We invite you to read the column written by our partner Jorge Arredondo together with Diego Galaz, PhD in Constitutional Law, where they addressed the problems of Supreme Decree 44.
In the previous column we established that the only hypothesis in which the “prior hearing” provided by the D44 could eventually be reconcilable with the current legal system -which we also disputed- is that in which the employer applies the regime of labor sanctions (reprimand and fine) of an employee.
This rules out the possibility of assuming this internal disciplinary procedure as a requirement that conditions dismissal on the grounds provided by law. As we have also said, the law does not provide for an instance of this nature in relation to the dismissal, without the right to compensation, of an employee, and it is not possible, by means of an administrative decree, to create rules that alter the natural effect of the law.
However, paraphrasing the legal philosopher J. Raz, the law creates rules to regulate our conduct, and thus also creates rules to protect us from the rules it imposes on us, especially when they affect our fundamental rights. This is so, because the law itself anticipates the possibility that the concrete application of the regulation may result in unconstitutional effects for those who must obey it.
In this matter, for all norms of legal rank, the action by definition is that of inapplicability due to unconstitutionality, a local form of judicial review. Since the constitutional reform of 2005, which gives knowledge of this action to the Constitutional Court, it has become the ideal way to challenge a legal provision that, for the specific case, is unconstitutional. Thus, what the doctrine calls repressive control of constitutionality is fulfilled: the possibility of submitting each provision of a law to examination for its concrete effects, brought by the parties or the judge.
It happens, however, that this action does not consider the case of Decrees in the same way. In our legal system, the exercise of the autonomous regulatory power of the Executive does not admit being controlled by citizens in the same terms as laws. In such a case, it will be the parliamentarians who, within thirty days after the entry into force of the decree, may request that its constitutionality be examined.
This situation is problematic because, in fact, the daily normative performance is furiously determined by the application of regulations that are outside the constitutional control by those who, in each specific case, must respect them.
The contradiction can be formulated as follows: if the concrete constitutional control is valid for the legal norms, whose adoption is by way of parliamentary discussion, with greater reason should be valid for the rules of lower hierarchy, adopted by an autonomous body where the same rule of representation is not followed. In addition, it is important to note the danger of governing on the basis of decrees outside the jurisdictional control of the citizens.
Returning to the case of the provision under discussion here, what happens then if, eventually, this “prior hearing” or “disciplinary procedure” in the terms of article 61 of the D44, were to be alleged in court as a requirement for dismissal? Are we defenseless?
While each case must be looked at on its own merits by experienced counsel, there are alternatives to be evaluated. The first is the filing of a writ of protection. The most notorious recent case was one known and ruled unanimously by the Court of Appeals of Santiago (Rol 6.698-2024), leaving without effect a Circular of the SII at the request of the plaintiff Embotelladoras Chilenas Unidas S.A.
Although this approach has proven to be effective, it has not been unanimous in jurisprudence. The study of the Poblete Novoa case shows that the Supreme Court has been inclined to apply the principle of specialty. That is to say, since this is a substantive matter of constitutionality, it is a matter for the Constitutional Court, and it is the Chamber that has the active legitimacy to challenge the regulatory norms. Consequently, the citizenry would lack direct control of constitutionality
Along with this, the problem of effectiveness is evident. The challenge by means of the recourse of protection eventually leaves without effect the administrative act, without being able to respond for the unconstitutionality of a specific provision, of a legitimate act as a whole.
A similar problem is presented by the nullity of public law. In this case, it is a matter of a trial of plain knowledge with respect to the act, the nullity of which affects the whole and does not respond, as is to be expected, to the specific situation created by a particular rule.
The possibility of activating an eventual non-application of regulations has also been raised. This route, present in comparative law, could be used in our country. However, there is opposition in the doctrine regarding the effect it would have. Since the ordinary courts are competent to hear this kind of actions, it would cause a diffuse control of constitutionality, weakening the unity of criteria and legal certainty that a concentrated system such as ours promotes.
We maintain that a last alternative can be evaluated, appealing to the self-delimitation of competence by the Constitutional Court. Indeed, the rule provided for in Article 21 of LOCTC, which empowers this Court to establish its own jurisdiction and competence without possible challenge, would allow it to rule in these cases. Although the limitation imposed by the active legitimacy required for the challenge, given to the parliament, remains, it could be argued on the basis of the doctrine of “nomenclature”.
This doctrine allows to overcome the formal dimension of the rule, its denomination as regulatory, allowing to pronounce on its substance: the constitutionality of content by its effect as legal. If a regulation is in fact in a position to affect legally recognized fundamental rights, it has been placed, also in fact, in the same normative hierarchy as the law, and it is therefore incumbent upon the Constitutional Court to hear its challenge.
Jurisprudence in this sense can be found in Judgment 591-06 regarding fertility regulation norms. In it, the Constitutional Magistracy adopts the position of guardian of the constitution, with respect to the formal and substantive content of the norms3; a position consistent with the origin of the control of constitutionality, in Marbury v. Madison. In other words, it implies that this Court cannot leave citizens defenseless.
Thus, the problem in this case has two sides. The first one is whether the creation of the D44 regulation is binding in terms of establishing a kind of procedural requirement for an employer, in the legitimate exercise of its sanctioning power, to carry out a “disciplinary proceeding”, whose scope and regulation we do not know, before proceeding to the application of a labor sanction and, on the other hand, the challenge mechanism that in fact can be carried out to controvert this unilateral creation, and without legal basis, of the administration. It will be interesting to be attentive to how the judiciary will receive this new “regulation”.
Column written by:
Jorge Arredondo | Partner | jarredondo@az.cl
Diego Galaz Carvajal | PhD in Constitutional Law, Trinity College Dublin
