Until last Sunday, Chilean judge Ángela Vivanco was a highly regarded Supreme Court spokeswoman, with communication skills boosted by a political career in center-right parties in the 1990s, by her career as an academic at law school from the Pontificia Universidad Católica, one of the most prestigious institutions in the country, and for his preponderant role in the clear language commission of the Judiciary. In addition, during the failed Chilean constitutional process of 2022, she was an influential voice in criticizing the draft that the judiciary had, which feared that the independence of the courts would be affected.
A few days ago, however, she delivered a point of view that has put her at the center of questions, since she opened a series of questions that could change the course of the crisis in the private health system that Chile is experiencing. That day it was published an interview of his in the newspaper Third in which, when specifying the scope of a ruling issued by the constitutional chamber, which she integrates, she delivered a new interpretation of the November 2022 ruling that forced insurers, the isapres, to return excess charges to their contributors and adjust your plans to a unique table of risk factors.
Before his statements, both the government of the left-wing president Gabriel Boric and several specialist lawyers had understood that the wording of the ruling was applicable to all contributors and not only to those who filed protection appeals. So much so that the ruling party presented a bill to implement the ruling and it was calculated that the amount owed by the insurers was 1.4 billion dollars. But the judge, who spoke to the Chilean newspaper as deputy president of the third chamber – magistrate Sergio Muñoz is on vacation – said that the surpluses that insurers have to restore were only to the people who sued. By shrinking that universe, it caused a whirlwind, because last March, in another intervention, Vivanco had said that the sentence was of “general effects for all those who have been affected by the imposition of tables of factors that did not correspond.”
This new approach was immediately replaced by the Boric government, which decided to file an appeal for clarification before the Supreme Court. “Here what matters is what a court ruling says. Today there is a new criterion that was born from the interview with Minister Vivanco and therefore what is responsible and reasonable is to request that clarification based on this new statement”, was the first reaction of the Minister of Justice, Luis Cordero, who as Law academic has specialized in the study of the jurisprudence of the third room. The isapres – as private health insurers are called in Chile – followed the same judicial path of clarification, in contrast to the judicial strategy followed since the November ruling, when they opted for passivity before the courts. The companies, however, during these seven months have carried out a strong communication offensive: they have warned that, given the calculations made by the Superintendency of Health for returns ($1.4 billion dollars), they could close. And if this happens, three million Chileans affiliated with private health could be left adrift.
After Judge Vivanco’s statements on Sunday, the president of the Supreme Court, Juan Eduardo Fuentes, said that they were “personal opinions” and that it is the third court that must rule when it analyzes the clarifications that have been presented. Vivanco, very close to Fuentes, in turn, pointed out: “I only gave from my vision.” “I cannot say that it is a correct interpretation of the ruling; the interpretation is given by the room, not by me”.
Today, several ministers of the Supreme Court have asked that his role as spokesperson should be reconsidered, something that is unprecedented in the Chilean judiciary. It is a determination that the plenary session of the highest court will address this Wednesday.
Pro-life, but not “ultraconservative”
Ángela Vivanco was proposed to the Supreme Court in 2018 by former President Sebastián Piñera (2018-2022), a moderate right-winger, and was later ratified by the Senate. She occupies one of the five positions, out of a total of 21 members, that the highest court has for external lawyers, without a judicial career.
It arrived directly at the third constitutional chamber of the Supreme Court, considered the most influential court in Chile, since citizen cases come there, such as protection appeals against the isapres due to the unilateral rise in the price of the plans or the application of tables of risk factors for discrimination based on sex and age, which is precisely the case that was ruled on in November and that today is the subject of national debate. Despite the fact that it was this last sentence that caused the whirlwind, the room to which Vivanco belongs has been ruling against health insurers for more than a decade, to the point that between 2010 and 2022 it has sentenced more than two million appeals in favor of affiliates. And this was the reason why in 2022 the court decided to establish a jurisprudence.
“There are several reasons to settle. One, when they are massive situations and you realize that the country needs to be resolved, because these are not isolated cases; there is a general problem. Another, because it seeks to lower the judicialization. This is essential, because it lowers the costs both for those who claim and for those claimed,” Vivanco said in an interview with EL PAÍS at the beginning of May.
When she was nominated in the Supreme Court, sectors of the Chilean right that proposed her speculated that, in the constitutional chamber, Vivanco would counterbalance the influential judge Sergio Muñoz, who presides over the chamber. However, the magistrate quickly showed signs in her rulings that were in line with the criteria of Muñoz, the majority in court, and whose sentences often give businessmen and governments headaches. For example, in environmental cases.
Part of those expectations about the magistrate had to do with her past, since in the 1990s she was a member of the now-defunct Unión de Centro Centro Party (UCC), founded by businessman Francisco Javier Errázuriz, and in 1997 she was a candidate for deputy for National Renewal, of the moderate right. But, in addition, when in 2018 she was running for the Supreme Court, she was branded as ultra-conservative because in 2017, as a lawyer, she argued before the Constitutional Court against the bill for abortion on three grounds, which was then being processed in Chile and was finally approved. .
Then, the Socialist Party opposed its reaching the Supreme Court. “The women of the country have raised their voices to ask for what they deserve in justice, for more rights and greater equality. Ángela Vivanco goes in the opposite line. They ask us to vote against our convictions. For this reason, the PS bench votes against it”, said in 2018 the socialist senator Álvaro Elizalde, today minister of the General Secretariat of the Boric Presidency.
Already in the Supreme Court, however, Ángela Vivanco began to surprise the sector that proposed her with several of her rulings. Among them, the appeals against the isapres. But also in one of 2019 of a progressive nature, when the judge was part of the unanimous vote of the third room that accepted an appeal filed by a trans person and ordered the change of registered sex, a novelty in those times.
“That a person is pro-life does not mean that he is necessarily right-wing and ultra-conservative,” he said in an interview when he was serving a year in the Supreme Court. “I was active in politics many years ago and I was free from politics for more than 20 years precisely to be academically free. So, when they tell you ‘you are ultra-conservative’ or ‘you are a person who defends such and such a thing’, it means that they do not know you and that they have adhered to a stereotype ”, she recounted. “I am not an ultraconservative person or against women’s rights. I am not someone who discriminates through life. I have never considered being at the service of companies. And although I have had companies as clients, and I have sometimes estimated that company X, Z or S may be right, I have never been at the service of any operation ”, she added.
This Tuesday, the magazine Alreadywomen’s supplement of the newspaper The Mercurypublished an interview with Vivanco titled “Democracy is always put to the test.” It has been a coincidence, since the controversies over the case of the isapres had not yet broken out. “Being the voice of the highest court is a great responsibility and an honor. Of course, it is not easy, because prudence (in many matters it is not appropriate to pronounce ourselves) and character (in those that it is) must be combined. It has been a year of tremendous work and also a lot of satisfaction, and in the months that remain in my post I hope to continue feeling as supported as I have been by my colleagues up to now”.
Soon – this Wednesday – the plenary session of the Supreme Court will say if it still has that support.
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