Constitutional Initiatives Related to the Armed Forces

El Mostrador, January 14, 2022

Regarding military justice, I agree that it must change, but not for the same reasons as those who seek its elimination. They essentially want the Public Prosecutor’s Office or the non-military justice system to handle cases involving the Armed Forces when they operate in States of Constitutional Exception or in any area of professional action, thereby limiting what members of the armed institutions can do, as non-military matters are sometimes in the hands of individuals who identify more with leftist ideas or who outright hold undemocratic views, and who support the objectives of those seeking to neutralize, eliminate, or remove them from the equation.

Recently, initiatives from some interest groups have been presented to the Constitutional Convention that relate to important aspects for the Armed Forces. In particular, I want to refer to those that discuss entry into defense institutions, as well as another that pertains to the elimination or significant modifications to the military justice system.

In both cases, unfortunately, it is evident that there are interests behind the initiatives that seek to neutralize the effectiveness of the armed institutions and pave the way for the pursuit of total power, as those who sponsor them view the Armed Forces as an element that bothers or hinders their purpose, since they hold the monopoly on arms and can obstruct their mission. To achieve this, they follow strategies to render them ineffective, irrelevant, or outright eliminate them. This is because they have concluded that they will not switch to their side, as was the case in Venezuela or other countries where leftist dictatorships are sustained by the power of arms.

The two initiatives I mentioned at the beginning of this column may seem logical and correct to many, but upon analysis, they fall apart, revealing that they aim at other objectives.

Let’s start with the single entry, which basically states that entry into the ranks of the Armed Forces should be through a single competition, eliminating separate admissions to the officer schools from those for soldiers, sailors, and aviators. Simply put, this is akin to saying that entry to medical schools should be alongside those of other health professions. We all clearly know that the academic requirements to become a doctor are greater than those of other specialties, and I don’t think anyone wants to be treated by someone with a less demanding professional qualification. To be clear, I am not discriminating between one and the other; I am just using an example that I believe everyone understands.

In the Armed Forces, professional levels correspond to the ranks of officers, while technical levels pertain to those who perform at the corresponding levels. The differences lie in the years of study and the complexities of the subjects they must study. Salaries and benefits recognize the studies of some and the experience of others, to the extent that the higher levels of the technical ranks receive better compensation than those who join as officers in some branches of the Armed Forces, despite holding professional degrees, which is not the case in civilian life.

It is also important to mention three additional reasons to dismiss the single entry: first, in 99% of countries, admissions are to separate schools, so there is no reason to be different; second, institutions have existing mechanisms to allow movement of individuals between professional and technical realms, provided they meet the necessary requirements; and third, there are state scholarships for those who cannot afford their studies.

It is also unwise to fall into the folly of class struggle as an argument, which collapses when one looks, for example, at the entry to what is supposed to be the most elitist school of the Armed Forces. Fifty percent are children of civilians from all over Chile, twenty-five percent are children of non-commissioned officers, and only twenty-five percent are children of officers. Lastly, the admissions from the wealthiest communes in Chile are low, as the salaries paid are lower than those of other professions, so only those with very strong vocations for serving the homeland enter.

For more information, I recommend reading the working document 12 from AthenaLab. 

Changing the subject, regarding military justice, I agree that it must change, but not for the same reasons as those who seek its elimination. They essentially want the Public Prosecutor’s Office or the non-military justice system to handle cases involving the Armed Forces when they operate in States of Constitutional Exception or in any area of professional action, thereby limiting what members of the armed institutions can do, as non-military matters are sometimes in the hands of individuals who identify more with leftist ideas or who outright hold undemocratic views, and who support the objectives of those seeking to neutralize, eliminate, or remove them from the equation.

In any case, I am happy for the military justice system to change, but for the reasons I outline:

1. Military justice in Chile effectively enshrines the existence of two legal systems. One is fully applicable in the country, in civil justice, with high standards, and without affecting the constitutional rights of the accused, while the other is for military personnel, with norms foreign to the current legal framework that definitely affect the fundamental rights of those subject to its jurisdiction (enshrined even in the Political Constitution) to have legitimate defense, on equal terms with the civil realm.
2. Military justice should exist for military offenses related to the use of force, in all its forms, but not to address common crimes committed by members of the Armed Forces. In practice, they are denied the prior right to know the file, to understand the circumstances and reasons for the accusation, and to be accompanied by a lawyer in the proceedings, in addition to establishing different levels in the means of evidence, etc.
3. The Military Justice Code is about to reach 100 years, as it dates back to 1925 (last partial reform in 2005), without considering the new norms of international law, human rights, and individual rights, as well as the norms and standards of modern democracies, along with the respective modern rule of law. 
4. Military justice has not adopted the substantive and procedural criminal guarantees, of universal application, in the event of any criminal accusation. In summary, there are no full guarantees of due process, where arbitrariness is just around the corner. It does not adequately ensure the presumption of innocence and the rights to legitimate defense.
5. There must be limits to the material and personal jurisdiction of military courts. Chilean military justice has already been observed by the Inter-American Court of Human Rights for an excessive scope of military justice, especially in judging civilians.
6. Moreover, military justice allows for the trial of civilians in numerous cases and of military personnel for common crimes, which should be limited to the knowledge of strictly military offenses related to the use of force.
7. Military justice has a structure and organization of its courts, with active-duty military personnel, who do not enjoy job security, being part of the chain of command of their respective institutions.
8. Military justice is primarily executed through a written process, of an inquisitorial nature, which is completely contrary to the current guarantees of due process.
9. At the very least, it is required today that military justice have the same standards and guarantees as civil justice, without affecting the essential rights of individuals subject to its jurisdiction.

Richard Kouyoumdjian
Vice President of AthenaLab

Source: El Mostrador