NEW REGULATION OF PETITION RIGHT
Enactment of Law 9097
Up until last March 14th, the petition right, as an essential constitutional right, lacked specific regulation and its protection was claimed through a process called “amparo de legalidad” at the Tribunal Contencioso-Administrativo.
The petition right, just as it is described in the Constitution, includes the following:
ART 27.- Freedom of petition, individual or collective, is guaranteed before any public worker or official entity, as well as the right to obtain prompt resolution.
As from the enactment of the Law that Regulates the Petition Right, parameters about the form and time of response to petitions are established, so that the citizen may have more certainty and security concerning their rights.
The Law has 13 articles in total and has no disposition that calls for further regulation. With that said, we now present to you a quick summary of it:
Holder of petition right:
The Law establishes that the holder of the petition right is any “citizen”. We may assume from there that it refers to people only, so its application to legal entities will have to go under later interpretation.
Recipient of petition right:
The recipient shall be any institution, public administration or authority, from the central or decentralized government, as well as public entities, concerning their matters of subject.
It also applies for private entities, as long as they perform activities of public interest, administrate of manage public funds or have any legal authority in a temporary or permanent form.
Object of petitions:
Any matter, subject of information of public nature.
With exception of requests, complains, or suggestions that have their own procedures and specific terms.
Formalities of the right of petition:
All petitions should be done in a written form and include:
- Name, ID number, and signature of petitioner, as well as object of the petition and recipient.
- In case several people sign the petition, their full names should appear next to each signature.
- Spanish translation, if the petition is made in a different language.
As per the rest, informality will prevail.
Filing and terms for response:
The Administration shall have 10 working days, as from the following day of the receipt of the petition, as long as it contains all the requirements stated by Law.
Incomplete petitions:
One the petition is received, the authority that receives it will check all the necessary requirements.
If the request was incomplete, the petitioner will have 5 working days to correct it.
Additional documents may be required when they are necessary to respond to the petition, to which case a new term of 5 days will be granted. If the additional documents are not filed within such time, the petition will still be solved based on the rest of the information.
Non admission of petitions:
A petition concerning an object outside the competence of public authorities will not be admitted; neither will those that affect subjective and fundamental rights of people.
Petitions contrary to the principles of proportion and reason will not be admitted either. The same applies for petitions that have specific procedures established.
All non admittance resolutions will have to well founded and be communicated within the following 10 working days as from the day of receipt.
Legal competence issues:
When the authority the petition is addressed to is incompetent to solve it, such authority will communicate this situation to the petitioner and will send the petition to the competent authority in a term no longer than 5 working days.
In case both authorities belong to the same institution, the transfer of the petition will be done immediately, with communication to the petitioner, without further due or term. Therefore, the petition will have to be solved within the 10 days established by Law.
Processing and response of petitions:
The Law allows the public organ to summon the petitioner to a special hearing to respond to the petition in an oral manner.
If the Administration agrees to the petition, it should take the necessary measures to impulse it into effectiveness.
Extensions of time:
Due to the complexity of the petition, the Administration will be able to provide a partial answer indicating such reason, and an automatic extension of time will operate for up to 5 working days to provide the definite answer.
Jurisdictional protection:
Anyone can make a claim at the corresponding jurisdiction, in the following cases:
- Omission in answering in the established terms.
- Lack of legal grounds in the response or on the actions taken according to the Law.
- Partial or unclear responses without due foundation.
- Acts or responses from the Administration that affect fundamental rights of the petitioner.
- Any other situation stated by Law.
Penalties:
The civil servant that does not respond to a petition in due time, will have to pay a fine of 5% of base wage.
CONSIDERATIONS FROM LABOR LAW CORP:
Just as we stated above, our Firm considers that the new Law has some deficiencies that may lead to interpretation errors.
A good example of this is the use of the word “citizen”, which does not make it clear if it refers only to people of if it also includes corporations.
Additionally, the establishment of a means of notification is not considered or stated as an admission requisite, which we consider basic in terms of controlling the time elapsed between the communications to the petitioner and the response.
In either case, we consider that the practice will set the basis for an adequate and effective application of this law.
Please do not hesitate to contact us for further information.
Lic. Luis A. Medrano Steele
Socio Director
Labor Law Corp S.A.