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/.

The Chilean Crisis

This blog, by Valentina Rioseco Vallejos, concerns the current Chilean crisis. It aims to provide the context under which the crisis is occurring, while making reference to human rights violations committed by Chilean State actors. It also discusses the latest developments in the crisis.

Valentina is a first year PhD student at Edinburgh Law School. She is a Chilean licensed lawyer and holds an LLM in Human Rights from the University of Edinburgh.

 

The context

The Chilean crisis began three weeks ago, with students jumping metro turnstiles in Santiago in protest against a price rise of the metro. The government responded to the protests with violent repression which, in turn, led to riots. Rapidly, the protests where reproduced in other cities and they continue to occur today. Protesters argue that the problem is not only the metro fare, but the structural inequalities that do not allow people to afford their basic living costs. Scholars and politicians argue that protests are based on the need for a new constitution and this idea is now gaining force.

Chile is still ruled by the Political Constitution adopted during the dictatorship of General Pinochet, which creates the rules for maintaining a neoliberal economic system. The Constitution was highly influenced by the Chicago Boys, a group of Chilean economists who studied with Milton Friedman. The Chilean constitution does not guarantee effective access to fundamental rights, such as the right to education, the right to health and decent pensions. It also restrains the will of the majority. For example, it demands a legislative supermajority to approve organic laws. Furthermore, workers live with a very low minimum wage (£217.00 per month), which is not enough to cover basic needs.

On 19 October, the Chilean president Sebastián Piñera gave a public speech regarding the social protests. He began his speech declaring “we are at war against a very dangerous enemy”. The rest of his speech continued in the same line, framing protests as acts of delinquency and solely focussing on the riots. He barely mentioned that the majority of the protests were peaceful throughout the country and he did not refer directly to the substantive claims raised by protesters. Consequently, he declared a State of Emergency in several cities of the country, which lasted until 27 October. The Chilean State of Emergency allows the President to delegate security tasks to the military. It also allows for the restriction to freedom of movement within the country. According to the declarations of the President, the State of Emergency would allow protecting both, the security and the property of the Chilean citizens, against criminals and rioters. Protesters responded with massive peaceful demonstrations bearing signs with the phrase “we are not at war”. The protests are also characterised by “Cacerolazos”, which means people beating their pots with wooden spoons.

Human rights violations

During the State of Emergency both, the military and the police committed grave violations to human rights and riots where not properly controlled. These violations included the right to life, the prohibition of torture, the right to peaceful assembly, freedom of expression and the right to liberty and security. As the State of Emergency is now finished, military personnel are no longer in the streets. However, the police continue to commit human rights violations and use disproportionate force against protesters. By 30 October 2019, 22 deaths had occurred in the context of the social protests. Five of these deaths were committed by state agents. The Chilean National Institute of Human Rights (INDH) has filed complaints in respect of these deaths. One of the deaths was caused by gunshots of military personnel in Curicó, a city where no State of Emergency was declared. There are also victims being run over by state vehicles, killed by rubber bullet wounds and by beatings. By 4 November, the INDH had filed 181 complaints against state agents, of which 152 allege torture, maltreatment and sexual abuse. The INDH also reported 4364 detentions with 479 of these detainees are identified as children and adolescents. In addition, it stated that 1659 people have been injured, of which 160 suffered eye wounds caused by gas pepper bombs and shootings. Journalists and photographers have also been beaten, shot and detained. On 29 October, a human rights observer from the INDH was shot by the police six times in his leg. In other contexts, human rights treaty bodies have already reproached the violent and repressive responses by the Chilean police in contravention of Chile’s international human rights obligations (CRC, para. 36 and CAT, para.22). The human rights violations committed during these events demonstrate that the protocols of the Chilean police and military personal have not improved.

International and regional organisations, together with non-governmental organisations are watching the Chilean crisis. The High Commissioner of Human Rights (HCHR) declared, “there are disturbing allegations of excessive use of force by security and armed forces” and expressed alarmed at reports stating that “some detainees have been denied access to lawyers, which is their right, and that others have been mistreated while in detention”. A team of the HCHR is currently being deployed to the country. They are examining the human rights allegations, meeting with various actors and gathering information on measures taken by the Government to address the situation. The Inter American Commission on Human Rights (IACHR) condemned the excessive use of force applied by police and military forces and rejected all forms of violence in the context of the ongoing situation in Chile. In addition, it declared to have received complaints regarding detentions where state agents acted with a disproportionate use of force, harassed children, sexual abused protestors, and subjected still more to torture or other ill-treatment. Thus, it called a public hearing concerning the human rights situation in Chile. Human Rights Watch and Amnesty International also condemned the excessive use of force. The latter announced a research mission to document grave human rights violations.

Latest developments

As of time of writing, the political situation seems to have moderately improved. However, the numbers of human rights violation victims reported by the INDH continue to increase every day. President Piñera changed his cabinet and affirmed that would implement some new social measures. However, he is currently governing as a leader of the right, thus the economic and political structure that maintains inequalities remains the same.

The political debate is now focussed on whether the Constitution should be modified and if so, how. Chileans are currently organising citizens assemblies (cabildos ciudadanos) in which they are discussing how to change the Constitution and the pension system. The government has not yet delivered any proposal concerning these demands.

Chilean civil society has, for years, anticipated this type of social and political confrontation. Inequalities and abuse are too evident across Chile. It is encouraging that the country finally woke up and demanded change. As Chileans watching from Scotland, however, we remain deeply concerned about the wellbeing of our fellow citizens, our families and our friends.

 

This Blogspot is the result of conversations and information shared between Chilean citizens living both in Edinburgh and in Chile. To all of them, thank you.

What are the Politics of Sports Protests in Trump America?

The Global Justice Academy recently attended an event at the Academy of Sport with visiting professor, Professor Lucia Trimbur (City University of New York; John Jay College of Criminal Justice), on the politics of sports protests in Trump America. The event was part of a collaboration between the Edinburgh Social and Political Sports Research Forum, the Academy of Sport and Moray House School of Education and Sport. Our Communications Intern, Heather Milligan, reflects on the findings and implications of this event.

In her presentation, Professor Trimbur invited audiences to consider the commitment of athletes (and their fans) to political movements, particularly those resistant to the Trump administration and its policies. Trimbur examined sports players’ capacity to struggle against pervasive inequality by denying the status quo, and suggested that modern sporting environments can foster political debates and alliances that may otherwise be inconceivable – illustrating her case with three case studies of American sporting events from the past year. Of particular interest to the Global Justice Academy was the focus Trimbur’s examples had on tackling discrimination and racial violencegender justice and sexism.

Trimbur drew first on Colin Kaepernick’s repeated refusals to stand for the American national anthem before play, which Kaepernick himself explained as a protest against the oppression of ethnic minorities in the US and the country’s continued failure to address police brutality:

‘I am not going to stand up to show pride in a flag for a country that oppresses black people and people of colour […] To me, this is bigger than football and it would be selfish on my part to look the other way. There are bodies in the street and people getting paid leave and getting away with murder’. [NFL]

Rather than be complicit, Kaepernick instead acted to ally himself with, and provide a platform for, America’s oppressed – an act that inspired players of every level to join him in subsequent games across the country.

In being explicitly pro-American and pro-military, Kaepernick’s stance raised interesting questions about the place of patriotism in contemporary America. Rather than alienating or accusing proud Americans, Kaepernick encouraged them to question what the American flag truly represents: pointing to unification and equality at a time of wall-building isolationism. His protest was not an attack on America, but a plea to return to its core ideals; his drive towards dialogue as a means of improving the lived experience of Black Americans also served to posit inequality as the responsibility of all Americans.

Trimbur’s next case study was the USA Women’s Hockey team, who in March 2017 announced they would boycott the world championship, demanding equitable pay and better training conditions and support by the league. The team’s demands for women’s sport to be treated as seriously and professionally as men’s received massive media attention and support, until the pressure placed on USA Hockey was so great that the team were able to secure a four-year wage agreement, including the formation of a women’s high performance advisory team, as well as marketing and publicity. These clauses crucially aimed to protect and enable the future of girl’s and women’s hockey programming and funding, seeking a legacy far greater than one team’s pay rise.

In a similar vein, Tom Brady and numerous other players for the New England Patriots football team, having won the 2017 Super Bowl, announced that they would not make the customary travel arrangements to meet with the President, in protest of Trump’s gender politics and treatment of women. The Patriots’ demonstration reinforced the idea that challenging gender inequality is not just the responsibility of women activists, but of men too, and urged fellow players to actively use their platform and privilege to encourage change. The players aimed to provide alternative images of masculinity – ones that challenged, rather than enabled sexism and sexual assault – to combat the patriarchal domination of sports spaces, and players and fans alike encouraged traditionally misogynistic spaces like locker rooms to be rethought of as open public spaces for debate and discussion, in which all speakers can be held accountable. Once again, the protesters appealed to American family values and the importance of crafting a more equal world for future generations. In refusing to be associated with Trump and right-wing politics, the Patriots aimed to change the dominant narrative of misogyny, racism, lying and assault to one of inclusion, kindness and equality.

In light of this encouraging perspective on sports protests as presenting possibilities for progressive futures, the Global Justice Academy looks to the future of interdisciplinary collaborations that reach beyond the political sphere alone. It is the sporting element of these protests that made them so contentious, with many commenting on the potential inappropriateness of politicising sport – however, sport’s central place in American society makes it a crucial platform for dialogue. Provoked by such protests, discussions taking place in and around sporting environments were forced to confront the reality of institutional racism and gender inequality in the US. These protests utilised sports grounds to encourage communication and cooperation across race, class and gender divides.

A video podcast of Professor Trimbur’s talk has been provided by the Academy of Sport and is available at the following link: http://www.ed.ac.uk/education/institutes/spehs/academy-of-sport/dialogue/edinburgh-toronto-public-talks/what-are-the-politics-of-sports-protests-in-trump

Report from an IIF Event – Academic Freedom: “national security” threats in Turkey, India and the UK

Can the university be a space where academic freedom reigns while restrictions are increasingly threatening voices and lives outside its gates? Or must spaces for politics be opened up on and off campus in order to address the invasion of national security (and capitalist) logics into the realms of open enquiry? On 27 October 2016, scholars and activists engaged these questions with a focus on the variable effects of the securitisation of university space in Turkey, India and the UK.

A panel on Turkey included academics and students who have lost their jobs as a result of the broader crackdown on dissent following the failed coup in July. They highlighted the connections between increasing violence in the Kurdish regions of Turkey—which precipitated the “Academics for peace” petition that has been used as a pretext for dismissing many signatories from their posts—and the attempts of the state to impose controls on its critics. They asked if the focus on the plight of academics may mean that this violence recedes from the view of international publics. Efforts to maintain solidarity among those now outside the academy and those still within it, as well as initiatives to take the university outside spaces the government controls, provide hope for continued resistance in fearful times and carve out a more universal idea of the University as institution and spirit that always has had to be fought for and salvaged from strategies of subjection from various quarters, not only outside the University. In this way, this panel was inspiring for all university struggles, not just those related to Turkey.

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