Thoughts on the leaked draft constitution

10.04.2006

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The following is the proposed new constitution (as summarized at Hoybolivia.com). My comments are in [brackets]. You can also look at my outline of the 2004 Constitution.

Incorporate the Wiphala (the indigenous flag) as a national symbol, along w/ the current symbols: the tricolor flag, the shield of arms, and the national anthem.

[I see no legitimate problem here.]

Eliminate the current three powers and replace them w/:

  1. The Civic Power of the People (Poder Ciudadano de los Pueblos)
  2. People's National Assembly (Asamblea Nacional del Poder de los Pueblos)
  3. People's National Executive (Ejecutivo Nacional del Poder de los Pueblos)
  4. People's Supreme Justice Tribunal (Supremo Tribunal de Justicia de los Pueblos)
  5. People's National Electoral Assembly (Asamblea Nacional Electoral de los Pueblos)

[Aside from the over-repetitive use of "the People" (who are these "people"?) that makes these titles sound redundant, I'm confused as to how there's at least three different People's assemblies.]

The Civic Power of the People will be responsible to oversee the other four branches of government; realize special auditors; and oversee penal and administrative functions.

[I'm not sure what any of this means, since I've no idea how this body is composed — or does it just mean that "in abstract" the citizens of a country have this innate ability, through electoral-representative ability — the right to vote. If that's all it means, then it's not much different from Articles 1 & 4 of the 2004 Constitution.]

The People's National Assembly would be composed of 70 popularly elected members; the current Senate would cease to exist.

[Here I see a huge problem. I'm not entirely opposed to unicameralism, but reducing the total number of parliamentarians doesn't seem to help the issue of representativeness, since it makes proportional representation thresholds harder & more difficult to bend in favor of maximal inclusion.]

The People's National Assembly would be the sovereign seat of authority, and the only seat of legislative power.

[I've no problem w/ parliamentarism, so this isn't entirely bad ... though it in no way reduces the problems w/ the nature of its composition.]

The People's National Executive would be the president, vice president, cabinet ministers, etc. & they conduct public administration following laws passed by the legislature

[There's nothing new here from the 2004 Constitution.]

The People's Supreme Justice Tribunal is broken down into national, departmental, and territorial, tribunals of justice.

[This is the judiciary. Again, nothing much different from the 2004 Constitution, though I'm not sure how the "territorial" units are to be defined.]

The tribunal members would be popularly elected at departmental & territorial districts to serve five-year terms.

[I've no inherent objection to the election of tribunes (judges).]

Work in a "socialist & communitarian society is a right, a responsibility, and a source of honor for all citizens." There is also recognition that work must be adequately compensated.

[In many ways, this reverts to the "social constitutionalism" that was en vogue in the 1930s throughout Latin America, modeled after the post-1917 Mexican Constitution.]

According to Hoybolivia.com, freedom of expression seems reduced & controlled, since the leaked draft states "recognizes that citizens' right to free expression and the press must conform to the ends of a socialist and communitarian society."

[I'm inherently opposed to any reduction in freedom of speech or the press.]

The draft speaks of recognizing religious pluralism, and some separation of church & state.

[Nothing new here that wasn't in the 2004 Constitution, and before. And I'm all in favor of religious tolerance.]

The state "guarantees indigenous & original peoples the right and access to land and territory without restrictions."

[This sounds good ... but I'm curious about the "without restrictions" part ... or how land reform (which was tried in the 1950s-1960s) would be more successful today.]

Apparently, no personal freedoms can go against "the Bolivian people's will to construct socialism and communitarianism."

[Again w/ the restrictions on free speech, the press, and the ability to criticize the government.]

The state recognizes indigenous or communal justice.

[This was part of the 1994/5 and 2004 Constitutions.]

The national territory is divided by departments, municipalities, and indigenous territories.

[Again, this was in the two previous constitutions.]

Recognizes the department as "local society" but as a decentralized political-administrative unit as an intermediary between the indigenous territories & municipal governments.

[The wording seems to strip the departments of some of their aura, but otherwise it's roughly in line w/ the two previous constitutions.]

Finally, it creates local People's Assemblies (Asambleas Locales del Poder de los Pueblos) that are to be the highest local authorities at their various levels.

[Lack of a departmental legislatures has always been a sore point (for me) & clearly the Achilles heel of the prefectures. But this sounds too much like the idea of local "soviets" to suit me.]

Overall, the project seems overly complicated. Why five branches of government? Most countries are confused enough w/ the three. Most European democracies function w/ only two (the executive & legislative functions are virtually fused in parliamentarism).

Beyond that, some of the proposals seem overly ambitious. I realize that Latin American constitutions — especially those of the "social constitutionalism" tradition — aim for length & complexity, rather than brevity. But how is this draft going to work? Let's ignore the fact that many in the media luna & the national mestizo middle class will likely oppose many of the specific measures. Let's pretend everyone agreed to use this model. How is this overly complex arrangement of bodies going to govern a country like Bolivia?

Juan Linz argued that presidential democracies tend to "fail" because they have two popularly elected powers — the executive & the legislature. How does having five popularly elected bodies solve that dilemma?

Posted by Miguel at 02:11 PM

Comments

Miguel: This reeks to high heaven. Way too many constrictions and limitations on liberties. Very vague. No Bill of Rights?

Posted by: galloglass at October 4, 2006 05:46 PM

Of course, it's important to keep in mind that this was a leaked draft. And I'm only commenting on the summary of the draft. But I certainly share many of your concerns.

Posted by: mcentellas [TypeKey Profile Page] at October 4, 2006 08:43 PM

I think we may be getting ahead of ourselves by assuming that this is the official and legitimate draft. When I was in Bolivia, they made reference to this draft and denied that it was authentic. Could they be trying to cover up something? Perhaps. People in Bolivia come up with elaborate proposals and projects to present as ideas, hoping that they will be taken into consideration. I am betting that some member(s) of the party came up with this, but it is not the official party proposal.

Posted by: eduardo at October 5, 2006 03:33 PM

Miguel: I sent you an article from El Deber...Evo says that the Supreme Court has no authority over the Constituent Assembly, as the Court is a colonial, racist institution...is he preparing for something big? He's trying to undermine the legitimacy of the political institutions...is he going to try and do things by fiat or decree?

Posted by: galloglass at October 5, 2006 08:14 PM

Eduardo:

I hope you're right. Because, frankly, this thing sounds like a middle schooler's interpretation of what a "socialist" constitution would look like (w/ some homages to the 1917 Soviet version). But it also looks like if MAS is behind such proposals, willing to back them, they're certainly not shown any willingness to negotiate w/ their opponents. If key MAS members really do back this plan, they're going to do what they can to pass it, I'm afraid.

Galloglass:

Yes, I've seen the news about Evo's pronouncements against the court. I think Evo's too often shown his stripes as a "delegative democrat" (à la Guillermo O'Donnell) or worse.

Posted by: mcentellas [TypeKey Profile Page] at October 5, 2006 10:41 PM

Mr. Morales has threatened to close congress. He has publically stated that the Supreme Court has no authority to rule on the Constitutional Assembly. He has called the MAS constituents into closed door sessions. He has ruled almost exclusively by decree, to include decrees that are without doubt unconstitutional. If there was any doubt before about Mr. Morales' concept of democracy, it should be crystal clear at this point.

BTW Miguel, with 70 parlementarians I figure that's about 4 times the per capita representation as in the US. More may be better I suppose, but I'm not convinced that this is a huge problem. Am I missing something?

Posted by: Norman at October 6, 2006 09:21 PM

Miguel: Do you think he's (and Garcia Linera)a 'delegative democrat'? In some sense, I agree, but there's also a heavy dose of Maoism, explicitly so with Linera.

Posted by: Galloglass [TypeKey Profile Page] at October 6, 2006 10:59 PM

Norman:

As for the number of parliamentarians ... I don't thin it's an issue of per capita representatives. But if we had a problem w/ representation in the previous system, this makes it more difficult to come up w/ electoralist solutions to "fix" the problem. For example, should these 70 be elected in a a single nation-wide district by list proportional represetation (list PR)? Or should they all be elected in winner-take-all single-seat districts (SSD)? Either choice has dramatic implications for the kinds of parties that will run & win. The list PR issue would likely encourage moderate sized parties that appeal to as many voters as possible. The SSD solution would encourage a fractionalized, polaraized party system w/ a mix of large hegemonic parties & small local/regional parties. The SSD solution also introduces protential problems of gerrymandering districts. But list PR also means that small minorities may be ignored since they won't have enough votes on their own to elect a single parliamentarian. Though this would also depend on the electoral threshold (3%? 5%? higher? lower?).

Galloglass:

As for Alvaro being a "delegative democrat" or not. I'm not sure. He's a hard target to read, frankly. He's polished, intelligent, articulate. So he could go in a different direction. But w/ his deep committment to Maoism, I think he's likely something else. Delegative democrats are, as I understand it, regular politicians (like Menem) who use their position as chief executive to ride roughshod over their political opposition, but w/o really overturningt the democratic system. I think Bush (in the US) in many ways resembles this model. But Alvaro is something else: He's a "true believer" of the kind more common in the 1930s or the 1960s.

Posted by: mcentellas [TypeKey Profile Page] at October 7, 2006 11:16 AM

I'm guessing that you heard about the 12 deaths and over 50 wounded in a mine just outside of Potosi. But you didn't mention it in your post. Evo is looking very bad and the Vice President even worse becuase of insenstive comments (Is he getting speech lessons from Chavez?) and neither of them attending to serious problems here. The rhetoric never stops, finger pointing and traveling....The Prensa is really tired of theeir relationship (?) with the president. Things don't look too good for Evo.

Posted by: mom at October 7, 2006 07:09 PM