In the year in which the Colombian constitution celebrates its 20th anniversary, the topic of new Latin American constitutionalism seems to have been gathering significant attention. But there are, specifically, notable divergences over its characterization and periodization, with some bearing epistemological marks.
According to Viciano Pastor and Dalmau Martinez, this new constitutionalism would be characterized by: a) the substitution of constitutional continuity for a break with the previous system, while strengthening, in a symbolic sense, the political dimension of the Constitution; b) the innovative potential of the texts, seeking national integration and a new form of institutionalism; c) foundations based on principles, rather than rules; d) the extension of the constitutional text itself, as a consequence of the constitutional past as well as of the complexity of the subject matter, but communicated in accessible language; e) a ban on constituted powers controlling their own capability for constitutional reform and, therefore, a greater degree of rigidity, dependent on the new constituting process; f) seeking instruments that rebuild the relationship between sovereignty and government, with participatory democracy complementing the system of representation; g) an extensive bill of rights, incorporating international treaties and integrating marginalized sectors; h) breaking with the predominance of diffuse control of constitutionalism in favour of focused control, including mixed formulas; i) a new model of ‘economic constitutions’, alongside a strong commitment to Latin American integration, not just in economic terms.
The two authors’ analysis appears on occasions to identify the Colombian Constitution (1991) as the start of the cycle, but in other instances declares it to be that of Venezuela (1999). As a consequence, they end up placing within a single process three distinct cycles of ‘pluralist constitutionalism’, described well by Raquel Yrigoyen: a) multicultural constitutionalism (1982–1988), which introduces the concept of cultural diversity and recognizes specific indigenous rights; b) pluricultural constitutionalism (1988–2005), which develops the concept of a ‘multiethnic nation’, and ‘pluricultural State’, incorporating a wide range of indigenous rights, for those of African origin and other groups, especially in response to ILO Convention 169, while at the same time implementing neoliberal policies, with fewer social rights and more market flexibility; c) plurinational constitutionalism (2006–2009), in the context of the adoption of the United Nations’ Declaration on the Rights of Indigenous Peoples, and which proposes the ‘re-founding of the State’, with explicit recognition of the thousand-year-old roots linking indigenous groups to the land, and discussing the end of colonialism. And it is precisely the establishment of a new constitutional paradigm, following the examples of Ecuador and Bolivia, that the aforementioned constitutionalists do not seem to recognize. In this sense, Raquel Yrigoyen, Bartolomé Clavero and Ramiro Ávila Santamaria seem to be correct when they highlight the pertinence of these two processes in relation to the previous Latin American constitutionalism. A model that, according to Ramiro Ávila Santamaria, would be a ‘transformative constitutionalism’ because it is based on other parameters. A few of those stand out.
First: the re-founding of the State is the other aspect of the recognition of colonialism, as well as the thousand-year-old origins of peoples and nations that have been overlooked. This re-founding requires the reinvention of institutions and organizational processes. Examples of this in the case of Bolivia are the Plurinational Constitutional Court, the election of judges and the four distinct levels of autonomy; in Ecuador, there are ‘functions’ (not powers), including ‘transparency and social control functions’ and ‘electoral functions’, as well as special regimes of territorial organization.
Second: a range of rights that break away from divisions (be they civil or political; economic, social or cultural; or related to old age) and Eurocentrism. This becomes most evident in the case of Ecuador, which recognizes seven categories of rights: those of ‘buen vivir’ (well-being); those of people and groups who are most in need (old people, young people, pregnant women, people with a disability, people held prisoner, drug users, drifters , and those suffering from serious illness); those of communities, peoples and nations; those of participation; those of freedom; those of nature; as well as a section on responsibilities. However, this can also be seen in the case of Bolivia, where they have introduced rights of indigenous nations and a range of constitutional duties.
Third: such constitutions are not just influenced by the UN Declaration, but are also fundamentally constructed from indigenous leadership, of which they are also a result, a role that is different from indigenous justice (in the case of Bolivia it is subject only to the Constitutional Court) and a new vocabulary based on the indigenous worldview itself (the recognition of the rights of ‘Pachamama’ – Mother Earth – in Ecuador and the principles of the Bolivian nation – of Aymaran origin – are some examples). And they highlight the need to combat racism (including in relation to indigenous peoples, not just towards black communities, as is usual).
Fourth: the insistence on decolonization (most evident in the case of Bolivia, which emphasizes education itself as a decolonizing force), as well as the intercultural process (developed in a more consequential way in the case of Ecuador). It follows, too, that ‘plurinationality’ comes to question the limits of the constitutional State and imposes a new institutionalism.
To overlook certain innovative parameters of the two Constitutions and attempt to place in the same category the Colombian Constitution of 1991, which recognized cultural diversity in a limited way (despite the Constitutional Court’s role being one of the most advanced examples of constitutionalism on the continent), is to overshadow if not deny the protagonism and the struggle of the indigenous peoples to decolonize their history and hence to establish an authentic plurinational State; and in doing so, pose an intense challenge to the Eurocentric parameters of constitutionalism.
César Augusto Baldi is Advisor to the Brazilian Regional Federal Court 4th Region and the editor of Direitos humanos na sociedade cosmoplita [Human Rights in Cosmopolitan Society] (Renovar, 2004). Translated by Alex Higson.