- The proposed new Constitution incorporates new autonomous bodies with constitutional status and eliminates others currently included in the Constitution.
- The Transparency Council is elevated to constitutional status.
- In the case of the General Comptroller of the Republic, some relevant changes have been added.
The Constitution currently in force establishes the following autonomous bodies: the National Television Council, the Public Prosecutor’s Office, the Constitutional Court, the Electoral Service, the General Comptroller of the Republic, the National Security Council and the Central Bank.
While in the proposed new Constitution most of these bodies preserve their constitutional recognition and autonomy, others are added (either by raising their recognition to constitutional level or by creating new bodies): the Transparency Council, Council of Justice, the Public Criminal Defence Office, the Ombudsman’s Office, the Ombudsman for Children’s Rights, the Ombudsman for Nature, the National Water Agency, the Civil Service Directorate and the National Data Protection Agency. However, the National Television Council and the National Security Council are eliminated.
Let us look at some of these new autonomous bodies.
New autonomous bodies
•The Ombudsman’s Office
The main function of this body will be to supervise State bodies in the fulfilment of their human rights obligations. In addition, and similar to the current National Human Rights Institute (INDH), an autonomous corporation under public law with legal personality and its own assets, it will be able to formulate recommendations on human rights, bring legal actions and safeguard and preserve the information gathered by truth, justice, reparation and guarantees of non-repetition commissions.
The purpose of the Ombudsman’s Office is the “promotion and protection of the human rights guaranteed in the Constitution, in the international human rights treaties ratified by Chile, as well as those arising from the general principles of law and the imperative norms recognised by international law, in the face of acts or omissions of the State administration and of private entities that exercise activities of public service or utility, in the manner established by law”.
In the proposed new Constitution, the Ombudsman will be appointed by the majority of the members of the Chamber of Deputies (Congress) and the Chamber of Regions in joint session, from a list of three candidates drawn up by social and human rights organisations. The Ombudsman will serve for 6 years, shall be irremovable in office and will enjoy inviolability in the exercise of his or her attributions. In addition, there will be regional ombudsmen who will function in a deconcentrated manner, as established by law.
An important novelty is that the constitutional proposal significantly strengthens this new body, in relation to the current role of the INDH, by establishing that the Ombudsman’s Office will have the power to monitor State bodies in the fulfilment of their human rights obligations, and to follow up and monitor the recommendations made by international organisations and the rulings against the State of Chile issued by international human rights tribunals.
• The Ombudsman for Nature
The Ombudsman for Nature is a complete innovation in the proposed new Constitution. The purpose of this body is “the promotion and protection of the rights of nature and environmental rights guaranteed in this Constitution and in international environmental treaties ratified by Chile, in the face of acts or omissions by State administration bodies and private entities”.
It will have the power to supervise State bodies in the fulfilment of their obligations regarding environmental rights and the rights of nature, and to bring constitutional and legal actions when these rights are violated.
The Ombudsman for Nature shall be appointed by a majority of the members of Congress and the Chamber of Regions, in joint session, from a shortlist drawn up by environmental civil society organisations.
This body is evidence of the shift from anthropocentrism to ecocentrism proposed in the draft new constitution.
The National Water Agency
This body will have the important function of granting, reviewing, modifying, expiring or revoking administrative water authorisations. In addition, it will have to lead and coordinate the bodies with competence in water matters, ensure compliance with the National Water Policy, promote the creation of basin-level bodies and oversee the responsible and sustainable use of water, among other specific attributions.
The Agency is part of the particular concern shown by the proposed new Constitution to establish a specific regime for the protection of water and the recognition of the human right to water.
It is not yet clear how the transition from the current water authority, the Directorate General for Water, and this proposed new body will take place. A key element in this matter will be the transitory provisions that will be incorporated in the constitutional proposal.
The Council for Transparency (CPLT) is enshrined in the Constitution.
The CPLT was created by Law 20.285 as an autonomous corporation under public law, with legal personality and its own assets. The proposed new Constitution raises its recognition to constitutional status.
The draft replicates the same general powers that the law currently entrusts to the CPLT, although the latter contains the details of its specific powers. These are (1) to promote transparency in the civil service, (2) to oversee compliance with the rules on transparency and public disclosure of information by state bodies, and (3) to guarantee the right of access to public information. The mechanism for the appointment of councillors is entrusted to the law.
The enshrinement of the CPLT denotes the increased importance given to transparency in the civil service.
Proposed changes in relation to the Office of the Comptroller General of the Republic
Although their constitutional autonomy is not a novelty in our legal system, the proposed new Constitution introduces some changes to their specific powers. For more details, see the chart below.
|The 1980 Constitution||New Constitution Draft|
|It exercises control over the legality of administrative acts.||It exercises control over the constitutionality and legality of administrative acts.|
|It oversees the income and investment of the funds of the Treasury, municipalities and other bodies and services determined by law, and examines and judges the accounts of persons in charge of the assets of these entities.||To audit and audit the receipt, accounts and expenditure of public funds.|
|Keeping the general accounts of the Nation|
|Ensuring compliance with the principle of probity in public service|
It is also interesting to note that the proposed new Constitution, unlike the current Constitutional Organic Law, includes within the scope of its oversight all companies in which the state has a stake, legal entities that have fiscal resources or administer public assets, and others defined by law.
In addition, it is established that it will be able to issue mandatory opinions “for any authority, official or worker of any body of the State Administration, of the regions and boroughs, including the directors of public companies or companies in which a state entity or any other territorial entity has a shareholding“. Thus, the scope of its powers is extended in relation to the statute that currently governs the Comptroller’s Office.
Another novelty of the constitutional proposal is that it establishes that when the Comptroller’s Office issues an opinion modifying its administrative jurisprudence, it must be consulted before a Council of the Comptroller’s Office.
In the proposed new Constitution, the Comptroller is appointed by the President with the agreement of the majority of the members of Congress and the Chamber of Regions, in joint session. In the 1980 Constitution, the Comptroller is also appointed by the President, but with the agreement of 3/5 of the Senators in office.
Finally, the draft does not include the minimum requirements to be Comptroller General of the Republic, unlike the current Constitution, which establishes that the Comptroller General must have at least ten years of law degree, be at least forty years old and possess the other qualities necessary to be a citizen with the right to vote.