obvious and surprising that it has not been highlighted. A basic rule of the judiciary is formulated in Article 3 of the Civil Code, according to which it is solely up to the legislature to interpret the law “in a generally binding manner”. The judgments, the rule adds, are binding only on those appearing in the litigation they end,” he wrote.
Minister Jean-Pierre Matus. With kind approval
In response to Peña, he was joined by former Supreme Court Minister Lamberto Cisternas, who in a column in the same newspaper defended the verdict: “There was no violation of the third article of the Civil Code.” What happened was obvious: Since the problem was common and the solution was similar, the whole system was involved and so they acted.”
But it was in December, a few days after the verdict, that the first column against the resolution, entitled Supreme Usurpation, appeared in the third room. Its author is José Miguel Aldunate, director of the Judicial Observatory and a recurring critic of the jurisprudence of the third court. The lawyer points out to EL PAÍS that by ruling in all cases, i.e. with general effect, the judgment against the insurers “ceases to act as a court and begins to act as a legislator.” And only the legislator can interpret the law with general effect. And he adds: “Although the previous sentences could be classified (on other matters) as activists, they still acted in the form of a sentence.” But right now it is a question of usurping legislative powers.
In the face of criticism, Ángela Vivanco clarifies: “The function of the Supreme Court is not to overthrow or improve industries or economic sectors, but rather to fix problems that affect people.” We cannot and do not want to create industries through our failures , make them fail or move the economic core one way or the other because they don’t belong to us.”