On 4 September 2022, Chileans will decide whether or not to approve a new constitution for their country. Dr Luis Eslava, an expert in the constitutive power of the international legal order at Kent Law School, comments on what a new constitution could bring:
‘If the decision is to approve the constitution (apruebo), the Pinochet administration’s constitution of 1980 will pass into history. If the decision is to reject it (rechazo), however, Chileans will miss out on an opportunity to leave one of the darkest chapters of their history behind them. And if Chileans vote rechazo, Latin America and the world will also miss the chance to witness how nations can, through institutional and democratic means, confront some of the key issues affecting the planet today – from climate change to entrenched forms of inequality based on gender, race, ethnicity, location and even (for the first time in constitutional history) neurodiversity.
‘The text of the new constitution was produced by a Constitutional Convention composed of 155 democratically elected members drawn from right across the political spectrum, on strict gender parity lines, and with 17 of its seats reserved for indigenous representatives. This extraordinarily progressive starting-point in itself makes the new constitutional text the first of its kind not only in Chile but in the world as a whole.
‘The result of the plebiscite on 4 September matters not only for Chileans but for people right across the world. By voting yes, Chileans would inaugurate a new generation of constitution-making. Chile’s new constitution builds on a long global history of comparative constitutionalism, bringing with it a number of noteworthy innovations including a clear endorsement of gender parity and equality, socio-economic rights, decentralisation, plurinationalism, food sovereignty, anti-corruption and good governance. On the top of all of this, the new constitution affirms the indivisible relation between humans and nature, promotes the generation and sharing of knowledge with all citizens, and confirms the importance of both rural and urban development.
‘The new constitution has been endorsed by some of international law’s leading figures. This international support, together with significant domestic support for the new text, has been confronting a mounting backlash from reactionary forces within Chile, mostly from right-wing coalitions. Worryingly, this counterattack, waged largely in the arena fake news and misinterpretation, has tipped the polls towards rechazo over the last months. And although the apruebo campaign has regained ground in recent weeks, the future of Chile’s new constitution is still hanging in the balance.
‘Chile and the Chilean Constitutional Assembly are giving the region and the world a lesson in how to address past and present injustices as well as future challenges. They have done this by listening to the clamour of the people and abiding by legal rules and processes in order to redefine the rules of the game, their constitution.’
Dr Luis Eslava is Reader in International Law at Kent Law School. He was a contributor to the Chilean constitutional debate and an advisor to one of the Constituent Assembly’s elected members during the final weeks of the drafting process. His role is partially recorded in a documentary filmed by KMTV in Chile’s capital Santiago, introducing some of the key architects in the constitutional process and detailing what these changes could mean for the country and the wider region.
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