OEA/Ser.L/V/II.40
THIRD
REPORT ON THE SITUATION OF HUMAN RIGHTS IN CHILE CHAPTER
X THE
COMPTROLLER GENERAL OF THE REPUBLIC
American Declaration: Article
XXXIII. It is the duty of every person to obey the law and other legitimate
commands of the authorities of his country and those of the country in which he
may be.
1.
In each of our first two reports, the Commission included a chapter in
which we examined the situation of the Office of the Comptroller General of the
Republic.1
It is worthwhile recalling that in these reports, we expressed our opinion that
virtually nothing remains of the essential nature of the institution, in light
of the extraordinary broadening of the category of so-called “exempt
decrees,” which was achieved through Resolution 1.100 of the Comptroller
General, dated November 10, 1973, in consequence of which these “exempt
decrees” bypass the procedure of examination of constitutionality (toma de razón)
exercised by the Office of the Comptroller.2
2.
In view of the importance of the Office of the Comptroller General as
custodian of the actual observance of the law, the Commission wrote to the
Government of Chile on October 20, 1975, requesting, among other things, a copy
of the text of the aforementioned Resolution Nº 1.100. The Government did not
reply to this request.3
3.
In order to prepare the present report, we sent a new note to the
Government of Chile on December 6, 1976, in which we repeated our interest in
obtaining a text of the said Resolution 1.100 and amendments to it, and the
constitutional or legal grounds on which it was based. We also requested it to
report whether, subsequent to our second report, any rules had been issued
altering the legal regimen of the Office of the Comptroller General of the
Republic.
4.
In a note dated January 24, 1977, the Government of Chile forwarded the
following information:
The process of examination of constitutionality (toma de razón) is
regulated in a general way by Law 10.336, the revised text of which was set by
decree Nº 2421 of 1964, of the Treasury. Article 1 of this legal corpus in fact
states that one of the functions of the Office of Comptroller General of the
Republic is “to pronounce on the constitutionality and legality of the supreme
decrees and of the resolutions of the Chiefs of the Services, which should be
reviewed” by this agency. Article 10 of this law contains detailed standards
on the manner in which the power in question should be exercised, particularly
on questions of time-limits, representation, insistence, exemption and urgency.
However, it should be recalled that the Political Constitution of 1925
does not refer to the process of examination of constitutionality except with
regard to decrees with force of law; for these latter, review is established in
paragraph five, Nº 15 of its Article 44, which was added by the constitutional
reform of 1970. In addition, several legal precepts repeat the general principle
of prior review of legality for certain specific cases.
It must be pointed out that apart from the amendment to Article 16 of Law
10.336 contained in Decree-Law Nº 38 of 1973, it is a general rule that the
State Services are subject to examination by the Office of the Comptroller
General of the Republic, so that the allusion made in articles 1 and 10 of the
said law to those decrees and resolutions “that should be examined by the
Comptroller” in fact covers the majority of the documents that refer to
administrative actions.
As regards exemption from prior review of legality, paragraph five of
Article 10 previously mentioned empowers the Comptroller General to exempt one
or more of the Ministries or Services from the procedure of examination of those
supreme decrees and resolutions that refer to matters he does not consider
essential.
Exercising this power, the Comptroller General issued resolution 1.100 on
November 8, 1973 to replace resolution 522, of October 15, 1970, which dealt
with the same question. The aforementioned act in the first instance exempts
from the process of examination of constitutionality (toma de razón) decrees
and resolutions dealing with matters not contemplated in the act. In other
words, the administrative acts subject to preventive examination of their
legality are those which refer to matters listed in resolution 1.100 and in
addition, all the decrees signed by the President of the Republic, and the
regulations and amendments thereto, as established in articles 1 and 8 of that
text. Consequently, decrees and resolutions dealing with other matters are not
subject to this process, without prejudice to the controls operating while the
Comptroller General is away, mentioned in the same resolution.
In reference to the second question from the Inter-American Commission on
Human Rights, it should be reported that subsequent to its Second Report on the
status of human rights in Chile, no new standards have been issued altering the
legal regimen of the Office of the Comptroller General of the Republic.
Lastly, true copies of resolution 1.100 of 1973 and of subsequent
resolutions amending it are enclosed, so that there can be a better
understanding of our previous statements.
5.
We give below the pertinent parts of the aforementioned resolution:
CONSIDERING:
The provisions of paragraph 5 of Article 10 of Law Nº 10.336, which
contains the revised text of the organic law of this Service, inasmuch as it
empowers the Comptroller General to exempt the Ministries and Public Services
from the process of examination of constitutionality (toma de razón) when it is
a question of supreme decrees or resolutions that, in his opinion, are not of
an essential nature;
That Article 9 of Law Nº 16.436 delegated to the President of the
Supreme Court the power to issue resolutions subject to the process of
examination of constitutionality (toma de razón) on some matters related to the
staff of the Judicial Power, without prejudice to the power of the Comptroller
General to exercise the powers mentioned in the previous paragraph;
That furthermore, in order to contribute to making the State
Administration more effective and expeditious in accordance with modern systems
of review, there is an undeniable need for the Office of the Comptroller General
to check, in a more direct way, on whether it is operating properly within the
Ministries, Services, Agencies and entities themselves, if necessary. Paragraph
One
DETERMINATION OF THE MATTERS SUBJECT TO JUDICIAL REVIEW AND OF THOSE
EXEMPT FROM THIS PROCESS
A. Ordinary personnel matters
ARTICLE 1 – Matters related to staff are exempt from the process of
examination of constitutionality (toma de razón) provided they do not deal with
the following questions, which shall be considered essential for these purposes,
and shall be subject to the aforesaid process:
1. Application of disciplinary
measures, dismissals and acquittals in summary administrative proceedings and
summary investigations;
2. Approval of salary plans and
scales, and any subsequent changes thereto;
3. Parity of retired civilian staff,
and any changes thereto;
4. Benefits for on-the-job
accidents, including the respective declaration;
5. Contract hiring for the State
Administration;
6. Hiring of staff, with the
exception of workers protected by the Labor Code;
7. Delegation of powers or
signatures;
8. Designation of substitute court
lawyers;
9. Designation of representatives
and advisers;
10. Return of in excess deductions;
11. Classifications;
12. Appointment in general, except:
a) Appointments in the Reserve;
b) Appointments of Ships Chandlers;
c) Appointments of District and
Subdelegation Judges, and District Inspectors not permitted to receive
remuneration for their work;
d) Appointments of officials of the
Chilean Air Force as flying instructors in private clubs;
e) Appointment of General Customs
Agents and
f) Appointment of public
auctioneers.
13. Granting of starting social
security benefits;
14. Payments made in accordance with
paragraph 2 of Article 139 of the DFL (decree with the force of law), Ministry
of Health, 338, of 1960;
15. Official exchanges;
16. Rehabilitation of former staff
members;
17. Re-instatement; and
18. Termination of service for any
cause.
The personnel of the Carabineros, the permanent soldiers and
sailors of the Armed Forces shall be exempt from the process of examination,
including the decrees and resolutions that refer to matters indicated in the
preceding list, with the sole exception of award of retirement pensions,
widow’s pensions and severance payments.
B. Matters related to the
Centralized Public Services
ARTICLE 2. Matters related
to the budget shall be exempt from the process of examination of
constitutionality (toma de razón) provided they do not deal with the following
questions, which shall be considered essential for these purposes, and shall be
subject to the aforesaid process: ...
ARTICLE 3. Matters related
to property are exempt from examination, provided they do not deal with the
following questions, which shall be considered essential for these purposes, and
shall be subject to the aforesaid process: ...
ARTICLE 4. Matters related
to general powers are exempt from examination, provided they do not deal with
the following questions, which shall be considered essential for these purposes
and shall be subject to the aforesaid process: ...
e) Sanctions and others
1. Measures affecting the penalized
individual's opportunity to exercise his vocation;
2. Removal of tax or customs
privileges, and
3. Suspension or withdrawal of
subvention funds to private schools.
F. Common matters requiring
examination of constitutionality (toma de razón)
ARTICLE 8. Notwithstanding
the provisions contained in the above articles, such decrees as may be signed by
the Junta de Gobierno or its President, and regulations and amendments
thereto, must be sent for examination.
ARTICLE 9. The standards set
down in this resolution govern without prejudice to the legal provisions that
exempt certain matters from review and those that allow immediate application of
decrees and resolutions, with the requirement that they be sent subsequently for
examination of constitutionality (toma de razón). Paragraph
Two
COMPLEMENTARY MEASURES AND CONTROLS OPERATING WHILE THE COMPTROLLER
GENERAL IS AWAY
ARTICLE 10. The proper
authority shall issue decrees or resolutions on exempted matters, bearing a
special correlative number, distinct from those numbers assigned to those that
are subject to examination and preceded by the word “EXEMPT.”
The original copies of said decrees and resolutions and the background
information on them will be filed separate from those that are subject to
examination and will remain at the disposal of the Comptroller General, for
subsequent examination by him... Paragraph
Three OTHER
STANDARDS
ARTICLE 14. The Comptroller
General may issue standards different from those contained in these General
Regulations, with regard to one or more specific services, through well-founded
and individual resolutions.
To this end, the following factors shall be taken into account in each
case:
1. The specific nature and scope of
the subjects or activities of the Service;
2. The degree of territorial
deconcentration, and
3. The efficiency of internal
control systems.
ARTICLE 15. Resolution Nº
522, of October 15, 1970, is hereby repealed.
6.
If we take into account that on one hand, prior to Resolution 1.100
matters exempt from the process of examination of constitutionality (toma de razón)
were those that involved acts of little significance, such as one that grants a
license or declares a holiday, and so forth, and on the other hand, if we
examine and compare these with the number and importance of those matters now
exempt from the examination of legality by virtue of the resolution in question,
such as all those related to members of the Armed Forces, expulsions, and so
forth, we must conclude that the exception has become the rule.
7.
This assertion is completely valid, even when one takes into
consideration the fact that Article 8 of Resolution 1.100 requires that decrees
signed by the Junta de Gobierno or its President are to be sent for
judicial review. We say this in view of the fact that the following Article of
that same resolution, i.e., Article 9, provides for a general exemption for
those legal provisions which exempt certain subjects from examination and those
that provide for immediate application of decrees and resolutions. Therefore,
because the Junta de Gobierno is in itself the Constitutive, Legislative
and Executive Powers, the Junta could exempt a legal precept from the
process of examination of constitutionality (toma de razón). Furthermore, the Junta
de Gobierno may delegate authority to ministers or other officials to
legislate on certain matters, thus bypassing examination. Authority has been
delegated in this manner on numerous occasions.
8.
In view of the singular function that the Office of the Comptroller
General has carried out with respect to the decisions affecting the fundamental
rights of the citizenry and in view of the importance this institution has
within the legal framework of Chile and of the hemisphere, the Commission
considers it wise to point out in this report, the self-limiting effect
Resolution 1.100 has had on the Office of the Comptroller General of the
Republic. |