Constitutional Change in Bolivia

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Eva Morales. Photo / BBC

This is Sunday morning. Have you just had your morning constitution? Well, you'll be in the right mood for this. The Washington Post recently declared that Latin America was undergoing revolution by constitution. On January the 25th, Bolivia became the latest of ten Latin American countries to approve new constitutions since the 1980's. Bolivia's President, Evo Morales said the passing of the constitution marked the end of colonial rule in that country. And Britian's Guardian described it as a watershed for South America that will empower the indigenous majority and roll-back half a millenium of colonialism, discrimination and humiliation.


Map of Bolivia. Photo / www.worldatlas.com

Mark Goodo is an anthropologist and human rights lawyer who's authored a number of books on Bolivia. He was in Bolivia for the passing of the Constitution Act and last week, took a break from his busy teaching schedule at George Mason University in the United States, to tell Jeremy Rose about the new constitution.

"The Bolivian Constitution passed on January 25 2009, which was really the culmination of a approximately two year process of debate, of drafting, violence in the streets. And the constitution itself I would say, very much does present us with a set of radical alternatives. First of all, the Bolivian Constitution recognises thirty six distinct nations in Bolivia, and that's the word that's used - NATIONS. Not ethnic groups, not tribes, not races...but thirty-six distinct nations. There was alot of debate in Bolivia in the months leading up to The Constitution by anthropologists, and sociologists, both in Bolivia and outside, about whether or not those nations that are described in The Constitution, which is now The Constitution of Bolivia, are in fact legitimate. I mean, do they describe distinct nations in some real sense. And as it turned out, a large percentage of these thirty-six nations comprise fourty to fifty people. You know, these nations are very small in number. And there is some real question about whether or not these are legitimate nations if we can even define what a 'nation' is.

I think secondly, The Constitution creates and recognises a distinct indigenous legal system. Now this is different from before, so there were constitutional reforms in the 1990's which went part of the way, so that community justice for example, was given legal recognition in the 1990's in Bolivia. But the 2009 Constitution goes much further, and actually creates a parallel system, to the state system of normal courts. Now what that indigenous legal system is supposed to consist of, how it is supposed to operate, and it's relationship to the normal court system is still to be decided. But it does create a distinct indigenous legal system which is supposed to take account of "~~~~~~" - or "uses and customs", practices, indigenous styles of dispute resolution, and make those the rules that are going to govern this distinct indigenous legal system. And of course, you can imagine, many questions arise. I mean, if a foreigner were in a village in Bolivia and did something wrong, committed a crime according to the indigenous rules, could that person then be tried, adjudicated within this indigenous legal system? What kind of protections would he or she have? etc. So there are alot of questions but what's not in doubt is that The Constitution creates a new legal system.

I would say that probably third in importance for the new Bolivian Constitution is that it recognises multiple categories of property - at least two of which are thought to be drawn from indigenous forms of land tenure. So, The Constitution says that private property as we all know it in other parts of the world is recognised and protected, this is important to emphasise, but that other forms of property are also recognised. Collective property is recognised, communitarian property is recognised. And then most importantly, all property in Bolivia whether individual or collective, has to pass a test. And the test is "does the property, whether it's presumably somebody's automobile, or somebody's house or a factory, does that property serve a social function?". And if it doesn't serve a social function, it is not considered property according to the, or legal property, according to the Bolivian Constitution.

What would that mean in the case of the car, the example you gave, if the car isn't serving a useful function? Could it be confiscated by one of these nations?

If something which we would recognise as property is not serving a social function, it is not legal property according to The Constitution. Now I used the case of the car just as a sort of extreme example, but at least theoretically, The Constitution extends to all forms of property. But what's really being thought about in this radical redefinition of property, I would say, is landholding. And as you might know, like in many other parts of latin America, Bolivia has a history of inequality in landholding. So that large tracts of arable and useful land have been historically cotrolled by small groups of land-owners, many of who are decendents of Europeans who immigrated to Bolivia at different periods. And so, that kind of inequality in agricultural land has really been the target of this. And as you might have heard, The Constitution sets limits now on the extent to which people can own between 5 and 10,000 hectares of land with 10,000 hectares being the maximum limit. You know people who, there are few families who own over 10,000 hectares of land, nevertheless, even before this property restriction passed in The Constitution, a government agency - the Institute of Agricultural Reform, was undertaking what they called a 'cleaning programme'. In which tracts of land, primarily in the Eastern Lowlands which has become the centre of resistance to Eva Morales whole tracts of land were evaluated according to this social use test. And large percentages of land, I don't have the exact figures, but significant percentages of land, have been confiscated and have then gone back to the State to then be redistributed to communities, to institutions, to non-governmental organisations.

But one of the concessions that they did make was to not grandparent that clause I think wasn't it. So that large landholders will be able to continue holding onto to those large estates.

That's true, that's true. That was one of the concessions that emerged in the negotiations before the Constitutional Vote. On the other hand, as I said, there is a parallel process apart from the Constitution, which is proceeding through the Institute of Agricultural Reform