Angela Vivanco, minister of the Supreme Court of Chile in her office at the Palace of Courts of Justice in Santiago.sofia yanjari
Until last Sunday, Chilean judge Angela Vivanco was a highly valued spokesperson for the Supreme Court, with communication skills enhanced by a political career in center-right parties in the nineties, for her career as an academic at the Law School of the Pontifical Catholic University, one of the most prestigious institutions in the country. and for his leading role in the clear language commission of the Judiciary. In addition, during Chile's failed constitutional process of 2022, he 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 in the focus of questions, as it opened a series of questions that could change the course of the crisis of the private health system that Chile is experiencing. That day an interview of hers was published in the newspaper La Tercera in which, when specifying the scope of a ruling issued by the constitutional chamber, which she integrates, she gave a new interpretation to the November 2022 ruling that forced insurers, the isapres, to return excess charges to their contributors and adjust their plans to a single table of risk factors.
Before his remarks, both the government of leftist President Gabriel Boric and several specialist lawyers had understood that the tenor of the ruling was of scope 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 estimated that the amount owed by insurers was 1,400 million dollars. But the judge, who spoke to the Chilean newspaper in her capacity as deputy president of the third chamber – magistrate Sergio Muñoz is on vacation – said that the surpluses that insurers have to return were only to the people who sued. By shrinking that universe 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 relieved by the Boric government, which decided to file an appeal for clarification with the Supreme Court. "What matters here is what a court ruling says. Today there is a new criterion that is born from the interview of Minister Vivanco and therefore the responsible and reasonable thing is to request that clarification based on this new statement, "was the first reaction of the Minister of Justice, Luis Cordero, who as a law academic has specialized in the study of the jurisprudence of the third chamber. The isapres – as private health insurers are called in Chile – followed the same judicial route of clarification, in contrast to the judicial strategy followed since the November ruling, when they opted for passivity in front of 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 Superintendence of Health of the returns ($ 1,400 million dollars), they could close. And if this happens, three million Chileans affiliated to private health could be left adrift.
After Judge Vivanco's remarks on Sunday, Supreme Court President Juan Eduardo Fuentes said they were "personal opinions" and that it is the third chamber that must rule when analyzing the clarifications that have been presented. Vivanco, who is very close to Fuentes, said: "I only gave of my vision." "I can't say it's a correct interpretation of the ruling; The interpretation is given by the room, not me."
Today, several Supreme Court justices have called for his role as spokesperson to be reconsidered, something that is unprecedented in the Chilean judiciary. It is a determination that the full court will address this Wednesday.
Pro-life, but not "ultra-conservative"
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. It occupies one of the five positions, out of a total of 21 members, that has the highest court for external lawyers, without judicial career.
It went straight to the third constitutional chamber of the Supreme Court, considered the most influential court in Chile, because citizen cases arrive there, such as protection appeals against the isapres for the unilateral increase in the price of the plans or the application of tables of risk factors for discrimination by sex and age. which is precisely the case that was ruled in November and that today is the subject of national debate. Although 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 resources 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 has a need for resolution, because these are not isolated cases; There is a general problem. Another, because it seeks to lower judicialization. That is indispensable, because it lowers costs for both those who claim and for those claimed," Vivanco said in an interview with EL PAÍS in early May.
When she was nominated to 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 tune with the criteria of Muñoz, the majority in the court, and whose sentences usually give headaches to businessmen and the governments of the day. For example, in environmental cases.
Part of these expectations about the magistrate had to do with her past, because in the 90s she militated in the disappeared Union Party of the Center Center (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 ultraconservative because in 2017, as a lawyer, she argued before the Constitutional Court against the abortion bill three causes, which was then processed in Chile and was finally approved.
Then, the Socialist Party opposed his 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. Angela Vivanco is on the opposite line. They ask us to vote against our convictions. Therefore, the PS bench votes against," said socialist senator Álvaro Elizalde, now minister of the General Secretariat of the Presidency of Boric, in 2018.
Already in the Supreme Court, however, Angela Vivanco began to surprise the sector that proposed her with several of her failures. Among them, the appeals against the isapres. But also in one of 2019 of progressive court, when the judge was part of the unanimous vote of the third chamber that accepted an appeal of cassation presented by a trans person and ordered the change of sex registry, a novelty in those times.
"Just because a person is pro-life, it doesn't mean they're necessarily right-wing and ultra-conservative," he said in an interview as he completed a year on the Supreme Court. "I was active in politics many years ago and I was more than 20 years free of politics precisely to be free academically. So when they tell you 'you are ultraconservative' or 'you are a person who defends this or that thing', it means that they do not know you and that they have stuck to a stereotype," she said. "I am not an ultra-conservative person or against women's rights. I'm not someone who discriminates for life. I have never considered being at the service of companies. And while I have had business clients, and I have sometimes estimated that such a company X, Z or S may be right, I have never been at the service of any operation," he added.
On Tuesday, the magazine Ya, a supplement on women of the newspaper El Mercurio, published an interview with Vivanco entitled "Democracy is always put to the test." It has been a coincidence, because the controversies over the case of the isapres have not yet been unleashed. "Being the voice of the highest court is a great responsibility and an honor. Of course, it is not easy, because prudence must be combined (in many matters it is not appropriate to pronounce ourselves) and character (in which it is). It has been a year of tremendous work and also many satisfactions, and in the remaining months of serving the position I hope to continue feeling as supported as I have until now by my colleagues."
Soon – this Wednesday – the full Supreme Court will say if it still has those supports.