A Cosmopolitan Approach to the Chilean Constitution-Making Process

Constanza Nuñez

 

This post is by Constanza Nuñez, a Ph.D. candidate at University Carlos III of Madrid (Spain). LL.MM in Advanced Human Rights Studies (University Carlos III Madrid). Researcher at Human Rights Center (University of Chile). You can follow Constanza on Twitter @cnunezd.

 

History in the making

On October 25th 2020, in a historical referendum, the Chilean people decided by an overwhelming majority to vote in favour of a new constitution that will replace the Pinochet’s constitutional legacy. Chileans also voted that a wholly elected constitutional convention should enact the new constitution. The Constitutional Convention that will draft the new constitution will have gender parity composition and have reserved seats for indigenous peoples. Both of these positive measures contribute to Chile taking a more cosmopolitan approach to constitution-making.

Protestor holding a sign that reads 'nueva constitutión ahora!!!'

photo by www.jpereira.net

The referendum was the result of a long process of social mobilization and protests. One of the meaningful slogans of the social movement was ‘until dignity becomes custom’. Although dignity is an abstract concept (with multiple debates around its meaning), its linkage with fundamental rights is clear. Dignity is at the basis of human rights and constitutes an essential pillar of democratic political organization. The Chilean social movement demanded the guarantee of dignity should be the foundation of their political architecture and that it link to the development of a social and political system that respects, protects, and fulfils fundamental rights. This aims to counter a shared diagnostic of the government’s treatment of its citizens that is characterized by ‘abuse’, ‘inequality’ and ‘humiliation’. Also, it puts the existence of power imbalances that endorse unjustified relationships of domination at the centre of the problem. The abstract recognition of dignity in a Constitution, however, is not enough. It is necessary to build a social, legal, and political system that puts human rights and their guarantee (a concrete manifestation of dignity) at the centre of the creation of a new social contract between the citizens of Chile.

Global principles in constitution-making

Dignity is a concept that allows us to connect the Chilean context with the transnational social movements that, in recent years, have grown in the transnational public sphere. The idea that we share a common social, economic, and political system that is based on unjustified relationships of domination is a cross-cutting argument in the movements around the globe. The global character of our shared problems is clear in the existence of a common oppression system that endorses domination under mechanisms that combine economic domination (neoliberal globalization), gender domination (patriarchy), race domination (neocolonialism) and ecological domination (the exploitation of natural resources). In this context, transnational social movements are united by a universalistic cry for dignity and by a demand for the end of domination. There is an emerging global conscience of shared vulnerability that connects the fight of the Chilean people with the struggle for rights around the globe. Their fights are the fights of us all.

Protestors waving the Chilean flag and holding signs that read 'nueva constitutión ahora!!!'

photo by www.jpereira.net

The Chilean constitution-making process is also a matter of global interest because it has developed in a context that is particular to global constitutionalism. There are multiple threats emerging to rule of law, human rights, and democracy under the pressure of populism and authoritarian constitutionalism. Chilean constitutionalism can provide new perspectives to those questions that have not yet been answered in comparative constitutionalism studies. A preliminary contribution has been made through the constitutional convention with gender parity, which is the first experience of such a kind inglobal constitutionalism. One of the unique elements of this constitution-making process is its historical background, which demands answers to global challenges that other constitution-making processes have not faced. As humankind, we must confront global warming and the question about the existence of the human rights of future generations. Furthermore, there are other debates that modern constitutionalism has not provided full answers to yet, for example, how to address transnational migration or recognise the contributions of global feminism. The Chilean constitution must face those challenges and at the same time address its internal struggles for rights and democracy. In this context there emerges a question about how to respond to these challenges, from the local to the global?

This question highlights that the Chilean debate is a unique opportunity to restate the centrality of the ‘trinity of global constitutionalism’ (democracy, rule of law and rights) in a context of a crisis of those values, and it will allow constitutionalism an opportunity to provide an interpretation of those values from a global interdependence perspective giving new constitutional answers to contemporary challenges.

These elements – an emerging global consciousness about common oppression and global challenges to constitutionalism – situate the Chilean constitution-making process in a cosmopolitan context; this is a process that concerns all of humanity. Their debates are also our debates and their answers will impact our answers. The diagnostic about a context of interdependence and a common vulnerability is a challenge for the Chilean constitutional convention and for the international community. It is necessary to promote discourses where we persuade States and the international community to find solutions that are outside of the black-box model of modern constitutionalism, demanding a dialogue between the local and the global, providing a transformative view to overcome the global structure of injustice. These challenges highlight that the legitimacy of the new Chilean Constitution will be important not only within the deliberative conditions of the local debate, but also within global forums concerned with ‘how the national constitution is integrated into and relates to the wider legal and political world’, as suggested by Kumm. In this context, the Chilean constitution-making process must assume a ‘relational sovereignty’ perspective.

Hope in the Chilean process

The Chilean constitution-making process must be approached with hope but not naivety. The neoliberal legacy of Pinochet’s constitution will not end immediately with a new democratic constitution in the context of global interdependence. Nonetheless, there is an open road that global constitutionalism must be aware of and that must be followed with interest. Confronting new sovereignist nostalgics, this is an opportunity to think in terms of possibility, to imagine new institutional Cosmopolitan alternatives for Chile and for the world, and that is a hopeful perspective.

 

The Spanish version of this blog can be found at https://mundosur.org/una-mirada-cosmopolita-para-el-proceso-constituyente-chileno/.

‘We Need to Talk About an Injustice’: Bryan Stevenson delivers Ruth Adler Lecture at University of Edinburgh

Law PhD Candidate, Vivek Bhatt

In this guest post, Law PhD Candidate, Vivek Bhatt, reflects on Bryan Stevenson’s visit to Edinburgh Law School to give the 2019 Ruth Adler Memorial Lecture, and to receive an honorary doctorate as part of the School’s summer graduation ceremony.

Bryan Stevenson (c) Nick Frontiero Photography 2019

 

 

 

On 8 July 2019, the Global Justice Academy hosted a lecture by Bryan Stevenson, recipient of an honorary doctorate at the Edinburgh Law School.  Stevenson is founder of the Equal Justice Institute (EJI) in Montgomery, Alabama, and a clinical professor at the NYU School of Law. Stevenson works as a legal representative for disadvantaged and marginalised individuals, particularly young and poor people who are on death row or serving life sentences. He and his colleagues at the EJI have achieved the exoneration or release of over 125 individuals on death row. Stevenson is also the author of Just Mercy: A Story of Justice and Redemption,[1]  which was a New York Times bestseller and won the Carnegie Medal for the best nonfiction book of 2014.

Stevenson’s lecture circulated around a question that is as succinct as it is complex: how do we, as human rights advocates, address injustice? Firstly, he said, we must create justice by becoming proximate to those suffering inequality and injustice. Recounting his relationship with his grandmother, who wished that Stevenson would always be able to feel her embracing him, the skilful orator argued that we must know and seek to understand those who suffer injustice in order to affirm their humanity and dignity. Thus, human rights practice is not about the deployment of legal arguments from afar, but rather about stepping away from one’s legal expertise and embracing those who suffer violations of dignity.

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Colombia’s peace process: reflections

This post was written by Sara Valencia and Alejandra Londoño. It reports from a series of recent workshops on the Colombian peace process, led by Colombian students at The University of Edinburgh. The Global Justice Academy and the Global Development Academy supported the workshops.

Colombia’s peace process and Latin America

The first workshop examined the impact and influence of the Colombian internal conflict in the Latin America region. The methodology employed in this workshop was a Collaborative Critical-Thinking Sheet, in which the participants reported the main reflections emerging from the discussion.

The discussion highlighted the role of the Latin-American community in the peace process. This has been crucial for the exploration phase of the Peace Processes with the Revolutionary Armed Forces of Colombia (FARC-EP) and the National Liberation Army (ELN). On the one hand, for example, Venezuela, Cuba, and Chile played a central role to build a bridge of trust between the Colombian Government and the FARC guerrilla, a process that started with the FARC in 2012 in La Habana Cuba and concluded with the signing of the agreement in Bogotá on November 24th of 2016. On the other hand, Ecuador has been a crucial actor in the peace process with the ELN guerrilla, offering a neutral space to host the negotiations that started on January 7th of 2017.

During the implementation phase of the Agreement with the FARC guerrilla, the monitoring and checking mechanism of the Agreement on the Bilateral and Definitive Ceasefire and Cessation of Hostilities were explicitly limited to countries of the Community of Latin America and Caribbean States (CELAC) on behalf of the United Nations. These are just a few examples of the level of commitment and active participation of Latin American States in Colombia’s peace processes.

The direct impact of the peace process in Colombia on the commercial dynamic of Latin America was then discussed. The strategic geographic position of Colombia makes it an important route for transportation between the West and the East (Pacific- Atlantic Ocean) and North and South. The pacification of the country will not only allow the improvement of the Colombian economy, but also may have a direct impact on Mexico, Peru, Ecuador and Venezuela because of a reduction in illegal activities like drug production and trafficking; human trafficking and the illegal immigration routes to the United States. In addition, the shift in the Colombian Foreign Policy since 2010 has strengthened the integration process of Colombia in Latin America. Blocks like the ‘Alianza del Pacifico’ and the formulation and implementation of Bi-national Integration Plans with Ecuador and Peru will be strengthened by the implementation of the Peace Agreements.

On an international level, it was argued that Colombia’s peace offers a historic opportunity to rethink the position, role and contribution of the Latin American bloc in the 21st century. Through these peace processes, the Latin America states can have the opportunity to project themselves in the international community as a region which supports dialogue, openness, interdependence and inclusion where other regions like North America and Europe have begun to shift to a more closed, controlled and independent dynamic within the regional and international systems. The peace process in Colombia is an opportunity to strengthen the regional economy, increase foreign investment, trade and governance in the border areas, and overcome the USA military influence in the region.

A new topic emerged as discussion continued, namely, the popular mobilisation in support of the peace processes following the rejection of the comprehensive peace agreement via referendum on October 2, 2016. The feeling among youths that their agency was weakened by corrupt powers and misinformation, it was argued, catalysed mass mobilization. From this discussion emerged questions like, ‘which factors inspire citizens to mobilise at a personal and collective level?’ ‘How can citizen participation be strengthened after a collective mobilisation?’ ‘What is the role of the citizen as an agent for change within its community in a context of post-truth?’

These questions become the base for our second workshop.

Citizenship in the 21st century: dialogue and mobilisation

In response to the rejection of the peace agreement in Colombia, a massive social mobilisation emerged under a social movement called “¡Paz a la calle!” (Peace to the streets!). This movement reunited social groups and individuals who marched on the streets across the country demanding the Government and FARC guerrilla maintain the bilateral ceasefire and include the proposals of the 50.2 per cent of the electorate whose turn-out did not approve the text. The objective was to claim only for an outcome shared by both parties: peace.

However, the Colombian case of mobilisation is not unique. Other mobilisations like the Women against Trump movement in the United States or the massive protests against corruption in Romania are clear examples of citizen mobilisation. Nonetheless, these types of national dialogues and social mobilisations have not been so evident in the UK after Brexit.

As this workshop opened up many questions on the role of the citizen as an agent of change within processes of public participation and deliberative democracy, this became the focus of our final workshop, which was particularly interested in how such participation might be strengthened.

Reflections

Diana Diajer (University of Edinburgh) and Dr Oliver Escobar (University of Edinburgh), researchers on citizen participation, were event panellists at our final workshop. Diana highlighted the need to generate spaces free from violence with guarantees to enforce participation. Unfortunately, in countries like Colombia, citizen participation is associated with communism and creates a stigmatisation of this type of participation as well as discouraging public participation. In countries where leaders have been constantly murdered, a cyclical process of fear and death prevent participation. For Diana, there are four main challenges to encourage citizen participation in peace building: A highly polarised society, the lack of a national peace movement that articulates the local initiatives, lack of trust, and apathy produced by corruption. Therefore, she proposed six elements to trigger citizen participation for peace: provide security and protection to leaders, use of an offline-online coordinated strategy, create a state of articulation and coordination, create meaningful dialogues among people, strength state capacity, and enforce individual incentives to participate.

In the Colombian case, the process to build peace initiates with what people understand for peace. She has identified four understandings of peace: peace as a social inclusion process, peace associated with transparency in elections, peace as the empowerment of people to have a possibility to have a word, and reconciliation. Nonetheless, this last understanding is one of the most difficult to reach. For example, people at the local level do not talk about reconciliation, they talk about co-existence or tolerance despite differences – so it is a long path to follow.

Oliver focused his talk on the micro-dynamics that take place in peace processes and civic participation, paying attention to the need to promote spaces for dialogue and deliberation to enhance citizen participation. Nonetheless, the creation of these spaces must overcome challenges that emerge at the individual level.

First, Oliver addressed the tendency of people to avoid conflict, which creates the first barrier to participating in spaces where their ideas are challenged. The lack of diversity and segregation in groups give place to like-minded groups, which create polarisation. Oliver highlighted the ‘Spiral of Silence’, as another barrier to participation. This is a scenario where people think that they are part of a minority and they are not going to be listened to. For this reason, they silence themselves, creating a polarisation by omission in the group, where apparently one idea prevails. Also, in groups where individuals are exposed to opposing views, if they are strongly attached to a position they will tend to avoid any evidence, processing only those messages that confirm their own perspective, so dialogue and deliberation are less possible. Therefore, the lack of views in any conversation reduces the opportunities to be exposed to alternate points of view, furthering polarisation.

According to Oliver, dialogue takes time and is a painful process, but in safe spaces, people can engage with their diverse perspectives and a constructive dialogue can emerge. The creation of these spaces is not simple and requires the work of facilitators to promote spaces where people listen and engage in the conversation. In this way, the facilitator helps the participants to suspend their immediate reactions and reflections, allowing a fluid communication through active listening. However, the communication can be influenced by several factors like different standpoints, communication norms, and a lack of information. In these dialogues, storytelling becomes the most effective way of communication. In the narrative of these stories, emotions play a fundamental role because, as some neuroscience studies reveal, people can only think and reason about things that they care about. One of the challenges for mediators in dialogue spaces, then, is how to channel emotions in a positive and constructive way to promote a constructive process. In conclusion, in safe spaces, dialogue and participation can be fostered, creating a sustainable and legitimate way forward by becoming more open minded.

As Oliver explained that such micro-dynamics in groups matter at the global level because if social movements make an attempt to welcome different positions, there is a risk to only mobilise the like-minded people, which prevents public dialogue and deliberation, thus creating elites of power and micro-worlds in the society. Therefore, mobilisation and public dialogue have a different role and various functions in the political sphere. Social mobilisation is right to create an agenda, paying attention to one issue. However, dialogue allows the inclusion of different perspectives to create not only a shared understanding of complex issues but also by co-producing solutions.

 Note of thanks:

This series of workshops was made possible through the generous support of the Global Justice and Global Development Academies’ joint Innovative Initiative Fund. Special thanks to the organiser team Alejandra Londoño, Ana Chaparro, Natalia Salamanca and María Gundestrup.

Following Ghana’s Elections: an IIF Event

On 7 December 2016, the Global Justice and Global Development Academies supported a student-led initiative to follow the elections in Ghana, as part of their Innovative Initiative Fund. In this post, MSc student, Matthew Pflaum, reflects on the evening’s events.

image-1Elections are critical processes for global social and political change, leading to new policies and reforms. Certain elections, referenda, and regions receive widespread attention and coverage – the US election and Brexit, for example – while others are less covered. Elections in the Global South tend to be disregarded by much of the world, and this is a mistake. All elections are significant, principally for local citizens, but also for the rest of the world through geopolitics and trade.

 

During the US election, crowds gathered in tenebrous bars and sterile classrooms to watch the event unfold, their eyes festooned to the glaring screens with constant updates of results. Americans and non-Americans watched with anticipation, feeling that the event was important to their lives. But aren’t all elections important? Should we not also gather to support elections in Burma and Botswana?

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