According to Chilean law, foreigners, including temporary and permanent residents, do not have the same legal status as Chilean citizens. It should therefore come as no surprise that foreigners’ status as such limits their rights in many respects. Chile Today asked local immigration attorney Nury van de Grift Álvarez-Aragón about foreigners’ rights to participate in Chile’s historic protests, and the analysis that follows is her own.
Many of the laws that affect foreigners, promulgated during and before the Pinochet dictatorship, affect the liberties and rights of the civil population in Chile, including foreigners, and many of these remain in force.
In fact, there is not just one regulation that affects foreigners but many. To name a few, decree law Nº 69 dated April 27, 1953, decree law Nº 1094 from 1974, and decree law Nº 3446 and decree Nº 597 from 1984.
These laws, the majority of them pre-constitutional or launched shortly after the Pinochet constitution of 1980, view foreigners as possible threats to the nation. That is why the acceptance of immigrants to the country must be done in a “selective” way, using the criteria that, according to the government, is appropriate for a foreigner to settle in the country.
One of the main concerns of such laws is the possible threat to “national security,” the so-called “National Security Doctrine,” that is designed to limit the dangers posed to the regime by the arrival of foreign persons and to control strongly those who have entered legally—words taken literally from decree Nº 597 from 1984.
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Foreigners Do Not Have the Right to Protest in Chile
This is why, among other things, foreigners do not have a right to protest in Chile. The laws do not specifically describe what it means to protest, except to say that it is anything that can put in danger the “national security” of the country.
Certainly, the participation in a public protest can be considered a “threat to the government,” but the law also encompasses other forms of “passive and continuous protest.”
Passive forms include, for example, propaganda against the regime or spreading political news against the government in a patent and prolonged manner.
There are no criteria in the law regarding “intensity,” and therefore a wide gray area exists in this regard.
The consequences of protesting and resulting punishments are “discretionary” to the government in Chile. This means that police forces such as the Carabineros and PDI, and even the military during states of emergency and curfews, are able to apply a range of different penalties.
Penalties: From Detention to Expulsion
These penalties may include temporary detention, administrative and financial fines, and even the most serious consequences: expulsion from the country and prohibition from re-entry, if the foreigner is considered to be a danger to the national security. (Detention, if applied, however, must be temporary and follow the same conditions applicable to Chilean citizens.)
The above is why it is not recommended that foreigners participate in public protests and why they should also be mindful of passive forms of protest, even with a temporary or definitive residence permit. Residence status is not a matter of distinction to expand, reduce, or otherwise modify these penalties.
From my point of view, if you permanently reside in the country you should be able to express yourself against perceived social injustice and human rights violations, whether you are a naturalized citizen, a foreign national, or a resident foreigner, but that is not the law and, as a result, immigrants risk harm under these laws.
If and when the Chilean constitution changes, hopefully many of these laws (including the Civil and Criminal Code) for both citizens and foreigners will change, too, as they don’t respond to the current times and the multicultural society Chile now has.
In the meantime, foreigners should exercise caution with respect to protest activities.
Nury van de Grift Álvarez-Aragón is an attorney and founder of Santown Legal, a multicultural legal studio conveniently based in downtown Santiago, that offers legal and administrative services to the international community living in Chile, including expats, migrants, and entrepreneurs.
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