By Koldo Casla
We live an era of nationalistic, angry, and xenophobic challenges to human rights, a time in which the “will of the people” is maliciously presented as contrary to human rights. We have seen human rights backlashes consistent with this instrumentalization of the so-called popular will in India, Hungary, Poland, Turkey, the Philippines, the U.S., the U.K. — the list, sadly, could go on and on.
Chile, however, presents a test case for the opposite, an opportunity to refresh the democratic case for social rights, not due to natural or international law, but because human rights is what people demand.
October 2019 saw the emergence of a unique moment for change. Originally led by students in outcry against rising public transport costs in Santiago, protests quickly spread to other areas of concern, including the increasing cost of living, low wages and pensions, lack of quality education, and a poor public health system.
The protests led to a national agreement, endorsed by all parties, to initiate a process to reform the constitution.
Adopted under Pinochet’s dictatorship to attempt to legitimize the military rule, Chile’s 1980 constitution has been a barrier when trying to find institutional solutions to social conflicts, an undemocratic obstacle to legitimate social demands.
Chile has signed and ratified all the relevant international human rights treaties. However, as the embodiment of neoliberalism, the constitution prioritized a market-driven economy. With one of the lowest rates of public spending per GDP, Chile is also one of the most unequal countries in the OECD. Despite several changes in the last three decades, the constitutional bill of rights (Articles 19-23) ignores international human rights law in relation to social rights, such as the right to health, education, social security, housing, and work.
The fairness of a constitutional settlement depends on the extent to which human rights, including social rights, are enshrined in it, with proper accountability for public authorities.
Likewise, the democratic legitimacy of the constitution depends on the extent to which the opinions of those affected by it are taken into account. In a democracy, only when participation is open, transparent, and meaningful, do citizens have reasons to see the constitution as their own, even when they may not necessarily agree with everything it says.
Four decades after Pinochet’s constitution, Chile has the opportunity to revisit the foundations on which society is built. To do justice to such an ambitious goal, the process should not leave anyone behind.
In this constitutional moment, the Chilean society cannot afford a fraudulent rights-versus-democracy binary choice. Building public services from social rights is too important to be entrusted to judges and lawyers alone while the rest remain silent bystanders. Social rights accountability does not need to be solely judicial. It also requires empowering civil society, national human rights institutions, and potentially other regulators and inspectors to monitor, review, and recommend remedial action inspired by social rights principles.
This is a historic occasion to make the case for social rights; a key responsibility is to listen carefully to those most affected by public policies, by authorities’ decisions, and by their omissions.
With exactly the same words, the 1966 International Covenant on Civil and Political Rights (Article 25(a)), and the 1969 American Convention on Human Rights (Article 23(1)(a)) proclaim the right of citizens “to take part in the conduct of public affairs, directly or through freely chosen representatives.”
In that spirit of active participation in public affairs, Chile’s constitutional moment is a time to remember that there is no better way to defend social rights than to hand over a megaphone to the people most affected by inequality, poverty, and social exclusion. Taking social rights seriously requires not only different policies; but also more inclusive processes to come up with them. Organized civil society appears ready to tear down the power structures that have excluded so many people from the political conversation. Will the State rise to the occasion?
Koldo Casla is a Lecturer in Law and Deputy Director of the Human Rights Centre Clinic of the University of Essex.
In 2020/21, in partnership with the national civil society platform Ahora Nos Toca Participar (“It is Our Turn to Participate”), the Human Rights Centre Clinic of the University of Essex will examine the role of social rights and citizen participation in Chile’s constitutional moment. A group of postgraduate students will look for good practices in participatory constitution-making and deliberative democracy to identify the most effective ways to raise the demands of vulnerable groups. The project will address how the ideas, demands and suggestions of individuals at greater risk of harm, disadvantage and discrimination can influence the drafting of a new constitution.