Writting by Antonio Peña Jumpa (*)
In a novel way, the Constitutional Convention of the Republic of Chile has proposed a new Constitution with a Plurinational State component. After a political and legal tradition of homogenization, upon approval of this proposal, Chile would become a Pluricultural State. However, despite this new component, as well as others linked to the inclusion of issues of gender, sexual identity, disability or differences between people, and the environment, the Constitution proposal highlights the supremacy of unity and hierarchy typical of a nineteenth-century liberal state. How to understand both perspectives?
Focusing our analysis on the pluricultural issue, we can follow the citation of some articles of the proposed Constitution of Chile for a better understanding. Thus, article 1, paragraph 1, of the proposal regulates the following:
«Article 1;1. Chile is a social and democratic state of law. It is plurinational, intercultural, regional, and ecological. (….)”
This rule shows us that the new Constitution seeks to inaugurate in the political structure of Chile the sense of 4 main characteristics: the plurinational, the intercultural, the regional and the ecological. Faced with the classic discourse of the Republic, based on a liberal and bourgeois way, these new characteristics give a new face to the southern country, particularly
due to its focus on the plurinational, intercultural and regional.
Considering the existence of historical ethnic groups in the current Chilean territory, pre-existing the State, the proposal recognizes in a special way the language and cultural identity of its original peoples: Mapuches, Aymaras, Rapanui, Lickanantay, Quechua, Colla, Diaguita, Chango, Kawésqar, Yagán, Selk'nam among others (articles 2º, 12º, 65º and others of the proposed Constitution).
From this perspective, "intercultural, horizontal and transversal dialogue" is regulated as a basic principle, which must prevail in all actions of the government, the justice system, its autonomous bodies, and Chilean society (article 11 and others of the proposal). The constitutional proposal even regulates the self-determination of native peoples under the right to autonomy and self-government, the right to prior consultation regarding administrative and legislative measures that affect them, and a new territorial structure of the State that incorporates indigenous territorial autonomies in the territories that they historically occupy (read particularly articles 34º, 66º, 187º and 234º of the proposal).
In this way, individual and collective rights are recognized in the diverse ethnic groups of Chile, which stand out at two extremes: towards the inside (identity rights) and towards the outside (rights of otherness, in their interrelation with other cultures and especially with state authorities).
However, when we review in greater depth the content of the proposed Constitution of Chile, we find constitutional norms that contradict the situation of pluriculturalism that it is intended to regulate. Two main reasons guide this contradiction:
1. The unique conception of individual human rights. Despite the recognition of cultural diversity or the promotion of dialogue between the diverse cultures, the proposed Constitution of Chile highlights or superimposes A conception of individual Human Rights that follows a universal character under a possible policy of homogenization (article 17 and following on individual rights, of the constitutional proposal). Although this conception of Human Rights protects the individual person, to face possible dictatorial governments, it can easily contradict the collective rights of the original peoples or nations.
2. The type of supreme body envisaged to define cultural rights. The proposed Constitution of Chile has provided for a body to define when constitutional rights would be violated, or when different cultural groups contravene a jurisdictional competence on issues that supposedly would not correspond to them. In such a case, it has been foreseen that the Chilean Supreme Court of Justice will define the discrepancies (article 309º of the constitutional proposal). Although the Supreme Court is elected by an autonomous Council of Justice, this Council is made up of 17 members, of which only 2 are representatives of the original populations (article 329 of the constitutional proposal). With this composition, the members of the Supreme Court will be selected from among specialists who do not necessarily know about original or indigenous peoples, and even less will be able to define cultural rights.
The same situation is presented in the proposal of the Constitutional Court, which would define when a norm is contrary to the Constitution of Chile.
Given this observation, if the current proposal of a Constitution for the Republic of Chile is approved, its institutional actors will have to seek the compatibility of the norms and principles to make the new social pact possible. This supposes that the native peoples, the State entities, and the interested society accept consensus proposals interpreting the same Constitution. For example, these actors can accept that in certain situations an Ad Hoc Chamber of the Supreme Court could be constituted so that, proportionally to the parties involved and the facts of the case that puts two jurisdictions in conflict, apply the substantive pluricultural law presented above.
In short, it is still a great challenge that Chilean society faces, but it can very well do so by becoming an example for other countries in the world. There is no ideal Pluricultural Constitution; but our participation and understanding can make it a reality.
Lima, August 26 and 28, 2022
(*) About the author: Professor at the Pontifical Catholic University of Peru and lecturer at the National University of San Marcos. Lawyer, master’s in social sciences and PhD in Laws. The author thanks the students of the University Critical Front, who “forced” him to revise the Chilean Constitution proposal.