Jump to Content Jump to Main Navigation
Security Sector Reform in Constitutional Transitions edited by Barany, Zoltan; Bisarya, Sumit; Choudhry, Sujit; Stacey, Richard (19th September 2019)

Part I Military Dictatorships, 2 The Slow Change in Chile: Long-term Security Sector Reform Alongside Constitutional Transition

Gonzalo García Pino

From: Security Sector Reform in Constitutional Transitions

Edited By: Zoltan Barany, Sumit Bisarya, Sujit Choudhry, Richard Stacey

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 17 October 2019

(p. 39) The Slow Change in Chile

Long-term Security Sector Reform Alongside Constitutional Transition

Introduction

In September 1973 General Augusto Pinochet’s military coup ended a period of democratic government uninterrupted in Chile since 1830, ushering in a period of military rule that lasted until 1990. In these seventeen years, the ruling military oligarchy made significant changes that increased the authority of the military and police (collectively the ‘security services’), removed mechanisms for civilian oversight of the military and police, and expanded the executive powers of the President. Central to these changes was the introduction of a new Constitution in 1980. The story of Chile’s restoration of democracy is in many ways the story of incrementally drawing back the powers granted to the President and the security services by the 1980 Constitution, through constitutional amendments in 1989, 2005, and 2011, and statutory changes made as recently as 2015. The processes of democratic transition and security sector reform (SSR) thus occurred in parallel in Chile: both were slow and methodical and have gradually reintroduced accountability and civilian oversight into a security service that was, for the seventeen years of the Junta, above the Constitution. This chapter recounts this story, expounding the benefits of a gradual process of SSR while remaining alive to the challenges that this brings, aiming to draw from Chile’s experience general lessons about SSR during constitutional transition.

Background and Context: From Democracy to Dictatorship and Back

The constitution of military authoritarianism

After deposing President Salvador Allende and dissolving Chile’s democratically elected legislature (Congress), Pinochet’s military government promised to establish a new democratic system and protect it from both external and (p. 40) internal enemies: the Soviet Union and international forces of communism on one hand, and domestic communists on the other. This ‘protected democracy’ would require the expansion of the authority and powers of the military and police and, moreover, an entirely new political structure or ‘institutionality’.1 The first step in establishing this new institutionality was for the armed forces to assume the ‘supreme command of the nation’ as the Junta de Gobierno, a ruling council composed of the Commanders-in-Chief of the Army, the Navy, Air Force, and the Director General of the Carabineros, the national police force. The Junta was the only institution of government in Chile, exercising both legislative and executive functions without any recognition of the principle of separation of powers. The Junta exercised legislative power by enacting decree-laws, while performing executive functions through supreme decrees and resolutions.

The second step in establishing Chile’s protected democracy was to enact a new Constitution to replace the 1925 Constitution. Days after the 1973 coup, the Junta appointed a nine-member constitution-drafting committee under the chairmanship of Enrique Ortuzar Escobar, a former Minister of Justice and Foreign Affairs during Jorge Allesandri’s presidency from 1958–64. The Ortuzar Commission published a draft Constitution in 1978, which was in turn approved by plebiscite in September 1980. While the 1980 Constitution was unsurprisingly partial towards the military regime, it is important to highlight a handful of institutional mechanisms that centralized power in the hands of the security services and undermined civilian and political oversight of the activities of the security services.

First, the 1980 Constitution rested on a set of principles catalogued in its opening provisions as the ‘bases of institutionality’. Although many of these principles were innocuous and would not be out of place in a constitutional democracy today—including statements committing to individual equality before the law and the family as the foundation of society—others spoke to the Junta’s authoritarian character. Article 8, for example, provided that any action by individuals or groups that advocate a conception of society based on ‘class warfare’ was illegal (para. 1), that any organizations advocating these conceptions of society were unconstitutional (para. 2), and that any persons found to have advocated any such conception of society would be precluded for ten years from holding public office or leadership positions in political, educational, professional, entrepreneurial, or labour organizations (para. 4).

(p. 41) Second, the ‘bases of institutionality’ provided a constitutional toehold for the expansion of the military’s political influence throughout the 1980 Constitution. While Article 1 paragraph 5 provided that ‘it is the duty of the State to safeguard national security’, Article 90 paragraph 2 declared that the military and the Carabineros were essential to national security and emphasized that it was their function to ‘guarantee the institutional order of the Republic’. The security services’ centrality to the civilian political structure was thus constitutionally entrenched.

A key element of the security services’ political role lay in the composition, functions, and operations of the Consejo de Seguridad Nacional (COSENA—National Security Council). The Council was to be headed by the President and composed of the President of the Senate, the President of the Supreme Court, the three Commanders-in-Chief of the armed forces, and the Director General of the Carabineros.2 The Council’s functions included advising the President on matters linked to national security upon his request, and expressing its opinion to any organ of the state about a ‘fact, action, or matter’ which in its judgement threatened the ‘bases of institutionality or which might affect the national security’ of Chile.3 The Ministers for the Interior, Foreign Relations, National Defence, Economy, and Finance held the right to participate as members of the Council, but without a right to vote.4 COSENA could be convoked by the President or by two of its members, and a majority of its members was required for a quorum,5 but the constitutionally prescribed membership of COSENA ensured that the Junta held a majority on COSENA: four of its seven members were the Commanders-in-Chief of the security forces, with the President, and the presidents of the Senate and the Supreme Court the only civilian members. Indeed, even though the President was nominally a civilian position, Pinochet remained Commander-in-Chief of the Army throughout his term as President. This arrangement, as well as COSENA’s power to identify threats to the bases of institutionality, which the security services were obliged to eliminate, conferred a great deal of power on the security sector to steer the course of government business.6

Third, although the 1980 Constitution provided for the establishment, election, and functioning of a bicameral legislature composed of the Senate and the Chamber of Deputies,7 the ‘transitory provisions’ appended to the Constitution (p. 42) ensured that Congress would be suspended for at least eight years after 1980. During this period, the Junta itself would operate as the legislature.8 The Junta thus remained the only legislative organ in Chile even after the adoption of the new Constitution in 1980, until it was forced from power in 1989. Looking beyond this eight-year transition period, the 1980 Constitution sought to prolong the security sector’s influence in Congress in other ways: one of each of the former Commanders-in-Chief of the Army, Air Force, and Navy, and a former Director General of the Carabineros would hold a seat in the upper chamber of Congress, and these four senators would be appointed by COSENA.9 COSENA would also appoint two of the seven members of the Constitutional Tribunal.10

Alongside legislative supremacy, the 1980 Constitution sought to ensure ongoing executive power for Pinochet. Although Article 25 provided that the President would hold office for eight years and could not be re-elected for a consecutive term, the Fourteenth Transitory Provision provided that Pinochet—identified by name (p. 43) in the text of the provision—would continue to hold the office of President for the eight-year term after the 1980 Constitution came into force.

Finally, the obverse to the security sector’s involvement in politics was the absence of civilian or political oversight of the activities of the security sector. The 1980 Constitution was again instrumental here, providing that the Commanders-in-Chief of each of the branches of the military and the Director General of the Carabineros would be appointed for non-renewable four-year terms ‘and shall not be subject to removal’.11 The only official empowered to question the performance of the leadership of the security services was the President, who could ‘in qualified cases’ call the Commanders-in-Chief and the Director General of the Carabineros to early retirement.12 Such a call had to be confirmed by COSENA, however, a majority of whose membership was of course constituted by the Commanders-in-Chief and the Director General of the Carabineros.

The seeds of transition

Despite the authoritarian flavour of the 1980 Constitution, it was ultimately the Constitution which held the key to the return to democracy in the 1990s. The Twenty-Seventh Transitory Provision, the Thirteenth Transitory Provision, and Article 25 of the 1980 Constitution provided that after Pinochet’s eight-year presidential term, the Commanders-in-Chief of the armed forces and the Director General of the Carabineros would nominate a candidate to assume the presidency after Pinochet, to be approved by referendum. The provision went on to note that the prohibitions on serving consecutive terms would not apply to this candidate, clearing the way for the Junta to nominate Pinochet as the candidate.

Although resistance to the Pinochet regime had been prevalent before 1988, for example in protest actions and general strikes led by opposition movements, it was the referendum that provided the leverage the opposition and the people of Chile needed to bring about change. The centre-left alliance Concertación de Partidos por la Democracia (or Concertación—Coalition of Pro-Democracy Parties) mounted a concerted effort to secure a ‘no’ vote against Pinochet’s continued presidency. Concertación spearheaded the largest mobilization of voters in Chile’s history ahead of the plebiscite: almost 8 million citizens were registered as voters during 1987 and 1988. Electoral volunteers were deployed throughout the country, and Concertación advocates took advantage of free television time to speak for fifteen minutes a day for the last thirty days of the campaign, in support of the ‘No to Pinochet’ campaign.

(p. 44) The referendum took place in October 1988. Pinochet’s candidacy was defeated by a margin of 56 per cent voting against to 44 per cent in favour. The Twenty-Ninth Transitory Provision of the 1980 Constitution provided that in this circumstance, Pinochet’s term as President would be extended by one year and elections for a new President and Congress would have to be held ninety days before the end of this term. During this period, the 1980 Constitution was revised, with fifty-four amendments being made by law and approved at referendum by 85 per cent of voters in July 1989.13 Presidential and parliamentary elections were held as required in December 1989, with Patricio Aylwin assuming the presidency in March 1990 for an exceptional, non-renewable four-year period.14

It is worth asking how a well-established military regime, with a grip on the institutions of power secured by the provisions of the Constitution, managed to lose a referendum on its own political future. There are a number of factors that help to explain the Junta’s defeat, and while some of these factors have to do with exogenous economic, ideological, and international forces, at least one of them is internal to Chile’s the legal institutional arrangements. In September 1985, the Chilean Constitutional Tribunal struck down as unconstitutional a rule in the organic law governing the independent electoral oversight body, the Tribunal Calificador de Elecciones (TRICEL), providing that the 1988 presidential referendum would be overseen by an ad hoc electoral court rather than by TRICEL. The court held that the referendum would be constitutional only if overseen by TRICEL,15 making it more difficult for the Junta to manipulate the results of the referendum to its advantage.

Of course, a majority of the people still had to vote against Pinochet’s continued presidency in the referendum. There was a range of diverse factors that help to explain why the people were disenchanted with the Junta government and were reluctant to see Pinochet enjoy another eight years as President. To start with, the Junta oversaw significant reforms to the economy between 1973 and 1990, which left unemployment rates at about 30 per cent at its worst in 1981–82, and near 20 per cent for the rest of this period.16 The promised benefits of a laissez-faire free-market economy, managed by a group of Chicago University-educated neoliberal economists appointed by the Juntathe so-called Chicago Boys—never materialized, doubling the amount of Chileans living below the poverty line between 1973 (p. 45) and 1987.17 The worsening economic conditions fuelled antipathy against the regime which, combined with ongoing court cases alleging human rights violations perpetrated by the security services, led to the cementing of an opposition alliance between socialist parties and church organizations.

Outside Chile, two international trends undermined the basis of the Junta’s military regime. First, the thaw in relations between the United States and the Soviet Union, leading eventually to the fall of the Berlin Wall in 1989 and the democratization of the republics of the former Soviet Union, made it difficult for the Junta to rely on the threat of international communism as a justification for its protected democracy. Second, the fall of military dictatorships in Argentina in 1983, Uruguay in 1984, and Brazil in 1988 fostered opposition to the very idea of military rule in the region, and further stoked mobilization for change.

Constitutional changes during the transition

After Pinochet’s candidacy for the presidency was defeated in the 1988 referendum, formal negotiations between the military government, right-wing parties, and opposition parties led to the 1989 constitutional reforms. Concertación and the National Renovation Party (RN), a conservative party that supported the military government, appointed a joint committee of ten constitutional experts mandated to reach compromise between the wide-ranging changes demanded by Concertación and the more moderate changes the government was prepared to accept.18 Some of the important changes are summarized here.

The bases of institutionality

Article 8 of the 1980 Constitution included the prohibition of activities promoting ‘class warfare’ and allowing the exclusion of people found to have engaged in these activities from political, social, and economic life. The article was a bulwark against communism and a key tool in the hands of the Government to suppress opposition, but was repealed in its entirety in 1989.

Article 8 also contained prohibitions of advocacy for totalitarianism and political violence. The 1989 amendments retained prohibitions on this form of political activity, but in more moderated form. The prohibitions were removed from the ‘bases of institutionality’ and included as internal limitations on the right to form and join political parties in Article 19(15) paragraph 5. The prohibitions thus (p. 46) operate only as a negative ‘clawback’ of rights of political freedom already granted to persons, rather than as an affirmative statement of one of the foundational principles of the constitutional order.

Further, persons found by the Constitutional Tribunal to have engaged in prohibited activities would be excluded from only political activities for the following ten years, rather than from leadership positions in commercial, professional, and labour organizations as well.

COSENA and the military

Article 94 of the 1980 Constitution provided that the appointment, promotion, and retirement of the officers of the armed forces and the Carabineros would be made by supreme decree (i.e. by the Junta). The 1989 amendments changed this rule slightly by requiring that while appointments, promotions, and retirements would still be made by supreme decree, the substance of any such decree would have to be consistent with ‘the applicable organic law, which will determine the respective basic norms, as well as those basic norms concerning the professional career, enlisting in their ranks, security, seniority, command, command succession and budget of the armed forces and Carabineros’.

The composition of COSENA was expanded to include the Comptroller General of the Republic by amendments to Article 95. The decision rule for COSENA was also changed to require an absolute majority of voting members rather than a majority of members present, which had the effect of reducing the security services’ influence over the Council.19

These changes began the process of transition to democracy and to restoring civilian oversight of a powerful security sector. Although a good beginning, it was the structural and institutional reforms to the security services themselves in the years since the fall of the Junta regime, in the context of these broader constitutional changes, that brought the oversight and control of the security forces into line with other constitutional democracies around the world. The remainder of this chapter describes these changes in detail.

The Subject of Reform: Changes to Institutional Structure 1980–2015

Tracing the institutional and structural changes to the security services from the Junta regime into Chile’s post-authoritarian democracy involves comparing Chile’s national defence organization across three different periods: the military regime (p. 47) from 1980 to 1989; the transitional period under a democratic government between 1990 and 2010; and the period of established democracy after 2010. In the next section of this chapter, we compare at a high level the chain of command, structural organization, and the mission and mandate of the security services for these three different periods, explaining how civilian oversight was either undermined or facilitated by contrasting arrangements. Under the heading ‘The military reacts: reasons for, and the value of, slow reform’, we recount the armed forces’ reaction to the changes, noting that resistance to change both explains the slow pace of SSR in Chile and arguing that this slow pace of reform was valuable in allowing the armed forces to come around to, and eventually accept, increased civilian scrutiny of their functions. Finally, under the heading ‘Changes to the structure of the police and intelligence agencies’, we describe changes to the institutional structure of the police and intelligence services from 1990 onwards.

Civilian oversight: the effect of institutional structure

Constitutional guarantees of security sector influence and autonomy, 1980–89

There are two broad mechanisms by which the 1980 Constitution ensured the security sector’s central role in politics. The first involved embedding the leadership of the armed forces and the Carabineros firmly in the institutions of government and shielding the security service from any form of oversight or political accountability. Under the military regime there was little, if any, institutional distinction between the security services and political institutions. The Junta not only exercised legislative power in terms of the Eighteenth Transitory Provisions of the 1980 Constitution, but also exercised ‘constituent power . . . subject to approval by plebiscite’ and could issue laws ‘concerning the interpretation of the Constitution, whenever necessary’.20 Whatever constraints the 1980 Constitution did place on the power of the Junta was thus subject to its wide power to either amend the Constitution directly, subject to plebiscitary approval, or to massage the meaning of the Constitution by ‘interpreting’ it in favourable ways through ordinary legislation. The Eighteenth Transitory Provision conferred significant executive powers on the Junta as well, such as the exclusive authority to deploy troops abroad or allow the entry of foreign troops into Chile, and to approve or reject international treaties.21

A very small concession to the separation of executive and legislative power, as well as to the separation of civilian and military leadership, existed in the (p. 48) Fourteenth Transitory Provision. While Pinochet would continue to act as both Commander-in-Chief of the Army and President, he would not sit on the Junta while President. Instead, his position on the Junta would be filled by the Officer General of Arms of the Army, the second-highest ranking officer in the Army’s chain of command.22 However, the President retained the power to remove the Officer General of the Arms of the Army from the Junta and replace him or her with the next-highest ranking officer in the Army.23 With regard to the other members of the Junta, the 1980 Constitution confirmed that it would remain constituted by the Commanders-in-Chief of the armed forces (subject to Pinochet’s replacement by the Officer General of Arms of the Army) and the Director General of the Carabineros.24 The only way that a member of the Junta other than the Officer General of Arms could be replaced was if he or she was dismissed from his or her position as Commander-in-Chief or Director General. Since Article 93 provided that the President could only call a Commander-in-Chief or the Director General to early retirement with the consent of a majority of the members of COSENA—the majority of which was itself constituted by the Commanders-in-Chief and the Director General—this effectively insulated the members of the Junta from dismissal even by Pinochet himself.

The perverse result of this small concession to separation of powers was that the Junta and the leaders of the security services were subject to no political oversight, even from the President. While the 1980 Constitution established the presidency as an executive institution separate from the Junta, the Constitution nevertheless ensured that the leadership of the security services was not formally accountable to the President and remained largely autonomous and free from political control.25

The second mechanism for concentrating political influence in the hands of the security forces was to subordinate the civilian bureaucracy and the government ministries responsible for security matters to the Junta. A Junta decree-law in 1974 removed the domestic police forces from the purview of the Ministry of the Interior and placed them under the control of the Ministry of Defence, along with the external armed forces.26 In addition, although the Constitution did distinguish between the armed forces as the institutions responsible for national security and the police as the ‘forces of order and public security’, it nevertheless provided that the Carabineros would be ‘integrated with the armed forces in the mission to guarantee the institutional order of the Republic’.27 There was little institutional distinction between the domestic police force focused on internal order, and the armed (p. 49) forces focused on external security. The concentration of responsibility for all the security services under a single ministry facilitated Junta control of administrative and bureaucratic matters in the security forces, as well as operational matters. The Ministry of the Interior was relegated to regulatory and coordinating functions.28 For instance, during the 1973–89 period, the Ministry of the Interior had to coordinate with the different regions within Chile on emergency and preventive planning in natural disaster cases.29 Similarly, the Ministry of the Interior was the executive agency in charge of the drafting of the constitutional organic law of the TRICEL.30

The internal structure of the Ministry of Defence further facilitated Junta control. The Ministry was made up of five secretariats, one for each of the four branches of the security services—Army, Navy, Air Force, Carabineros—and a fifth for the Policía de Investigaciones, a police force focused on criminal investigation and prosecution rather than public order. Between 1980 and 1989, the positions of the Minister of Defence and the five Secretaries were filled by former high-ranking officers in the security services. These men were contemporaries of the officers who staged the 1973 coup d’état and later became members of the Junta, and maintained close personal relationships with members of the Junta, permitting it informal influence in the business of the Ministry.31

Moreover, the Assistant Secretary of each of the secretariats was an active-duty colonel in the respective security service. Each Assistant Secretary was under the direct command of the Commander-in-Chief of the respective branch of the armed forces or the Director General of the Carabineros. The civilian Ministry of Defence was thus brought under the purview of the leadership of the security services, while the Minister and at least four of the five Secretaries were effectively excluded from the chain of command in each of the branches of the security services. In practical terms, there was no civilian official at the head of the military or internal security forces. The Estado Mayor de la Defensa Nacional (Defence Chief of Staff), for example, was established to coordinate the functions of the three armed forces, but had no input into strategic or policy matters.32 The security services (p. 50) were thus strong and independent institutions capable of operating without any need for approval or authorization from the civilian Ministry of Defence. The chain of command set out in Figure 2.1 indicates the minimal civilian authority over the security services.

Figure 2.1:  Chain of command under the military regime 1980–89.

Re-establishing accountability and civilian oversight: 1990–2010

With the rejection of Pinochet’s candidacy for President in the 1988 referendum, the path was cleared for a return to a civilian government. It is worth bearing in mind that the 1980 Constitution itself anticipated the demise of the Junta, in the sense that after Pinochet’s initial eight-year presidential terms, whatever the result of the 1988 referendum, the Junta would be dissolved and legislative functions would be resumed by the Congress elected in terms of the Eighteenth or Nineteenth Transitory Provision. After Patricio Aylwin assumed the presidency in March 1990, the Commanders-in-Chief of the armed forces and the Director General of the Carabineros remained in their offices at the head of each of the security forces, even though they no longer had any formal role in government as the Junta.

It was unlikely, in these circumstances, that the security sector’s political influence and autonomy would simply fade away with the Junta. The 1989 constitutional amendments, including the ‘civilianization’ of COSENA described earlier under the heading ‘Constitutional changes during the transition’, comprised only a first step on the path to restoring civilian control and oversight of the security sector. Indeed, the security sector did not acquiesce without murmur to the changes. In (p. 51) the first three years of Aylwin’s presidency the Army mounted a series of challenges to presidential and ministerial authority: in September 1990 the General of the Santiago Garrison did not request the traditional presidential permit to carry out the Military Parade, which was carried out regardless; in 1993, the ‘Boinazo’ movement expressed the Army’s dissatisfaction with judicial investigations into their activities, including investigations of General Pinochet’s son; and in 1994 the Director General of the Carabineros, Rodolfo Stange Oelckers, refused to resign after the President’s request that he do so and continued to occupy his position. At the same time, retaliatory attacks against members of the security services occurred: the early 1990s saw the assassinations of a former member of the military regime and a former Senator of the Republic, attacks against military personnel believed to have been responsible for human rights abuses during the dictatorship, and other threats of terrorism.

The democratic government had to show both that it had effective command of the security services, and that the police were capable of dealing with internal instability and crime. Aylwin therefore made moves to reduce the autonomy of the armed forces while reducing the armed forces’ influence over the police. He was able to move administrative control over the police force to the Ministry of the Interior, by executive decree,33 although operational control remained with the Ministry of Defence. Further, he created the Dirección de Seguridad Pública e Informaciones (Directorate of Public Security and Information) in 1993, an agency within the Ministry of the Interior responsible for coordinating the functions of the Carabineros and the Policía de Investigaciones.34 The Directorate was accountable to the Comptroller General on operational and budgetary matters.35 Shortly thereafter, the Government established by executive decree the Consejo Coordinador de Seguridad Pública (Public Security Coordinating Council), empowered to share information between the Carabineros and the Policía de Investigaciones in anti-terrorism actions.36

This institutional reform represents partial success in distinguishing between the internal and external focus of the police and armed forces respectively,37 but several proposed statutes that would have reasserted the Ministry of the Interior’s full operational control over the police forces failed to generate the support of Congress between 1991 and 2001. It was not until 2005 that this change could be made by law.38 Figure 2.2 illustrates the organizational structure of the security sector in the period 1990–2010.(p. 52)

Figure 2.2:  Chain of command under the democratic regime, 1990–2010.

Although these structural changes to the organization of the security sector were important, establishing effective civilian oversight of the security service in Chile would require the expansion of the powers and mandate of Congress. To this end, three specialized standing committees were established in Congress.

First, the Comisión Especial de Inteligencia en la Cámara de Diputados (CEICD— Special Intelligence Committee in the Chamber of Deputies) was established by Law No. 19,974 in 2004.39 The CEICD oversees the intelligence activity of the Agencia Nacional de Inteligencia (ANI—National Intelligence Agency), a joint body constituted by the armed forces and police intelligence services and mandated to coordinate the intelligence functions of the armed forces and police. (p. 53) The ANI falls under the portfolio of the Ministry of the Interior, although it reports directly to the President of the Republic.40 Since 2004, a civilian has always held the position of Director of the National Intelligence Agency.

Second, there is a standing committee for national defence in each of the chambers of Congress: the Chamber of Deputies Defence Committee and the Senate Defence Committee. The Chamber of Deputies Defence Committee reviews all draft laws in the defence sector before they are tabled in Congress, and the executive’s strategic defence plans must be submitted to the Committee for its general information. Specific procurement plans, however, are not required to be brought to the Committee’s attention.41 The Senate Defence Committee plays a key role in the deployment of the armed forces abroad. While the deployment of Chile’s troops abroad was a decision in the hands of the Junta in terms of the 1980 Constitution,42 Articles 63(13) and 32(17) of the Constitution as amended provide that the President may deploy the armed forces abroad, in accordance with an organic law setting out the norms for foreign deployment. This law was passed in 1991, and it provides that a presidential order to deploy troops abroad must be approved by the Senate.43 The Senate Defence Committee reviews such orders and proposes whether the Senate should approve or reject the deployment of Chilean troops abroad. Chile’s participation in the UN’s peacekeeping and humanitarian missions to Haiti in 2004 (MINUSTAH) is an example of the foreign deployment of Chile’s troops in accordance with these provisions.44

Both Committees can order officials to appear before them to explain the technical details of defence decisions, or appoint experts to serve in an advisory capacity on issues being discussed in Congress.45 In addition, although the defence sector budget is not approved or supervised by these Committees, they coordinate with the Finance Committee of Congress on defence budgetary matters.46 Finally, the Committees have a right to access information as well as a right to hold meetings in secret.47

(p. 54) In addition to the standing committees, ad hoc investigative committees may be established by a decision of the plenary session of either Chamber. The law which established the ANI was initiated by an ad hoc Investigative Committee mandated to review whether the scope of activity enjoyed by military intelligence had facilitated the improper surveillance of politicians by the Army in the early 1990s. The Committee found that the absence of civilian executive control was a weakness that had to be overcome in order to refocus military intelligence away from internal political matters and onto external security matters.

These gradual piecemeal changes to the constitutional bases and institutional structure of the security sector culminated in a significant package of reforms in 2005. The 2005 constitutional amendment was the result of long political negotiations since the 2000s between all political parties, the executive, and legislative branches of government. The gestation of this constitutional reform came from the party Alianza por Chile, who advocated for the end of the transitional politics period, and the Concertación de Partidos por la Democracia, who sought a higher democratization of the Constitution.48 Furthermore, the political sector of the opposition could no longer afford to veto constitutional reform attempts at Congress in light of the detention of Pinochet in London and the secret bank accounts associated to him that surfaced.49 These events caused a rupture between the political parties of the right and the military. Consequently, the Alianza por Chile realized that it was time to end the powers granted to the military in the 1980 Constitution as these were affected by democratic deficits and were no longer useful for political matters.50 The constitutional amendment passed in 2005 made five important changes:51

  1. 1.  In a significant change that finally drew a distinction between the civilian bureaucratic institutions responsible for external security on one hand and internal security on the other, the police (Carabineros and Policía de Investigaciones) were separated from the armed forces and brought under the authority of the ministry responsible for public security, while the armed forces remained under the authority of the ministry responsible for national defence.52 In addition to the institutional separation, the amendment also separated the functions of the armed forces and police. The Army, Navy, and Air Force are ‘essential for national security’ and must ‘guarantee the institutional order of the Republic’, while the Carabineros and Policía de Investigaciones must implement the law and ‘guarantee the public order and (p. 55) the public internal security’ of the Republic: the Carabineros no longer assist the armed forces ‘in the mission to guarantee the institutional order of the Republic’. However, it is worth noting that the Constitution as amended in 2005 now requires all organs of state, and not just the armed forces, to ‘guarantee the institutional order of the Republic’.53

  2. 2.  The lack of accountability inherent in the immunity from removal previously enjoyed by the Commanders-in-Chief of the armed forces and the Director General of the Carabineros was addressed. The President now enjoys the discretion to appoint and remove the Commanders-in-Chief of the armed forces and the Director General of the Carabineros by supreme decree. The exercise of this discretion must be ‘substantiated’ against the organic law setting out the basic norms of the security forces, and the Chamber of Representatives and the Senate must be informed.54 The top-ranking official in each branch of the security sector is ultimately accountable to the civilian President.

  3. 3.  The influence and role of COSENA was reduced in a number of ways: it no longer nominates judges to the Constitutional Tribunal;55 only the President, and not any of its members, can call COSENA into session;56 and COSENA no longer has any role in the declaration of states of emergency or exception.57 COSENA now acts in only an advisory capacity, when requested to do so by the President of the Republic.58

  4. 4.  The set-aside of seats in the Senate for ex-Presidents was abolished, as was the appointment of former Commanders-in-Chief of the armed forces and a former Director General of the Carabineros to the Senate by COSENA.59

  5. 5.  The Supreme Court was made responsible for the oversight of military courts, which were previously excluded from the Supreme Court’s oversight.60

Consolidating civilian oversight: changes to the armed forces, 2010–15

It was not until Law No. 20,424 of 201061 brought about a totally new structural organization of the Ministry of Defence and the Ministry of the Interior that the security services in Chile could be said to be under effective civilian control.

The Minister of National Defence is at the apex of the Ministry, assisted by two new secretariats on one hand, and the newly created Estado Mayor Conjunto (Joint Chief of Staff) on the other. The Secretariat of Defence and the Secretariat of (p. 56) the Armed Forces thus replaces the five secretariats in the Ministry before 2010. The Secretariat of Defence collaborates with the Minister on Defence policy matters,62 and the Secretariat of the Armed Forces collaborates with the Minster on matters related to the bureaucratic and administrative functioning of the armed forces.63 The staff of these secretariats is composed of both civilian officials and members of the armed forces.64

The Joint Chief is a permanent office mandated to provide ongoing advice to the Minister on matters relating to the readiness and deployment of the armed forces.65 The President appoints the Joint Chief of Staff by decree, after informing both the Senate and the Chamber of Deputies. The Joint Chief must be a member of the military with the rank of at least general or vice admiral.66 The Joint Chief of Staff is accountable directly and exclusively to the Minister of Defence. The Joint Chief of Staff exercises command of joint military operations of the branches of the armed forces both during times of war and during peace missions, for example those coordinated by the UN.67 Defence policy is formulated by the Minister, with the country’s strategic military needs and priorities defined by the Minister in light of this policy. The Joint Chief of Staff executes this policy.

The Commanders-in-Chief of the armed forces also play an advisory role to the Minister, through the Junta de Comandantes en Jefe (Board of Commanders-in-Chief).68 The Minister must consult the Board on matters relating to subjects that affect the armed forces jointly or affect the distribution of resources and responsibilities among the branches of the armed forces.69

The chain of command under the 2010 arrangement is successive: each branch of the military is subordinate to its respective Commander-in-Chief, while the Commanders-in-Chief are accountable to the President of the Republic. The Joint Chief of Staff is accountable to the Minister of Defence, and the Minister of Defence, as with all Cabinet positions, serves with the confidence of the President of the Republic and can be replaced by the President alone at any time. The new structure is reflected in detail in Figure 2.3.

Figure 2.3:  Defence structure and command in Chile: 2010–present.

As an indication that SSR is ongoing in Chile, a constitutional amendment in 2011 provides that a law must transfer the responsibility for oversight over firearms and military arsenals to a civilian ministry or administrative agency, rather than leaving this in the hands of the armed forces.70 This law was passed in 2015,71 (p. 57) and distributes responsibility for various functions in the oversight of arms and arsenals between the Ministry of Defence, the Ministry of the Interior and Public Security, and the Ministerio Púbilco de Chile or Fiscalía de Chile (Office of Public Prosecutions).

The military reacts: reasons for, and the value of, slow reform

The slow pace of constitutional reform, beginning in 1989 and continuing through to 2010, can be explained in part by the opposition mounted by Senators appointed by COSENA under the terms of the 1980 Constitution. It was only in 2005 that the composition of the Senate had changed sufficiently for constitutional amendments reducing the privileges of the security sector to pass into law.

A contributing factor to the slow pace of constitutional reform relates to the gradual loss of popular approval and support for the military. It is important to remember that the members of the Junta were not lustrated after 1989. On the contrary, many of them kept their jobs in the top rungs of the military hierarchy, and Pinochet remained Commander-in-Chief of the Army until 1998.72 Many of (p. 58) the revelations about the military’s involvement in human rights violations and growing economic crisis were not made until 1983, and until then the military enjoyed some measure of popular and political support. The month of May 1983 was characterized by major protests around the country that were the result of the ‘collapse of the financial system, the replacement of the economic administration team, a heavy foreign debt, and the generalized indebtedness of vast middle-class sectors’.73 The vast social discontent brought together different organizations (from students to certain union groups) that promoted a collective expression known as ‘Democracia Ahora’ (‘Democracy Now’).74 In 1985, the Inter-American Commission on Human Rights published a report on the human rights situation in Chile, which denounced the detention and disappearances of more than 500 persons, unknown numbers of deaths, and thousands of people tortured.75 Augusto Varas has also analysed polls from 1988 that demonstrated people associated the armed forces with ‘the rich’ and that 59.3 per cent of the polled sample maintained that more human rights violations had taken place during the dictatorship, and 73.1 per cent revealed some degree of distrust for the armed forces. Finally, Varas also highlights a Latin American poll from 1989 that revealed 76.9 per cent of the Chilean population considered the armed forces to have a poor ability to govern.76 At the same time, the public’s enthusiasm for military involvement in internal security issues began to wane, as changing strategic priorities refocused the military on regional cooperation and external security issues.

With former members of the Junta in leadership positions and the vestiges of military influence in the political processes, the military was able to preserve a measure of autonomy over certain of its internal affairs throughout the reforms of the 1990s. The military insisted on autonomy in career development, on training and education of military leadership, and the constitutional prohibition on creating military or police forces other than those expressly defined in the Constitution.

The military’s resistance is reflected in the 1989 change to Article 94 of the 1980 Constitution, providing that the security services would be regulated by supreme decrees consistent with constitutional organic laws. The Government could not make changes to the personnel of the armed forces except in terms of enabling organic laws. Accordingly, after Patricio Aylwin was elected as President on 14 December 1989 but (p. 59) before he took office on 11 March 1990, the Junta enacted the organic laws of the armed forces77 and Carabineros78 and promulgated forty-six other organic laws dealing with prerogatives of the armed forces and police. The Junta made sure to entrench these laws, as each law provided that it could be amended only with a 4/7 supermajority of Senators and Deputies—a supermajority that Concertación was unable to muster until the end of President Michelle Bachelet’s term in 2010.

A number of features of the 1990 organic laws reflect the concerns of the military government as it faced the transition to democracy:

  1. 1.  The law indexed the budget of the armed forces against an inflationary variable set out in the 1989 Budgets Law—the military regime’s last budget. This eliminated deliberative debate in Congress about the military budget, guaranteeing a certain degree of financial autonomy to the military.

  2. 2.  The law strengthened the social insurance system of the armed forces, providing an immediate severance package for each military officer leaving service. The severance benefit was increased to the equivalent of thirty months’ salary—as opposed for the maximum of eleven months’ salary allowed in the civilian labour system—while contribution amounts were reduced.

  3. 3.  The law increased the guaranteed minimum appropriated to the military from funds generated from copper (Law on Funds Reserved from Copper).79 Consequently, each branch of the military was allocated US$60 million annually for the acquisition of weapons systems and for the payment of debts to maintain old equipment.80

All of these new laws had one objective: to preserve as much autonomy from civilian control for the security sector. If the military’s efforts to preserve its autonomy help to explain the slow pace of reform, the slow pace of reform may have had the effect of ensuring that the changes will be more robust in the longer term. As the military withdrew from political functions after 1989, they were expecting and began to prepare for retribution from the new civilian government. But the resistance the military was able to mount to the more immediate changes proposed by Concertación in 1989, for example, meant that changes to the structure of the military had to happen over two decades. The idea of change was thus allowed to (p. 60) permeate the public and military consciousness gradually, without immediate action, fostering a culture more receptive to institutional change in the long run. This point is essential: the military were expecting a flood of widespread reforms and retribution that never came, and were ultimately faced with incremental statutory changes that they were happy to accept. A by-product of a ‘Maginot line’ of institutional autonomy the armed forces drew was the limit it put on opportunities for political or partisan abuse of the security services once the democratic government had assumed office.

Changes to the structure of the police and intelligence agencies

A significant challenge to establishing civilian oversight of the security sector in Chile has been the blurred line between the functions of the Carabineros and the armed forces. As described throughout this chapter, separating the functions of the two security services has been a gradual process. While the 2005 constitutional amendments made a significant break with the past in establishing operational control over the police in a separate executive ministry, an organic law passed in 2011 details precisely how the Ministry of the Interior and Public Security will exercise administrative control over the Carabineros and Policía de Investigaciones.81 The law establishes two secretariats within the Ministry: the Secretariat of the Interior is responsible for the Carabineros, and the Secretariat of Crime Prevention is responsible for the Policía de Investigaciones. Each police force is accountable to its secretariat, but the leadership of both forces enjoy operational autonomy to command and manage their forces.

In general, the Carabineros did not make the same attempt to defend their autonomy as the military. The only example of the desire to resist civilian control was in 1994 when General Stange refused to resign despite President Frei’s request. General Stange resigned two years later nevertheless, amid the Carabineros’ decreasing influence on politics.

Reforming the internal security forces was not confined to the police, however. One of the early objectives of the democratic regime was dismantling Pinochet’s secret internal intelligence machinery, Direccion de Intelligencia Nacional (DINA—National Intelligence Directorate), which, under the military regime, was supervised by the Army. Law No. 18,943 was an important compromise here: it dissolved the governmental intelligence agency (CNI) and transferred a part of its personnel to the private labour force contracted to the Army.82 Law No. 18,889 facilitated the ‘privatization’ of security agents, allowing their (p. 61) absorption into private security companies.83 These private security companies had been established by the Junta in the first place many years earlier.84 Apart from the few examples of political violence against members of the military in the early 1990s, the post-authoritarian period in Chile has experienced quite low levels of public violence. One explanation for this is in the existence of over 1,000 private security companies, employing about 125,000 persons as watchmen and guards, many of whom are former members of the Junta’s disestablished intelligence agency.85

Providing viable and attractive alternative private-sector employment opportunities to members of disestablished intelligence agencies has proved to be valuable both in reducing the degree of opposition to the transition from these former security officers and, by moving these security officers into the private sector, reducing the incentives for them to remain involved in politics.

Conclusion: Timing Constitutional Change and Security Sector Reform

Chile’s experience allows us to identify both the lessons learned and the mistakes made in the process of security sector transformation.

The slow change

A key element of Chile’s success in transitioning from military oligarchy to democratic government and re-establishing effective civilian control over the security sector was the low degree to which the transition threatened the professional prospects of the high-ranking officers of the security services. This ensured that the cost of transition was low for the security sector, and that it had little to lose by accepting the transition. There were two factors that ensured this low degree of threat.

The first was that the members of the Junta, or at least their political representatives in the Renovación Nacional (RN), were active participants in the negotiations that led to the first post-Pinochet constitutional amendments in 1989. The compromise solution reached between RN and Concertación before Aylwin took office provided some assurance to the security sector that radical change to the structure and composition of the security services would not happen immediately. In this (p. 62) light, the members of the Junta as well as the rank and file of the security services for the most part kept their jobs in the security sector. Those soldiers and spies whose agencies were disestablished were essentially compensated by opportunities in the private sector.

The second factor, related to the first, is that the changes that were made to the security sector after 1989 were incremental and moderately paced. During the 1990s and early 2000s, the Government made changes to the structures of administrative accountability of the security sector, such as redefining the chain of command, reshuffling Cabinet responsibility for the Carabineros from the Ministry of Defence to the Ministry of Public Security, and establishing legislative oversight committees and agencies. But no constitutional changes were made to the powers, functions, or institutional structure of the security sector until 2005, fifteen years after the end of the military regime. It is these changes that definitively reduced the political influence of the security sector and started to establish effective civilian control and oversight of the security sector. These changes were consolidated with further constitutional amendments and organic laws in 2010 and afterwards.

However, a consequence of the slow pace of reform and the Junta’s influence in shaping the immediate post-Pinochet period was that very few members of the Junta or the Junta’s machinery of government faced prosecution for the crimes they committed while in power. In 1978 the Junta passed a decree-law granting amnesty to the Junta for any crimes committed between 1973 and 1978.86 The 1980 Constitution ensured the continuity of the amnesty law by affirming that Chile’s legislative organs—the Junta at the time the amnesty law was decreed—could declare amnesty.87 This law was not repealed by the post-1989 democratic governments, despite Concertación’s 1988 promise to do so if elected. One explanation for this is the strong influence the security sector retained in the Senate,88 but even after the provision ensuring security sector representation in the Senate were removed in 2005, the law remains on the books as at the time of writing in 2016.89 The democratic government’s sensitivity to the strong position that the security sector maintained after 1990, and its desire to ensure that the transition was not threatening to the security sector, helps to explain the reluctance to bring criminal charges. This atmosphere of compromise is reflected in a Supreme Court judgment in 1990, holding that the amnesty law was neither unconstitutional nor in conflict with international law.90 During Aylwin’s Government, the only high-ranking member of Pinochet’s security bureaucracy to face prosecution and conviction for (p. 63) crimes committed while in office was General Juan Manual Contreras, former head of DINA. He was convicted of the murder of a Chilean diplomat in Washington DC in 1976.

As the 1990s wore on, however, this atmosphere of compromise and appeasement gradually changed, as the members of the Junta aged and retired, and their influence over politics faded. In 1998, the Supreme Court declared that the application of the Junta’s amnesty law to human rights violations was unconstitutional,91 allowing for prosecutions for the human rights violations of the Junta regime. In other cases, even without declaring the amnesty law invalid, the Supreme Court found ways to couch the crimes of which agents of the Junta regime were accused in order to circumvent its limitations.92 Amid these decisions, over a thousand prosecutions have been launched against members of the Junta’s security services for crimes relating to forced disappearances, torture, and killing, with final judgments against the accused in 279 cases and seventy-five persons serving prison sentences. After General Contreras served a seven-year sentence for the 1976 murder, he was tried and convicted in 2002 of human rights violations under Pinochet and sentenced to fifteen years in prison. Pinochet died in 2006, before a court was able to try him on allegations of human rights violations.

Separation of internal and external mission

An important part of the transition was the restriction of the role of the armed forces to matters of external security rather than internal security. During the dictatorship, it was almost inevitable that the armed forces would become embroiled in domestic or internal matters, in light of the fact that the Commanders-in-Chief of all three of the branches of the armed forces served on the governing Junta. It is an important step in reducing the political influence of the armed forces to refocus their mission on matters of external security, to ensure that there is neither incentive nor opportunity for them to involve themselves in matters of domestic or internal policy.

At the same time, the Carabineros and the armed forces under the Junta shared responsibility for ensuring the safety of the nation and eliminating threats to the bases of institutionality. There was thus no separation or distinction between the mission of the Carabineros and the armed forces. Combined with the expansive (p. 64) definition of the ‘bases of institutionality’ in the 1980 Constitution, this gave the armed forces and the Carabineros a very broad mandate.

Establishing effective civilian control over the security sector involves a clear articulation of the mission and mandate of each branch of the security sector. Without such a clear statement of mission and mandate, or where as in Chile’s case a broad mandate is shared between all the branches of the security sector, it will likely prove difficult for a civilian government to exercise effective control or oversight over the activities of the security sector. Ensuring effective oversight involves, for a start, a clear constitutional or statutory statement of the powers, functions, and mission of each of the security services, so that it is possible for civilian oversight bodies to determine if each service is doing its job.

Establishment of civilian bureaucracy

Finally, civilian oversight cannot be left to legislative committees or the executive government. It is important that civilian oversight of the functions of the security service be ongoing—and the best way to achieve this is through establishing a civilian command structure and bureaucracy for both the armed forces and the police.

Chile struggled in the post-Pinochet period with the fact that the Ministry of Defence was responsible for both the armed forces and the police. The separation of these two services, and the establishment of an effective civilian bureaucracy for the police took until several years after the fall of the Junta, but was an important step in defusing the concentration of power over the security services in a single Cabinet position and in reducing the influence of the former members of the Junta in the command of the security services.

The incremental changes to the chain of command and structure of both the armed forces and the police since 1990 have strengthened civilian control of the security sector by ensuring that officers in each force are accountable to civilian political office-holders, such as the relevant secretariat and ultimately the Minister of Defence or the Minister of Public Security. The Junta era had no civilian accountability to speak of, since the Commander-in-Chief of each of the security services was in government. There was thus no mechanism at all of government oversight of the security sector.

Even after 1990, the fact that the Carabineros were accountable only to the Minister of Defence was problematic. It is unsatisfactory that the Cabinet member responsible for matters of external security should be responsible also for matters of internal security, since these portfolios deal with very different subjects and issues and have different priorities. It was not until reforms in 2010 that lines of accountability within the security sector were structured in a way that maximizes civilian oversight and control of the security sector.

(p. 65) Overall, the present-day success of civilian oversight of the security sector in Chile has much to do with how long the process of reform took, and with the concessions made to the former military leadership throughout the transition. The price for this long, slow, and ultimately successful transition, however, is the lack of, or at least significant delay in securing, justice for the crimes committed by the Chile’s former military rulers.(p. 66)

Footnotes:

1  Augusto Pinochet, Visión futura de Chile (División Nacional Comunicación Social, 1979), 32. See also Wendy Hunter, State and Soldier in Latin America: Redefining the Military’s Role in Argentina, Brazil, and Chile (US Institute of Peace, Peaceworks Series, 1996), 30–1, noting that the notion of ‘protected democracy’ coincided with an alliance between armed forces and conservative or right-wing political parties.

2  Constitución Política de la República de Chile, 1980 (CP), Art. 95 para. 1.

3  Ibid., Art. 96(b).

4  Ibid., Art. 95 para. 2.

5  Ibid., Art. 95 para. 3.

6  See also Robert Barros, Constitutionalism and Dictatorship: Pinochet, the Junta, and the 1980 Constitution (Cambridge University Press, 2002), 240–4.

7  CP, Chapter 5.

8  Ibid., Eighteenth Transitory Provision:

During the period to which the Thirteenth Transitory Provision refers, the Junta of Government will exercise, by the unanimity of its Members, the following exclusive attributions:

  1. A.  To exercise the Constituent Power, always subject to plebiscitary approval, which will be held in conformity with the rules that the law specifies;

  2. B.  To exercise the Legislative Power;

  3. C.  To issue [dictar] the interpretative laws of the Constitution, which may be necessary;

  4. D.  To approve or reject international treaties, prior to the presidential ratification;

  5. E.  To grant its agreement to the President of the Republic in the cases specified in Letter B of the Fifteenth Transitory Provision;

  6. F.  To grant its agreement to the President of the Republic in order to decree the states of assembly and of siege, as the case may be;

  7. G.  To permit the entry of foreign troops into the territory of the Republic, as well as to authorize the departure of national troops from it;

  8. H.  To take cognizance of the conflicts of competence that arise between the political or administrative authorities and the superior tribunals of justice;

  9. I.  To grant the recovery of citizenship, in the cases to which Article 17, Numeral 2 of this Constitution refers [aludir];

  10. J.  To declare, in the case of the resignation of the President of the Republic or the Commanders-in-Chief of the Armed Forces and of the Director General of the Carabineros, if the reasons which cause it are well-founded or not, and, consequently, accept it or reject it; and

  11. K.  Other powers conferred thereupon by other transitory provisions of this Constitution.

The Thirteenth Transitory Provision provided:

The presidential term which shall commence when this Constitution enters in force shall last the time prescribed for in Article 25 [i.e. eight years].

The Fourteenth Transitory Provision then provided:

During the term stated in the preceding provision, the current President, General of the Army, Augusto Pinochet Ugarte, shall continue being the President, and shall remain in office until the end of said term.

9  Ibid., Art. 45 para. 3(d).

10  Ibid., Art. 81 para. 1(c).

11  Ibid., Art. 93 para. 1.

12  Ibid., Art. 93 para. 2.

13  Law No. 18,825, 17 August 1989, Diario Oficial (DO) (Chile). See further section on ‘Constitutional changes during the transition’.

14  CP (as amended in 1989), Twenty-Ninth Transitory Provision.

15  Barros (n. 6), 27. Constitutional Tribunal Case Number 33–85.

16  See e.g. J. Esteban Montes and Tomás Vidal, The Role of Constitution-Building Processes in Democratization: Case Study Chile (IDEA & Democracy Building & Conflict Management, 2005), <https://anayasa.tbmm.gov.tr/docs/CBP-Chile.pdf> (an account of the social mobilization and protests brought up by the strong increase in the unemployment rate).

17  Ricardo Ffrench-Davis, Economic Reforms in Chile: From Dictatorship to Democracy (University of Michigan Press, 2002).

18  See also Carlos Andrade Geywitz, Reforma de la Constitución Política de la República de Chile de 1980, 2nd edn (Editorial Jurídica de Chile, 2002); Esteban Montes and Vidal (n. 16), 15–16.

19  Wendy Hunter, ‘Continuity or Change? Civil–Military Relations in Democratic Argentina, Chile, and Peru’ (1997) 12 Political Science Quarterly 453, 457.

20  CP, Eighteenth Transitory Provision, para. 1(A) and (C).

21  Ibid., para. 1(D) and (G).

22  Ibid., Fourteenth Transitory Provision.

23  Ibid., para. 3.

24  Ibid., para. 2.

25  See also Barros (n. 6), 245–9 (on an interpretation of the effects and foundations of this constitutional provision limiting the power of the President.)

26  Decree-Law No. 646, 17 September 1974 (Chile).

27  Ibid., Art. 90 paras 1 and 2.

28  See Felipe Agüero, ‘Autonomía de las FFAA en el autoritarismo y la democracia en Chile’ in Augusto Varas (ed.), La autonomía militar en América Latina (Nueva Sociedad, 1988), 180–1, arguing that the transfer of bureaucratic responsibility for the Carabineros and the Policia de Ivestigaciones from the Ministry of the Interior to the Ministry of Defence strengthened military influence over Chile’s public security policy.

29  Decree-Law No. 369, 18 March 1974 (Chile); Supreme Decree No. 509, 11 November 1983 (Chile).

30  Law No. 18,460, 15 November 1985, DO (Chile).

31  For instance, Carlos Forestier Haengsen, who was Minister of National Defense of Chile between 1980 and 1982 was also Commander of Division Six of the Army and later appointed Chief of Emergency State Zone by Pinochet after the 1973 coup. Washington Carrasco Fernandez was Vice Commander-in-Chief of the Army previous to the coup and was considered a key actor of the coup leadership. Carrasco Fernandez was later appointed as Minister of Defence for the 1982 period. Lastly, Patricio Carvajal Prado was Vice Admiral of the Navy and became Chief of the Estado Mayor de la Defensa Nacional. After the coup, Carvajal Prado was appointed Minister of Defence for the 1973–74 period. After leaving that office, Carvajal Prado was appointed as Minister of Foreign Relations.

32  Decree-Law No. 181, 5 April 1960 (Chile).

33  Supreme Decree No. 412, 3 January 1992, DO (Chile.)

34  Law No. 19,212, 30 April 1993, DO (Chile).

35  Ibid., Arts 24 and 27.

36  Supreme Decree No. 363, 18 April 1991, DO (Chile).

37  Hunter (n. 1), 32. See also Lucía Dammert, Fear and Crime in Latin America: Redefining State–Society Relations (Routledge, 2012), 67.

38  Azun Candina, ‘The Institutional Identity of the Carabineros de Chile’ in John Bailey and Lucía Dammert (eds), Public Security and Police Reform in the Americas (University of Pittsburgh Press, 2006), 86.

39  Law No. 19,974, 27 September 2004, DO, Art. 37 (Chile). This article states:

The Chamber of Deputies, in the scope of its investigative faculties, shall constitute, in accordance with its Regulations, a Special Committee which shall be authorized to take notice of reports and background facts related to the activities of the department and entities that form the Intelligence System of the State. The Director of the National Intelligence Agency shall submit annually to the said Special Committee a secret report on the work performed by the Agency and with respect to the operation of the System. The Committee shall be informed of the reports and background information referred to in the preceding sub-paragraphs at sessions which shall be secret.

40  Ibid., Art. 7. This article establishes:

The National Intelligence Agency shall be established, being a centralized public department, with a technical and specialized character, which shall be subordinate to the President of the Republic through the Ministry of the Interior, which shall have the purpose of producing intelligence to advise the President of the Republic and various higher levels of leadership of the State, in accordance with current law.

41  See Reglamento de la Cámara de Diputados de Chile, March 2010 (Chile), Arts 213–218.

42  CP, Eighteenth Transitory Provision para. 1(G).

43  Law No 19.067, 1 July 1991 DO (Chile), Art. 4.

44  Eduardo Aludante, Backpacks Full of Hope (Wilfred Laurier University Press, 2010).

45  Francisco Rojas Aravena, ‘Chile’ in Ravinder Pal Singh (ed.), Arms Procurement Decision Making, Vol. II: Chile, Greece, Malaysia, Poland, South Africa, and Taiwan (Oxford University Press, 2000), 32–3.

46  Jaime Baeza Freer, Andrés Dockendorff Valdéz, and Natalia Vargas Palacios, ‘El rol de la Comisión de Defensa de la Cámara de diputados en la formulación de la política de defensa’ (2010) 2 Revista Chilena de Derecho y Ciencia Política 67, 78.

47  Ibid.

48  Javier Couso and Alberto Coddou, ‘Las asignaturas pendientes de la reforma constitucional chilena’ in Claudio Fuente (ed.), En el nombre del pueblo: debate sobre el cambio constitucional en Chile (Heinrich Boll Stiftung/ICSO, 2010), 194.

49  Ibid., 195.

50  Ibid.

51  Law No. 20,050, 26 August 2005, DO (Chile).

52  CP (as amended in 2005), Art. 101 paras 1 and 2.

53  Ibid., Art. 6.

54  Ibid., Art. 32(16) read with Arts 104 and 105.

55  Compare CP (1980), Art. 81 para. 1(c) with CP (as amended in 2005), Art. 92.

56  Compare CP (1980), Art. 95 para. 3 with CP (as amended in 2005), Art. 107 para. 1.

57  Compare CP (1980), Art. 40 with CP (as amended in 2005), Art. 40.

58  CP (as amended in 2005), Art. 106 para. 1.

59  Compare CP (1980), Art. 45 para. 3(a) and (d) with CP (as amended in 2005), Art. 49.

60  Compare CP (1980), Art. 79 with CP (as amended in 2005), Art. 82.

61  Law No. 20,424, 4 February 2010, DO (Chile).

62  Ibid., Art. 15.

63  Ibid., Art. 21.

64  Ibid., Art. 14.

65  Ibid., Art. 25.

66  Ibid., Art. 26.

67  Ibid., Arts 26 and 27.

68  Ibid., Arts 10–13.

69  Ibid., Art. 10 para. 2.

70  Law No. 20,503, 27 April 2011, DO (Chile).

71  Law No, 20,813, 21 January 2015, DO (Chile).

72  Law No. 18,952, 27 February 1990, DO (Chile), transferred the personnel of the Junta government to the Ministry of Defence as part of the administrative management of the Ministry (Arts 8–10).

73  Manuel Antonio Garretón, Incomplete Democracy: Political Democratization in Chile and Latin America, trans. R. Kelly Washbourne with Gregory Horvath (University of North Carolina Press, 2003), 125; See also, Manuel Antonio Garretón, ‘The Political Evolution of the Chilean Military Regime and Problems in the Transition to Democracy’ in Guillermo O’Donnell, Philippe C. Schmitter, and Laurence Whitehead (eds), Transitions From Authoritarian Rule: Latin America (Johns Hopkins University Press, 1986), 95–122.

74  Garretón, Incomplete Democracy (n. 73), 126.

75  Informe de la Situación de Derechos Humanos en Chile, Inter-Am. Comm’n H.R., OEA/Ser.L/V/II.77, doc. 18 rev. 1 (1985).

76  Augusto Varas, ‘The Crisis of Legitimacy of Military Rule in the 1980s’ in Paul W. Drake and Iván Jaksic (eds), The Struggle for Democracy in Chile, rev. edn (Rienner, 1995), 82–8.

77  Law No. 18,948, 22 February 1990, DO (Chile).

78  Law No. 18,961, 27 February 1990, DO (Chile).

79  Law No. 18,948, 22 February 1990, DO (Chile), Arts 96(99) and 98(101).

80  This amount was the result of a reform to Law 13,196 of 1958 on the ‘Restricted Law on Copper’ under the dictatorship in October 1985, which came into effect in 1987. Such reform established that 10% of the exports of CODELCO, a state-owned copper company, and the revenue of its sub-products would be destined for the budget of the armed forces, which resulted in a sum of US$180 million annually. The organic constitutional law of the armed forces in 1990 ordered that during the transition that sum must not be decreased. See Guillermo Patillo, Fernando Bustamante, and Miguel Navarro, Cuál debe ser el gasto militar en el Chile de los 90 (Centro de Estudios del Desarrollo, 1991), 41.

81  Law No. 20,502, 21 February 2011, DO (Chile).

82  Law No. 18,943, 13 February 1990, DO (Chile).

83  Law No. 18,889, 10 January 1990, DO (Chile).

84  Decree-Law 194 of December 1973 reformulated by Decree-Law No. 3.607 of 1981.

85  UNLIREC, Control y regulación de las empresas de seguridad privada en América Latina y el Caribe: un análisis comparativo (UNLIREC, 2011), 5.

86  Decree Law No. 2191, 18 April 1978, DO (Chile).

87  CP, Art. 60(16).

88  Louise Malinder, Amnesty, Human Rights and Political Transitions: Bridging the Peace and Justice Divide (Bloomsbury, 2008).

89  CP, Art. 63(16).

90  Ivan Sergio Insunza Bascunan, Supreme Court, Case No. 27, 640 (24 August 1990).

91  Poblete Cordova, Supreme Court, Case No. 469-98 (9 September 1998).

92  See e.g. Miguel Angel Sandoval, Supreme Court, Case No. 517-04 (17 November 2004); Diana Frida Aron Svigilsky, Supreme Court, Case No. 3215-05 (30 May 2006); Manuel Tomas Rojas Fuentes, Case No. 3125-04 (13 March 2007). See generally Marny A. Requa, ‘A Human Rights Triumph? Dictatorship-Era Crimes and the Chilean Supreme Court’ (2012) 121 Human Rights Law Review 79.