A Cosmopolitan Approach to the Chilean Constitution-Making Process
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.
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.
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/.