with statutory obligations of civil servants;41 and (iv) quasi-administrative functions through the supervision of the state accounting system, the oversight of internal control systems and standards, and the control of compliance with statutory provisions related to the management of human resources in the public sector.42 In particular, and somewhat unusually for an AAA, the CGR oversees the government accounting system, including the setting of accounting standards.
A constant criticism of the CGR centers on its conservative stance and authoritarian legacy. The CGR adopts a legalistic approach to external auditing, exercising control over the legality of the administration’s actions. The oversight exercised it exercises is essentially of a judicial nature ‘to ensure adherence to the legal order, the protection and appropriate use of public funds, the preservation and strengthening of administrative probity, and the reliability and transparency of financial information’ (CGR 2003:1). The CGR is indeed permeated with the liberal concern with checking and restraining executive discretion, rather than with the managerial concern for improving public sector management. It privileges preventive control through ex-ante compliance control, over corrective control through ex-post performance auditing (Llanos González and García Yerkovis 2002).
The CGR exercises ex-ante control of constitutionality and legality through the mechanism of ‘toma de razón,’ a function deeply embedded in Chilean administrative law and constitutional order. Ex-ante control has proved particularly effective in some areas, such as privatization and public procurement, contributing to ensure probity and transparency. However, it is often criticized for being cumbersome and formalistic, intruding in administrative prerogatives, interfering in policy-making, and resulting in ‘co-administration’ (Lillo Valenzuela 2002).
In political terms, ex-ante authorization of administrative actions endows the CGR with veto powers over policy implementation (Animat el al. 2006; Tsebelis 2002). Ex-ante control does not rectify an irregular administrative act; rather, it impedes it (Larraín 1995:61).43 While this procedure predates the military dictatorship, its preservation illustrates the efforts deployed by the outgoing military regime to constrain democratic governments, a strategy which Boylan (2001) describes as ‘defusing democracy.’ The function of ex-ante control has often been compared to an ‘authoritarian enclave’ or a ‘gate keeper’ (Orrellana Vargas 2003; Garretón 1989).
The CGR also has quasi-judicial powers in administrative matters, entrusted in a tribunal of accounts located within itself (the Tribunal de Cuentas, TC), through the judgment of accounts (‘juicio de cuentas’) of current and former public servants (CGR 2000). Since 2002, the deputy comptroller-general acts as the first instance judge and a collegiate tribunal of accounts composed of the comptroller-general and two prominent lawyers designated by the President acts as the second instance court. The TC can impose binding administrative sanctions ordering the reimbursement of the damages caused through salary retentions, career demotion or dismissal.
The constitution of 1980, the CGR organic law of 1964 and the financial administration law of 1975 guarantee the institutional independence of the CGR as a constitutional body. The agency’s
41 Special investigations consume a great deal of the agency’s resources, affecting routine oversight and planned audits. The results of special investigations are first transmitted to the audited agencies and then to the corresponding specialized committee in the legislature.
42 Personnel management functions include keeping the registry of all public servants, of contracted personnel, and of persons condemned by the courts and therefore prohibited to assume public functions. It also includes the custody of asset declarations of senior civil servants following the adoption of the administrative probity law in 1999.
43 The President, with the backing of the cabinet, can insist on his or her decision through a ‘decreto de insistencia,’ in which case the CGR’s veto is over-ridden. This over-ride prerogative of the executive does not apply to decrees with force of law, to the promulgation decrees or to decrees amending the constitution.