Comments on the Constitutional Proposal Regarding National Security and Defense

The Constitutional Convention delivered the final proposal for a new Constitution to President Gabriel Boric. The text is the result of the work of the Harmonization Commission and will be submitted to a mandatory plebiscite on September 4.  

A review of the proposed document reveals that, in matters of security and defense, some issues remain unchanged while others differ from the draft submitted last May. 

In this regard, it is worth noting that the observations presented by the AthenaLab team in May of this year, which are available in the following document, are generally maintained.

ON OTHER RELEVANT ISSUES RELATED TO NATIONAL SECURITY AND DEFENSE

Although the main issues of national security and defense did not undergo significant changes, the text proposed by the Harmonization Commission raises some matters worth commenting on:

1. On Plurinationality and Autonomous Territories

What is proposed in this area has a direct impact on security and defense matters. According to presidential powers regarding the Armed Forces and police institutions, it is inferred that these have a national character and that their role is to protect those living throughout the territory. This unity, as stipulated in the proposal, would take precedence over autonomous territories. 

However, it is important to mention that both autonomy and plurinationality create administrative divisions that could eventually affect the functions of armed and public security institutions, especially since, in security matters, the text in Article 202, letter s) indicates that essential competencies of the autonomous community include “the promotion of citizen security.”

Another issue related to the idea of plurinationality is found in Article 66, which states that “indigenous peoples and nations have the right to be consulted prior to the adoption of administrative and legislative measures that affect them. The State guarantees the means for their effective participation through their representative institutions, in a prior and free manner, through appropriate, informed, and good faith procedures.”In this regard, the question arises as to whether some of the administrative measures to be consulted may pertain to security and defense. If so, the proposal that positions security and defense as a national matter under the Executive’s jurisdiction could face decisions made by indigenous peoples.

2. On Transitional Provisions. 

Among the elements noted by the AthenaLab team regarding the draft Constitution, one relates to the necessity that the appointment of commanders-in-chief of the Armed Forces be made from the five most senior officers. In this sense, the final text proposed by the Constitutional Convention includes an eleventh transitional provision stating:

“Until the respective laws regarding the Armed Forces that regulate the procedure for the appointment and duration of their institutional authorities are enacted or modified, the commanders-in-chief of the Army, Navy, and Air Force shall be appointed by the President of the Republic from among the five most senior general officers, considering the other requirements established in the corresponding institutional statutes.” In this regard, it is considered that appointing commanders-in-chief in this manner is favorable for the institutional integrity of the Armed Forces, as it ensures the experience and capabilities of those who assume leadership of these military institutions. The same applies to the senior command of Carabineros.

However, the text refers to “until the respective laws are enacted or modified,” implying that this measure could change if a bill is presented for that purpose. 

3. On the Academies and Schools of the Armed Forces and Law Enforcement 

Article 37 states the following:

“The Higher Education System shall consist of universities, professional institutes, technical training centers, academies created or recognized by the State, and the training schools of the police and Armed Forces. These institutions shall consider community, regional, and national needs. They are prohibited from any form of profit. 

The State shall ensure access to higher education for all individuals who meet the requirements established by law. Admission, retention, and promotion of those studying in higher education shall be governed by the principles of equity and inclusion, with particular attention to historically excluded groups and those requiring special protection, prohibiting any form of discrimination.” 

In this regard, it is relevant to mention that, alongside schools, the war academies of the Armed Forces, institutional polytechnic schools, and higher institutes of Public Order Forces are also legally authorized to grant professional titles and academic degrees, so they should also be included within the Higher Education System. The proposed text does not clarify this point.

Moreover, a significant issue relates to admission, retention, and promotion, which, according to the proposed Constitution, will be governed by principles of equity and inclusion with particular attention to historically excluded groups. This specification raises difficulties regarding admission, retention, and promotion within the schools and academies of the Armed Forces and Law Enforcement, as pursuing a military or police career requires certain capabilities that may not be prerequisites for other higher education institutions, given that the roles of police and military involve the legitimate use of force, necessitating physical endurance and mental condition that do not pertain to equity or diversity. For example, carrying weapons involves a physical, psychological, and intellectual condition suitable for performing the function.

4. On the Role of the Public Ministry in the Police 

Article 365, number 6) states that

“The Public Ministry may issue direct orders to the Law Enforcement and Public Security Forces for the exercise of their functions, in which case it may also participate in setting goals and objectives as well as in evaluating compliance with all of them. The required police authority must comply with such orders without further procedure and may not question their basis, timing, justice, or legality, except to request the presentation, unless it is oral, of the judicial authorization.” The above generates confusion regarding the roles of the Judicial and Executive branches in public security matters. It seems that the control of public order falls on the Public Ministry, while the Executive is responsible for prevention. However, the latter is tasked with leading public security through the corresponding ministry, according to Article 296, with the police depending on that ministry, as indicated in Article 297. Therefore, the direct orders that the Public Ministry may issue regarding security could create difficulties when implementing concrete actions for prevention and control of public order. It is noteworthy that the Law Enforcement and Security Forces must comply with an order without questioning its justice or legality. Any order issued by the political power must be based on the legality or justice of the act.

AthenaLab Team

July 2022.