Chile's Constitution and Terrorism: A Critical Examination
"Explore the ongoing debate in Chile over whether to include specific provisions on terrorism in its new constitution, balancing security concerns with the protection of fundamental human rights."
Chile is currently undergoing a significant constitutional shift, prompting a re-evaluation of long-held principles inherited from the military dictatorship. Among these is the unique approach to terrorism enshrined in the 1980 Constitution. As global anti-terrorism efforts intensify, it is crucial to assess the existing constitutional framework to ensure that any new fundamental charter avoids the pitfalls of emergency-driven responses that have become prevalent in Europe and North America due to the rise of Islamic terrorism.
This analysis grapples with a central question: Should the Constitution explicitly address terrorism in light of increasing demands for security? The core argument is that constitutionally defining terrorism could lead to a restrictive protection of democracy. This would manifest in severe limitations on individual freedoms, potentially ensuring stability and order at the expense of legitimacy. Any constitutional pronouncement on terrorism inevitably risks eroding rights and liberties, thereby contradicting the very essence of the Constitution.
To investigate this hypothesis, this article examines comparative legislation, scrutinizes Chile's constitutional regulations on terrorism in light of general principles of criminal law and internationally recognized human rights, and argues for excluding specific terrorism-related norms from any future Constitution.
Comparative Constitutional Approaches to Terrorism
There is no single, globally accepted model for constitutionally regulating terrorism. While some constitutions address the issue, particularly in European countries like Germany and Spain, these references do not typically impose specific restrictions on individual rights. Instead, they often include general clauses referencing the suspension of rights in cases of national emergency or defense.
- Few Latin American countries have constitutional norms regarding terrorism.
- Mexico and Colombia, countries often associated with drug-related terrorism, lack explicit constitutional provisions on the matter.
- Brazil, Peru, and Chile adopt a model that constitutionally embeds certain restrictions on fundamental rights typically found in penal and procedural law.
- Brazil's 1988 Constitution addresses terrorism in its foundational principles and in relation to penal guarantees.
Conclusion: Toward a Balanced Approach
There are no compelling reasons for the Chilean State to constitutionally define terrorism. Such regulation at the constitutional level is not a widespread trend in comparative law and carries the risk of infringing upon fundamental human rights. References to terrorism in constitutions often serve to authorize restrictions on guarantees, which seems unnecessary if the legislature can establish these restrictions. A more measured approach involves entrusting the legislature with the task of regulating terrorism, ensuring that judges do not bear a responsibility that is ultimately political. This includes abandoning the temptation to create broad definitions of criminal conduct, which can turn into catch-all categories for socially or politically objectionable behavior.