Note: Written by Claudio Fuentes. The original Spanish version of this article appeared in Chilean online newspaper El Mostrador. The original English translation of this article first appeared on the Chileno website.
Militarizing Araucanía: A Bad Idea
Is it advisable to militarise Araucanía? Although the Government has not for the moment invoked any state of emergency, it has taken two steps. A decision was made to restrict the freedom of individuals that began with major police roadblocks and involving the armed forces with intelligence work. Indeed, in addition to an increase in the number of police officers, the President announced that police would establish a “special area of control and security in those places that have been most affected by these crimes, so as to establish permanent control daytime and night, both vehicular traffic and the identities of persons travelling in the most affected areas. “
The question that immediately arises is under what legal framework this “special zone of control and security” will be defined. The Criminal Procedure Code clearly states the circumstances under which the police can make an ‘identity stop’ [without a warrant from a prosecutor, the police may require citizens to show their identity cards]: (a) when it is considered that the person has committed an offence, (b) when it could provide useful information to investigate a crime, (c ) or if the person is wearing a hooded top. Unless we proceed from the premise that all people in the area are suspected of a crime, of course undoubtedly ridiculous, the President’s announcement is problematic for two reasons: first, it significantly affects the rights enshrined in the Constitution (freedom of movement, for example), second, this decision is not supported by any legal framework that could validate the action of the police who, in fact, have already established identity checks at various points in the area.
The classic dilemma of security versus freedom is not resolved by providing a blank cheque for police. We know that too much discretion carries abuse, therefore delivering more power to police institutions ought to be backed by regulatory bodies governing their actions. By what criteria will a police officer decide to stop a person in the street tomorrow? The colour of their skin? The type of clothes they are wearing? The nervousness that they show interacting with armed police? The Guarantee Court of Pichilemu has already ruled against “nervousness” being a legitimate basis to justify an identity stop and subsequent arrest of a suspect (20/02/2011).
A second announcement by the President is also worrying. He said, “I have asked the director of the National Intelligence Agency, within its legal mandate, to collect information of a residual or complementary nature that the Armed Forces may have, and that is useful in order to increase the effectiveness and efficiency in the fight against terrorism and violence in the region”.
If the Armed Forces are gathering “complementary information” about events that are clearly internal matters for the police then they are violating the Law of National Intelligence. This delimits the functions of military intelligence to matters strictly having to do with “national defence” with two exceptions: concerning police functions that correspond to the naval and air authorities over maritime and air controls. Therefore the call made by the President is also inappropriate because it is not the place of the Armed Forces to hold intelligence on things that are obviously internal in nature.
The next step, proposed by the presidents of UDI and RN, has been the establishment of a state of emergency in the area, that will allow the restriction of freedom of assembly and movement and appoint a Chief of National Defence in the area. Besides constituting an extreme measure, the main difficulty is that since the amendment of the normative constitution of the Estados de Excepción [akin to state of emergency], so far a new Act to regulate them has not been established. You read correctly. Since August 2005 the provision emanating from the Constitution issued to establish a new regulatory framework for states of extraordinary circumstances, emergency and disaster has not been complied with. We have states of emergency that have been reformed during democracy, but the law that regulates these is from 1985.
In short, to establish a zone of “control and security” and to request “complementary” information from the Armed Forces are two steps of dubious legal status and will militarise the area. We hope that these announcements are reevaluated and rationality prevails given that their eventual implementation will exacerbate tensions in the area and will force, again, the courts and the Constitutional Court to assess whether these actions conform to the rule of law.