Kast Pushes Security Reform Forward in Senate: 8 Measures Include New State of Emergency and Rights Restrictions

Original article: Kast acelera reforma de seguridad en el Senado: 8 medidas incluyen nuevo estado de excepción y restricciones de derechos

The government of José Antonio Kast submitted to the Senate on August 17 a constitutional reform bill consisting of 8 measures aimed at expanding presidential powers to restrict rights and freedoms, among which is the creation of a new constitutional state of exception, termed the state of public security.

This initiative is part of the so-called Agenda Against Organized Crime and Terrorism (ACOT), and it would allow the extreme right-wing president to declare an area under this regime with powers similar to those existing during external war, but without requiring Congress’s approval for 240 days, essentially eight months.

Currently, a state of siege in cases of civil war, and a state of assembly in cases of external war, require National Congress approval within five days. However, the reform stipulates that the state of public security could be maintained without such approval for up to eight months, sparking intense debate about balancing security and democratic safeguards.

During this entire period, Kast would have the authority to restrict rights to assembly, personal freedom—allowing detentions without judicial order—as well as mobility and association; intercept communications of various types—including those conducted over the internet with current technology—and requisition goods, affecting property rights. All of this could be done without a judicial order and at the discretion of the President and the overseeing Carabinero authority.

These measures, which effectively grant exceptional powers to the Executive, have been justified by the government as necessary to confront the rising tide of organized crime affecting various regions of the country. However, critics warn that they represent an enabling act for territorial control without the usual checks and balances demanded by the rule of law.

The bill has been submitted with high urgency, including a 15-day timeframe for discussion, a legislative process further complicated by the upcoming district week, adding political pressure to a vote that requires significant majorities and could define the course of Kast’s administration regarding public order.

8 Amendments to the Constitution: From a New State of Exception to Rights Restrictions

The initiative proposes eight amendments to the Constitution, which under the pretext of strengthening state tools against organized crime and establishing new powers to deal with severe public security situations, aim to deepen the logic of territorial control and could reinterpret the scope of fundamental rights in favor of state intervention.

The first of these amendments concerns Article 1 of the Constitution, adding the phrase «and public security» after «national security».

This modification establishes public security as a duty of the State, intending to clarify and facilitate the enforceability of this obligation, thereby laying a constitutional foundation to justify Executive actions.

According to La Moneda, this modification «does not create a new obligation nor does it imply that public security was excluded from the current text; it aims to confirm its scope and facilitate enforceability».

Secondly, a new Article 9 bis is created to constitutionally recognize the protection of public security against organized crime, enabling differentiated penitentiary regimes and establishing consequences for those convicted of these crimes.

Among these consequences, it is proposed to include lifetime disqualification from holding public positions, regardless of whether they are elected. Additionally, communications, visits, transfers, and access to penitentiary benefits could be restricted when necessary to prevent convicted individuals from continuing to carry out or coordinate illegal activities from prison.

The third measure incorporates the possibility for a law to establish registries of criminal organizations, the inclusion of which would affect the determination of the criminal responsibility of their members, without absolving the Public Ministry from proving individual participation in accordance with criminal process rules.

Fourthly, the bill amends Article 32 of the Constitution to grant the President the authority to declare that a group constitutes a terrorist organization or organized crime, based on a reasoned report from the Public Ministry or the National Security Council, although such a declaration would subsequently require Senate approval with a two-thirds majority of its sitting members in a secret session and with access to the same confidential backgrounds the head of state considers for such effects.

The fifth modification centers on Article 39 and involves replacing the expression «and public calamity» with «public calamity and serious and imminent threat or serious impact on public security».

This modification broadens constitutional grounds to consider not only public calamity but also a serious and imminent threat or a serious impact on public security, thereby flexibly justifying extraordinary state intervention and opening the door to a broader spectrum of emergency situations.

The sixth point, and perhaps the most controversial, creates the constitutional state of exception of public security, which can be declared by the president in the event of a serious and imminent threat against public security or when it has already been severely impacted, lasting a maximum of 120 days, although the president can extend it for an equal period, and subsequent extensions will always require the agreement of Congress.

Once the state of public security exception is declared, the affected areas will be under the immediate dependency of the General Officer designated by the President of the Republic.

However, an organic constitutional law must establish the powers of the authority in charge and the powers of the Order and Public Security Forces, as well as the «collaboration that the Armed Forces may provide through the Ministry of National Defense during the validity of this state of exception and the mechanisms for coordination, control, and accountability that apply».

The seventh modification, relevant to Article 43, details that once this state of exception is declared, the president may suspend or restrict personal freedom and mobility, and the right of assembly, in addition to restricting the exercise of the right of association, intercepting, opening or searching documents and communications, and ordering requisitions of goods, constituting an arsenal of tools affecting essential core civil rights.

Finally, the eighth point includes a change to the first number of Article 53 of the Constitution to stipulate that the Senate must approve or reject, in a secret session and by two-thirds of its sitting members, the presidential declaration regarding a group considered terrorist or organized crime, granting the Upper House a timeframe of five days from receipt of the request to express its decision without the possibility of introducing modifications to the declaration, thus limiting legislative scrutiny to a mere act of approval or rejection.

«The Senate will receive in full the reports and backgrounds considered confidential by the President of the Republic, which will maintain their secret nature (…) and if it does not make a decision within the specified timeframe, it will not be understood as approved,» states the text.

With this reform submission, Kast’s government accelerates its push for an exceptional security approach, leaving the final decision on a package of measures that redefine the limits between presidential authority and the individual guarantees of Chileans in the hands of the Senate.

You can review the complete text of the constitutional reform below:

*Featured image: Presidency of Chile.