Our senior associate in the Criminal Law Group, Daniela Castillo, spoke with Diario Financiero to discuss the Executive Branch’s proposal to grant constitutional status to security.
It was President José Antonio Kast himself who, in his address on Wednesday night, made it clear that his next objective, following the miscellaneous bill, will be to focus on security, announcing, among other things, that he will grant it constitutional status.
“For the first time, the State will state in its own Constitution that protecting its people is not just another option, but an obligation. It will be a mandate that no government, regardless of political affiliation, will be able to ignore,” the president said.
The announcement immediately raised questions about the effects and scope of granting security such status. The constitutional experts consulted—Jorge Correa Sutil; Tomás Jordán; Manuel Núñez, senior counsel at Guerrero Olivos Abogados; and William García, partner at Sarmiento Walker y García Abogados—agreed that the Constitution already establishes, in Article 1, the State’s duty to “safeguard national security and protect the population and the family,” in addition to addressing the matter in other provisions.
In this scenario, Jordán speculates that the goal now would be to “authorize the legislature to take intrusive measures without raising any constitutional issues or objections.” Added to this, he says, would be the creation of “a new state of emergency” with such characteristics.
For Núñez, however, a reform that merely reiterates what the Constitution already establishes makes no sense, “but it does make sense to clarify, with great care, the constitutional legitimacy of certain exceptional or special measures of a police, criminal, procedural, or correctional nature that modern legal systems require to combat sophisticated organized crime.”
García, for his part, agrees that Kast’s announcement does not necessarily “introduce anything new,” but cautions that “if the idea is that this could be used to restrict or deprive individuals of their constitutional rights—which is something that is already being done—we would need to examine the text of the reform to see if there are any additional details intended to be achieved.”
The Perspective from the Criminal Justice System
From the perspective of the criminal justice system, experts view the proposal with a certain degree of skepticism. Francisco Cox, a partner at BCP Abogados and an expert on organized crime, is categorical in stating that the constitutional amendment “has no major practical effects, beyond possibly enabling lawsuits against the State for a potential failure to provide services.”
And, given his area of expertise, he adds that “I don’t think extending the time limit for arrest on the spot from 12 to 24 hours will solve any problems in organized crime investigations, since a thorough investigation aimed at dismantling transnational crime is a long-term process.”
For his part, Ignacio Ried, a partner at Quintana Ried y Flores Abogados, agrees that the announcement may not have “significant practical consequences,” because to date there have been lawsuits against the state for civil liability stemming from alleged failures in its duty to safeguard public safety.
Daniela Castillo, a senior associate in the criminal law group at az, takes a more optimistic view, stating that the “immediate effect” of the constitutional reform “is to transform public safety from a public policy priority for citizens into an express constitutional mandate for the State.”
She elaborates by explaining that, “in practical terms, the reform does not replace the need to enact laws, but it does provide a robust foundation for promoting legal changes such as the expansion of police powers,” because “pretrial judges could invoke that constitutional mandate as an additional factor when weighing intrusive measures in the prosecution of criminal organizations.”
Criminal law expert Nelson Salas, of Salas Stevens Abogados, adds that the announced reform “in practice, may strengthen the enforceability of that duty (to ensure security), even opening the door to constitutional actions—such as the petition for protection—in response to serious omissions by the State, and influence the interpretation of laws and the actions of its agencies.”
Jorge Gálvez, a partner at Gálvez Venegas Hess Navarrete and director of the Criminal Law Department at the Pontifical Catholic University of Chile, offers a different perspective, arguing that “if a constitutional provision were to be introduced that explicitly establishes the principle of protection as a duty of the State, great care must be taken regarding its wording and scope, since the constitutional level has a decisive impact on other areas of legislation.”
