Constitutional engineering was part of the nineteenth century historical context in which liberalism and the structural axes of nation-states were built in Latin America. The epistemic dependence of the ex-colonies was manifested in the adoption by criollos and mestizos who got into power of enlightened ideas that turned the new political institutions into a copy of the European ones. Thus, Latin American constitutions were built as emancipatory and regulatory agendas within a specific vision of society. Nowadays, this phenomenon tends to be re-enacted and radicalized through public policies related to extractivism and the environment, along with the dictates of corporations, and in the background of the institutional weakness of Latin American states. In this context, dispensing the law and decolonizing the Constitution are two guiding scripts for Latin American projects in the 21st century.
Coloniality still plays a big role in Latin American societies. It is still possible to see the colonizers’ thoughts and perspectives in the current order. Politics and lawmaking are usually dominated by men and exist within a very patriarchal society. Brazil, unfortunately, is an example. Two proposals to modify the 1988 Constitution that are pending before the Congress clearly suggest this coloniality. First ‘PEC 181’, which may restrict women’s access to their sexual and reproductive rights. And second ‘PEC590’, regarding women´s participation in politics. While the first bill, which prohibits abortion in all cases, is being inserted at a fast-track-voting pace, the second, which points to securing women being proportionally represented in Congress, is almost being excluded from the debates. After 12 years, this bill has not yet been put to a vote. This scenario clearly shows that current Brazilian society still denies gender and sexuality claims, supporting the existence of a hierarchy that allows the continued imposition of violence. From a critical decolonial point of view, this proposal intends to draw attention to the danger/importance that legislation of this nature present to a true pluralist society, or, at least, to the awareness of such differences and to the engagement of dialogues among societies, that definably could not be denied anymore. From a critical decolonial point of view, this proposal intends to draw attention to the danger that legislation of this nature presents for a true pluralist society.
Exploring the colonial and anti-colonial character of Colombian Constitutional Law requires withdrawing our attention from the Constitution itself, and to look towards the moment in which the first constitutional texts were adopted when Colombia became sovereign state after independence from the Spanish Empire. This is the moment of the birth of the constitutional tradition in Colombia. The origin is here not only a first moment in history, but also a founding cause that constructed Colombian Constitutional Law and that, therefore, marked its identity.