Sunday, January 25, 2009

Of the ocasional uselessness of new constitutions: The doomed new Bolivian Constitution

Today Bolivia voted on a new constitution which as far as I am concerned is destined to fail as badly as the Venezuelan one of 1999. The reason is very simple: a constitution which is imposed by a majority over a reluctant minority cannot create a democratic state since it starts by denying the rights of the minority. It does not matter how many elections are held, how many referendums are called, as long as the constitution does not genuinely reflect the notion the country has of itself it will not succeed. A constitution is not a law, it is the framework used to make laws. If you cannot agree on the framework, you are less likely to agree with the laws made through it.

The US constitution of 1787 succeeded (for all the crisis it suffered) because it reflected what the “founding fathers” thought of what the US was and should be: a federal state where freedom of expression and of religion should always be guaranteed. It was a social pact, a minimum upon which all agreed, from Maine to Georgia. Its major failing which led to the Civil War came because the rights of the slave minority were ignored. Even though the slaves had little chance on their own to change the bad hand dealt to them, their existence corroded enough the majority cohesion that the crisis came. Now that constitution has allowed Obama to reach power and turn a final symbolic page on this issue.

The French constitution of 1958 succeeded because the country agreed that the executive should be a stronger institution and that the quarrelsome parliamentary system inherited from 1870 was exhausted. Just as the 1870 system succeeded, at least until WW2, because it reflected the consensus that France should never be open again to the rise of a strong man to rule its future. The weak executive was reinforced by the strong parliament as needed during survival crisis such as WW1; but eventually it failed because it was unable to adapt to changing historical conditions when clarity of purpose was needed to terminate the colonial period and modernize France.

One can write similar paeans to successful constitution such as the recent ones in Spain, Germany or older systems such as the English one. But one can also write about constitutions that failed even in democratic countries as the rights of minorities, or even majorities, was eventually denied. It is the story of most constitutions in Latin America, including the failure of Chile’s in the 70ies when Allende refused to understand that he never got 50% of the popular vote and yet pretended to rule as if he had won that vote share. The Venezuelan one of 1961 succeeded at first because it was designed to guarantee the right of the minority to reach power eventually. That is how Chavez won in 1998. But it also failed in the end because it could never quite break with a “tradition” of strong man, even if they were granted only 5 years to rule.

The Venezuelan constitution of 1999 has already failed as proven by Chavez himself. In spite of being the promoter of the new charter he has tried to modify it enormously in 2007 and he now tries to debase it by creating an executive elite that enjoys enough access to power to remain in office forever. It was doomed from the start when the Constituent Assembly of 1999 had 97% of its seats representing only 60% of the population. The 40% that did not make it to that assembly never accepted its result and if today they defend the 1999 charter it is because the modifications proposed by Chavez ensure that the amended document will serve only the 30% or less that serve Chavez by sheer sycophancy or plain material interest.

I do not know the details of the Bolivian new constitution that is approved today. I am sure that it carries very valid redress measures for a Native American majority that has been abused since BEFORE the Spaniards reached Bolivia as the Inca was already an imperial master. The vote in Bolivia is clear: the new constitution which was already drafted by violating the conditions with which it was supposed to be established is receiving a strong approval in half the country and a strong rejection in the other half. Bolivia is not yet at the breaking point but today it is making a step further towards that possibility. True, Morales and the Media Luna leaders have demonstrated that at the brink of disaster they were able to hammer an agreement of sorts, but that is not the way a constitution is drawn. The agreement that allowed for today’s vote was not a consensus, it was a “let’s get over with this and move on to something else”, implicitly acknowledging on both sides that the constitution was just an excuse of a larger power struggle.

As such I predict that today’s voted paper will be just another one of the many that Bolivia got, just as the 1999 in Venezuela is already an exhausted one.

P.D.

Amazingly Bolivia emitted results as early as 7 PM Venezuelan time. On February 15, with the voting set to last until 6 PM I am pretty sure that we will not get a single result until midnight or even later. May I remind readers that WE STILL DO NOT HAVE THE FINAL RESULT OF THE 2007 REFERENDUM?



-The end-

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