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:
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.
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;
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).
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...
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.
1 See our First and Second Reports, pp. 148-49 and 186 respectively.
2 See the Political Constitution of the Republic of Chile, Article 44, Nº 15, paragraph five, and Law Nº 10.336, amended by decree Nº 2421 of 1964, articles 1 and 10.
3 See our Second Report, P. 189.