Friday 1 February 2008

Drafting of new Bolivian constitution - a spur towards social transformation

In the following article the vice-president of Bolivia, Álvaro García Linera, explains his interpretation of the changes that were made in the draft constitution as a result of the recent negotiations involving the parties represented in Bolivia’s National Congress. The original constitution was drafted in December 2007 by the country’s constituent assembly. A popular referendum on the new draft constitution is to be held on 25 January 2009. Álvaro García Linera also discusses the role constitutional change has played in the social transformation of Bolivia. Bolivia's vice-president Álvaro García Linera: ‘We are going through the most radical social transformation’ by Álvaro García Linera (translated by Richard Fidler) from LINKS – International Journal of Socialist Renewal Translation first appeared at Richard Fidler's Life on the Left 22 November 2008 Synthesis of the constituent process The demand for a constituent assembly emerged at the very point when the majority of the country, the Indigenous sectors, were moving or beginning to move from being a demographic majority to a political majority — the awakening of an Indigenous, campesino and popular movement that for centuries had been excluded from the power structures of the state. It was the Indigenous sectors who at that point invoked once again their right to participate in the definition of what is common to all Bolivians — common institutions, common resources, common rights. This movement emerged, declared its presence initially in 1990 with an Indigenous march in support of the right to participate in the construction of the common good and the collective institutions of the society. Until then the Indigenous movement had felt they were outside the institutional and legal structures, that their rights were marginalised by what Indianismo[1] and Katarismo[2] denounced as second-class citizenship. So the Indigenous movement proposed that they become first-class citizens, with the same rights and obligations as others. And that meant modifying the entire institutional structure of the state, doing away with the segregationist and racist state, and bringing about a type of inclusive, participatory state bearing the imprint, the scent, the language, the appearance and the habits of the Indigenous world, the majority in Bolivia. The agenda of a new constitution that was present in the Indigenous movement first appeared in 1990, and it was in 2000 that the political awakening of the Indigenous movement became a political force of mobilisation and pressure, paralysing the state. In the water war of 2000, when coca producers, campesinos, regantes [irrigation farmers], the middle classes, workers and former trade unionists joined together, they not only paralysed the state but modified the legal structure governing water use and that was when they said: All right, if we continue in the way we have been we will be in conflict with each other. The only way to stop that confrontation between Bolivians or regression (philosophically speaking) to the Hobbesian state, is to reach an agreement, but an agreement that is sealed with the status of a constituent assembly. So it was that in 2000 an Indigenous political demand became a fundamental topic of debate. It occupied the political arena and from that time on further mobilisations took place, resulting in debates, meetings, and in turn proposals in the constituent assembly. The proposal for a constituent assembly was put on the agenda — as Sánchez de Losada was fleeing — for the new president, Carlos Meza, but at that point it was too much for the man, too complex for a person too closely linked with the old regime of exclusion. It was President Evo [Morales]’s turn to campaign around and later to place on his government’s agenda this popular program, this Indigenous program, which basically is the demand to participate in building the institutions, to participate in the common good and in the use of that common good, which is nothing but the political definition of a state. But obviously this conflicted with an entire experience, with an entire conduct, with an entire way of doing things of the ruling classes, the racist elites of the country, for whom the constitution was like a kind of personal and family heritage. constitutions had always been made in that way, they had always been put together among 20, or 40 or 60 friends, relatives and associates; and amendments had always been made to suit the related rulers in their management of government. And when it was the plebeian, the marginalised sectors, who asked to participate, these people had to agree reluctantly at first and, when they could, to conspire against the new constitution. And that is the sad, tragic, complex history of the constituent assembly. Called in March-April, elected in June, installed in August 2006. From 2006 until a week ago the history of the constituent assembly was the history of a majority will of a people that seeks to build its institutions collectively confronted by the obstacle of an opposing dominant racist elite prepared to convert its political minority into a right of veto in order to forestall the adoption of the constitutional draft. The majority in the constituent assembly developed proposals, laid down bridges to include the distinct sectors. But from September-October 2006 on, I would say, within two months from the installation of the assembly, there was set in motion an entire conspiratorial machinery in the assembly and in the constitutional draft, on various pretexts. First there was the debate on the famous two-thirds majority to approve the constitutional text, then the debate on the location of the capital, a discussion between regions of the country on where the seat of government and the seat of the Congress should be located, and later, despite the efforts of the assembly members to work out agreements between majorities and minorities, the paralysis of the constituent assembly through threats, harassment, assaults on the members that ended with the burning down of the homes of some members, the expulsion of the members from the city of Sucre by fascist groups organised in opposition to the very existence of this constituent assembly. The office of the vice-president and later President Evo repeatedly sought to counter this, proposing agreements, some consensus, that would allow the completion of a constitutional text. These attempts were all unsuccessful, because there was a distinct attitude that we should not have a new constitution, that possible agreements should be avoided at all costs and that it didn’t matter how much was conceded by the majority force in the assembly, it didn’t matter how many concessions were made in the proposed text of the constitution. The slogan was: "No constituent assembly'', and this conspiracy lasted, I said until a week ago, while even now in the Congress the political force of the right wing, the right-wing majority — a minority in the Congress but a majority in the opposition — is pursuing its demand that there be no constitutional text, that it must be blocked. So, once the constituent assembly met, in August 2006, 2007, August 2008, two years — in August things change. It has been two years of opposition, blockade, threats [and] blackmail that have forestalled the approval of a constitutional document that fully reflects the will of the people. A text was approved in Oruro, but not without difficulties. And it was in August — given that it was Congress’s job to call the referendum to approve the draft of the new constitution — that Congress got to debating it, but this time in quite different circumstances. There are various factors that enabled the convening of this session on the new constitution. The first, and perhaps the most important, was the overwhelming political victory of President Evo in the recall referendum. The referendum was held on August 10, and the president went from 54 per cent electoral support [in the 2005 presidential election] to 67 per cent, which is without precedent in the political life of Bolivia. This led to majority voting control over 96 of the 112 municipalities in the entire country. The right wing, territorially entrenched in four departments, lost two of the other five departments, lost municipalities and territories and remains confined to a marginal strip of the country. This was the decisive point that altered the correlation of territorial forces in Bolivian politics. It meant that imminently, rather sooner than later, the constitution would be approved. What did the right wing do? They set out to launch a coup d’état. They occupied institutions, destroyed institutions, occupied airports, blocked the legally constituted authorities from being present in the regions, murdered Bolivians, destroyed the country’s gas and oil pipelines in acts of terrorism. And the government marked time and then made a strong decision, [declared] the state of siege, arrested a prefect, protected the people, jailed persons involved or potentially involved in those assassinations. And, following the electoral defeat, that was the second moment, the military defeat of a portion of the golpistas [those forces attempting a coup]. They were isolated. UNASUR unanimously backed the constitutional government, the [US] ambassador was expelled, which meant that the conspiracy was left without a coordinator. Militarily, we took control of one department and in the others that were violently taken by that gang of criminals the people took their distance, turning their backs on those violent acts, so that was a military defeat that once again empowered the government with greater force to take decisions and proceed with the constituent process. And the third moment, clearly, was the great mobilisation, the great mobilisation of the social sectors, beginning in Santa Cruz. In a territory that was seemingly the property of the landowners, under the unfettered control of the landowners, the labouring masses rebelled, rose up, encircled the city, and mobilised to defend democracy and the new constitution. Later, President Evo led a gigantic, heroic march, the largest march in Bolivia’s history. Bigger than the march of the miners that closed the national revolutionary cycle back in the 1980s. The reception in La Paz was huge, 200,000 persons came to the Congress and demonstrated that there is social support. So it enabled the constituent process to get back on the rails, led to the approval of a referendum law in this new political context — the new electoral majority from 54 to 67 per cent, the new territorial power of the government throughout the country, east and west, north and south, city and countryside, the military defeat of the fascist right and the gigantic social mobilisation — which meant that in the Congress the right-wing forces were left isolated in the reactionary fascist sector, the democratic sector was strengthened, and the government — within the limits of certain flexible concessions — was able to ally with the democratic sectors and this ultimately gave us the two thirds, which is what made it possible to adopt a law setting the date and terms for the referendum that has been socially accepted by the entire country. The country has experienced tensions and risks of a civil confrontation over the constituent assembly, of course, because we have had an obstinate right wing that has resisted reaching any agreement that would allow the Indians to be co-participants as well in the development of a foundation text of the state. Its defeat, its rout, its political errors have meant that the right has split and as a result the government was able to build temporary alliances on the basis of certain agreements and adjustments to the constitutional text that isolated the right and gave us the two thirds that you have seen during the last week. The post-Oruro process and the 100 changes in the approved text On this very day, this morning, we had a meeting with the Central Obrera Boliviana,[3] Conalcam,[4] the Confederación Sindical de Campesinos,[5] the Confederación Sindical de Colonizadores,[6] the Federación Bartolina Sisa,[7] the Conamaq,[8] the Cidob[9]… and what not. The discussion was very valuable, it lasted throughout the morning and until five o’clock in the afternoon, very productive and very mature. It is not these social sectors who are complaining. It is some members of the constituent assembly, who are saying: “Excuse me, I was elected as a member of the Assembly and now they are changing this or that article of a text that I put together.” Legitimate complaints, which were answered by the government in this way: In the Congress we maintained, we preserved, we defended and we improved the fundamental core of the constitutional text, which is this process of building a state that has, as its structural core — with moral, intellectual leadership, hegemony in the Gramscian sense — the campesino and popular Indigenous movement. That core has not been touched at all. What we did was to make some clarifications, which in some cases improved the position in regard to Indigenous autonomy, for example, or in regard to the land question, in terms of constitutionally entrenching the procedures for reversion of lands that were not in the draft constitution. In other cases we corrected terms to make them express more effectively the essence of the text. For example, the word “República” [Republic]. There was no word “República” but the entire text takes the form of building the Republic: division of powers, rule of law, individual freedoms, etc. The word was lacking. So the word was added, amending eight of the 100 articles that were changed. The same thing was done with the Consejo de la Adjudicatura [Council of Appointment], which is the professional body for choosing judges. It was changed to Consejo de la Magistratura [Judiciary Council]. That one-word change amended nine articles. We did not change the essence, we changed one word. Discussion on the autonomy problematic There were, however, some points, some profound changes on the question of autonomy, of course. There was some confusion of levels between Indigenous autonomy, regional autonomy and departmental autonomy. What was done with the agreements is to establish more clearly the separation, the levels of autonomy, to consolidate the control and role of the State, of the central government, of the material, institutional and objective foundations of national unity, the unity of the country; and to decentralise in the Indigenous sphere, the departmental and municipal sphere, secondary functions, let’s put it that way. So yes, in this case some corrections were made. In the previous constitution, there was “legislative-regulatory authority”, which was expressed that way for later dialogue, negotiation and adjustment. Legislative authority followed by regulatory authority. This is an important change because things were separated so that now there is authority to legislate within the exclusive powers of the departments, but also to regulate. Those ambiguities have been overcome. In the case of the land question, for example, on which there is a whole debate, the referendum or the article that is going to be put to a vote in the referendum dirimitorio [the separate referendum question] in which the people will decide whether the limit on land ownership is to be five or ten thousand hectares, [10] what was done — without affecting the question in the referendum — was to bring it into line with international law, so that whatever the result, five or ten thousand, it will be prospective because the law cannot be retroactive. [11] What the constitutional text does is simply to add this provision, which any latifundista is going to win in any international court anyway, since the law cannot be retroactive to the disadvantage of the offender. And what the Congress has done is to clarify this fact, that the result, whether five or ten thousand hectares, will run both forward and backwards (if someone has 20 or 30 thousand hectares). If he is fulfilling a social and economic function, it will be respected, if he is not fulfilling an economic and social function, it will revert to the state. It is a procedural question, of normal reversion of lands to the state. The explanation was very well received by the social organisations. There were no objections. I have noted the protest of some members of the constituent assembly, who felt somewhat mistreated because others had altered the constitutional text, but in the organisations I believe there has been a more lucid understanding of the importance of the historical moment, of the importance of achieving a rapprochement with centrist sectors in order to achieve the two-thirds majority, but at the same time of being very careful that the central core of the constitution not be displaced and, in fact, it has not been displaced: plurinational state, Indigenous autonomies, absolute Indianisation of the entire state. Today the Indigenous are not only a nucleus of resistance in the state. The Indigenous, the popular, the plebeian, the campesino, the worker are present throughout the institutional structures of the state — government, Congress, Supreme Court, National Electoral Court, the public services, universities, education, health, justice…. We have here a constitution that had a core of plurinationality in the sense of the Indigenous as citizens and participants in building the unity of the state. This core has not been altered. The core of the economy, the strong presence of the state as a director of the economy, responsibility of the private economy but also of the community economy, the campesino economy, the urban micro-enterprise economy. It’s all there, guaranteeing ownership of natural resources by the state, constitutionally entrenching the nationalisation of natural resources. In terms of human rights, this is an extremely advanced constitution. We have corrected and relaxed some matters that have a lot more to do with political management. For example, if we elect members of Congress solely by territorial unit: uninominal (single-member representation), or members of Congress by presidential list: plurinominal members. [12] Uninominality favors majorities, we have known that since Sartori, who educated us on the matter. [13] Uniplurinominality to elect members of Congress favors the territorial majority, but also allows regional and local minorities to be expressed, which is good for a democratic society. That is what we have done. We have combined half unis, and half pluris. Does this have anything to do with the Indigenous movement? In truth, no. On the contrary, it does help to forge alliances. For example, in the north of Potosí. If it is only a uninominal election, conceivably the cooperativistas [14] will elect the deputy for the region. Fine, but the communities will remain on the margin. If we combine uni and pluri we can have a mining cooperativista as the uni deputy and a community deputy from the north of Potosí as the pluri representative. It allows us to form those wifala webs [15] in the social alliances and the compañeros understand it perfectly. There was no concession whatsoever on this, on the contrary the text was improved in order to allow mutual alliances of the social sectors with the social organisations in future. Guaruni, miners and campesinos. If it were only a uni system the miners would be elected and nothing more, but via a pluri system it is the miner and it is the campesino that can go in the same electoral formula. That type of correction improved the constitutional text. On the matter of how to amend the constitution, the major contribution of the members of the constituent assembly in Ororu was to say that any alteration that is made to the constitution must necessarily be put to a referendum. That is the central idea. In Oruro the changes were made by simple majority while here in La Paz the changes were made by two-thirds, but in both cases it is the people in the end that will vote in a referendum to accept or reject this change in the constitution. [16] In this spirit, the discrepancy between majority and two-thirds was corrected, and here the Indigenous campesino and worker comrades were very lucid. They said, fine, today, right now, we have a majority in the Congress. This could last five or ten or fifteen years. But what if later we are temporarily an electoral minority and the right wing regains control of the state? The right could, with a simple majority, change what is a major historical achievement. This had better not happen, better that we guarantee that changes to the constitution be made with two thirds of the Congress, but still it will have to be the people who, with their vote, will say whether this amendment is correct or incorrect. If you look closely at the corrections you will see that what has been done is to adjust the text to improve it, to overcome some ambiguities and in doing so define the concepts more clearly, which has enabled us to win support from centrist sectors in the Congress that gave us the two thirds, and now that means this constitution has suddenly been converted into everyone’s constitution. There is no difference with the constitution adopted in Oruro in structure or in essence. It is the same thing, with the addition of some precisions, partial modifications, corrections of words or some further details that enrich the constitution of Oruro, but its core remains intact. How the right wing adopted the autonomist discourse In the case of Bolivia, the question of autonomy has been raised in two ways, historically. The most enduring is the Indigenous aspect. You must know that 109 years ago an Indigenous leader, Zárate Vilca, in that dispute between mestizo elites around the issue of where the seat of government should be located — Sucre or La Paz — mobilised the Indigenous and demanded a type of federalism in which the Indigenous would be recognised within the state, with their own ways and customs. That is, the idea of cultures and peoples living together under a form of federalism is an approach that emerges from the Indigenous movement and in fact modern democracy has demonstrated that it is a very interesting form of balanced coexistence between different peoples and cultures. This Indigenous federalist aspect over the years, eighty years later, was to give rise to a debate within the Indigenous movement over Indigenous autonomies, territorial systems of self-government in which ways and customs, forms of territorial organisation, of local government of the peoples and Indigenous nations are respected. But the other variant of autonomy has arisen in the abandoned regions of the country. In Bolivia, as in many parts of Latin America, the wealth, power and property have been concentrated in small centres that have lived on the basis of extraction from other regions. And this is very pronounced in Bolivia. There are regions, more accurately zones, populations, that have generated a regional sentiment and that have felt mistreated by the central government, which does not build roads, which collects taxes, but which does not promote local development, does not provide potable water, provides no services — zones that attract little attention from the state while paying taxes or generating wealth from rubber, mining or agriculture. This regional sentiment has also existed in the country since the mid-1950s at least, although it goes back 150 years. In the last 50 years this sentiment has deepened. Now, what has happened is that the Marxist left of the Fifties, Sixties and Seventies never took the Indian Indigenous question into account nor did it take into account the regional issue. The Indigenous question was developed by the Indianista Indigenous movement, the Kataristas and later the MAS. But the regional question was not taken up by the left, it was taken up by the right and it is the right that began to build regional and local hegemony around this popular subject matter. So there are two agendas: The egalitarian agenda of the Indigenous peoples, of a first-class citizenship for everyone that includes autonomy of the peoples, came to be paralleled and sometimes confronted by the agenda of regional autonomy of the peoples but under the leadership of their oligarchies and economic elites. Since 2003 these agendas have been in conflict with each other, unnecessarily. What the government has done is to take another look at the entire problem, separate the wheat from the chaff, separate the imposter elites from a profound sentiment of the people for autonomy, and take hold of this sentiment and this demand, incorporate it into its strategic plan for power and isolate the imposter business elites, who were simply manipulating the autonomy issue for their own interests: land, resources of the state, etc. This surgery is what you have seen in the recent weeks. The surgery of separating out the popular movement for autonomy and a legitimate demand for enhanced democracy, enhanced territorial decentralisation of authority, improved distribution of resources, greater efficiency of the state, a popular demand, from its manipulation by the oligarchy. What happened in the Congress was the culmination of this surreptitious political operation which has lasted for several months. And yes it was hard, it was hard to understand that autonomy was not an act of the oligarchy, that autonomy was a democratic act. But, autonomy was being confused with those who were abandoning it. And sometimes we would like to throw out the baby with the bathwater, when the key thing is to remove the baby, throw out the dirty water and replace it with clean water. What I am summarising in a little phrase is a political fact that was hard for us, that took a lot of internal debates, rapprochements, agreements, in short, understandings, and internal self-criticisms. But in the end, the part of the autonomy demand of the regions that is legitimate, democratic, necessary and left-wing, got back on track, as a proposal for state power of the people, and this banner was taken away from the right, who were manipulating it, who had usurped it for some time, a banner that was never unique to the right but that paradoxically, during the last 20 years, had appeared as a banner of the right wing. Departmental autonomy which enhances the presence and democratic participation of the region in its authorities, its necessities; Indigenous autonomy which allows the revaluation of the forms of regional self-government of the Indigenous peoples, all of this within a plurinational state in which the Indigenous, campesinos and workers are the constructive nucleus. The major difference between this state structure and the neoliberal one is that in the latter the organising nucleus was the foreign companies and their local intermediaries. In the epoch of revolutionary nationalism its constructive nucleus was the urban petty-bourgeoisie. Now the hegemonic and expanding constructive nucleus is the world of the Indigenous, campesino and popular forces. Three forms of state that Bolivia has gone through in 100 years and for the first time a form of state in which those who lead and with whom the other social classes identity and recognise themselves are the popular sectors of the country, including on the issue of autonomy of course. Relevance of the Bolivian process for Latin America In all humility, I believe it is the most radical experience of social transformation in the continent. At the state level, because the majority of the peoples deprived of the right to build the state and control its resources are now participating. That fact alone signifies the most important revolution in Bolivia in its 183 years of existence. A racist and anti-Indigenous state that is now Indianising internally and spreading out to and working together with the non-Indigenous, mestizos, business people, students and youth. This is a transformation in the colonialism of the country. We are smashing a colonial existence, a colonial state and clearing the way for a state of extensive participation and social representation. This is something that we have not managed to do in this continent up to now. Secondly, this latent contradiction between the state as a monopoly and the state as a government of the social movements. The government of President Evo, with its difficulties, is a government of the social movements, which seems contradictory because the state is a concentration of decision-making while the social movements are the democratisation of decisions. This tension is experienced all the time, in every decree, in every meeting, in every decision of the government and the most obvious expression of this extreme tension of a social movement state is what you have experienced in the Plaza Morillo,[17] where what ultimately triumphed, what ultimately defined the agenda was the social movements, with a President who kept watch alongside the social movements and a Congress that deliberated but which at times was observed by the social sectors and in the end had to opt for what their social sectors had identified as the agenda. Less dramatic and less tension-filled things we experience all the time in terms of laws, decrees, resolutions, actions and initiatives of the state. Nowhere else in Latin America is there another government of social movements. I have had the sense of a radical experience of organised participation of the plebeian, popular, Indigenous society within the state itself. And the third element is this process of redistribution of wealth, via the processes of nationalisation of gas, oil, telecommunications, energy and those that are to come, which give it the material base for this form of democratic construction of the state. So those are the three levels that allow me to talk modestly, but also with pride at times, of the more radical experience of democratisation of power, the more radical experience of distribution of power, and if, in some way this is of use to other peoples and other governments, they are welcome to it. It is possible to distribute wealth, it is possible to democratise power, it is not inconceivable that decision-making can have many levels of social deliberation and participation, that this is not the exclusive job of the Congress. We can live this way, we can govern this way. The excluded ones, the campesinos, workers, market women in the informal economy, domestic workers, labourers, can be ministers, deputy ministers, foreign secretaries, members of Congress or the constituent assembly and achieve enviable economic results in comparison with what has been done by the Harvard graduates, an [annual] growth rate of 6.5 percent compared with the 3.2 percent average of the Harvard and Chicago specialists. It is possible to have a budget surplus, for the first time in history, as opposed to the recurrent budget deficit we had before. It is possible to industrialise, it is possible to distribute wealth and all this through the actions of people who were not educated to govern, but who now feel that it is their right to be able to govern… a farmer and shepherd like our president. As an historic experience, we think this enriches the potentialities and possibilities for collective action and the will for power of other campesinos, other workers, other housewives, other youth, other shepherds, other dispossessed, who are no longer willing to live for all time as dispossessed, shepherds or campesinos, but who can be President one day or campesinos the next; workers today, Congress people tomorrow; once a truck driver, later a foreign secretary. It is a wonderful way of understanding the state. Notes [1] Historically, Indianismo was a literary current, prominent in the Andean nations in the 1920s and 1930s, that attempted to rediscover and revalorise their “Indian” sources and traditions. Indianismo promoted the assimilation of Indigenous elements into the dominant national Creole and mestizo culture inherited from the colonial epoch. However, its representations of the Indigenous tended to be stereotypical. In Seven Interpretative Essays on Peruvian Reality, the Marxist José Carlos Mariátegui wrote: “Indigenist literature cannot give us a strictly authentic version of the Indian, for it must idealise and stylise him. Nor can it give us his soul. It is still a mestizo literature and as such is called indigenist rather than indigenous. If an indigenous literature finally appears, it will be when the Indians themselves are able to produce it.” (p. 274) [2] Katarismo is a critical political current that blends peasant class consciousness with Aymara ethnic consciousness in an Indigenous national, anticolonial and anti-imperialist discourse. It takes its name from the Aymara peasant commander in La Paz, Túpaj Katari, who in 1781 strangled Spanish forces holding out in the city in the course of a siege that lasted five months. [3] COB – Bolivian Worker Central, the largest labour federation in the country. [4] Coordinadora Nacional para el Cambio [National Coalition for Change], which organised the October 2008 march of the social organisations for the Refoundation of Bolivia. [5] Full name Confederación Sindical Única de Trabajadores Campesinos de Bolivia [CSUTCB – Single Confederation of Rural Labourers of Bolivia], formed in 1979 through a merger of several peasant unions. [6] Literally, the Trade Union Confederation of Colonisers, the latter word referring misleadingly to the reconstituted native peoples of Bolivia, the original nations of Kollasuyo and the Amazon: [7] Federación Nacional de Mujeres Campesinas Indígenas Originarias de Bolivia "Bartolina Sisa" [National Federation of Indigenous Native Women Campesinas of Bolivia]. [8] Consejo Nacional de Ayllus y Markas del Qullasuyu [National Council of Ayllus and Markas of Qullasuyu], an Aymara and Quechua organisation. Ayllus were the basic political units of pre-Inca and Inca life: The markas are generally composed of 4 ayllus. [9] Confederación de Pueblos Indígenas de Bolivia [Confederation of Indigenous Peoples of Bolivia]. [10] In a separate question to be put in the January 25 referendum, voters will be asked to select one of two versions (Options A or B) of article 398 of the draft constitution. The language of both options is identical except for the last sentence, which in Option A limits the maximum size of a landholding to 10,000 hectares, and in Option B limits it to 5,000 hectares. The article, without the last sentence, reads: 398. Latifundios and dual ownership are prohibited as being contrary to the collective interest and the development of the country. “Latifundio” refers to unproductive possession of the land; land that is not fulfilling a social economic function; operation of the land using a system of servitude, semi-slavery or slavery in labour relations or property that exceeds the maximum zoning area established by law. “Social economic function” is defined in article 397 as “the sustainable use of the land in the development of productive activities consistent with its capacity for greater use to the benefit of the society, the collective interest and its owner.” [11] In the Congress negotiations a new article was added, now numbered 399, which provides that the new limits on ownership of agricultural land will apply only to properties that have been acquired after the coming into force of the new constitution. However, a second paragraph provides that surplus lands (lands in excess of either the 5 or 10 thousand hectares limit, depending on which is ratified) that are fulfilling a Social Economic Function will be expropriated. The “grandfathering” of existing properties in excess of the limit on land ownership is clearly a retreat from the draft constitution adopted by the constituent assembly. The Vice-President’s explanation is not compelling. The prohibition on retroactivity as a principle of law, including international law, pertains primarily to the criminal law; one cannot be convicted of an offence that did not exist at the time of one’s action. But international law allows sovereign immunity for expropriation of property, while usually calling for compensation and the application of due process. In fact, it is hard to imagine a serious land reform that does not provide for expropriation of large estates. And that seems to be the point of the second paragraph in article 399. [12] The new Plurinational Legislative Assembly is to be bicameral. Half of the 130 members of the House of Deputies (Cámara de Diputados) will be directly elected, the other half will be chosen from party lists headed by candidates for president, vice-president and senators in proportion to the votes obtained by each party, “group of citizens or indigenous people”, as determined by subsequent legislation. Men and women will be equally represented. There will be 36 senators, four from each department (two of the four elected on the basis of proportional representation). See articles 146.1 to 148. [13] See Giovanni Sartori, Ingeniería Constitucional Comparada: Una investigación de estructuras, incentivos y resultados (Fondo de Cultura Económica: Mexico City, 1994). [14] A reference to miners who are members of cooperatives, as distinct from those employed by the state mining corporation. [15] Wifala (or wiphala) symbolises the national and cultural unity of the Amazon Andes, dating back to the Inca homeland. The seven colours of the Wiphala flag are displayed in various patterns according to the different nationalities, but it is primarily associated today with the Aymara-speaking peoples. [16] The provisions of the original draft text were approved by simple majority in the constituent assembly in Oruro, while the new text adopted in the negotiations with the Congress in La Paz was adopted by a two-thirds majority. [17] The site of the parliament and presidential palace, where indigenous and peasant organisations had gathered on October 21 following their week-long march on La Paz in support of the government and the new constitution. See Hervé do Alto, “Bolivia: Compromise agreement allows progress”,

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