1. Just issued sentence in the preventive control procedure constitutional organic laws on amendments to the Act of Congress. The Constitutional Court has validated most of the rules, but has criticized some of which related to reports and information requests from governmental and administrative bodies, emanating from parliamentary committees and considered singularly.
Two sets of views dissenting from the majority of the fault line, by excess or defect.
2. The project passed by Congress provides:
Article 9 .- The bodies of state administration and institutions in the state participation or representation under a law authorizing it, which are not part of his administration and not engaged in business activities, should provide the specific reports and information may be requested by the commission or by the parliamentary session duly identified in the Chamber, or commission . These requests may be made even when the respective House held no meeting, but in this case they are inserted in full in the Journal or the Bulletin for the regular meeting following their request.
These reports and background will be provided by the service, agency or entity by the Minister within whose jurisdiction or by which it is located connected with the government, keeping the respective reservation or secret documents. The Minister only provide the respective committee or the House respectively, where appropriate, in secret session for such purposes is held.
be exempt from the obligation under the first and third paragraphs, the administrative agencies of the State to exercise powers of audit in respect of the documents and records containing information the disclosure of even confidential or secret way, affect or may affect development of an ongoing investigation.
As approved, the final paragraph of this article pointed out:
"In no case report requests to import the exercise of the powers indicated in the second paragraph of the letter a) the number 1) of Article 52 of the Constitution."
3. It should be noted that relatively similar rules exist in the text still in force ( here, and here ).
4. One issue relevant to the consideration of the constitutionality of this rule was to determine if requests are administrative records and reports exercise of audit powers.
This question really makes sense undeniable. If those requests are actually control, then:
a) may only be made by the Chamber of Deputies, by itself or through commissions to create the effect. Negatively
can not formulate or Senate (or a fortiori its committees) and individual parliamentarians (because their actions are irrelevant unless you have corporate translation).
b) How to be asked must adhere to the rules that the Constitution provides for the exercise of the audit function of the House, which were articulated in great detail during the 2005 constitutional reform.
5. The majority opinion, not too explicit, bowed to understand that "the reports and information requests involving exercise of oversight function" (point 18 °).
However, the main argument that allows for this conclusion is relatively poor: in the legislative discussion of the rule was no doubt about the nature of the assignment, and even H. Senator Chadwick (in a gesture for which several other MPs do not come within the ambit too grateful) openly stated that in practice these reports were required to control, but not just for that.
6. The doctrine has not been much more explicit on the subject. One of the more lucid opinions about suggested that once were located in both houses, such powers could not be controlled, but aids the legislative function (Alan Bronfman et alii, National Congress, Valparaiso, CEAL, 1993, p. 157).
7. It is partly this thesis that host (or at least mentioning) the dissenting lords Venegas Cea, Vodanovic and Peña, point of view that are endorsed by the fact enshrined in the same bill, other rules that they attribute to standing committees of both houses the power to "request information or listen to the institutions and people of their own choosing (art. 22 of the LOC of Congress.)
8. Over the constitutionality, it was difficult to justify the rationality of a rule which assumed that "under no circumstances" such requests would constitute acts of control. How to avoid it were? How do you prevent that become transmitted information were manipulated under the control activity by the House? But above all, how to deprive the House oversight of an instrument as useful to enlighten on the progress of public affairs as it is the request for reports and information?
9. Is the minority vote in the Lords Ministers Bertelsen, Navarro and Carmen that points to the decisive argument in the medium term should aim to be imposed: the constitutional reform of 2005 gave a monopoly of information requests to the House, both for the adoption of agreements or suggestions of observations (typical manifestation of parliamentary oversight in Chile) and for the functioning of audit committees.
no sense that the component was derived in 2005 had taken the trouble to regulate how much detail and effects of the reporting requirements if for a couple of years later the legislature regime more flexible by the way they seemed to understand an important sector of parliamentary representation. As in other areas, more control here is not necessarily synonymous with better . Moreover, the constitutional provision here is a ceiling that the legislature may pass without betraying the principle of separation of powers that informs the constitutional system of Western democracies.
10. There are asymmetries in the statement. If the requirements for information to public services audit administrative matter, why not also be the same type requirements aimed at commercial or industrial utility, ie, public undertakings of all kinds? Where
the same reason there must exist the same provision says an old legal aphorism that seems still to extensible negative legislator that Kelsen saw in the constitutional court. Although it is not expressed, considering the reasoning of 18 ° of the sentence is likely to greatly weaken the effectiveness of art. 9 of the LOC of Congress still in force, which provides similar information requirements for public companies. (The effectiveness of art. 10, meanwhile, is also in poor condition, for reasons of administrative due process leads the Court to also censor art. 10 again, even though it is much more explicit than the previous text) .
The proper application of these rules, whose constitutionality is now good reason to doubt depend disputes pending before various high courts, specifically promoted by state enterprises. The failure "State Bank" , hailed in its day with enthusiasm by several appears in the light of these arguments essentially a sentence unconstitutional.
11. Is it healthy state of affairs created by the ruling? It is understandable that MPs aspire to be well informed about public affairs, today that is not only an aspiration of all citizens but a constitutional requirement in itself (and in which the Court found time ago even a constitutional right). 20,285 law on access to public information, did not pursue a strengthening of control instruments, on the other side?
If all citizens may require public information under the conditions "quite comprehensive and expeditious which determines the law, why open up other avenues parliamentarians privileged information? To control, possibly. Why legislate? Surely many can also agree that to happen, but the best known cases of requests for information, just those directed against public companies, it is unusual for information requested has to do with the legislative function (in the case of the State Bank, not to go further, the question was about the vehicles assigned to their executives).
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