Sunday, December 09, 2007

Democracy Part VII: Constitutionalism and Indigenous Peoples in the Bolivian Constitution

Democracy has many fetish objects. I have suggested a number of them--elections (Democracy Part VI), voting (Democracy Part IV, Democracy Part II), factions (Democracy Part III), representation of the popular will (Democracy Part I) and public assembly and agitation (Democracy Part IV).

I want to focus on another--the individual and the construction of the individual collective comprised of aggregated natural persons, which assumes an autonomous political life of its own.

In the United States the individual--at least as a formal matter--assumes a sort of pride of place that has caused even the American Constitution to be reworked, from time to time. See, e.g., Baker v. Carr, 369 U.S. 186 (1962) (in which state were made impotent to mimic the institutional organization of the American federal government because such an organization was anti democratic as the federal constitution was said to have developed that notion). But as Baker v. Carr also suggests, not all the time. Indeed, the value of Constitutions is, from time to time, to provide structural exceptions even to the most basic foundational norms on which the state itself is constructed. Thus, while the American republic was built on the idea of the individual, individual participation could be restricted to an exercise only in the construction of secondary governments. But at least the people, individuals, could take comfort in the knowledge that they might rise up (collectively) ad change that result by the amendment of the federal Constitution itself. No easy task. Thus democracy takes a pretty turn.

The individual, then, might count more as a symbolic matter than as a matter of fact. Nowhere is that more apparent than in the rise of identity sensibilities, the modern version of the old 19th century European ethnos. Ethnos, when combined with both chauvinism, histories of oppression, and xenophobia, make for the modern cocktail of transnational constitutionalism. Just as the American federal constitution excepted the individual from the construction of its own governmental apparatus (for the quite sensible reason that the federal government was to represent the union of states--something that is quickly receding into a dim political memory in the United States), so can other states repackage the lowest common denominator of sovereign power, vesting it not in states, but in sub-national collectives of any description. These might be based on religion (Lebanon/Iran), language (Spain), caste (India), or ethnicity (Iraq). Collectives, rather than individuals, provide a substitute basic building block of the state. And the state assumes a role as a higher order collective, but not as the sole collective vested with political power. Power is diffused among the collectives through which the state now acts. Diffusion of political power in sub- or non-national collectives also diffuses political power in ways that will change the character of states as we had come to understand them at the middle of the 20th century. But it also serves to reduce the power of the individual vis a vs the state. The state, now a second order political institution, may only be reached through a collective to which the individual is assigned, or from whence she is deemed to emerge. Direct action becomes more difficult. Collective personality leverages individual political power, and also reduces that power into the collective.

One of the more important wrinkles in this emerging pattern of relationships between the individual and the state involves the constitution of collectives as persons, with rights similar to those available to natural persons. Collective person hood reworks the dynamics of democracy and the constitution of government in a number of respects. In Latin America especially that reinvestment has been focused on the reconstitution of indigenous peoples with political power--not as individuals all belonging to a particular community--but as members of a political collective with an authority greater than any individual, to participate in the political life of states. In the proposed Bolivian constitution, one sees a great example of the progression of state organization along those lines. Bolivians Approve Draft Charter BBC News, Dec. 9, 2007. It is a harbinger of the future and a taste of the tension that constitutionalism will face--even as a formal matter--between the grounding of power in the individual and its exercise only indirectly through collectives sprung up for the purpose of mediating power between the individual and the state. The result will create a greater role for individuals as the fetishes of democratic organization even as individual power increasingly shifts elsewhere.

The old European cocktail of ethnos is well in evidence in Bolivia's constitutional transition. One might well be listening to indigenous Slovaks speaking of the 900 year oppressive colonizing hegemony of the Magyar invaders in 19th century Austria-Hungary when one hears the rhetorics of new constitutionalism in Bolivia: "Morales's supporters -- who represent a slim majority of the assembly -- say that a new constitution would allow him to "de-colonize" the country and direct more resources and political clout to the country's indigenous majority. But his opponents warn that he is using the constitution to centralize power and create a nondemocratic socialist state." Monte Reel, Bolivians Assembly Attempts to Pass Draft Constitution, Washington Post, Dec. 9, 2007 at A-28. And the power of supra national communities makes it more likely that national questions, even national questions of constitutional law will be subject to discussion, and the involvement of the transnational elements of supra national communities (collectives) seeking to divide national power among themselves. This lesson has not been lost on the Bolivians. " Four of the country's governors traveled to the United States last week to appeal for action from the United Nations and the Organization of American States. On Friday, the commander of Bolivia's air force accused the opposition governors of trying to foment a coup." Monte Reel, Bolivians Assembly Attempts to Pass Draft Constitution, supra.

Miguel Centellas, at Dickinson College, provides a useful review of the politics of the proposed constitution. His description of both the shape of the proposed constitution and the manner of its passage is telling, especially for advocates of popular democracy.
"The document is being read quickly & voted w/ little debate. Less than 24 hours after the assembly voted to meet in Oruro, newspapers report that 147 of the articles were ratified. The document is 100 pages long, has 408 articles in total. As of a few weeks ago & about 15 months after its installation, not a single article had been agreed upon by the body, which nearly fell apart. The rushed vote is conducted, as in Sucre, w/ thousands of cocaleros and pro-MAS miners guarding the meeting site. The opposition PODEMOS is no longer participating in the process & five regional civic committees have already rejected the new document."

Miguel Centellas, New Constitution?, Pronto, Dec. 9, 2007. All the fetish elements of democracy are much in evidence: popular assembly, voting, elections, individual and collective power, representative democracy. But I focus on the structural problems of a democratic state that seeks to be everything to everyone, that conflates the individual with a variety of collectives and ultimately with the state, and that merges direct and indirect principles of democratic organization in a state the governmental apparatus of which can satisfy none of its aspirational objectives.

I will provide an example of the contradictions and tensions inherent in the new collective individual as a subject of national constitutional orders. For this purpose I focus only the contradictions inherent in the Bolivian self conception of the state and state power in the initial provisions of its new constitution. What emerges is a cafeteria constitutionalism that can, like the prostitutes in Genet's play, The Balcony (Le Balcon (1956)), serve the desires of anyone willing to extract and privilege the appropriate set of provisions. The Bolivian Constitution, though, most powerfully serves as the vehicle for constituting collective personhood, which enjoys both a horizontal and vertical relationship with individuals and the state.

Article I provides a partial declaration of the nature of the constitution of the Bolivian state: a unitary, pluri-national, communitarian state that is free, autonomous, decentralized, independent, sovereign, democratic and intercultural. ("Bolivia se constituye en un Estado Unitario Social de Derecho Plurinacional Comunitario, libre, autonómico y descentralizado, independiente, soberano, democrático e intercultural. Se funda en la pluralidad y el pluralismo político, económico, jurídico, cultural y linguístico, dentro del proceso integrador del país." (Proposed Constitution Art. 1). Bolivia, in the most innocuous reading of this provision, is no more than the sum of its parts, and these parts are horizontally rather than vertically arranged. Yet, as will be apparent in Article 2, this is not quite true.

The potential international contradictions in Article I are compounded by the provisions of Article 2. Within the unitary Bolivian state, the Spanish conquest is undone. Indigenous peoples are reconstituted as political bodies that will be treated as autonomous, and self-regulating. Each of their collective communities is entitled to protection of their cultures, the recognition and consolidation of their respective institutions ansd territories--consistent with the Constitution ("Dada la existencia precolonial de las naciones y pueblos indígena originario campesinos y su dominio ancestral sobre sus territorios, se garantiza su libre determinación en el marco del Estado, que consiste en su derecho a la autonomía, al autogobierno, a su cultura, y al reconocimiento y consolidación de sus instituciones y entidades territoriales, conforme a esta Constitución.")." (Proposed Constitution Art. 2). The indigenous communities, now reconstituted as governments, now stand between the individual and the state. Each of these communities precedes the state, yet all owe their reconstitution to the state. Still, the state may not strip these subordinate units of their power without undoing their commitment to pluri-nationalism in Article I.

With Article 3, the provisions move from the foundational character of some (but not all) of the sub national collectives that make up the Bolivian state, to the relationship between these collectives and the ultimate collective--the state. This article suggests a vertical relationship between sub national collectives and the state yet also reinforces the a suggestion that the collectives identified in article 2 are hierarchically superior to the other forms of collective described in article 3. It also might suggest the exclusion of all other groups in their political constitution and relation to the state. The Bolivian people are constituted from out of the collection of identified groups and communities: urban communities of different social classes, indigenous nations and communities identified as rural, along with collectives described as inter-cultural and Afro Bolivian ("El pueblo boliviano está conformado por las bolivianas y los bolivianos pertenecientes a las comunidades urbanas de diferentes clases sociales, a las naciones y pueblos indígena originario campesinos, y a las comunidades interculturales y afrobolivianas."). (Proposed Constitution Art. 3).

Though thus built on the differentiation of Bolivians along ethnic, social, race and class lines, the Constitution also declares the primacy of the individual in the constitution of the state. But does it? Sovereignty, it is declared, resides in the Bolivian people and is exercised directly, as an inalienable, indivisible, and may neither be impaired nor delegated, ("La soberanía reside en el pueblo boliviano y se ejerce de forma directa. Es inalienable, indivisible, imprescriptible e indelegable. De ella emanan las funciones y atribuciones del poder público.") (Proposed Constitution Art. 7). Yet the Bolivian people include not just individuals but also communities (Arts. 1 and 2). Some people, constituted as communities, may exercise both individual and collective political power. Others may not.

The primacies inherent in the partial communal nature of the state is confirmed in Article 11(I) in which it is declared that the state adopts as the form of its state apparatus a representative and communitarian form of participatory democracy ("El Estado adopta para su gobierno la forma democrática participativa, representativa y comunitaria, con equivalencia de condiciones entre hombres y mujeres." (Proposed Constitution Art. 11(I)). The individual is constitutionally relegated to her status. That status may be privileged (Art. 2) or based on race, class or culture (Art. 3). But only one form of status is principally vested with political power--that or membership in rural indigenous communities ("Comunitaria, por medio de la elección, designación o nominación de autoridades por normas y procedimientos propios de los pueblos y naciones indígena originario campesinos, entre otros." (Proposed Constitution Art. 11(II)(3)). For the rest, there is direct and representative democracy based on the assertion of individual power. (Proposed Constitution Art. 11(II)(1) & (2)).

That reconstitution of individuals as both people and certain collectives is carried over into the constitution's discussion of individual rights. The state guarantees to all individuals and collectives, without any discrimination, the free and effective exercise and enjoyment of the rights established under the constitution, the law and international treaties ("El Estado garantiza a todas las personas y las colectividades, sin discriminación alguna, el libre y eficaz ejercicio y goce de los derechos establecidos en esta Constitución, las leyes y los tratados internacionales.") (Proposed Constitution Art. 14(III)). Included among the later, and especially applicable to politically constituted indigenous communities, might be the United Nation’s Declaration on the Rights of Indigenous Peoples (2007), adopted by the Sixty First United Nations General Assembly Plenary at its 107th & 108th Meetings in September 2007. (United Nations 2007). A hint of the relationship, and its constitutional impact might be gleaned from the comments of the Bolivian foreign minister at the time of the adoption of the Declaration.
DAVID CHOQUEHUAUCA, Minster of Foreign Affairs of Bolivia, said that the world’s indigenous peoples, with their characteristic patience, had waited 25 years for the adoption of the historic Declaration. While the text was being negotiated and re-negotiated at many levels, Mother Earth had gone through innumerable changes, politically, socially and environmentally. Now, at the day of the adoption of the Declaration, the Planet was clearly wounded. Indigenous peoples had been and would continue to raise their voices to ensure the protection and preservation of Mother Earth. The Declaration was a step forward. It did not solve the problems of the Planet, nor ease the tensions between people. But, it was a step forward in allowing indigenous people to participate in global processes for the betterment of all societies, including their own traditional communities. By the Declaration, they were not trying to live better than anyone else. They were merely trying to “live like” everyone else. Indigenous people were trying to exercise the same rights -– in the same manner –- as all the people of the world.
Id. And thus the special place of indigenous communities within Bolivian Constitutionalism, the details of which are confirmed in Chapter 4 of the constitution. But there is great irony as well. The indigenous communities are constituted as political actors by operation of the constitution itself. They consist of those collectives that pre-date the Spanish colonization. ( "Es nación y pueblo indígena originario campesino toda la colectividad humana que comparta identidad cultural, idioma, tradición histórica, instituciones, territorialidad y cosmovisión, cuya existencia es anterior a la colonia espanola." (Proposed Constitution Art. 30(I))). A number of rights are preserved to these collectives. Among the 18 categories of rights resreved ot indigenous communities are: collective rights to land and intellectual property, and to the exercise of their political, judicial, and economic systems in accordance with their view of the world (cosmovisión) (Proposed Constitution Art. 30(II))). Among the rights guaranteed is one that elevates collective identity as indigenous to a rank (almost) equal to membership in the state collective--the right to have their collective identity noted on their passports and identity papers. ("A que la identidad cultural de cada uno de sus miembros, si así lo desea, se inscriba junto a la ciudadanía boliviana en su cédula de identidad, pasaporte u otros documentos de identificación con validez legal." Proposed Constitution Art. 30(II)(3))). For Europeans raised under the spectre of National Socialism and genocide, such a right would be viewed with some horror, and indeed, early European Court of Justice case law built a strong human rights oriented legal framework on the rejection of such a power. See, e.g., Nold v. Commission, 4/73 [1974] ECR 491. But that is the point--constituting the collective as the "individual" of constitutional law produces results considerably different from systems in which a person is the the "individual of constitutional law. See Larry Catá Backer, On Freedom, the Individual, the Collective and the State: Gunnar Beck, Fitche and Kant on Freedom, Rights, and Law (2007), Law at the End of the Day, Dec. 8, 2007.

The political power of the collective, as singular political actors within the state system of government, is articulated in twp provisions. The first guarantees indigenous collectives the right to be consulted y appropriate means and in particular through indigenous self constituted institutional organs whenever legislative or administrative measures might affect them, with an emphasis on consultation touching on the exploitation of natural resources within indigenous territories ("A ser consultados mediante procedimientos apropiados, y en particular a través de sus instituciones, cada vez que se prevean medidas legislativas o administrativas susceptibles de afectarles. En este marco, se respetará y garantizará el derecho a la consulta previa obligatoria, realizada por el Estado, de buena fe y concertada, respecto a la explotación de los recursos naturales no renovables en el territorio que habitan." Proposed Constitution Art. 30(II)(15))). Indigenous communities are also guaranteed the right to participate in the organs of state ("A la participación en los órganos del Estado."Proposed Constitution Art. 30(II)(18))). Indigenous collectives with territorial integrity may also exercise certain (municipal) powers within their territories (Proposed Constitution Arts. 303-304, 399).

But these provisions constituting political communities is not limited to indigenous communities. The Bolivian constitution also constitutes as a political actor another ethnos--Afrobolivians. The Afrobolivian nation will also enjoy in all that corresponds to their condition, those economic, social, political, and cultural rights accorded to indigenous communities under the constitution ("El pueblo afroboliviano gozará, en todo lo que les corresponda, de los derechos económicos, sociales, políticos y culturales reconocidos en esta Constitución para las naciones y pueblos indígena originario campesinos." (Proposed Constitution Art. 32)). AfroBolivians, like Indigenous Bolivians have a right to collective personhood. But no other groups may join together for the assertion of such communal rights. To them, there is merely individual but not collective personality.

Lastly, collective persons recognized as such in the constitution, like individuals, are guaranteed rights and protections similar to those offered to natural persons. These include the right to popular action. (Proposed Constitution Arts. 138-139)), the right to recourse to the process of constitutional amparo (Proposed Constitution Arts. 131), to privacy protection (Proposed Constitution Arts. 133), to seek a declaration of unconstitutionality (Proposed Constitution Arts. 135), the protection of the public defender (Proposed Constitution Arts. 229-233).

Bolivia will provide an interesting experiment in the reconstitution of the basic elements of democratic state organization. The natural person may soon have to give way to the collective person as the foundational building blocks of states. Where states become containers for a host of subnational communities unable or unwilling to reconstitute themselves socially or politically as a single integrated whole, the individual may have to be jettisoned as the basis of democratic state organization in favor of the communities that separate individuals form each other but which may serve as the only bridges to unity within traditional territorially constituted states.

1 comment:

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