Una propuesta constitucional insuficiente en protección de los consumidores

En el ámbito de la protección de los derechos de consumidores, la propuesta de texto constitucional que se licitará en pocos días adolece de omisiones, redacciones insuficientes y falta de contrapesos al mercado.

Por Hernán Calderón R., presidente de Conadecus.

 El 17 de diciembre la ciudadanía se deberá pronunciar En contra o A favor de la propuesta constitucional elaborada por el Consejo Constitucional, una decisión que es importante para el futuro del país, tomando en cuenta entre otros, el contenido referente a los derechos de los consumidores, usuarios y ciudadanos. Al respecto, la propuesta que se someterá a plebiscito tiene omisiones, inconsistencias, insuficiencias y varios titulares que no son aceptables para un texto que regirá el destino del país en las próximas décadas.

La propuesta de nueva constitución reconoce en el artículo 16, numeral 37, la protección tanto de los consumidores como de los proveedores, lo que constituye una redacción incorrecta y grave para la protección de los consumidores y usuarios que se enfrentan a los proveedores por abusos, malas prácticas o infracciones. Con esta propuesta no se logra una mayor protección a los usuarios, tampoco se establece un principio protectorio, siendo necesario que la Constitución establezca que las entidades públicas y privadas deben siempre propender a la protección de los consumidores y, de forma permanente, deben aplicar la ley que más favorezca al consumidor.

Portada de la propuesta constitucional de la ultraderecha.

La propuesta también omite establecer el deber del Estado de promover y apoyar la creación de organizaciones de consumidores, entidades ciudadanas que son fundamentales en un sistema de protección de los usuarios, organizaciones que han tenido un rol imprescindible en la defensa de los chilenos y chilenas consumidoras, de los abusos del mercado e infracciones a la libre competencia.

Otra redacción insuficiente es la del artículo 16, numeral 29, que trata sobre “el derecho a una vivienda adecuada”. Al respecto, el derecho a la vivienda ha sido explotado desde un punto de vista comercial, como un bien de consumo, en consecuencia, el derecho a una vivienda digna debe consagrarse constitucionalmente y colocarle límites al mercado. Asimismo, la Constitución debe establecer mecanismos suficientes para que el Estado regule el uso del suelo en función del interés general, para evitar la especulación.

Asimismo, el artículo 16, numeral 32, letra c, es solo un titular que menciona: “Es deber del Estado promover y defender la libre competencia”, esto finalmente es solo declarativo, no propone medidas para regular los mercados, la creciente concentración oligopólica de la economía del país tiene como efecto la falta de competencia que afecta directamente a los consumidores.

En el texto también está ausente una propuesta que establezca un “defensor del pueblo”, importante debido a que la protección de los ciudadanos y sus derechos requieren que se consagre la creación de una institución independiente, que garantice los derechos ciudadanos ante los actos u omisiones de los órganos de la administración del Estado, de personas jurídicas de derecho privado que tengan alguna concesión del Estado, o ejerzan actividades de servicio público. El texto constitucional presentado por la Comisión no lo propone. En materia de consumo existen las organizaciones de consumidores que promueven sus derechos y buscan su protección, sin embargo, en lo que respecta a derechos fundamentales, defensa colectiva y garantías que se encuentran asegurados en la Constitución y en los tratados internacionales ratificados por Chile, esta propuesta de la Convención Constitucional no los incluye, dejando de lado la protección de los derechos ciudadanos y de organismos autónomos que los defiendan.

Por esto y otros aspectos, considero que la propuesta constitucional no es cercana a las demandas de la sociedad civil organizada, no recoge la demanda de participación ciudadana activa en la generación de políticas públicas de la sociedad civil y tampoco propone herramientas y mecanismos para fortalecer la participación ciudadana.

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