In general, the current political atmosphere is marked by unfounded accusations and lies regarding the content of the draft presented in TV spots and other media outlets as the opposition attempts to defeat the proposed constitution.  This propaganda takes advantage of the length and complexity of the document, which suggests that most people will not read the draft before voting upon it.  Despite the opposition’s campaign, the document will most likely be approved.  It will clearly need to be reworked and improved through a long process of legislation, placing a difficult and crucial responsibility in the hands of Bolivian legislators.  

However, the constitutional reform process has demonstrated some promising and encouraging dynamics.  After protracted Congressional inactivity and gridlock, in October legislators reached compromise and ratified the new draft by a resounding majority, signaling a crucial return to the structure of representative democracy.  The reassertion of Bolivian congress members as key actors in the decision-making process neutralized regional prefects with no legitimate mandate for participation in national politics, as well as civic committee groups who capitalized upon a void in legislative power to impose their own agendas.  As a result, these actors, as well as progressive social movements, must attempt to work through established channels and articulate their interests through elected representatives.  Furthermore, the opportunity for Bolivian citizens to have a direct voice in ratifying the draft is an important democratic achievement. Hopefully the implementation of the new constitution will help institutionalize this progress.

Congressional Compromise Convokes Referendum

On Tuesday, October 21, Congress ratified the bill that allowed the constitutional referendum to be convoked. This important decision followed a series of compromises between MAS and opposition representatives in Congress.

• Interpretive Law: The Interpretive Law explains constitutional Articles 232 and 233, which give the Bolivian Congress the right to adjust the constitutional text based on “popular will and national interest.” However, the law also stipulates these changes cannot affect the overall nature of the new constitution. Congress passed this law as a necessary precursor to approval of the law convoking the constitutional referendum.

• Presidential Terms: Prior to this accord, one of the opposition’s greatest concerns was the limitation that would be set for presidential terms.  The current constitution says that the president can be elected for multiple five-year terms, but cannot be reelected consecutively. Until 2004, the constitution always allowed two consecutive terms.  The new draft proposes that this system be reinstated.  Dispute stemmed primarily from MAS’s argument that if the new constitution were put in place it would not be retroactive, making Morales eligible to run for two additional consecutive terms, potentially until 2019.  However, President Morales made the important concession that if the constitution was passed, and if he won in the next election in 2009, he would not run again in the 2014 election.

• Land Tenure Reform: Another critical concession was the MAS government’s decision to modify Article 398 of the proposed constitution concerning land tenure reform. The revisions signify that reform will not be retroactive, but will only apply to pending land sales and all future sales or property formations. This means that current estates will not be divided and redistributed, as many opposition leaders and lowland elite had feared. The January referendum will also allow voters to decide whether private property should be capped at 5,000 or 10,000 hectares. 

• Legislative Structure: A bicameral legislature will remain, but will increase the number of senators from 27 to 36. The previous draft suggested a unicameral legislature, which the opposition rejected. Currently the opposition holds a slight majority in the Senate, which MAS originally proposed eliminating.

Additional Constitutional Changes

Other major changes proposed in the new Political Constitution of the State (or CPE) include:

• Congress members no longer have immunity from prosecution in criminal cases.
• The text eliminates the existing system of alternates for each congress member.  Traditionally, salaried substitutes for congress members strained the national treasury and facilitated a high level of absenteeism during sessions. The new CPE will allow for substitutes, but they will not be compensated unless they actually sit in for a representative during a congressional session. 
• Authorities in the judicial system, including the Supreme Court, will be elected by a popular vote, instead of by 2/3 approval of Congress.

Criticism Voiced by Opposition

Future landholding limits, as well as significant structural changes that weaken their historical power base and grant broader rights to the long-oppressed indigenous majority have fueled lowland regional leaders’ opposition to the document.  Although this generally conservative group is ostensibly upset by some of the changes listed above (i.e. direct election of Supreme Court justices), the complaints that are most loudly voiced have virtually no basis in the articles of the CPE. The propaganda campaign currently being waged instead uses misinterpretations of constitutional revisions to confuse, distract and incense voters into rejecting the draft.

• Freedom/restriction of religion: The opposition is currently focusing on this theme, appealing to the Catholic heritage of many middle and upper class Bolivians. The main thrust of this argument is that the CPE will promote indigenous religious practices to the extent that Catholicism and Christianity will be threatened or degraded. One extreme-right chain letter currently circulating throughout Bolivia claims that, “If one of the subjects [taught in any school under the new constitution] is Christian Ethics, the community can redefine the course to cover cult teachings, ancestral gods, Pachamama and others.”¹ A TV spot currently running on repeat on several Bolivian channels shows a photo of President Morales followed by an image of Christ, and then asks, “Who will you choose? Vote NO on January 25.”  To the contrary, the constitutional draft guarantees freedom of all religious practices.²

• Communal vs. private property: Although the document does not mention expropriation of private property, except in extreme cases of enormous unproductive tracts of land, opposition groups spread the rumor that individual homes and businesses will be seized. For example, the same conservative chain letter claims, “If the community so desires they can use property for any purpose they define.”³  This is a widespread concern among landholding elites afraid that land reform will strip them of their property. In fact, congressional negotiations determined land tenure limits would apply only to future purchases and would not retroactively redistribute land, a significant MAS concession.

• Education: Opposition propaganda insinuates the fear that the government will have ultimate control over education systems, will “indoctrinate” children, and eliminate private schools.⁴  The draft constitution states: “The right of mothers and fathers to choose the education most suitable for their daughters and sons is respected.”⁵ 

• Community Justice: There is a popular misconception among non-indigenous Bolivians, promoted by the political opposition, that community justice among native communities is synonymous with lynching. This is in part due to deep-seated racism and fears that have existed in Bolivia for centuries. Arguably, it could also be attributed to sensational journalism misrepresenting violent crimes that have nothing to do with the processes and traditions referred to as community justice. Opposition groups claim that this model will be imposed across Bolivian society leading to arbitrary, violent punishments for crimes. The new constitution would guarantee the following: “Original indigenous, campesino jurisdiction will be based upon the particular connection pertaining to people who are members of the respective nation or original indigenous campesino group.” ⁶

• In addition, opposition discourse alleges MAS agenda including legalized abortion, gay marriage and the encouragement of sexual liberty among young adolescents. The CPE does not include specific articles regarding any of these themes, but instead prohibits discrimination based on sexual orientation⁷ and guarantees, from a public health perspective, that “All people have the right to life, and physical, psychological and sexual integrity.”⁸ 

AIN will further discuss and analyze each of these criticisms in the remaining weeks leading up to the January 25 referendum.

Speculation About Possible Outcomes

The ratification of the constitution is an important first step to open the door to a long process of change that will not be easy – attempting to reach an acceptable consensus in a society with as many views as there are individuals – but is necessary.

According to a poll taken by an independent group called Captura Consulting, the referendum would gain only a 45.7 percent average approval in Cochabamba, La Paz, El Alto and Santa Cruz, falling just short of the necessary 50 percent for ratification.⁹  It is important to note, however, that this poll focused its investigation only in the major urban areas.  With the exception of El Alto, the La Paz suburb populated by mainly indigenous MAS supporters, the government has its strongest base in rural areas.  This suggests that the draft would likely be approved.  The poll also demonstrated that only 27.5 percent of the people interviewed had read the CPE, meaning that more than two thirds of the voting population would decide without being well informed. However, 81.4 percent reported that they would place their votes on January 25.

                                                                                          *Captura Consulting for Grupo Lider.

The MAS government has also conducted polls to predict the voting outcomes.¹⁰  These polls showed that an average of 65 percent of approximately 3,000 people polled reported they would vote “yes” to approve the new constitution.¹¹  This poll was conducted by sampling voters throughout the departments, not just in the urban centers.

                                                                                                                                    *MAS Government.

Brief History of the CPE

MAS won more than half of the seats in the Constitutional Assembly, the body that forged the original draft and approved it in December of 2007 amid controversy.  Only 164 of the 225 members present ratified the document because some opposition representatives boycotted the session. Opposition leaders voiced strong objections to the draft, claiming that it aimed to consolidate governmental power in the executive branch and would prolong MAS’s tenure in office indefinitely.  However, nearly all of the 411 articles in the original draft received the needed approval from members present. Opposition leaders immediately denounced the constitutional text and the Assembly session as illegal, while MAS supporters began to pressure the government to convoke the referendum for its approval.

The Assembly failed to reach consensus on setting a limit for private landholdings, one of the most contentious issues in the new constitution. The two proposed limits would be 5,000 and 10,000 hectares, still substantially vast pieces of land affecting only a small percentage of Bolivians. Legislation modifying assembly proceeding, a stipulation promoted by PODEMOS opposition, determined that the Bolivian people would vote on the land tenure ceiling in a following referendum.

Political events arguably designed in part to delay this process postponed the constitutional vote. Following the conclusion of the Constitutional Assembly, opposition leaders decided to continue their own autonomy projects, despite rulings by the National Electoral Court declaring their actions illegal. Then on May 8, 2008, leaders in the opposition PODEMOS party of the Senate pushed through a bill approving the Recall Referendum and setting the date for August 10, further delaying a constitutional referendum.

However, after a 67 percent ratification in the recall vote, President Morales convoked the referendum through a Supreme Decree, also combining the land tenure decision and the elections of replacement prefects (for the positions vacated in the recall) on the same ballot. The Decree sparked a wide range of criticism from political opposition concerned about the legality of Morales’ move. As a result, Morales backed down and retracted the Supreme Decree, instead submitting a series of bills to Congress to authorize the new referendum. These proposed bills pushed the referendum date to January 25, 2009, allowing the National Electoral Court sufficient time to prepare within current legal parameters.

¹ “FW: Evo con pre aviso de retiro,” 26 December 2008, personal e-mail. “Si una de las materias es Formación  cristiana, la Comunidad puede definir que sea culto a los dioses ancestrales, pachamama y otros.”
² CPE, Article 4.
³ “FW: Evo con pre aviso de retiro,” 26 December 2008, personal e-mail.
⁴ Ibid.
⁵ CPE, Article 88.II.
⁶ CPE, Article 191.I.
⁷ CPE, Article 14.II
⁸ CPE, Article 15.I
⁹ La Prensa, “El Si ganaría con el 46% en cuatro ciudades de Bolivia.” 5 January, 2009. http://www.laprensa.com.bo/noticias/05-01-09/05_01_09_poli1.php.
¹⁰ ABI, “Oruro reúne el mayor apoyo a nueva CPE con 88%, el más bajo en Santa Cruz con 41%.” 5 January 2009. http://abi.bo/index.php?i=noticias_texto&j=20090105205627lx.
¹¹ La Prensa, “El Si ganaría con el 46% en cuatro ciudades de Bolivia.” 5 January, 2009. http://www.laprensa.com.bo/noticias/05-01-09/05_01_09_poli1.php.