After years of processing, the Law on Rules for the Use of Force was published in the Official Gazette this Friday. The goal was to provide certainty about when and how the State may resort to force, both for those who exercise it and for those who must respect it. No one disputed that need. Much of the right wing and other sectors presented the law as the backing that police officers and military personnel needed. But the final text does not provide that certainty; it was legislated in their name, not in their favor.
The most serious problem is the exclusion of the principle of proportionality. Article 3 enshrines legality, necessity, responsibility, and rationality, leaving out the principle that underpins any democratic regime of the use of force and that Chile already applied to both police and military forces. It was not an oversight: it was in the original bill, and those same sectors rejected it time and again, until the very last procedural step.
Under their argumentation, "rationality" took its place instead, which takes into account "the circumstances, the place, and the context." It is not the same thing. Rationality asks whether the reaction made sense; proportionality asks whether the harm caused bears a relation to the harm sought to be prevented. Nor is it a matter of symmetry: no one is asking the police officer to confront the aggressor on equal terms, but rather that their response have a limit.
The curious thing is that the law fails to rid itself of the principle it rejected. Its architecture is proportional: Articles 6, 7, and 9 graduate the resist…
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After years of processing, the Law on Rules for the Use of Force was published this Friday in the Official Gazette. The goal was to provide certainty about when and how the State may resort to force, both for those who exercise it and for those who must respect it. No one disputed that need. Much of the right wing and other sectors presented the law as the backing that police officers and military personnel needed. But the final text does not provide that certainty; it was legislated in their name, not in their favor.
The most serious problem is the exclusion of the principle of proportionality. Article 3 enshrines legality, necessity, responsibility, and rationality, leaving out the principle that underpins any democratic regime of use of force and that Chile already applied for both police and military forces. It was not an oversight: it was in the original bill, and those same sectors rejected it time and again, until the very last procedural step. Under their argumentation, "rationality" took its place instead, which takes into account "the circumstances, the place, and the context." It is not the same thing. Rationality asks whether the reaction made sense; proportionality asks whether the harm caused bears relation to the harm sought to be prevented. Nor is it symmetry: no one asks the police officer to face the aggressor on equal terms, but rather that their response have a limit.
The curious thing is that the law fails to rid itself of the principle it rejected. Its architecture is proportional: Articles 6, 7, and 9 grade resistance and adjust force to it. The logic was kept, and the principle that interprets it was erased. Moreover, Article 3 requires respect for treaties in force, where proportionality is the rule. Removing it from the text does not eliminate it; it merely transfers its definition from the legislator to the judge.
Where it weighs most heavily is in lethal force, which the law regulates with two different standards. For the police, Article 7 permits it to detain someone who "offers resistance to authority" or "to prevent their escape," without requiring danger to anyone's life, as international standards do require. For the military, Article 12 reserves it as a general rule for threats to life, but also opens it up against anyone who "refuses to relinquish a weapon," without saying what is meant by that. Both regimes warn that force does not follow a "sequential order," but without a criterion of proportion that flexibility ceases to be a margin and becomes a void.
How does that void look? A carabinero and a conscript, both in their first year of service, facing someone who will not drop a weapon and is backing away. Can they shoot? The carabinero must ask whether that constitutes "resistance" or "escape"; the conscript, whether a weapon is a "weapon." They have seconds to decide; the prosecutor will have months to review. Therein lies the paradox. Article 15 protects with the exemption of compliance with duty anyone who "complies with the rules," and adds others from the Code of Military Justice. More exemptions do not mean more certainty: the officer will know which regime applies to them when a judge decides. It is of little use that "non-compliance must be proven" if what is being disputed is what the rule said.
They are left between two risks: acting too much and being judged by standards the law left unsaid, or not acting for not knowing what they are permitted to do. The essential limits on the use of force are a matter of law: no regulation can supply what Congress excluded. A bill is needed that restores proportionality and precisely defines the threshold for lethal force. In the meantime, that task will fall to the judges, case by case.
Legislating in someone's name is not legislating in their favor. Police officers and military personnel deserved clear rules. They received a Greek gift.
By Ricardo Montero Allende, coordinator of the Security Area of Horizonte Ciudadano
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