EXTERNAL COLLABORATION | Civil Leadership of Defense in the Executive Branch
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Since ancient times, indeed from the most primitive forms of human association, the superior command of military forces has been a special prerogative of those who lead society. It is a universal phenomenon that has virtually no exceptions in the development of forms and systems of government. Tribal and clan leaders, kings, emperors, and later presidents or prime ministers, as well as civil autocrats, have always included military command in their responsibilities during times of peace and/or war. Today, the leadership of defense is a regular and ongoing activity of the Executive, of an eminently political nature, exercised within a defined framework of public powers and through a specialized agency of the central administration of the State. Moreover—and this is obvious—it is a process that, in the vast majority of countries, normally unfolds in times of peace and domestic and international stability, and only very exceptionally during war.
The civil leadership of defense was a recurring topic in political-military relations in Chile during 2022; in fact, since the beginning of the transition, but it gained new visibility last year. It was analyzed—in what could be described as a superficial and biased manner—during the Constitutional Convention. Subsequently, the issue was mentioned by government authorities in September, on the occasion of the celebration of the Army’s Glories, and finally, the topic was included in the Agreement for Chile in December, in which constitutional basis 10 enshrines the existence of the Armed Forces, Carabineros de Chile, and the Police of Investigations, but “with subordination to civil power,” an explicit mention of the subjection of uniformed personnel to political authority, all of which reflects the relevance of the topic.
Viewed in perspective, the current profile of civil leadership of defense is not surprising. In fact, this topic, along with defense financing, were the two genuinely relevant issues in the debate on political-military relations that began in the waning days of the military regime and continued, with varying intensity, during the following two decades. Financing, more specifically the capital financing of defense, was resolved in 2020 with the enactment of Law 21174, which repealed the Copper Law System and established a new mechanism to fund the strategic capabilities of the Armed Forces, a regulation currently in the process of gradual implementation.
In turn, the issue of civil direction of defense, usually under the more Huntingtonian form of “civil control,” has remained in the debate. In 1990, the capacity of civil authorities to exercise effective leadership of the defense function, a genuine civil control, was very limited. For the time being, the Ministry of Defense was more of a bureaucratic control agency over the activities of the Armed Forces, as it lacked the structure and powers to lead defense in political and strategic terms. Moreover, it is fair to recognize that, at the beginning of the transition, the Armed Forces had significant levels of autonomy from civil authorities. The tenor of political-military relations during that period did not encourage advances in that regard; rather, the opposite occurred. As García and Montes state, “during President Aylwin’s government (1990-1994), there was no space or political capacity to think about defense modernizations.”[1].
In the following decade, the constitutional reform of 2005, enacted by Law 20050, restored to the President of the Republic the authority to call for the early retirement of the commanders in chief of the Armed Forces and the general director of Carabineros, a prerogative inherent to the head of state or government in any democratic system, which the president previously lacked.[2]. At the same time, this constitutional reform indirectly expanded the military leadership scope of the president by reducing the powers of the National Security Council and modifying its composition, all of which increased civil authority over the military, though it did not consolidate it.[3].
A more substantial advance occurred in 2010, with the enactment of Law 20424, the Organic Statute of the Ministry of National Defense.. This law vested in that government department the necessary powers to exercise genuine political and strategic leadership of the defense function and the Armed Forces, powers that it had previously lacked. Among other consequences, this firmly and definitively transferred to the political authorities of the ministry the responsibility to effectively and comprehensively exercise their new competencies, that is, to lead the defense function in political and strategic terms. The same applies to the Defense Books of 1997, 2002, 2010, and 2017, and the National Defense Policy 2020, currently in force. All these documents, especially the last three books and the National Defense Policy 2020, have evidenced a progressive increase in the capacity of civil authority to direct the defense function in the executive branch.
However, the civil leadership of defense is a complex matter, which justifies its periodic revitalization in local debate. The central question today lies in what is essential in any democratic system regarding the political-military relationship: the prerogatives of the executive authority concerning the defense function and the military forces and their effective exercise. This, in turn, is firmly anchored in the need to resolve one of the oldest problems of governance, how civil authority achieves effective control and subordination of its military forces, quis custodiet ipsos custodes[ja1] , a phrase that, as is well known, has nothing to do with politics as it comes from the Satires of Juvenal, but is often associated with political-military relations, and represents today and has historically represented the basic issue of relations between civil authorities and the uniformed. In fact, the Latin maxim constitutes the title of one of the most relevant contemporary works in the field of political-military relations regarding civil control.[4].
The topic has maintained its relevance in Chile in that neither the constitutional norms nor those of legal rank currently in force definitively and clearly resolve the nature of the permanent relationship between the President of the Republic and the Armed Forces. The matter is settled regarding civil leadership in times of war—and even this could be subject to some debate—but not regarding how the head of state leads defense in times of international normalcy. This ambiguity, for example, allowed the topic to be addressed in the Constitutional Convention and to be raised, as urgently as it was justified, in the recent Agreement for Chile..
In turn, the proposal of the Expert Commission[5] has expressed views on the Armed Forces and, in what is relevant for the purposes of this article, on the leadership of defense in the executive branch, specifically regarding the relationship of the President of the Republic with the defense institutions, without significantly innovating in the current situation.
To this must be added the weakness of the superior institutional framework of national security and defense, an issue also inherent to the leadership of defense in the executive branch. There is broad consensus that the current institutional framework, centered on the National Security Council and established in Chapter XII of the Constitution, and previously mentioned, as such, only has the name. Created as part of a government structure that ultimately was not implemented and that, objectively, was incompatible with full democracy, this council does not approach international standards for superior security institutions. The reduction of powers and the changes to its composition made by the constitutional reform of 2005, also already mentioned, did not alleviate the shortcomings of the Council; rather, they likely increased them and raised genuine doubts about the advisability of having maintained it in the Fundamental Charter. The results of the last convocations to the Council, during President Piñera’s second administration, clearly illustrate its limitations.[6].
The issue of the superior institutional framework of security and national defense was ignored in the failed constitutional proposal—despite the fact that it was proposed to the Convention to incorporate it—but has continued in specialized debate, which opens the way for it to be included in the constitutional project that begins to be discussed. The very fact that “subordination to civil power” is mentioned in the Agreement for Chile can be seen as a promising herald. Nevertheless, the Expert Commission did not include a direct reference to the institutional framework of national security and defense.
In summary, all of the above supports the treatment of civil leadership of defense in Chile, especially in the Executive branch, both from a political science perspective and in legal logic. It is a permanent, current topic and now of special relevance due to the constitutional nuances expressed in the debate that is beginning, despite the conservative treatment that the Expert Commission has given to the issue.
[CONTINUES…]
Miguel Navarro Meza
May 9, 2023
[1] GARCÍA Pino, Gonzalo and MONTES, Juan Esteban (2009). Modernization of Defense in Chile 2006-2010. UNISCI Discussion Papers No. 21.
[2] Before the 2005 reform, if the President of the Republic wished, for example, to call for the early retirement of a commander in chief of the Army or the general director of Carabineros, he had to first obtain the consent of the National Security Council, where the civilian members, including himself, were in the minority. Moreover, the system did not prevent the general whose position was threatened from participating in the vote, which virtually made it impossible for the president to obtain the Council’s authorization. For all these reasons, no head of state had attempted this procedure, despite serious situations occurring in political-military relations. After the reform, there has been one case of early removal, that of General Hermes Soto, general director of Carabineros, in December 2012.
[3] Regarding the National Security Council, the most relevant modifications were the removal of its power to “represent any authority established in the Constitution, its opinion regarding any fact, act, or matter that, in its judgment, seriously threatens the foundations of institutionalism or affects national security,” (art. 96 b) of the original text of the Constitution, and the integration of the President of the Chamber of Deputies and the Comptroller General of the Republic, leaving the uniformed personnel in the minority compared to the civilian members.
[4] BRUNEAU, Thomas C. & TOLLEFSON, Scott D. (2006). Who Guards the Guardian and How; democratic civil-military relations. University of Texas Press.
[5] Established in Article 145 of the current text of the Fundamental Charter.
[6] In relation to this topic, see O’NEILL, Paul (ed.) (2022). Securing the State and its Citizens National Security Council from Around the World. RUSI/Bloomsbury Publishing. UK. Introduction.
[ja1]I understand that the expression of the poet Juvenal is: Quis custodiet ipsos custodes, and should be written with question marks:
¿Quis custodiet ipsos custodes?
