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

New Government for New Zealand!

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I can't tell you how good it is to be here!

Ladies and gentlemen, today, New Zealand has spoken! In their hundreds of thousands across the country, they have voted for change! And I can tell you there will be a new National-led government in New Zealand!

So let me start, by thanking every New Zealander who has cast their vote for National today. Thank you for your support. And thank you for your trust. Because some of you have stuck with National through 9 long years. And tonight, your patience has been rewarded. For others, you have heard National's message that New Zealand can do better. And you've come to share our beliefs. So to all of you I simply say thank you.

Today across the country, New Zealanders have voted for a safer, more prosperous and more ambitious New Zealand. They voted for hope. They voted for action. And they voted for results. They voted for a better life for all New Zealanders.

In my first speech after becoming leader of the National Party (in 2005), I talked about when I was a boy living in a State House. Riding my bike past the homes of kids more fortunate than me. What inspired me then, and still inspires me today, is that belief within ourselves that we have the ability to make our lives better. And as it is for individuals, so it is for our country. Because New Zealand has so much more potential...this is not as good as it gets!

So yes, we face challenges. But we will rise to them. Because as a country we have tremendous advantages - our capacity to produce food; our landscapes and scenery; and maybe, most of all, the incredible Kiwi Ingenuity. So we must make the most of our advantages, because the state of our global economy and the global financial crisis means that the road ahead may well be a rocky one. Now, more than ever, New Zealand needs to be on top of it's game. What will determine success is the unity of purpose. A willingness to work together. While recognising that our collective success, rests on the success of individuals. A willingness to use our smallness to our advantage. To be nimble, sure-footed and flexible.

We all bring our different perspectives and we all have our political debates, and that is as it should be. But now is a time for working together, because we need everybody pulling in the same direction. If we do that, if we work hard, if we remain determined, we will make New Zealand as prosperous as we all know it can be. So let me say this - whether you voted for National or not, tonight, tonight, you have my pledge: I will lead a government that serves the interest of ALL New Zealanders. And it will be a government that values individual achievement; and it will be a government that supports those that cannot support themselves; and it will be a government we can all be part of.

Tonight, I want to thank Helen Clark. A little earlier this evening I spoke to her and she was most gracious with her comments. So it is fair to say, that Helen and I have different views about what policies are best for New Zealand. But. We share a love of this country. And I have always admired her dedication to the job; her ferocious work ethic; and her desire to make New Zealand a better country. As Prime Minister of New Zealand she has always ensured our small voice was loudly heard on the international stage. So on behalf of you all I say thank you (to Helen Clark).

Ladies and Gentlemen, earlier this evening I spoke to ACT leader Rodney Hide and United Future Leader Peter Dunne. I rang to offer my congratulations. And while the details of any formal agreement between National, ACT and United Future are yet to be resolved, I can confirm their support to establishing a new government in New Zealand! I also spoke to Maori Party leader Tariana Turia...and I expressed my willingness to engage in dialoge with her and her party next week.

So to you - the National Party officials, the members and the volunteers who have worked so tirelessly in every single electorate around the country, I say: Thank you very much! We owe it to you.

But there are some very special people I want to thank. And the first of them is our (National Party) President Judy Kirk. And the second of them is a guy who's a long way south tonight - Bill English! He's in Gore and I know they know how to have a good time down there, don't worry about that. And I want to thank the man who ran the campaign. Who rang me every morning at 6:00am. Who was up at 4:30am in the morning. Who read every newspaper from cover to cover: Stephen Joyce, you ran a great campaign mate. And I want to say to my caucus, which just got alot bigger, you worked so hard for the last three years, it's my priviledge to be your leader. Thank you very much for the support. And to all the National Party candidates. some of whom made the courageous and selfless decision to put their own careers on the line in order to do something they truly believed in, even when they were up against the odds. Thank you very much.

And haven't we had some great results?
-Auckland Central...went BLUE! What a cracker!
- New Plymouth!
- Otaki - we always knew Nathan Guy could do it!
- Rotorua - Tom McClane;
- Taupo - Louise Upston.
- West-Coast Tasman went BLUE!
- Hamilton West;
- Maungakiekie!
- Waitakere - amazing result! Truly tremendous.

There are some very special people I want to thank. When you are the leader of the party, you're around the country alot. You are not always in your electorate everyday. So I want to thank the great people of Helensville who chose me as their MP again. I want to thank my staff Janelle and Mel, who look after me so well and Jenny who's come back from overseas. And I want to thank my staff in Wellington. The demands on them have been unbelievable and the sacrifices have been incredible. They are an amazing group of individuals. But at the the risk of leaving some of them out because they all just did a fantastic job - Emma who worked so hard in my office day after day, Wayne, and Kevin, and Grant, and Nicola, Phil and Sarah, Rihanan, Jason, Leslie, Danny, Aileen, Brett, Willy, Francis - get some sleep guys you need it! Because I will tell you what~ we are going to be busy in the next few weeks. No you don't need sleep, not on a night like tonight you don't need sleep.

I want to thank my sisters Sue and Liz and all of my family who have been so great. But most of all, I want to thank the most important people to me, in my life, and that is Brona, and Sephie and Max. But I've got a bit of bad news guys...there's no puppy coming! I couldn't have done it without you. Ok! Maybe I'll reconsider the puppy. What the hell! If the cat won't mind it maybe we can work our way through it.

Ladies and Gentlemen, it is a priviledge to be here tonight. You have made this possible. It will be a night, I am sure none of us ever will forget. Tonight is a night of celebration. And tomorrow, tomorrow, the hard work begins.

Have a great evening. Thank you very much indeed.