BOLIVIA: DRAFT CONSTITUTION--THE STATE RULES

C O N F I D E N T I A L LA PAZ 003099

SIPDIS

SIPDIS

E.O. 12958: DECL: 11/27/2017
TAGS: ECON PGOV PREL EPET EMIN EINV BL
SUBJECT: BOLIVIA: DRAFT CONSTITUTION--THE STATE RULES

REF: LA PAZ 2244

Classified By: EcoPol chief Mike Hammer for reasons 1.4 (b) and (d).

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Summary
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1. (C) Ruling party Movement Toward Socialism (MAS)
constituent assembly members pushed through "en grande" the
MAS draft constitution with only a handful of opposition
members present on November 26. The draft constitution has
not been officially released: we obtained a copy from a
contact (in a minority party) who was present during
deliberations and voting. Theoretically, the constitution
must still be approved "en detalle" (i.e., article by
article) and "en revision" (i.e., in final draft) before
being sent to the executive branch to be submitted for a
public referendum. However, the MAS has previously
disregarded legal niceties and may do so again, sending the
constitution forward to referendum without any of the other
required steps. The fact that the MAS pushed through the
first stage of a constitution begs the question of whether it
was legal to do so. The National College of Bolivian lawyers
has declared it "null" on several counts. Many other legal
authorities agree. However, the Constitutional Tribunal,
decimated by government attacks and recent resignations, is
unavailable to review the legal issues. So far, there are no
indications about when or how the MAS will press forward.


2. (C) The draft constitution would concentrate power in the
executive and would create a unicameral legislature
(something that, at present, would eliminate the
opposition-controlled Senate and leave President Evo Morales
with virtually unchecked powers.) As promised by Vice
President Garcia Linera, the new constitution draft is much
more radical than previous versions. Evo caters to his
indigenous base by creating "more than equal" status for
indigenous citizens, who would have additional government
bodies, autonomy, and prioritized access to health, education
and property protection. The new constitution courts the
female majority with explicit rights to nonviolence in the
home, guarantees of equal pay for equal work, and protection
of employment during and after pregnancy. There is an
extensive "motherhood and apple pie" list of guaranteed
rights, including a right to dignified work, right to water,
sewer systems, housing, "revolutionary" education,
telecommunications, transportation, and a free health system.
End summary.

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Power to the People, or Mas Power to the MAS?
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3. (C) The new constitution would dramatically increase the
power of the executive and the current ruling party. As
expected, the constitution would allow for unlimited
consecutive reelection of the president and vice president.
The new election rules for the president would also allow for
a president to be elected with only 40 percent of the vote,
as long as the next runner up has less than 30 percent of the
vote (Comment: this would significantly increase Evo's
chances at indefinite reelection, as Evo draws around 40
percent hard-core support while polls show no opposition
candidates with higher than 20 percent. End comment.) If no
candidate receives at least 40 percent and at least 10
percent more than the closest runner-up, a second election
would be held between the two front runners and the candidate
with a simple majority would win. Voting age would also be
lowered to sixteen, again presumably giving the MAS an
advantage.


4. (C) The new legislative branch would be unicameral,
eliminating the Senate (Comment: Since the Senate is
currently the only functioning opposition check to Evo's
powers--with the Constitutional Tribunal paralyzed by lack of
judges--the new constitution would effectively eliminate any
real opposition to the MAS and to Evo. While presumably an
opposition party could win a majority of seats in the new
unicameral legislature, it is currently not likely. End
comment.) The current requirement for a two-thirds majority
vote in the legislature would also be eliminated, thus
allowing the current simple majority of MAS congressmembers
to basically ignore the opposition.


5. (C) The draft constitution would also allow the President
fairly broad powers to declare a state of emergency in the
case of outside threat or domestic instability (a
not-uncommon state of affairs in Bolivia.) The new
constitution would require the legislative branch to agree to
the state of emergency within the following 72 hours, but a
MAS-controlled unicameral legislature is not likely to stand
in the President's way. Any declaration of state of
emergency within a year of a previous declaration would have
to be pre-authorized by the legislature.

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Property Rights or Lack Thereof
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6. (C) The new constitution would allow for private property
rights only if they have a social function and are not
against the "collective interest." Intellectual property
rights for traditional knowledge and cultural items would be
emphasized, with the State being required to set up a
register for collectively-owned traditional knowledge.
(Comment: The Bolivian IP agency SENAPI is already focusing
on this registry, to the detriment of industrial property
claims. End comment.) The public would be given a role in
"medical system decisions", and the medical system would
specifically prioritize the use of generics. In addition,
the draft constitution states that "access to medicines can
not be restricted due to intellectual property rights."
There are also statements declaring the state's interest in
natural resources, which could bode ill for the hydrocarbon
and mining sectors. A prohibition of private investment in
"public utilities" could also adversely affect U.S. interests
in electrical companies.

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Autonomies: Divide and Conquer
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7. (C) The draft constitution would provide for many
different levels of autonomy, including departmental,
regional, municipal, and indigenous/originario/campesino.
This extreme decentralization would in effect weaken the
departments, since a department such as Santa Cruz would
receive departmental autonomy but would also have other
autonomous units within its borders. In addition, the draft
constitution recognizes among the protected forms of
democracy the "cabildo" or public gathering and a number of
indigenous ruling bodies elected by community traditions.

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Judicial Changes
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8. (C) Indigenous justice systems would be allowed and
supported under the new Constitution. The name of the
supreme court would be changed, although its basic structure
would remain the same. The Constitutional Tribunal (which
rules on constitutional issues) would have a quota in which
at least half of the magistrates would be indigenous and
would be elected by popular vote. A vaguely-defined system
of "social control" would be instituted. (Comment: in the
past, this "fourth power" has been described as the right of
civic groups to analyze and confront government bodies. End
comment.)

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Social Issues: Hints of Venezuela
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9. (C) The Catholic church would no longer be the official
state religion. One of the primary functions of the State
would be to "decolonize" the country. In an indication of a
Venezuelan hand on the drafting pen, the new draft
constitution states that the educational system should be
"revolutionary." Foreign military bases will be prohibited
on Bolivian soil. (Comment: This prohibition is likely a
swipe at the United States, since Evo seems convinced that we
either have a base in Bolivia or are planning one. Septel,
end comment.) If foreign military forces wish to enter the
country, permission from the legislature would be required.
In the section on "international relations," the new
constitution rejects and condemns "colonialism,
neocolonialism and imperialism." (Comment: Evo has
historically used 'imperialism' and "the empire" as synonyms
for the United States. End comment.)

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Indigenous Rights: Some More Equal Than Others
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10. (C) Spanish and thirty-six indigenous languages would be
recognized as official languages, and official state business
would be required to be conducted in Spanish and at least one
other official language. The section on indigenous rights
reads very much like the UN Declaration on the Rights of
Indigenous Peoples, which President Evo Morales signed into
law on November 7, 2007. The list of rights specific to
indigenous groups (and Bolivians of African descent,
explicitly granted the same rights as indigenous citizens)
would include rights to land, exclusive rights to renewable
resources on their land, rights to a share in the benefits of
non-renewable resources, rights to be consulted on any law
that "might affect them", rights to self-governance, rights
to participation in all levels of government, rights to
education in their language, and prioritized rights to all
state benefits. (Comment: a well-known indigenous leader
recently commented publicly that guaranteeing special
protections to a majority group--such as indigenous citizens
in Bolivia--makes little sense. It will be interesting to
see how this will unfold in Bolivia, particularly since
intra-indigenous conflicts are already causing difficulty in
land claims, as altiplano indigenous campesinos migrate to
lands traditionally used by other, smaller, indigenous
groups. End comment.)

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Free(ish) Speech
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11. (C) Under the new constitution, Bolivians will have the
right to freedom of thought and expression with "legitimate
ends." (Comment: This caveat is not defined in the draft
constitution, and depending on the interpretation by the
courts or on regulations and decrees from the executive
branch, freedom of speech could be significantly limited.)
In the section on the media, the new constitution would
prohibit "monopolies or oligarchies" and would fund community
media networks. Freedom of expression and publication is
guaranteed "without censorship" as long as these rights are
"exercised in agreement with the principle of
responsibility." In fact, the draft constitution states that
"the information and the opinions emitted via the media
should respect the principles of truth and responsibility,"
two undefined qualities that could significantly impact the
freedom of the press. The draft constitution would also give
the state the right to regulate investment in the media,
based on "general interests".

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Comment
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12. (C) This draft constitution is overall the most radical
of the various draft constitutions made public, with almost
no indication of any opposition input. Since this is the
draft that the MAS supported, it is not surprising that there
are clear similarities with the August 14 draft constitution
that was submitted to the Constituent Assembly by the
executive branch (reftel.) At the time of that draft
constitution, some MAS officials admitted that their draft
had been written with the help of Venezuelan advisors, and
the new draft constitution also shows Venezuelan influence.
Indefinite reelection of the president, a unicameral
legislature, and increased state role in both the economy and
the media clearly would give Evo considerable power and
mirror Venezuelan President Hugo Chavez's march toward a
statist, populist government. The head of the MAS delegation
in the Constituent Assembly said of the reasoning behind the
new constitution: "We, the majorities, have the right to
govern in the next 100 years, not only one government, but
many governments. Thus, the party that wins is going to
handle the executive, legislative and judicial powers."
GOLDBERG