Constitutionalizing Public Security in Chile

Benjamín Alemparte

Assistant Professor of Constitutional Law, Universidad de Chile

Across Latin America, the persistence of organized crime places increasing pressure on the constitutional distinction between ordinary government and emergency rule. Governments have responded by normalizing exceptional security powers and, in some cases, seeking to place those powers on firmer constitutional foundations. Nayib Bukele’s El Salvador represents the most extreme version of this tendency, with a state of exception in force since 2022. Daniel Noboa’s Ecuador offers another example: Ecuador’s own Constitutional Court has described the repeated use of emergency powers against criminal violence as a structural problem that cannot be addressed by turning exception into normality.

The constitutional reform bill on public security recently introduced by the Chilean government of President José Antonio Kast should be understood against this regional background. Not because Chile has become El Salvador or Ecuador. It has not. Chile has not experienced Ecuador’s scale of criminal violence or El Salvador’s prolonged emergency regime. Yet the Chilean government’s own explanatory statement similarly presents organized crime as a persistent threat capable of controlling territory and infiltrating state institutions. The comparison therefore raises a constitutional question: what changes when such a threat is addressed not only through ordinary legislation, but by entrenching security objectives and exceptional powers in the Constitution itself?

The question is particularly important because the government’s own proposed bill maintains that many of the duties and powers that the reform seeks to “make explicit, clarify and strengthen” already find support in Chile’s Constitution. That apparent redundancy is the central issue raised by the reform. If many of these powers already exist, constitutionalization must be assessed not only by what it immediately authorizes, but by how it changes the framework within which future security measures will be interpreted, balanced against rights and reviewed.

This is where the reform becomes more consequential than it initially appears. There is an important difference between treating public security as a political priority and using the ordinary powers of the state effectively to pursue it, on the one hand, and transforming security into an expressly formulated constitutional priority while simultaneously expanding extraordinary powers in its name, on the other. The latter changes the legal framework for future decisions. It gives security claims express constitutional weight, authorizes forms of executive action that ordinary legislation could not constitutionally confer on its own, and can narrow the grounds on which subsequent measures are judicially reviewed.

Consider the apparently modest proposed amendment to Article 1. The current Constitution establishes a duty of the state to safeguard “national security.” The reform would add “public security.” Placing public security among the foundational provisions of the Constitution would give it the status of an expressly recognized constitutional objective. In the familiar language of constitutional balancing—most influentially systematized in Robert Alexy’s theory of proportionality—this matters. If the justification of a restriction upon a right depends partly on the constitutional status of the competing principles, expressly constitutionalizing public security supplies security-based restrictions with a clearer textual basis and an additional claim to constitutional weight. It does not predetermine every balancing exercise, but it changes the terms in which that exercise will occur.

A preliminary government draft circulated among governing parties before the bill’s formal introduction made this operation even clearer. According to the draft leaked to the press, the proposed Article 9 bis established special prison regimes and restricted access to state-funded benefits for persons convicted of organized crime or terrorism. The draft would have declared that the resulting differences in treatment could “in no case” be considered arbitrary and that the restrictions would not affect the essence of constitutional rights. Neither clause appeared in the bill formally submitted to the Senate, but their logic is revealing. By declaring certain distinctions non-arbitrary and certain restrictions compatible with the essence of rights in advance, the draft sought not merely to give security additional constitutional weight, but to narrow questions that courts would otherwise examine. It attempted to pre-structure constitutional review itself.

The final version of Article 9 bis remains troubling even without those clauses. There are good reasons to discuss differentiated prison regimes capable of preventing leaders of criminal organizations from continuing to operate from prison. More difficult to justify in constitutional terms is the proposal to constitutionally disqualify persons convicted of the specified organized-crime or terrorist offences from state-funded benefits related to health, education, employment and social security during their sentence and for fifteen years afterwards. The proposed text does not merely permit future legislation to create this consequence but instead states that existing benefits would be lost by operation of law, although legislation would still be required to define and administer parts of the regime. Such restrictions may affect the very material conditions necessary for reintegration after punishment has been served. They therefore engage equality and proportionality under Chilean constitutional law, as well as the rights to work, social security, health and education protected by the International Covenant on Economic, Social and Cultural Rights. Their continuation after the sentence has been served may also undermine the objective of reformation and social rehabilitation reflected in Article 10(3) of the ICCPR.

The most significant innovation, however, is a new constitutional state of exception for public security. Under the proposal, the President could suspend or restrict personal liberty, freedom of movement and the right of assembly; restrict freedom of association; intercept, open or search documents and communications; and order the requisition of property. The affected territory would be placed under a General Officer designated by the President, while an organic constitutional law would regulate the assistance that the Armed Forces could provide during the emergency. The emergency could initially last 120 days and then be renewed by the President for another 120 days without prior congressional authorization. Only subsequent extensions would require parliamentary approval. The President must report the measures adopted to Congress, and individuals may challenge particular measures affecting their constitutional rights before the courts. Yet the courts cannot review the grounds or factual circumstances invoked to declare the state of exception, while neither its initial declaration nor its first renewal requires legislative assent. The Executive could therefore activate and maintain for approximately eight months a regime capable of imposing significant restrictions on rights before its continuation becomes dependent on a parliamentary majority.

There is a deeper difficulty here than the number of days involved. A war, earthquake or grave internal disturbance can, at least ideally, be understood as an extraordinary event with a beginning and an end. Organized crime is different. As the government itself acknowledges, it is a persistent and structural threat. An exceptional response tied to such a threat may acquire the same persistence. This is precisely the danger identified by the Ecuadorian Constitutional Court, which held that organized crime must be addressed through institutions capable of operating under conditions of constitutional normality, since successive emergencies risk turning the exception into an ordinary framework of government. An institution designed as a temporary departure from that normality may thereby harden into a durable mode of governing particular territories.

This approach is not entirely new in Chile. The constitutional proposal rejected by voters in 2023—drafted by a Constitutional Council in which Kast’s Republican Party was the largest political force—already pursued extensive constitutionalization of security. It imposed a state duty to protect the security of the population, recognized a right to live in a safe environment, established a particularly severe constitutional framework for terrorism, and strengthened the constitutional role of the Armed Forces in protecting critical infrastructure, borders and emergencies. Yet the rejected text also imposed stricter limits on comparable security powers. Its state of emergency authorized restrictions only on freedom of movement and assembly and required congressional approval after two fifteen-day periods. Separately, its critical-infrastructure mechanism expressly prohibited the suspension, restriction or limitation of constitutional rights and required congressional approval for extensions beyond ninety days. The comparison is revealing. The current proposal does not merely continue the constitutionalization of security attempted in 2023; it would entrench broader executive discretion than the text voters rejected.

The continuity between these projects suggests that something more than a contingent response to crime is at stake. It reflects a particular understanding of the Constitution and of the relationship between authority and liberty. This is where contemporary debates over illiberal constitutionalism become relevant. Tímea Drinóczi and Agnieszka Bień-Kacała use the concept to describe a regime-level process in which the formal structures of constitutional democracy remain in place while the rule of law, human rights and effective constraints on public power are progressively relativized. The point is not that every tough security policy is illiberal or that increasing state capacity is incompatible with constitutionalism. The concern is more specific. Constitutional amendment can give governmental objectives additional normative weight, enlarge executive discretion and reshape the standards under which resulting restrictions are interpreted and reviewed. Whether that recalibration contributes to an illiberal transformation depends on its cumulative effects on rights and institutional controls, not on the mere presence of a security agenda.

David Dyzenhaus places this problem in a broader context in his recent book The War Against Law (2026). A “war against law,” in his account, need not be fought outside the legal system. It can proceed through law itself, by expanding executive discretion while weakening the conditions under which that discretion is controlled. His discussion of the United Kingdom’s now-repealed Safety of Rwanda Act 2024 illustrates the mechanism: after the Supreme Court found that Rwanda could not safely be treated as a destination for asylum seekers, Parliament required decision-makers to treat it as safe in law and restricted further judicial reconsideration of that premise. The deeper issue is therefore not simply whether law gives government more power. Law can also reshape the legal conditions under which that power will later be reviewed. The Chilean proposal operates through all three mechanisms examined above: it gives public security express constitutional weight, constitutionally authorizes broader executive discretion, and—most clearly in the preliminary draft—seeks to pre-structure the review of rights restrictions adopted in its name.

None of this means that constitutional government should be indifferent to insecurity. Organized crime requires effective intelligence, prison control, prosecution of criminal assets and the recovery of territories in which the state has lost effective authority. But ordinary institutional tools should be fully used before extraordinary powers are constitutionalized. In Chile, the statutory framework governing the Financial Analysis Unit already provides for suspicious-transaction reporting and legally authorized access to protected financial information, mechanisms that can be strengthened through legislation and institutional practice. Financial investigation is not a substitute for every coercive measure, but following the money may be at least as important in dismantling criminal networks as creating a new state of exception.

This is the debate the proposed reform forces Chile to confront, precisely because the reform itself tends to evade it. Public security can and should be a priority of the state. But turning a political priority into a constitutional priority is not a constitutionally neutral operation, particularly when it is accompanied by extraordinary powers and constitutionally reinforced restrictions on rights. If the government itself maintains that much of what it seeks to “make explicit, clarify and strengthen” already has a basis in the existing Constitution, the question remains unavoidable: why change the Constitution at all?

The answer matters beyond Chile. Across contemporary democracies, governments increasingly seek not only to exercise power within existing constitutional limits, but to reshape those limits in pursuit of objectives they regard as urgent or indispensable. In Chile, the immediate objective is public security. The larger constitutional question is therefore not simply how much power the state needs to confront organized crime, but how far, in the name of security, we are prepared to rewrite the limits on which democratic constitutional government depends.

Benjamín Alemparte is Assistant Professor of Constitutional Law, Universidad de Chile

Suggested Citation: Benjamín Alemparte, ‘Constitutionalizing Public Security in Chile’ IACL-AIDC Blog (10 September 2026) Constitutionalizing Public Security in Chile