The New Constitutions and the Transformation of Democracy in Bolivia and Ecuador
Jonas Wolff, Peace Research Institute Frankfurt (PRIF),
[email protected]
Published in: Detlef Nolte/Almut Schilling-Vacaflor (eds.): New Constitutionalism in Latin America: Promises and Practices, Farnham: Ashgate, 183-202. Introduction Already in 1998, Alvarez et al. (1998: 1) noted that “much of the political struggle” waged in contemporary Latin America was “over possible alternative blueprints for democracy.” The social movements that Alvarez et al. looked at not only questioned particular (neoliberal) economic and social policies, but also challenged the fundamental parameters of post-transition democracy as it had emerged from the twin processes of political democratization and neoliberal restructuring. Looking at the region’s indigenous movements, Yashar (2005: 30) alludes to a “postliberal challenge,” “that aims to contest and reformulate the terms of democratic and multicultural citizenship,” and which ultimately has an impact on “the future course and quality of democracy.” Regarding the recent political shift to the left in Latin America, Arditi (2008: 67) finds evidence of “experimentation with post-liberal formats of political participation” among the new and heterogeneous left in the region. Thus, we find “important debates over the meanings and interpretations of democracy” (De la Torre 2007: 384) in contemporary Latin America. With new governments promising and, indeed, initiating national “re-foundations” via constituent assemblies, disputes about the parameters of democracy and bottom-up challenges to the political system have culminated in processes that aim to profoundly transform political regimes. Bolivia under Evo Morales, Ecuador under Rafael Correa, and Venezuela under Hugo Chávez are prime examples of this. Although there are important differences between these processes of political
Previous versions of this chapter were presented at the 5th ECPR General Conference, 10-12 September 2009, in Potsdam, and at the VIII Annual Conference of RedGob, 25-26 November 2010, in Hamburg. Research was supported by the Deutsche Forschungsgemeinschaft (DFG). All translations into English are the author’s.
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change, all three cases have experienced a complex, contentious and contradictory process of transforming democracy under broadly democratic conditions. On the one hand, the fundamental features of procedural democracy or polyarchy according to Robert Dahl and Charles Lindblom have been maintained; on the other hand, the ongoing political changes are meant to amend, transcend and partially break with the standards of what is nowadays understood as “liberal democracy,” namely “constitutional, representative, individualistic, voluntaristic, privatistic, functionally limited, political democracy as practiced within nation-states,” as Schmitter (2006: 1) puts it. In this sense, the “post-liberal politics” that Arditi refers to are not about the “replacement [of the liberal state and electoral democracy] with something else,” but about promoting new forms of participation and citizenship that add to, and thus transform, democratic politics (Arditi 2008: 73). Similarly, the local experiences with indigenous-party-controlled “alternative municipalities” studied by Van Cott are characterized by the incorporation of “indigenous political and cultural institutions and values, as well as ideas offered by NGOs [...], into existing liberal-democratic institutions,” creating “a unique laboratory for mixing distinct governing logics” (Van Cott 2008: 233–234). These experiments generally correspond with the notion of post-liberal democracy as proposed by Schmitter (2006, 1995) and others, when they refer to the “established liberal democracies” in the North-Western part of the world. However, some features of the Andean variant of transformed democracy may be closer to what Schmitter calls “preliberal democracy.”1 The use of terms such as “participatory” (Pérez et al. 2009), “plebiscitary” (Conaghan 2008), “radical” (Postero 2010), “populist” (de la Torre 2007) or “illiberal” (Whitehead 2008) to characterize democracy in Bolivia, Ecuador and Venezuela suggest that there is a basic agreement about what is happening in these countries, notwithstanding the different theoretical and normative perspectives of these 1
The writings on post-liberal democracy in the North-West are mostly normative, focusing on how a transformed democracy might look (Schmitter 2006). They complement theories of “radical” or “deliberative” democracy (Van Cott 2008: 13–23). In empirical analyses of really existing democracies, European and North American scholars debate the question of “post-democracy” (Crouch 2008), a pessimistic diagnosis that resembles Schmitter’s “more liberal [and less democratic] democracy” (Schmitter 1995). The repercussions of this post-democracy debate in Latin America have been limited. Scholars there continue to focus on democratic “deepening,” emphasizing the (potential) role of active citizens in particular (Cheresky 2006; Smulovitz and Peruzzotti 2000).
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authors: they convey the idea that really existing democracies are being transformed into something less liberal – and somehow differently democratic. However, how to evaluate this transformation is highly contentious. In order to contribute to this debate, this chapter analyzes the transformation of democracy in Bolivia and Ecuador as envisioned by the new constitutions. After a brief overview of the political context in each country, there is a discussion of the three dimensions of constitutional change – politico-institutional, socio-economic, and cultural. The analysis shows that constitutional change in Bolivia and Ecuador is neither simply a deepening of democracy nor a non-democratic break with liberal democracy; rather, it is a contradictory and partial process of rebalancing democratic principles and mechanisms. If we accept the theoretical premise that each really existing democratic order is a specific blend of contradictory democratic principles – sovereignty of the people vs. constitutionalism, majority rule vs. protection of minorities, real political equality vs. formal equality and individual freedom, representation vs. direct participation, individual equality vs. recognition of cultural differences –, then the transformation of democracy in Bolivia and Ecuador can be interpreted as a process of readjusting and rebalancing these principles by strengthening the plebiscitary and participatory aspects of democracy as well as the economic, social and cultural dimensions of human rights. These readjustments include deviations from the mainstream liberal democratic model, and so do actually suggest what a post-liberal democratic order might look like in these particular places.2
Political Context: The Correa and Morales Governments Rafael Correa was elected President of Ecuador on 26 November 2006. One of his main election pledges was that the rule of the traditional political parties would be broken,
When talking about really existing democracies and basic democratic standards, I adopt Dahl’s and Lindblom’s procedural definition. The mainstream model or usual standards of liberal democracy are, however, much more substantial and include the features listed by Schmitter. Post-liberal democracy is used as proposed by Arditi. Although it is a vague definition, this is an advantage when trying to analyze complex, contradictory and open-ended processes of political transformation. First, it urges us not limit our assessment to whether the minimal procedural conditions of polyarchy are met, and explicitly draws attention to different mechanisms of political representation, participation, contestation and control that may complement (and, at times, contradict) basic polyarchic processes. Second, it helps us to avoid the narrow – linear and ultimately teleological – perspective that is based on a fixed and uniform understanding of what democracy (in fact liberal democracy) should be, and then identifies its “defects” and “deficits when assessing its state or quality. 2
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and that the country’s political system would be fundamental restructured through a Constituent Assembly. During 2007, Ecuadorians approved the convocation of that Assembly by an impressive 82 percent of the vote; they then proceeded to elect the constituents and gave Correa’s Country Alliance (Alianza País, or PAIS) movement a comfortable majority. Finally, on 28 September 2008, 64 percent of voters approved the new constitution.3 Evo Morales took office one year before his Ecuadorian counterpart, and the Bolivian Constituent Assembly started working in August 2006. But the constitutional process proved much more complicated and contentious in Bolivia. The Constituent Assembly ended in open confrontation: in December 2007, in the midst of fierce criticism from the (absent) major opposition groups, the Assembly approved the draft constitution by two thirds of the members that were present. However, after renewed escalation of conflict between the government and the (mainly regional) opposition in September 2008, negotiations began and culminated in an agreement in October 2008 between the governing Movement toward Socialism party (Movimiento al Socialismo, MAS) and parts of the opposition in Congress. This agreement, which included a series of changes to the constitutional text, finally led a two thirds majority in Congress to convoke a referendum on the constitution. On 25 January 2009, Bolivians approved the country’s new constitution by 61.4 percent of the vote.4 The Politico-Institutional Dimension: From Representative to Participatory Democracy? Those who believe that participatory democracy has deepened in Bolivia and/or Ecuador point to new or expanded channels for direct popular participation. Others believe there has been a populist undermining of liberal democracy, and emphasize that plebiscitary and presidential powers have been strengthened at the expense of institutional checks and balances. If one examines the new constitutional texts one can, in fact, see that changes have been made to “classical” representative institutions: there are strengthened plebiscitary mechanisms and new institutions for civic participation 3
On the constitutional process in Ecuador, see Célleri and Chávez (2008), Martínez (2009: 40–1), Ospina (2008b: 10–7), Ramírez (2008), and Torres (2009). 4 On the constitutional process in Bolivia, see Aruquipa (2008: 80–99), Gamarra (2008: 138–41), Lehoucq (2008), Martínez (2009: 38–40), Romero et al. (2009), and Zegada (2008).
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and social control. But this does not mean that institutional controls and checks and balances are undermined, but rather that they have undergone a partial change in form. The notion of direct democracy has a prominent place in both new constitutions. The sovereignty residing in the people is exercised “in direct and delegated forms” (Bolivia 2009, article 7) or “through the organs of public power and the forms of direct participation envisioned by the constitution” (Ecuador 2008, article 1). This translates into strengthened role of plebiscitary mechanisms, particularly referenda (Pérez et al. 2009: 4-7), as outlined below
Recall referenda This institutional innovation, called revocatoria del mandato, is characteristic of new “participatory” constitutions of Venezuela, Bolivia and Ecuador. This new mechanism of vertical accountability or popular control gives voters the opportunity to revoke the mandate of elected representatives, and, thereby, also can help resolve political stalemate and crisis.5 This mechanism can be used against all directly elected state authorities at different levels (Bolivia 2009, article 240; Ecuador 2008, article 105).6
Popular ratification In Bolivia, constitutional changes (Bolivia 2009, article 411), the ratification of international treaties (articles 257-259),7 and the establishment of departmental, regional, municipal or indigenous autonomies (articles 274-5, 280, 294-5), all require popular approval via referendum. In Ecuador, the formation of autonomous regions and of special indigenous or Afro-Ecuadorian administrative units requires popular approval (Ecuador 2008, articles 245 and 257). However, minor constitutional changes do not always need to be put to a referendum (article 441). Further, citizens or the president can call for international treaties to be ratified by referendum (article 420). In both 5
In Bolivia, this mechanism was tested before the new constitution entered into force. In August 2008, Morales easily survived the recall referendum; among the prefects (governors) at the departmental level, Morales’s major opponents also won their recall referenda while two (oppositional) prefects lost their offices (ElPais.com, 15 August 2008). 6 In Bolivia the judiciary is not affected by revocation although its highest authorities are also elected by popular vote (Bolivia 2009, article 240/I). 7 To be precise, international treaties require popular approval if they imply border issues or processes of monetary, structural economic or political integration, or if a referendum is requested by 5 percent of the registered voting population or 35 percent of the members of parliament (Bolivia, 2009, articles 257 and 259).
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countries, major reforms or wholesale rewriting of the constitution require the convocation of a directly elected Constituent Assembly (Bolivia 2009, article 411; Ecuador 2008, articles 441-4).
Direct election of justices One of the changes introduced in Bolivia is the direct election of the top echelons of the judiciary, namely the Plurinational Constitutional Court (Tribunal Constitucional Plurinacional, TCP), the Supreme Court of Justice (Tribunal Supremo de Justicia, TSJ), the Agri-Environmental Court (Tribunal Agroambiental, TA) and the Judicial Council (Consejo de la Magistratura, CM). However, this plebiscitary-majoritarian mechanism is limited by a “classic” form of institutional control: the national parliament, the new Plurinational Legislative Assembly (Asamblea Legislativa Plurinacional, ALP) must pre-select candidates by a two-thirds majority (Bolivia 2009, articles 193–5).8 In Ecuador, justices are not subject to direct election, but the newly established Council of Citizen Participation and Social Control (Consejo de Participación Ciudadana y Control Social, CPCCS) allows citizens to have an indirect influence on the designation of important judicial (and other) authorities (see below). The “participatory democracy” alluded to in both constitutions is not just about electoral participation. The constitutional texts not only broaden the usual channels of political participation but also incorporate additional mechanisms of direct civic participation and social control, as outlined below.
Political participation outside political parties Both constitutions end the monopoly on representation of political parties, thus reinforcing changes in the modes of political representation already under way since the mid-1990s. In Bolivia, indigenous organizations (organizaciones de las naciones y pueblos indígena originario campesinos) and citizen groups (agrupaciones ciudadanas) can compete with political parties for elected public office on an equal footing (Bolivia 2009, article 209). The Ecuadorian constitution recognizes political parties and political movements as organizations that can nominate candidates for elections, but only parties
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This parliamentary pre-selection is one of the various changes made by Congress to the original constitutional draft (Böhrt 2009: 84).
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receive public funding (Ecuador 2008, article 110).
Popular initiatives Both constitutions allow citizens to propose legislation, and provide for popular consultation via referenda. In the Ecuadorian case, the “popular normative initiative” allows proposals on “the creation, reform or revocation of juridical norms.” When 0.25 percent (or 1 percent for constitutional reform) of registered voters support proposals, the legislative power must address it (Ecuador 2008, article 103). Alternatively, citizens can request a referendum (consulta popular) “on any subject.” If a referendum is approved by the majority of the population, the results are immediately binding (articles 104 and 106). Similarly, referenda and citizens’ legislative initiatives are included in the Bolivian constitution as forms of “direct and participatory” democracy (Bolivia 2009, article 11/II.1). Referenda can be held at the national, departmental and municipal levels (articles 298/II.1, 300/I.3 and 302/I.3), although the precise competences and corresponding procedures for these referenda are not specified.
Direct participation and social control Both constitutions have a specific chapter devoted entirely to “Participation and Social Control” (Bolivia 2009, title VI) or “Transparency and Social Control” (Ecuador 2008, chapter 5). According to the Bolivian text, the “sovereign people, through organized civil society, participates in the design of public policies.” In addition, “organized civil society exercises social control” over state administration, public enterprises and institutions. How to organize this kind of participation and social control is left up to “civil society,” but the constitution stipulates that there will be a law establishing a general framework (Bolivia 2009, article 241).9 Assemblies (asambleas) and councils (cabildos) are mentioned (once, but prominently) as vehicles for “direct and participatory democracy,” but it is clarified that they have a “deliberative character” (article 11/II.1). 9
The latter was the result of the abovementioned congressional revision. In the original draft, organized civil society was meant to participate in decisions about public policy (“en la toma de decisiones de las políticas públicas”) and was free to independently establish “its own norms and way of working” (Zegada 2008: 54).
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The Ecuadorian constitution is, again, more specific. It establishes a Transparency and Social Control Function as an additional branch of the state, the task of which is to promote “the control of public sector entities and bodies,” facilitate “citizen participation,” protect the “exercise of and compliance with rights,” and combat corruption (Ecuador 2008, article 204). Citizens participate via the CPCCS, which is composed of citizens proposed by “the social organizations and citizenry,” who are selected in a merit-based public competition (articles 207-210). The main function of the Council is to designate officials for important controlling authorities, and to promote citizen participation and control over governance.10 The constitution stipulates that bodies for social participation should work at all levels of government, such as in the elaboration of development plans and “participatory budgets” (articles 100, 85 and 95). The Socioeconomic Dimension: From Liberal to Social Democracy? A core element of both Morales’ and Correa’s political projects is the shift away from “neo-liberalism,” the market-based outward-oriented social and economic policies of their predecessors, and a turn towards a more state-centred and socially-oriented development model. This shift involves changes in the conception and balancing of civil, economic and social (human) rights. Neither country has moved to abolish the market economy and corresponding private property rights, even though some feared this and others advocated it. Rather, the new constitutions amend and qualify the role of the market and the protection of private property rights, and strengthen social and economic entitlements. Both constitutions unequivocally expand social and economic rights (Acosta 2008: 46; Hernández et al. 2009: 13–5; Romero Bonifaz 2008: 61–4). The provision of key public services is defined as a basic universal right. The Bolivian constitution establishes universal entitlements to free education and health care, access to potable water/sewage, electricity, cooking gas, and basic postal and telecommunication services as well as social security and retirement (Bolivia 2009, articles 16-20 and 45). The Ecuadorian constitution includes in what it refers to as “rights of good living” (derechos 10
The authorities designated by the Council include, inter alia, the highest electoral authorities (the National Electoral Council (Consejo Nacional Electoral, CNE), and the Court for Electoral Disputes (Tribunal Contensioso Electoral, TCE), and the Judicial Council (Consejo de la Judicatura) (Ecuador 2008, article 208/12).
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del buen vivir), a “human right to water,” to a healthy environment, free education, “a secure and healthy habitat and adequate and dignified housing,” and to health care, work and social security (Ecuador 2008, articles 12–34). All forms of precarious labour are prohibited, and social security should cover everyone, including non-paid domestic workers, subsistence farmers and the unemployed (articles 327 and 34). In addition, the “rights of nature” include a new generation of rights (articles 71–4). In both cases, all these constitutional rights and guarantees are immediately applicable (Bolivia 2009, articles 109 and 135–6; Ecuador 2008, article 11/3). Because of this new recognition of social rights, both constitutions prohibit the privatization of public social services. In Bolivia, this prohibition applies to the supply of water, sewage, public health and social security services (articles 20, 38 and 45). In Ecuador, “strategic sectors” such as energy, telecommunications, non-renewable resources, transportation, and water can either not be privatized at all (the case of water) or are limited to “exceptional” cases (articles 313-318; Ospina, 2008b: 16–7). The social security system can also not be privatized (article 367). As regards the role of the market and private property rights, both constitutions characterize the national economy as mixed. In Bolivia, the “economic model” is “plural.” Its goal is to “improve the quality of life and the well-being of all Bolivians” and it involves “communitarian, state, private and social cooperative” forms of economic organization (article 306). Ecuador’s economy is “social and solidaritybased” and aims to promote “good living” (buen vivir, or sumak kawsay in Quichua), with “public”, “private,” “mixed” and “popular and solidarity-based” forms of economic organization (article 283). Private property rights are respected and protected within this plural economic framework. The Bolivian state “recognizes, respects and protects private initiative,” “free enterprise and the full exercise of entrepreneurial activities” are guaranteed, and “entrepreneurial initiative and legal security” are respected (articles 308 and 311/5). However, economic activities must play a positive social, economic and environmental role (article 312). Every person “has the right to individual or collective private property, provided that it performs a social function,” and expropriation requires “prior just compensation” (articles 56 and 57). Similarly, Ecuador’s constitution recognizes and guarantees the “right to engage in economic activities, individually or collectively,
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according to the principles of solidarity, and social and environmental responsibility,” and with respect for “the right to property in all its forms, with social and environmental function and responsibility” (articles 66 and 321). Expropriation in Ecuador also requires “prior just valuation, compensation and payment” (article 323). Specific limits on the reach of liberal private property rights have been placed where land is concerned. On the one hand, collective land rights of indigenous peoples are inalienable and indivisible and their lands cannot be seized (Ecuador 2008, article 57/4; Bolivia 2009, article 384/III); on the other hand, latifundios and the concentration of land is prohibited (Ecuador 2008, article 282), with a stipulated upper limit of 5,000 hectares in the case of Bolivia (article 398).11 In Bolivia, the failure to perform the required “social-economic function” is just cause for expropriation (article 401/I). It should be noted that the social function is not an Ecuadorian or Bolivian aberration: this requirement exists in democratic constitutions around the world (Gargarella 2009).
The Cultural Dimension: From Exclusive to Inclusive Democracy? One reason why the 2005 election of Morales was a historic event is that an indigenous person became the president of Bolivia for the first time. There is little doubt that the electoral victory of Morales and the MAS was the result of a process of political empowerment of the indigenous population, which permitted a new level of political inclusion into a democratic system that had been quite exclusive whatever its formal stipulations. The process of inclusion has followed largely classic liberal-democratic procedures, but the recognition of particular indigenous rights partially transcends and/or contradicts liberal democratic standards and principles (Böhrt 2009; Gargarella 2009; Prada 2008). Critics claim that indigenous justice systems involve clear “breaches of liberaldemocratic norms of justice” (Van Cott 2007: 139), and emphasize that the “incorporation of political actors who previously lacked direct access to decisionmaking channels” has been accompanied by “a new pattern of exclusion” (Gamarra 2008: 134). In Ecuador, the topic of indigenous rights has been much less prominent, given the
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However, this limit does not apply to already existing properties (article 399), a crucial concession to large landowners who led opposition in the eastern lowlands (Böhrt 2009: 103).
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lower proportion of the indigenous population,12 the current weakness of the indigenous movement and the non-indigenous nature of the Correa government. However, the recognition of indigenous peoples, their languages and rights did feature (contentiously) in the Constituent Assembly and found its way into the new constitution (Célleri and Chávez 2008: 9–13; Grijalva 2008a; Simbaña 2008). The multi-ethnic and pluricultural nature of the two countries had already been acknowledged during the constitutional reforms of the 1990s, but the indigenous demand for a “plurinational state” was rejected. Thus, the constitutional declaration of a plurinational state in Bolivia (article 1) and Ecuador (article 1) is probably the most powerful sign that both countries have turned away from the classical liberal democratic conception of nation-state. Bolivia has recognized the languages spoken by the thirty six indigenous peoples as “official languages of the state” on an equal footing with Spanish, which means that central and departmental governments must use at least two official languages (article 5). Ecuador stopped short of full equality: Spanish is the “official language of Ecuador,” Spanish, Quichua and Shuar are considered “official languages of intercultural relations,” and other indigenous languages can be officially used by “the indigenous peoples in the zones where they live” (article 2). Both countries also recognize indigenous (customary) law and the indigenous right to self-government. The two constitutions recognize the collective right of the indigenous peoples to apply and practice their own customary laws, within the limits imposed by constitutional rights (Bolivia 2009, articles 190-192; Ecuador 2008, articles 57/10 and 171). The Bolivian constitution goes so far as to place ordinary and indigenous legal jurisdictions on an equal footing (Bolivia 2009, article 179/II). Whereas the Constitutional Court in Ecuador – representing the ordinary legal system – protects the constitutional order as the highest judicial body of the land, in Bolivia the TCP includes representatives of the ordinary and the indigenous justice systems (Bolivia 2009, article 197).13 In Ecuador, indigenous collective rights include the right to “preserve and exercise 12
It is estimated that the indigenous population represents approximately 60–70 percent of the total population in Bolivia, and 30–38 percent in Ecuador (Yashar 2005: 21). 13 In the original draft, the members of the TCP would have been elected with equal representation from both jurisdictions (Böhrt 2009: 84).
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their own ways of living together and organizing socially, and to generate and exercise authority in their legally recognized territories and in their ancestral community lands” (article 57/9). Indigenous (and Afro-Ecuadorian) peoples can establish special administrative units “that exercise the authority of the corresponding territorial autonomous government, and which are guided by the principles of interculturality, plurinationality and in accordance with collective rights” (article 257).14 The Bolivian constitution alludes to “indigenous autonomy,”15 the “selfgovernment” (autogobierno) of indigenous populations who share “territory, culture, history, languages, and distinct juridical, political, social and economic organization or institutions” (article 289). Indigenous self-government, if adopted by referendum, is exercised in accordance with customary indigenous “norms, institutions, authorities and procedures” (article 290). Indigenous forms of self-government constitute are the third form of “communitarian” democracy, along with “direct and participatory” democracy and “representative” democracy, and it works “through the election, designation or nomination of authorities and representatives according to the particular norms and procedures of indigenous peoples” (article 11/II.3). Apart from the abovementioned special subnational administrative units, indigenous political participation largely follows the usual liberal-democratic procedures. In Ecuador, the only special provision for indigenous peoples concerns their right to “participate, via their representatives in the legally established official bodies, in the definition of the public policies that concern them, and in the design of and decisions about their priorities in state plans and projects” (article 57/16).16 In Bolivia, the new constitution allows indigenous organizations to propose candidates for all elected 14
It is the relevant subnational unit that decides (through a referendum approved by a two-thirds majority) about the creation of a special indigenous (or Afro-Ecuadorian) government unit of this kind. Given the share of indigenous people even in areas with high indigenous presence, it will be difficult to establish such special entities (Célleri and Chávez 2008: 11-12). 15 The Bolivian constitution refers to naciones y pueblos indígena originario campesinos, translated here, for the sake of simplicity, as “indigenous peoples.” 16 This right to participation concerns one of the so-called National Equality Councils in particular, which will focus on “formulating, mainstreaming, monitoring, following-up and evaluating” public policies related to ethnicity (Ecuador 2008, article 156; the constitution provides for councils dealing with gender, ethnic, generational, intercultural, and disablement issues). This Council, like all other National Equality Councils (Consejos Nacionales de Igualdad, CNI), will be composed of representatives of both civil society and the state in equal measure, but will be presided over by a representative of the executive (article 157). This is not a new indigenous achievement, however: in the prior Council for the Development of the Nationalities and Peoples of Ecuador the representatives of the indigenous peoples were even in the majority.
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legislative and executive offices on the basis of their norms and procedures (Bolivia 2009, article 210-211); it also guarantees the “proportional participation” of indigenous peoples in parliamentary elections (article 147/II); it determines that at least two of the seven members of the TSE must have indigenous origins (article 206/II); and it stipulates that there must be representatives of the indigenous legal authorities in the TCP (article 197/I). The constitution also establishes special electoral districts for indigenous peoples living in rural areas who are a minority in their departments (article 146/VII). However, just like the indigenous members of the TPC, members of Congress must be elected in regular elections, while the members of the TSE are designated by the parliament (articles 146/III, 197/I, 198 and 206/V). An important question for indigenous peoples in both countries is the demand for free and informed prior consent of the exploitation of non-renewable resources in their territories. The Ecuadorian constitution establishes a collective right of indigenous peoples to “prior, free and informed consultation,” the right to partake in the benefits of such exploitation, and to receive indemnification for social, cultural and environmental damage. However, it explicitly refrains from requiring the consent of the community for natural resource exploitation (article 57/7). In general, indigenous peoples have the right to be consulted “before the adoption of a legislative measure that could affect any of their collective rights” (article 57/17). Likewise, Bolivian indigenous peoples have the right to “be consulted […] whenever there may be legislative or administrative measures that may affect them” (article 30/15). As regards the exploitation of natural non-renewable resources on indigenous territories, the formulation is stronger than the Ecuadorian: it emphasizes the “right to mandatory prior consultation by the state, in good faith and in a concerted fashion” (article 30/15; author emphasis).17 Discussion: Towards Post-Liberal Democracy? In their comparative analysis of the participatory mechanisms included in the new constitutions of Bolivia, Ecuador and Venezuela, Pérez et al. (2009: 19) conclude that in 17
Again, this includes the right to partake in the benefits of such exploitation (Bolivia 2009, article 30/16). In general, the population affected by the exploitation of natural resources has the right to “free, prior and informed” consultation; in the case of indigenous peoples, this consultation process must respect their particular norms and procedures (article 352).
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all three cases the texts “broaden considerably the mechanisms of citizen participation beyond traditional representative institutions.” The new mechanisms of coadministration, control and accountability have “the potential to radicalize citizen practice,” allowing them to exercise “constant control over the actions of the representatives” (Pérez et al. 2009: 19; see Romero Bonifaz 2008: 61). By contrast, critics emphasize the allegedly populist and ultimately authoritarian consequences of participatory democracy as promoted by Correa and Morales (Mayorga 2008; Oporto 2008; Torres 2009; Verdesoto 2008). They claim that it is not the people who gain more power but the executive and the president in particular; and the strengthened political role of civil society only gives power to a certain segment of (government controlled) society. Thus, far from contributing to the deepening of democracy, critics argue, this process helps to consolidate the hegemony of the ruling alliance and undermines the conventional representative institutions that guarantee equal conditions for participation for all, including opposition groups. The constitutional changes of both countries do in fact strengthen, or at least consolidate, executive and/or presidential powers (Gargarella 2008; Oporto 2008: 110– 2; Sánchez 2008). Executives are now more constrained by plebiscitary mechanisms of vertical accountability than by the classic liberal mechanisms of horizontal accountability (although the latter generally remain in place) (see Oporto 2008: 110–1; Ospina 2008b: 15; Romero Bonifaz 2008: 61).18 This means that as long as they have majority support, presidents are extraordinarily strong vis-à-vis the other branches of government and the opposition in particular. The broadening of plebiscitary mechanisms indeed constrains the relative autonomy of representative institutions, it favours majorities, and facilitates populist-style governing that relies on directly 18
In Bolivia, all three classical branches of government are subject to increasing vertical control: the president and parliament are subject to both election and possible recall referenda; the top judicial authorities are subject to popular election. Ecuador also has new mechanisms of vertical control (recall referenda and social control). The new parliament, the National Assembly (Asamblea Nacional, AN) has been partially weakened (it has a lesser role in designating public authorities) but it has won the competence to unseat ministers (Ecuador 2008, article 131). And while the president can dissolve the Assembly, the latter can also depose the president; and in both instances, early general elections for both branches of government are held (articles 130 and 148). Finally, a strong Constitutional Court acts as a new counterweight (articles 429-440). In this sense, the Ecuadorian constitution establishes institutional limits to prevent virtually unchecked presidential powers (Acosta 2008: 45; Grijalva 2008b; Ospina 2008b: 15). The fear that the Constitutional Court may be co-opted politically by the president is perhaps due to entrenched political practices and the strength and attitudes of Correa rather than a result of specific rules in the new constitution (Grijalva 2008b: 132–5; Ospina 2008b: 16).
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appealing to the people “against both the established structure of power and the dominant ideas and values” (Canovan 1999: 2). In this sense, there is a clear-cut tension between the participatory and rights-based focus and the centralizing presidentialist features of these constitutions.19 Analysts have been particularly critical of excessive presidentialism in Ecuador and of a conception of citizen participation that increases government power rather than strengthening social control of government (Burbano de Lara 2009; Célleri and Chávez 2008; Torres 2009: 414–24; Verdesoto 2008). In contrast to Bolivia where “organized civil society” and “communities” are the main agents of participation, citizen participation in President Correa’s rhetoric and Ecuador’s new constitution is essentially liberal and individualistic (Ospina 2008a: 15–8; Denvir 2008). As noted above, citizens are selected to sit on the CPCCS on their merits rather than because they are democratically elected or representative (Torres 2009: 421; Verdesoto 2008: 187–8), and they could be easily politically co-opted. The explicit aim of the new National Equality Councils (Consejos Nacionales de Igualdad, CNI), in which civil society and state share an equal representation but which is presided by a representative of the executive (articles 156–7), is to “de-corporatize” existing councils (for children, women, and indigenous peoples, among others). Ultimately, Ecuador’s key new mechanisms for citizen participation may be unconventional among representative democracies but it is more liberal than participatory in nature. As noted above, the new elements of participatory democracy in Bolivia are clearly under the control of representative institutions. The role of (popular) assemblies and councils is explicitly deliberative (article 11/II.1). Legislative initiatives by citizens must pass through parliament (article 162/I), and the framework for civil society “participation and social control” is defined by law, in other words, parliament (article 241/IV). In both countries, politico-institutional “innovations” remain within the boundaries of a largely representative democratic setting. The usual three branches of government of representative democracy are more important than any institution of participatory
By contrast, both new constitutions are based on the premise that “strong presidentialism and significant popular participation” are perfectly compatible (Gargarella 2008: 95; Romero Ballivián 2008: 35). 19
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democracy. Thus, Ortiz (2008: 17) argues about Ecuador that while there are new mechanisms for “participatory,” “direct” and “communitarian” democracy, “the representative form seems predominant.” And according to Prada (2008; 38), the Bolivian constitution “has not ceased to be a liberal constitution, although it is a more pluralist version incorporating four generations of rights: individual, social, collective and environmental rights.” At the same time, he adds, it is “also an indigenous and popular constitution, since it incorporates institutions specific to indigenous peoples” (Prada 2008: 38; see also Molina 2009). In this sense, the constitutions examined here add and extend plebiscitary and participatory mechanisms of political participation and vertical control, formalize and expedite mechanisms of indigenous self-governance, and partially weaken liberal representative democracy, even though they maintain its basic institutions. This constitutional design thus reflects the notion of post-liberal democracy as conceived by Arditi (see also Postero 2010: 75). In socioeconomic terms, the analysis of the new constitutions shows they support a concept of democracy that is much more substantial than the mainstream liberal version. They aim to permit a shift from “formal” to “social democracy” as defined by Huber et al. (1997: 324), to deepen democracy by adding “high levels of participation without systematic differences across social categories (for example, class, ethnicity, gender) and increasing equality in social and economic outcomes.” This also fits with expanded definitions of democracy “emphasizing economic equality and social justice,” which are supported by indigenous movements (Van Cott 2007: 135). However, this tendency also reflects a view of democracy held by many citizens in Latin America, which emphasizes “social and economic equality and progress” (Camp 2001: 9). Clearly, there are broad social sectors that support the general trend to reinforce the economic role of the state, to strengthen its social policy function, and to limit the scope of the market (Lagos 2009: 120). The constitutions discussed in this chapter consolidate and push forward these changes by placing constitutional limits on privatization and establishing explicit social entitlements, among other elements (Gargarella 2009). They seem to provide a (postneoliberal) alternative to (neoliberal) market democracy (Hernández et al. 2009: 13–5; Sánchez 2008: 80–1), limiting but not abandoning the market and private property rights. Left-wing analysts have even highlighted the moderate economic changes
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introduced by the two constitutions (Célleri and Chávez 2008: 13–5; Gargarella 2009; Gaudichaud 2008). The main tension in this domain is between a resource-based, statecentred development model and the emphasis on a diversified, community-based and ecologically sensitive model. The increased role of the state and of state-controlled resource exploitation, on the one hand, and the emphasis on alternative communitybased and ecological principles for organizing the economy, on the other, constitute shifts away from the mainstream politico-economic model underpinning (neo-)liberal democracy – but they arguably point in rather different directions. As regards the cultural dimension of constitutional change, the debate in Bolivia and Ecuador is at almost polar opposites. In Ecuador there is little criticism of strengthening indigenous collective rights (criticism focuses only on the partial and limited nature of this process).20 By contrast, there are serious worries that Bolivia is taking an “ethnicist” or “indigenist” constitutional turn (Mayorga 2008: 2; Oporto 2008: 106–10; Molina 2009). Critics argue that the inclusion of formerly excluded indigenous peoples has led to new forms of exclusion of non-indigenous sectors (Gamarra 2008: 134; Oporto 2008: 106–10); they also feel that the “plurinational” state with its autonomous indigenous territories means the “atomization of the Bolivian state” through the establishment of indigenous “mini-states” (Mayorga 2008: 2–3; Oporto 2008: 112–5). On closer inspection, these worries seem exaggerated, at least as far as the new constitution is concerned (Gargarella 2009; Molina 2009).21 Recognition of the plurinational nature of the state and of thirty six indigenous “nations and peoples” does not mean the “Bolivian nation,” “Bolivian nationality” and “citizenship” cannot be inclusive (Böhrt 2009: 67–9; Aruquipa 2008: 102). Above all, the establishment of the new plurinational state and indigenous self-government expresses the plurality of Bolivian social and political life (Prada 2008; Simbaña 2008). Of course, indigenous 20
See Célleri and Chávez (2008: 11–3), Denvir (2008) and Grijalva (2008a). In fact, the resistance of PAIS to the inclusion of important indigenous demands (particularly the principle of free, prior and informed consent regarding the exploitation of natural resources in indigenous territories) led to the rupture between Correa’s party and the indigenous party, the Plurinational Unity Movement (Movimiento Unidad Plurinacional, MUPP) in the final phase of the Constituent Assembly (see Célleri and Chávez 2008: 12; Denvir 2008). Ultimately, the indigenous movement called for a positive vote in the referendum anyway, in order to at least secure what were seen as partial, but important improvements (CONAIE 2008; Simbaña 2008). 21 On Ecuador, where similar concerns about the demand for a “plurinational” state have been voiced, see Simbaña (2008).
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autonomies are part of a complex model of decentralization that includes departmental, regional, municipal and indigenous autonomies; these various subnational entities can be regarded as “mini-states” but they are framed and regulated by a national structure. Further, indigenous autonomies are limited to “ancestral territories currently inhabited by those peoples and nations” (Bolivia 2009, article 290/I; Böhrt 2009: 97–9; Aruquipa 2008: 101).22 And as mentioned above, the main arenas for indigenous “communitarian democracy,” the assemblies and councils are explicitly solely “deliberative” (Molina 2009). The special electoral districts for indigenous peoples have an effect on how the rest of the population is represented in parliament. But these cover only certain indigenous minorities in rural areas; the major groups, the Aymara in La Paz and Oruro or the Quechua in Cochabamba, Potosí and Chuquisaca, which are those that could possibly dominate or exclude non-indigenous sectors are not beneficiaries of this provision (Böhrt 2009: 78).23 The requirement that public administration officials should speak two of the country’s languages (article 234/7) is an important barrier for Spanishspeaking Bolivians who refuse to learn an indigenous language. But the constitution’s transitory dispositions explicitly state that this requirement is to be “progressively applied according to the law” (tenth transitional disposition). Gargarella (2009) therefore predicts that “the dominant structure of government will remain occupied by a majority of white officials, in a country with an indigenous majority.” There is a serious challenge for democracy in Bolivia and Ecuador, namely coordinating parallel legal systems and jurisdictions (see chapter 18 in this volume). But this problem is not new (indigenous customs and practices had already been recognized and applied, if only partially, by previous constitutions). And this problem does not affect constitutional law as much as it is a matter of passing secondary legislation to regulate the relationship between the two systems (Bolivia 2009, article 192/III; Ecuador 2008, article 171). Indeed, both constitutions clearly delimit the scope of It should also be emphasized that Bolivia’s indigenous peoples are far from united. Indeed, explicitly indigenous organizations like the National Council of Ayllus and Markas of Qullasuyu (CONAMAQ) and the Confederation of Indigenous Peoples of Bolivia (CIDOB) frequently claim that the Morales government favours its main constituents in the more trade union based organizations of rural laborers, indigenous settlers and coca growers. 23 The transitional electoral law, approved in April 2009 actually reserves 7 out of the 130 seats in the Chamber of Representatives for these special indigenous electoral districts (see LaRazón.com, 14 April 2009; LaPrensa.com.bo, 15 April 2009).
22
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indigenous jurisdiction: it applies within indigenous communities, it is limited by established constitutional rights, and it comes under the aegis of the constitutional courts (Bolivia 2009, articles 191 and 202; Ecuador 2008, article 171).24
Conclusion The new constitutions of Bolivia and Ecuador provide a normative framework that suggests the emergence of some form of post-liberal democracy. The democratic transformation envisioned in the constitutional texts amalgamates different democratic concepts and traditions that are not free of tensions but which are clearly within the broadly representative democratic family. Both constitutions open the door to more participatory, social and inclusive versions of post-liberal democracy. But only a monitoring of how these new constitutions are implemented will tell us the extent to which this opportunity is being taken advantage of. This is beyond the scope of this chapter, so the conclusion will briefly highlight four challenges that seem crucial to bring to fruition the promise contained in these new constitutions. First, there is the risk that the centralist and presidentialist features will hollow out the participatory and rights-based focus of these constitutions. Plebiscitary and participatory mechanisms can become instruments of political control and cooptation “from above,” and can effectively silence opposition resistance or demands for participation. Second, it will be a challenge to shift from dismantling the old political regime (which was instrumental in enabling political change) to building strong and relatively autonomous institutions (which is necessary to sustain change). Third, there are tensions involved in the construction of plurinational states that aim to combine indigenous autonomy and self-government with the “ordinary” democratic rule of law. Fourth, the resource-based, state-centred development strategy that made it possible to focus more on socioeconomic rights may stand in the way of seriously searching for a post-neoliberal model of development based on economic diversity and environmental sustainability. But these challenges do not mean that the search for post-liberal democracy is a futile exercise. They only point to the fact that the attempt to transform 24
All the same, this delimitation of indigenous justice shows that there are tensions inherent in the whole endeavor: While all constitutional (and legal) constraints on indigenous justice infringe on the collective right to autonomy of indigenous peoples, it is also the case that some elements of indigenous (customary) law violate individual rights to freedom and autonomy (Brandt and Franco 2006; Kuppe 2010).
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democracy democratically is a complex and contradictory process (Acosta 2008; Postero 2010).
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