CHAPTER IX

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. One of the chapters of our first report is dedicated to an examination of the situation of the General Comptroller of the Republic. We summarized our opinion by stating: “… little or nothing survives of the essential nature of the institution, which has temporarily lost the chief authority enabling it to act as guardian agency in the field of human rights.”

2. Ours was an objective appraisal based on facts. However, in its observations on our report, the Government of Chile stated that “the affirmation of the Commission is false in considering that the supreme function of the Comptroller of safeguarding the true effectiveness of the State of law has temporarily disappeared…”

3. The Government of Chile has likewise affirmed that the Commission was in error in another aspect of its report concerning the Comptroller’s Office, by stating that the Comptroller “has never had the power to watch over the constitutionality of laws, decree laws, or decrees with force of laws as the Report states.”

The first report does not state that the Comptroller has the power to watch over the constitutionality of laws. It states, rather, that it has the power to watch over the constitutionality of decrees and decrees with the force of law. In order to make such an affirmation, the Commission had as a basis the following constitutional texts:

a) Article 20 states: “The Office of the Comptroller shall not endorse decrees that exceed the limit specified in item Nº 10 of Article 72 of the Constitution, and shall return a complete copy of the background information to the Chamber of Deputies”;

b) Article 44 states: “It is the duty of the Office of the Comptroller General of the Republic to examine those decrees with the force of law, and it must reject them when they exceed or countervene the authorization conferred”; and

c) Article 78b states: “In the case of letter b), the question may be posed by the President of the Republic within a period of thirty days when the Office of the Comptroller rejects, for unconstitutionality, a decree with the force of law.”

We wonder whether the Office of the Comptroller continues to exercise these high functions.

According to the Constitution, the safeguarding powers of the Office of the Comptroller must be exercised over all the acts of the Administration. Nevertheless, law 10336, issued before the present regime, provided that there could be exempted from this controlling function acts of such little significance as the granting of a license or the decreeing of a holiday, etc. The present Government has given extraordinary dimensions to this category of so-called “exempt decrees,” which consequently escape monitoring for legal regularity by the Office of the Comptroller. Those “exempt decrees” do not concern holidays or licenses, but arrests, expulsions from the territory of even native Chileans, and confinements.

5. Given the enormous importance of an adequate and effective control over the regularity of measures of this type which directly affect human rights, we addressed a communication of October 20, 1975, to the Government of Chile in which we formulated the following questions:

1. Has some provision been decreed which broadens the possibility of declaring as “exempt” some of the administrative acts originating in the Executive Power, in addition to those contained in Law Nº 10.3367. In case of an affirmative reply, it would be appreciated if a copy of that provision or those provisions could be sent to the Commission.

2. By virtue of what constitutional or legal provision have there been declared to be “exempt” decrees or resolutions that affect the liberty of certain persons or other fundamental rights, or that provide for the departure of Chilean nationals from Chilean territory?

3. How many decrees or resolutions has the Comptroller General exempted from the procedure of examination of constitutionality since August 1, 1974, in addition to those on the subjects indicated in Article 10 of law 10.336, and by virtue of what constitutional or legal provisions has this been done?

4. How many decrees with the force of law, or decrees or resolutions of the Executive Power have been the object of observation on the part of the Comptroller General, aside from those related to fiscal or financial subjects, since September 11, 1973? In how many cases has the Executive Power over-ridden the observation of the Comptroller by the means established in the Constitution?

5. What is the complete text of resolution Nº 1.100 of the Comptroller’s Office, of November 10, 1973, and what are its legal and/or constitutional bases?

6. The Government of Chile has not answered any of these questions.