7
c)
With regard to the provisions referred to in transitory section 1,7 providing for
the presumption that the laws on secrecy and reserve promulgated before the Law
are legal, Chile states that their aim is to rectify a formal requirement of said secrecy
laws that were not passed with the special majority established in the constitutional
reform of 2005. This does not entail that said laws are per se constitutional, or that
their provisions are prejudiced. However, as the organic and generic repeal of all
prior laws was not possible, it was decided that they should be considered on a caseby-case basis. The legal principles providing for the reserve of documents or acts
that are inconsistent with the purpose of the Political Constitution of the State shall
not be effective for they would be unconstitutional.
10.
That during the monitoring hearing the State highlighted that the Judgment rendered
by the Court in the instant case made an “extraordinary contribution to the access to public
information and the strengthening of the freedom of expression;” it further asserted that
the Judgment was “also well-appreciated by some of many analysis reports and articles
issued after the promulgation of the law on transparency and probity” and it forwarded
opinions on the new language of the Law as being “more comprehensive, mainly as a result
of the impact of the conviction on the State of Chile by the Inter-American Court.”
11.
That during the monitoring hearing the representative, in turn, asserted that the
passing of the Law translated as a radical change as not only was an organic rule drafted
but also because it created an entity for the protection and promotion of the right, the
Council for Transparency, with powers to solve specific cases as well as to pass legislation
within the sphere of the Administration. This statute is the first milestone, and it will be
applicable to all the organs of the State Administration, though its provisions shall not apply
to other State entities like the Judiciary, the National Congress and entities bearing
constitutional autonomy like the Constitutional Tribunal, the Central Bank, among others.
Moreover, during the monitoring hearing the representative expressly renewed his concerns
on certain provisions of the Law the application of which to specific cases, in the
representative’s opinion, could potentially elicit review by the Inter-American Court. In
particular, the representative referred to the indefinitely temporal reserve provision and to
the fact that the laws containing secrecy or reserve provisions prior to the effective date of
this rule had been validated from a formal standpoint under transitory section 1 of the Law
(supra Considering Clauses 9(a) and 9 (c). The representative stated that these issues
should be considered, but that this was not requested “as a condition for compliance with
the Judgment;” and that “based, on the assertions and the measures adopted by the State
of Chile, it should be considered that the State [had] complied with the Judgment of the
Court.” The representative emphasized that the order of the Court in the instant case “set a
remarkable international precedent on the acknowledgment of the right of access to public
information like the freedom of expression.”
7
Section 1°.- Under transitory provision 4 of the Political Constitution, the special majority requirement
shall be deem fulfilled by the legal precepts in force passed before promulgation of Law No. 20050 providing for
secrecy or reserve of certain acts or documents based on the grounds set out in Article 8 of the Political
Constitution.