Sunday, March 11, 2012
Mike Butler: Bolivian constitution a model for NZ?Labels: constitutional reform, Margaret Mutu, Mike Butler, Nin Tomas
Mutu, who works at Auckland University and is chairperson of and treaty settlement negotiator for Far North tribe Ngati Kahu, courted controversy last year when she said the immigration of whites threatens Maori due to alleged supremacist attitudes that whites bring with them.
Mutu says that Bolivia shows the way to go in constitutional arrangements because she says the native people are the government. (1) She does not say that the current Bolivian constitution, implemented three years ago, is that country’s 17th constitution since 1826. Neither does she say that Bolivia is a struggling Marxist state that is one of the poorest and least developed countries in Latin America, with a per capita GDP that is about one sixth that of New Zealand.
Bolivia’s latest constitution had a violent introduction. More than a dozen peasants, mostly supporters of President Evo Morales, were killed in September 2008 in a clash in the Amazonian department of Pando. Support for the constitution was measured in a referendum, held on January 25, 2009, in which 61.43 percent supported the constitution in a 90.24 percent turnout. The new constitution came into effect on February 7, 2009. (2)
The constitution allows Morales, a self-described Marxist, Leninist, communist, socialist whose government is financed by the Cuba-aligned Venezuelan government of Hugo Chavez, to assert even greater state control of the economy. Articles in the constitution could forbid foreign companies from repatriating profits or resorting to international arbitration to resolve nationalization disputes. It reaffirms state control over Bolivia’s ample natural gas reserves. (3)
A feature of the Bolivian constitution admired by Auckland University associate law professor Nin Tomas involves a reverence for all things living. The constitution enshrines the right of nature "to not be affected by mega-infrastructure and development projects that affect the balance of ecosystems and the local inhabitant communities”. Heavily influenced by a resurgent indigenous Andean spiritual worldview that places the environment and the earth deity known as the Pachamama at the centre of all life, humans are considered equal to all other entities. (4)
Tomas told a debate at Te Papa last month that a Maori-based constitution would mirror the Bolivian constitution and help defend the land against exploitation. (5)
Vaguely worded items among the new Constitution’s 411 articles define Bolivia as a unitary plurinational, and secular (rather than a Catholic, as before) state, formally known as the Plurinational State of Bolivia. (6)
It calls for a mixed economy of state, private, and communal ownership, and restricts private land ownership to a maximum of 5000 hectares.
It elevates the electoral authorities, to become a fourth constitutional power; introduces the possibility of recall elections for all elected officials; and enlarges the Senate. Members of the enlarged National Congress will be elected by first past the post, a change from the previous mixed-member proportional system that New Zealand now has.
The judiciary is reformed, and judges will be elected instead of appointed by the National Congress. It declares natural resources to be the exclusive dominion of the Bolivian people, administered by the state.
The constitution protects native and ancestral coca (cocaine) as cultural patrimony, a renewable natural resource of Bolivia's biodiversity, and as a factor of social cohesion; in its natural state it is not a narcotic. Valuation, production, commercialization, and industrialization shall be regulated.
While Mutu did not elaborate exactly how Bolivia’s “native people are the government”, the 2009 constitution created 60 native community lands within the country’s administrative divisions which also comprise nine departments, 112 provinces, and 339 municipalities. The creation of the native community lands has been a major goal of Bolivian indigenous movements and a political initiative pursued by both neo-liberal and indigenous-identified national governments. (7)
Bolivia’s departments have a departmental assembly and an elected governor; municipalities have a municipal council and an elected mayor; some provinces within departments are grouped into regions with a regional assembly; and the 60 native community lands self-govern. Indians are allowed to mete out corporal punishment under their own legal systems.
Democratically elected governments have governed Bolivia since 1982, when a long string of military coups came to an end. A president and vice president head the executive branch of government, which consists of a variable number (currently, 20) of government ministries. The president is elected to a five-year term by popular vote.
The Plurinational Legislative Assembly has two chambers. The Chamber of Deputies has 130 members elected to five-year terms, 70 from single-member districts (circunscripciones), 60 by proportional representation, plus seven by the minority indigenous peoples of seven departments. The Cámara de Senadores (Chamber of Senators) has 36 members (four per department). Members of the assembly are elected to five-year terms.
The judiciary consists of the Supreme Court, the Constitutional Tribunal, the Judiciary Council, Agrarian and Environmental Tribunal, and District (departmental) and lower courts.
The Bolivian government has an independent electoral branch, known formally as the Plurinational Electoral Organ, which replaced the National Electoral Court in 2010. The branch consists of the Supreme Electoral Tribunal, the nine Departmental Electoral Tribunals, Electoral Judges, the anonymously selected Juries at Election Tables, and Electoral Notaries. The Organ's first elections were the country's first judicial election in October 2011, and five municipal special elections held in 2011.
Bolivia, which has a population of 10 million, is a landlocked country in central South America bordered by Brazil, Paraguay, Argentina, Chile, and Peru. Following a disastrous economic crisis during the early 1980s, reforms spurred private investment, stimulated economic growth, and cut poverty rates in the 1990s. (8)
The period 2003-05 was characterized by political instability, racial tensions, and violent protests against plans - subsequently abandoned - to export Bolivia's newly discovered natural gas reserves to large northern hemisphere markets.
In 2005, the government passed a controversial hydrocarbons law that imposed significantly higher royalties and required foreign firms then operating under risk-sharing contracts to surrender all production to the state energy company in exchange for a predetermined service fee.
Bolivia has an estimated per capita GDP last year of $5900, compared with $34,300 in New Zealand. If Mutu and Tomas think New Zealand should follow the pre-Christian indigenous rights Bolivian model, they should explain what benefits would come from copying a three-year-old constitution of a nation that has only had 30 years of democracy, and the resolution of political issues involve armed conflict.
1. Bolivian constitution model for NZ, http://www.radionz.co.nz/news/te-manu-korihi/82786/bolivia's-constitution-viewed-as-a-model-for-maori
2. Constitution of Bolivia, Wikipedia, http://en.wikipedia.org/wiki/Constitution_of_Bolivia
3. Bolivians Ratify New Constitution, New York Times, January 25, 2009, http://www.nytimes.com/2009/01/26/world/americas/26bolivia.html
4. Bolivia enshrines natural world's rights with equal status for Mother Earth, The Guardian, April 10, 2011, http://www.guardian.co.uk/environment/2011/apr/10/bolivia-enshrines-natural-worlds-rights
5. Te Papa constitutional review debate, February 2, 2012. http://podcast.radionz.co.nz/treatydebates/treatydebates-20120205-1610-treaty_debate_2_2012-00.ogg
6. Bolivians Ratify New Constitution, New York Times, January 25, 2009, http://www.nytimes.com/2009/01/26/world/americas/26bolivia.html
7. Bolivia, Wikipedia, http://en.wikipedia.org/wiki/Bolivia
8. Bolivia, The World Fact Book, https://www.cia.gov/library/publications/the-world-factbook/geos/bl.html
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