“Communitarian socialism will refound Bolivia”

David Choquehuanca, Bolivia's foreign minsiter

from LINKS - International Journal of Socialist Renewal Interview with Bolivia’s foreign minister David Choquehuanca by Patricia Bravo and Cris González, translated from the original article in the March 20, 2009, edition of Punto Final (Chile) by David Montoute.Bolivia’s new “Political Constitution of the State”, approved by referendum on January 25, 2009, by 61.4% of the vote and announced on February 7, is clearly of transcendental importance for the refoundation of Bolivia. The recognition of individual and collective rights, popular participation, the principle of equality and the end of all types of exclusion and discrimination are all present in the new constitutional text. It establishes the creation of “a Unified Social State of Law whose character would be Plurinational Communitarian, free, independent, sovereign, democratic, intercultural, with decentralised autonomous departments, regions, municipalities and indigenous circumscriptions”.

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See also Bolivia's ‘communitarian socialism’

Chávez Promises Continuation of Project to Create Socialist Democracy in Venezuela

by Tamara Pearson

from Venezuelanalysis.com

16 February 2009

After it was officially announced that the “yes” vote had won the constitutional amendment with 54.4% of the vote, Venezuela’s President Hugo Chavez delivered a speech from the balcony of the Miraflores Presidential Palace, his two daughters beside him. He spent most of the speech talking about what problems need to be struggled against and what needs to be done next.

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“Communitarian socialism will refound Bolivia”

from LINKS - International Journal of Socialist Renewal Interview with Bolivia’s foreign minister David Choquehuanca by Patricia Bravo and Cris González, translated from the original article in the March 20, 2009, edition of Punto Final (Chile) by David Montoute. Bolivia’s new “Political Constitution of the State”, approved by referendum on January 25, 2009, by 61.4% of the vote and announced on February 7, is clearly of transcendental importance for the refoundation of Bolivia. The recognition of individual and collective rights, popular participation, the principle of equality and the end of all types of exclusion and discrimination are all present in the new constitutional text. It establishes the creation of “a Unified Social State of Law whose character would be Plurinational Communitarian, free, independent, sovereign, democratic, intercultural, with decentralised autonomous departments, regions, municipalities and indigenous circumscriptions”. This triumph of the democratic revolution led by the government of Evo Morales was won by huge mobilisations by the Bolivian people and a clear show of force by the executive to neutralise the oligarchy’s putsch attempts, which were so clearly supported by US imperialism. The same fortitude is now required to achieve the approval of transitional laws and regulations in a Congress with an opposition majority. Without these measures, many changes in the new constitution will remain on paper alone. Or rather, they will oblige the president of the republic to permanently resort to supreme decrees. However, citizens’ rights and legal defence resources automatically came into effect, since they do not require any special laws. Following its constitutional mandate, the Bolivian government sent Congress proposals to modify the previous electoral laws and call general elections on December 6 this year. Bolivians will be able to re-elect the president and vice-president for a new period that will end in 2015. In April next year, there will be another national election for municipal and prefectural (provincial) authorities. The Bolivian electoral calendar also includes a plebiscite in June this year, in the departments of La Paz, Oruro, Potosí, Cochabamba and Chuquisaca, to approve the creation of autonomous local governments. These regions had voted no to autonomy in 2006. And the departments of the “half moon”, which already approved autonomy – Santa Cruz, Beni, Pando and Tarija – must now adapt their statutes to the constitutional norm. In addition to approving the new constitution, the Bolivian people, via the referendum, also rejected the latifundio, in a country in which 91% of cultivable land is in the hands of latifundistas (large landowners) allied to the political right. Seventy-eight per cent of voters decided that the maximum extension of individually owned land must not exceed 5000 hectares and only 22% chose a limit of 10,000 hectares. It was about these subjects, but also about the democratic revolution’s more long-term projections, that Punto Final spoke with the Bolivia’s foreign minister, David Choquehuanca. Due to his many obligations both within Bolivia and abroad, the interview was carried out in two parts – one a few days before the referendum and another after this. What are your priorities in the process of implementing the new constitution? One of the priorities is that the parliament should work on the law for the election of president and vice-president of the Plurinational Legislative Assembly. Another priority is regulating Bolivians’ right to vote abroad and, obviously, ensuring that Bolivians are aware of the rights established by the new constitution, because many people are unaware of them. We are adapting the structures of the Executive Office in order to achieve the aims of the plurinational state. And as a ministry, we must develop a new foreign service laws that is consistent with the constitution. What obstacles will you face? There are certain powerful groups and individuals who wanted no part of the Constituent Assembly proposed by the new constitution. They did not want a participatory democracy. These are the people who have opposed Bolivia’s Predient Evo Morales since the day he was elected, since the indigenous peoples marched demanding greater participation, and the construction of a new, more inclusive, less discriminatory Bolivia. They will continue to create obstacles. They have organised themselves into political parties and civic committees, and despite the Bolivian people giving a clear message that they don’t want the latifundio, these long-privileged latifundistas are still unable to see it, and are working hard to stop this process from consolidating. But the majority of the people, not just the indigenous campesino movement, has voted against the latifundio, even in [opposition strongholds] Santa Cruz, Beni and Pando. This is a message that they must be able to read. That is, people don’t want the latifundistas to continue running the country. I think that the Bolivian people will overcome these obstacles, just as they did with the mobilisations that facilitated the Constituent Assembly. These groups used young university students in an attempt to sabotage the Constituent Assembly, but the people organised themselves to overcome this. Then there was an attempt to oust our president by calling for the recall referendum. Once again, the people organised and responded with great maturity, ratifying president Morales by more than 67% of the vote. The opposition didn’t accept the text of the new constitution, but the people ratified it by majority vote. Now the opposition is organising again to block the December elections, because it knows that President Morales will win with more than two-thirds of the vote. The Bolivian people are very conscious of the results that they have achieved in only three years. There are various measures we could cite, such as the el bono Juancito Pinto voucher (a monetary incentive to prevent truancy) or the Renta Dignidad (the “dignity pension’’, a monthly stipend to those over 60 years of age, whether they are retired or not). What took 20 years to carry out in providing roads and infrastructure, we have accomplished in just three. The Bolivian people know this, and are informed of the democratic revolution’s accomplishments. The conspiracy to destroy this process will not work. How does the concept of the “plurinational state’’ combine with autonomous authorities and self-government? There has always been self-government, autonomous entities. In some places, there are even organisational forms that have been maintained for 500 years. This process, together with the new constitution, recognises these indigenous forms of organisation. In the framework of a unified plurinational state, it all forms part of a single state entity. It’s like the wilpala (national emblem of the Andean culture which brings together the seven colours of the rainbow, showing the coexistence of all the original peoples). The autonomous entities are represented by the coloured squares, but they are part of something bigger, which is the wilpala. That’s how it is. We are a plurinational state, in which the autonomous entities are important components of each department, but that doesn’t mean that they can administer their natural resources only for that department. Our natural resources are the property of the Bolivian people, of the Bolivian state. It’s the same with national symbols. There are regional symbols which the plurinational state recognises, values and respects. The different languages we speak in the regions are being revalued, respected and promoted. This process consolidates the autonomous entities, whether departmental, municipal or indigenous, but always within the framework of national unity. How would you characterise the “communitarian socialism’’ that the democratic, cultural revolution is attempting to build? We indigenous peoples have taken steps towards the recovery of our values and principles. We are heading towards the pachakuti (rebirth or return to balance, between people and between people and nature) and on this path, as we incorporate our values and principles, we have begun to speak of communitarian socialism. We have adopted various socialist principles. It must not be forgotten that we seek to “live well’’, not only to “live better’’. For capitalism, the most important thing is money, and life is of no interest to it. The basic law of capitalism is the accumulation of profits. This is why we disagree with capitalism. Socialism has shown us another way. In socialism, the most important thing are human beings, and so it seeks the satisfaction of their ever-increasing needs, both materially and spiritually. For us indigenous peoples, the most important thing isn’t money, or even only human beings. The most important thing for us is life. In the first place is Mother Earth – our mother nature – then the plants, animals, stones, stars, rivers, lakes. And finally, there is the human being. We want harmony between humans and nature. We agree with socialism in many ways. We want the fulfillment of people’s basic necessities and well being, but our struggle doesn’t stop there. When we talk of communitarian socialism, we are incorporating the search for a balance within oneself, of ourselves with our environment, with other human beings, with our families and with everything that surrounds us. This is why we speak of tackpacha, which means “everything that exists’’. We also want to gradually incorporate the return to the pacha (earth) and we speak of jacha uru (“the great day’’). When we speak of communitarian socialism, our message is: We want to incorporate the communitarian element, not only for human beings, but for everything. In what way will you implement the Bolivian people’s wish to limit large landholdings to a maximum of 5000 hectares? The people voted overwhelmingly against the latifundio. With the implementation of the new constitution, new acquisitions cannot exceed 5000 hectares, and the pre-existing ones which exceed 5000 must be subject to a review and regulation process. Businesses must be able to show that they fulfill a socio-economic function. Otherwise, the state will confiscate these holdings. According to the relevant sources, in Bolivia there are no businesspeople with more than 15,000 hectares who fulfill a social or economic purpose. After receiving the people’s message, the latifundistas should respect the laws that they themselves have ratified. The National Institute for Agrarian Reform law, which establishes a regulation process, was approved during the administration of President Gonzalo Sánchez de Lozada. Its objective was the review of landholdings of 60,000, 70,000 or 80,000 hectares in favour of the big landowners, since the authorities in this case were manipulated by the economic elites. Now this is no longer the case. Also, in the process carried out by the previous government, there was a lot of corruption. Each Our government will carry out a transparent regulation process”. What role have the social organisations such as the United Confederation of Bolivian Campesino Workers (CSUTCB) and the National Federation of Indigenous and Campesina Women “Bartolina Sisa” played in the process that you are leading? We organise ourselves in the communities. In Bolivia there must be around 10,000 communities, and in each community there is a union of campesino workers. Each union has a base which is associated first on a provincial level, and then on a departmental and national level. The national level is the CSUTCB. They are not naturally existing organisations, but organisations that helped allowed us to table our demands and participate in elections. There are various organised sectors with similar structures, such as the teachers, the miners, the indigenous groups, women, factory workers. And we have a mother organisation which is the Central Obrera Boliviana (Workers Centre of Bolivia, COB). These are the people’s organisations. President Evo Morales has called for strengthening them, since they are the agents driving this process of change. In these spaces we discussed Bolivia’s political situation and the policies implemented by the neoliberal parties. It was amongst these organisations that the Instrumento Político por la Soberanía de los Pueblos (Political Instrument for the Sovereignty of the Peoples, the forerunner of the Movement Towards Socialism – MAS party) was born. It was not the fruit of a meeting between four or five intellectuals. Organisations such as the CSUTCB, the Confederated Union of Land Settlers, the Union of Indigenous Peoples and the National Federation of Indigenous and Campesina Women “Bartolina Sisa” called for a conference on land and territory in 1995. And it was here that the proposal to build our own political instrument was born”. Do you see the seeds of a people’s government in Bolivia? We have always governed ourselves in our communities. This is why we maintain our customs, perform our own music, speak our own indigenous languages, in spite of a 500-year effort to erase these things – our music, our language and our culture. We have upheld our values, economic forms, our own types of communitarian organisation, which are all being reappraised now. This is why we are incorporating into socialism something that has resisted been for 500 years – the communitarian element. We want to build our own socialism. In the communities, we always had our ulacas (assemblies), where debates took place. Those political spaces are being recovered. I don’t know if this can be called “the seeds of a people’s government’’. What existed, what exists, is being reappraised, is beginning to be valued and developed. These are the times we’re in.

Drafting of new Bolivian constitution - a spur towards social transformation

In the following article the vice-president of Bolivia, Álvaro García Linera, explains his interpretation of the changes that were made in the draft constitution as a result of the recent negotiations involving the parties represented in Bolivia’s National Congress. The original constitution was drafted in December 2007 by the country’s constituent assembly. A popular referendum on the new draft constitution is to be held on 25 January 2009. Álvaro García Linera also discusses the role constitutional change has played in the social transformation of Bolivia.

Alvaro Garcia Linera

Bolivia's vice-president Álvaro García Linera: ‘We are going through the most radical social transformation’

by Álvaro García Linera (translated by Richard Fidler) from LINKS – International Journal of Socialist Renewal 22 November 2008 Synthesis of the constituent process The demand for a constituent assembly emerged at the very point when the majority of the country, the Indigenous sectors, were moving or beginning to move from being a demographic majority to a political majority — the awakening of an Indigenous, campesino and popular movement that for centuries had been excluded from the power structures of the state. It was the Indigenous sectors who at that point invoked once again their right to participate in the definition of what is common to all Bolivians — common institutions, common resources, common rights.

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See also

• Decentralisation and its discontents by Ondine Green
• A People's Constitution for Aotearoa? by Vaughan Gunson

Chávez Promises Continuation of Project to Create Socialist Democracy in Venezuela

by Tamara Pearson from Venezuelanalysis.com 16 February 2009 After it was officially announced that the “yes” vote had won the constitutional amendment with 54.4% of the vote, Venezuela’s President Hugo Chavez delivered a speech from the balcony of the Miraflores Presidential Palace, his two daughters beside him. He spent most of the speech talking about what problems need to be struggled against and what needs to be done next. Celebrating, Chavez said, “Truth has won against lies, and the dignity of the people against those who disown the homeland … those who try to return Venezuela to … the Fourth Republic, have failed today and will always fail.” However, he included the opposition in the victory, saying the day was historical, as for the first time the people were consulted about such an issue. “It’s a victory for Venezuela and they are part of Venezuela.” Chavez also saw the result as a boost for the socialist project and invited the people to strengthen their effort towards the construction of true socialism. “This path doesn’t have any other name, this path is called socialism, I want to ratify my commitment to socialism and I want to invite everyone to strengthen the march towards the construction of … socialist democracy.” The president encouraged supporters to again go on a push with the “3R” campaign of “Revision, Rectification, and Revolutionary Re-launch.” Chavez announced 2008 to be a year of the 3Rs at the start of last year. He had emphasized the need to review and re-evaluate everything in order to improve general administration and day-to-day governing. “Government, party and people, I’d like us to re-take, with all our strength, in all areas of the government, that policy of the 3Rs…from this exact moment.” He said he thought such a policy would enable the government to achieve, in the upcoming “four years that remain, of this constitutional period of the government, the highest amount of efficiency in public management and the push for the National Simon Bolivar Project.” The National Simon Bolivar Project is the government’s overall plan for the rest of this presidential term, which lasts until early 2013. He also committed himself and the government to a “battle that needs to be done with more intensity and effort and above all with more results that combat the insecurity in the streets of the people, the barrios, the suburbs, in the cities.” He highlighted other issues against which the struggle needs to be intensified, “the struggle against corruption and its vile ways, the struggle against insecurity, the struggle against wastefulness, the struggle against bureaucracy and inefficiency.” “I want us to dedicate ourselves completely in the struggle against all these problems that are so harmful to the health of the people, to the health of the government and to the health of the Republic.” Chavez said the republic needs truly new institutions, with truly new men and women, and that it was also necessary to strengthen the five branches of the state: the executive branch, the legislative branch, judicial branch, citizen (or prosecutorial) branch, and electoral branch. He then congratulated the people for their participation in the campaign and said it was “a big effort and a big victory.” “Unless god stipulates something else, unless the people stipulate something else, this soldier will be a candidate for the presidency of the Republic for 2013-2019,” he said. Chavez declared his life at the service of the people, saying, “On this road now, from today, we’ll continue … constructing the homeland. On this road I devote myself and I will be consumed in this for the rest of what remains of my life, I swear it, I promise it, in front of the people and in front of my children and grandchildren.” However, he also suggested that the following week be a “week of love”, that everyone enjoy it with happiness and moderation, as a deserved rest after all the political activity. It will be a week free of political themes, and to make up for the Day of Love (Valentine’s Day) on February 14, which most would have spent in electoral campaign. Celebrations and messages of congratulations Chavez announced from the balcony that the first message he had received was from Fidel Castro, revolutionary leader of Cuba, just 10 minutes after the official results were broadcast. “Dear Hugo, congratulations to you and your people for a victory that for its magnitude is impossible to measure,” Fidel had written. Later, Evo Morales, president of Bolivia and the government of Spain also congratulated Chavez for the results. Outside the presidential palace, along Avenue Urdenata, and filling up multiple other roads across Caracas, on hearing the news, people came out into the streets to listen to Chavez and to celebrate. Likewise, around the country in main and local plazas, people waved red flags, danced, played drums, chanted political slogans and set off fireworks. Spontaneous motorcades of honking cars and motorbikes paraded through the streets.

Decentralisation and its discontents

by Ondine Green I think that one part of Vaughan Gunson's excellent article "A People's Constitution for Aotearoa?" deserves more looking at. That would be Vaughan's opposition of centralisation (bad) to decentralisation (good). Vaughan writes that his idea of a constitutional alternative for Aotearoa entails:

a state where sovereignty is devolved downwards to the people, to local communities, including indigenous people.

Certainly a new constitution has to be based on people power, on empowerment of the grassroots rather than an authority on high in Wellington (or Washington for that matter) doling out favours and punishment. Is centralised power altogether a bad thing?

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Entrenching Te Tiriti o Waitangi

by Tariana Turia Speech to parliament 27 August 2008 On the 8th November 1918, Tahupotiki Wiremu Ratana, received a vision to gather signatures for a petition, to take to Parliament, to convince Government to make Te Tiriti o Waitangi part of the law of the land. It is a vision still waiting to be realised.

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Our most important goal could be ditching monolithic view of power

by Nandor Tanczos

from NZ Herald

1 April 2005

There is no doubt New Zealand is undergoing a process of constitutional change. Unusually, it’s not being forged in the fires of civil war, insurrection or coup d’etat, so we have the luxury of taking a more measured approach than some other nations.

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Changing the game plan: the Foreshore and Seabed Act and constitutional change

by Dr Maria Bargh from New Zealand Journal of Social Sciences Online May 2006 In June 2003, when the Government announced its intention to legislate regarding the foreshore and seabed, two of the Government’s central claims were that they sought to protect the foreshore and seabed for “all New Zealanders” and that they were treating all New Zealanders in a fair and equal manner within the legislation and according to the procedures of parliament. In this article, I will firstly examine a number of events which have occurred since the passing of the Foreshore and Seabed Act 2004 and which I argue bring into question the Government’s claims surrounding the foreshore and seabed legislation.1 Having the Government’s actions characterised as breaching Te Tiriti o Waitangi and national and international human rights laws and standards suggests a level of inadequacy in our constitutional arrangements. It is in respect of this inadequacy that a change in game plan appears now to be required. When players change the game plan in rugby they completely change the tactics of their play. I suggest that given the inadequacies of our current constitutional arrangements, a change is needed to provide for constitutional development and to adequately protect Te Tiriti, human rights law, and subsequently Maori.

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UNITYblog has asked the question: Do we need a new constitution for Aotearoa? If you would like to have your thoughts on this issue posted on UNITYblog send to editor@unityblognz.com

See also:

• Putting to bed the trappings of NZ's colonial past
• A revolutionary constitution based on Tikanga Maori
• A People's Constitution for Aotearoa?
• SOCIALIST WORKER FORUM: A People's Constitution for Aotearoa?

Putting to bed the trappings of NZ's colonial past

by Pete A new constitution would be interesting to contemplate. It would probably go hand-in-hand with New Zealand becoming a republic, but that discussion would involve what we replaced the existing inadequate arrangement with. It's definitely about time that the British Crown was ditched as a controlling influence over Aotearoa/New Zealand. While some may call for the retention of the Treaty of Waitangi - I don't see this as really necessary either. It would be more useful to put to bed such trappings of New Zealand's colonial past. A new constitution might include mandatory state control of vital infrastructure and resources, along with nationalisation of key assets such as ports, communications, transport facilities. State provision of health and education resources and abolition of the user pays mentality should be included, as well as consideration of military training for those not employed or in training. UNITYblog has asked the question: Do we need a new constitution for Aotearoa? If you would like to have your thoughts on this issue posted on UNITYblog send to editor@unityblognz.com See also:

• A revolutionary constitution based on Tikanga Maori
• A People's Constitution for Aotearoa?
• SOCIALIST WORKER FORUM: A People's Constitution for Aotearoa?

A revolutionary constitution based on Tikanga Maori

UNITYblog has asked the question: Do we need a new constitution for Aotearoa? If you would like to have your thoughts on this issue posted on UNITYblog send to editor@unityblognz.com Our first response to the question is from Penehamine Netana-Patuawa. Tena koutou katoa. E mihi ana ahau i te Matua nui i te Rangi. Ko Mahuhu ki te Rangi te waka. Ko Ngati Whatua raua ko Te Roroa nga iwi. Ko Taita raua ko Waikaraka nga marae. Ko Maunganui te maunga. Ko Kaihu te awa. Ko Waipoua te ngahere. Ko Omamari te moana. Ko Raroa toku Papa. Ko Betty toku Mama. Ko Penehamine Netana-Patuawa taku ingoa. No reira tena koutou tena koutou tena no tatou katoa.Any written constitution must be revolutionary in nature. The word revolution can be divided into two parts: Revolve; Evolution. Each part is separate, yet linked. Revolve, to turn completely around. Evolution, to progress and change.

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UNITYblog Question: Do we need a new constitution for Aotearoa?

UNITYblog is going to begin asking regular questions on important political, social and ideological issues. We will be posting the answers we receive up on UNITYblog. The goal is to generate some lively and intelligent debate that will help us understand the world today and what we need to do to make the transition away from the market towards a human centred society. The first UNITYblog question is:

Do we need a new constitution for Aotearoa?

If so, what might a new constitution look like? And how do we go about achieving a new constitution? Your answers can be any length, short or long. Send to editor@unityblognz.com They can be anonymous, or provide a name and how you wish to be identified. All contributions must comply with UNITYblog policy of not posting sectarian, silly or personal content. I look forward to your responses. In solidarity, Vaughan Gunson UNITYblog editor email: editor@unityblognz.com ph/txt: 021-0415 082 See also

• SOCIALIST WORKER FORUM: A People's Constitution for Aotearoa?
• A People's Constitution for Aotearoa?

A People's Constitution for Aotearoa?

Could the Treaty of Waitangi be incorporated into a re-founded people's constitution of Aotearoa?

by Vaughan Gunson from UNITY journal July 2008 Last year the United Nations produced a Declaration on the Rights of Indigenous People which had been 24 years in the drafting. It was finally presented to the UN General Assembly to be ratified. The vote: 143 for and only 4 against. The countries that opposed this reasonable, but far from radical, declaration were the United States, Canada, Australia, and New Zealand. Maori in this country were outraged. Dr Pita Sharples, Maori Party co-leader, said it was “shameful to the extreme, that New Zealand voted against the outlawing of discrimination against Indigenous People; voted against justice, dignity and fundamental freedoms for all.” The reason Helen Clark’s Labour government gave for voting against the declaration was that the definitions of self-determination extended to the exclusive control of territorial resources. This, they said, threatened the sovereignty of the nation state. Echoing claims made by former National Party leader Don Brash in his infamous “race speech” of 2004, the government claimed that the UN declaration was “discriminatory” and could see “separatist minorities breaking up countries”.

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Constitutional Rights for Nature

This a ground breaking approach to protecting the environment that deserves attention. Enshrining the rights of nature under the democratically decided constitution of a country would be a powerful mechanism for pursuing sustainable societies.

Ecuadorian Assembly Approves Constitutional Rights for Nature

from Climate and Capitalism 10 July 2008 On July 7, the 130-member Ecuador Constitutional Assembly, elected countrywide to rewrite the country’s Constitution, voted to approve articles that recognize rights for nature and ecosystems. “If adopted in the final constitution by the people, Ecuador would become the first country in the world to codify a new system of environmental protection based on rights,” says Thomas Linzey, Executive Director of the Community Environmental Legal Defense Fund. The following clauses will be included in the constitution that will be submitted to a countrywide vote, to be held 45 days after Assembly finishes its work later this month.

Chapter: Rights for Nature Article 1. Nature or Pachamama, where life is reproduced and exists, has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution. Every person, people, community or nationality, will be able to demand the recognition of rights for nature before the public organisms. The application and interpretation of these rights will follow the related principles established in the Constitution. Article 2. Nature has the right to an integral restoration. This integral restoration is independent of the obligation on natural and juridical persons or the State to indemnify the people and the collectives that depend on the natural systems. In the cases of severe or permanent environmental impact, including the ones caused by the exploitation of non renewable natural resources, the State will establish the most efficient mechanisms for the restoration, and will adopt the adequate measures to eliminate or mitigate the harmful environmental consequences. Article 3. The State will motivate natural and juridical persons as well as collectives to protect nature; it will promote respect towards all the elements that form an ecosystem. Article 4. The State will apply precaution and restriction measures in all the activities that can lead to the extinction of species, the destruction of the ecosystems or the permanent alteration of the natural cycles. The introduction of organisms and organic and inorganic material that can alter in a definitive way the national genetic patrimony is prohibited. Article 5. The persons, people, communities and nationalities will have the right to benefit from the environment and form natural wealth that will allow wellbeing. The environmental services cannot be appropriated; its production, provision, use and exploitation, will be regulated by the State. “Public organisms” in Article 1 means the courts and government agencies, i.e., the people of Ecuador would be able to take action to enforce nature rights if the government did not do so.

Decentralisation and its discontents

by Ondine Green I think that one part of Vaughan Gunson's excellent article "A People's Constitution for Aotearoa?" deserves more looking at. That would be Vaughan's opposition of centralisation (bad) to decentralisation (good). Vaughan writes that his idea of a constitutional alternative for Aotearoa entails:

a state where sovereignty is devolved downwards to the people, to local communities, including indigenous people.

Certainly a new constitution has to be based on people power, on empowerment of the grassroots rather than an authority on high in Wellington (or Washington for that matter) doling out favours and punishment. Is centralised power altogether a bad thing? Vaughan rightly promotes the Communal Councils of Venezuela as a positive step forward, as "sovereignty in the hands of the people". But the crucial thing about the Communal Councils is where their funding comes from - directly from the presidency of the Bolivarian Republic of Venezuela. The essential novelty of the Communal Councils is that it is a way for the oil wealth of Venezuela to go directly to communities, bypassing the infamously corrupt state bureaucracy. So in Venezuela, we see a process of decentralisation (the communal councils) contrasts with one of centralisation (the empowerment of the federal government, in particular the office of President Chávez, at the expense of the bureaucratic fiefdoms). One part of President Chávez's failed constitutional referendum that really had the right-wing escualidos (filthy ones) going nuts was his proposal to let the national government of Venezuela declare certain towns and areas "federal areas", responsible directly to central authority rather than to the various state governments. It's important not to get carried away with the idea of decentralisation as a good thing in and of itself. The history of the working class movement over the last 200 years is that centralisation - in the sense of workers co-ordinating their debate, decision-making and plans of action over as large an area as possible - is vital to win. It is only when centralisation slides over into bureaucratization that this becomes a bad thing. Conversely, "decentralisation" can be another word for fragmentation, alienation and powerlessness. Ideas of "decentralisation" tend to be promoted heavily by middle-class social liberal groups, such as make up the Green Party - with their vision of a future of tiny local communities producing for themselves. I think Vaughan perhaps gives away a little too much too much to this school of thought when he talks about

a system of localised food and energy production controlled “by people for the people”...Localised organic food systems combined with local energy production (solar power, wind turbines and other sustainable technologies) would slash the greenhouse gas emissions produced by centralised industrial food and energy production.

While food and energy sovereignty for every nation and region is a goal which should be fought for, we need to realise that there are limits to how far "localism" can effectively go. The lesson of the 20th century's disastrous experiments with "socialism in one country" surely must be that for one nation or region to isolate itself from others impoverishes us all. Only a network without limits of economic and social co-operation through all parts of the world can maximise the wealth and happiness of humanity. The rhetoric of "local sovereignty" can too easily slide over into sheer selfishness - even xenophobia. On the local level, we've seen the middle-class "local community" of Makara Beach fight for years to prevent a wind-farm that will mark a real step forward to sustainable energy for Wellington - solely on the basis that it would spoil the view and lower their property values. More disturbingly, we've heard some green or leftist activists seriously recommend that we shut our doors to refugees from climate change - or even halt immigration altogether - to make sure that our country stays "clean and green" and those who already live here can enjoy an "unspoiled environment". On a more serious note, Bolivia, another state in the process of revolution, is currently in near-civil war because of the efforts of the resource-rich eastern provinces to effectively secede, keeping their wealth for themselves. The unholy alliance of local businessmen and racist (even fascist) street gangs pushing this proposal do so under the rhetoric of "autonomy" and "sovereignty of local communities". The forces of counter-revolution are attempting to promote similar reactionary autonomy movements in resource-rich parts of Venezuela and Ecuador. In the United States in the 1950's, the civil rights movement was held back and stymied by reactionary white-supremacist state governments, flying the banner of "the rights of individual states" against the dominance of the Federal government. In fact, the question of the power of the centre as opposed to the localities was the issue over which the American Civil War was fought, 100 years earlier.

The fascist UJC group in Bolivia (seen here campaigning in the recent referendums) uses the rhetoric of "decentralisation".

Of course, all these examples could be balanced by those where local communities fought for justice and freedom against oppressive central authority. But that's my point - the door swings both ways on this issue, and we must get past the false dichotomy of capitalist globalisation and reactionary localism. We could raise the slogan of a "synergetic" economy - one where local communities play to their own strengths, but also pool their efforts with other communities around the world to raise the living standards of everyone through trade and co-operation. This would need to go along with a system of "networked" power - a new dispensation in which there would no longer be a contradiction between centralised and localised power, where local, regional, national and international organs of people's power work together seamlessly and synergetically. The best of centralisation and decentralisation combined is what is required, both for society's wealth and society's power.

Drafting of new Bolivian constitution - a spur towards social transformation

In the following article the vice-president of Bolivia, Álvaro García Linera, explains his interpretation of the changes that were made in the draft constitution as a result of the recent negotiations involving the parties represented in Bolivia’s National Congress. The original constitution was drafted in December 2007 by the country’s constituent assembly. A popular referendum on the new draft constitution is to be held on 25 January 2009. Álvaro García Linera also discusses the role constitutional change has played in the social transformation of Bolivia. Bolivia's vice-president Álvaro García Linera: ‘We are going through the most radical social transformation’ by Álvaro García Linera (translated by Richard Fidler) from LINKS – International Journal of Socialist Renewal Translation first appeared at Richard Fidler's Life on the Left 22 November 2008 Synthesis of the constituent process The demand for a constituent assembly emerged at the very point when the majority of the country, the Indigenous sectors, were moving or beginning to move from being a demographic majority to a political majority — the awakening of an Indigenous, campesino and popular movement that for centuries had been excluded from the power structures of the state. It was the Indigenous sectors who at that point invoked once again their right to participate in the definition of what is common to all Bolivians — common institutions, common resources, common rights. This movement emerged, declared its presence initially in 1990 with an Indigenous march in support of the right to participate in the construction of the common good and the collective institutions of the society. Until then the Indigenous movement had felt they were outside the institutional and legal structures, that their rights were marginalised by what Indianismo[1] and Katarismo[2] denounced as second-class citizenship. So the Indigenous movement proposed that they become first-class citizens, with the same rights and obligations as others. And that meant modifying the entire institutional structure of the state, doing away with the segregationist and racist state, and bringing about a type of inclusive, participatory state bearing the imprint, the scent, the language, the appearance and the habits of the Indigenous world, the majority in Bolivia. The agenda of a new constitution that was present in the Indigenous movement first appeared in 1990, and it was in 2000 that the political awakening of the Indigenous movement became a political force of mobilisation and pressure, paralysing the state. In the water war of 2000, when coca producers, campesinos, regantes [irrigation farmers], the middle classes, workers and former trade unionists joined together, they not only paralysed the state but modified the legal structure governing water use and that was when they said: All right, if we continue in the way we have been we will be in conflict with each other. The only way to stop that confrontation between Bolivians or regression (philosophically speaking) to the Hobbesian state, is to reach an agreement, but an agreement that is sealed with the status of a constituent assembly. So it was that in 2000 an Indigenous political demand became a fundamental topic of debate. It occupied the political arena and from that time on further mobilisations took place, resulting in debates, meetings, and in turn proposals in the constituent assembly. The proposal for a constituent assembly was put on the agenda — as Sánchez de Losada was fleeing — for the new president, Carlos Meza, but at that point it was too much for the man, too complex for a person too closely linked with the old regime of exclusion. It was President Evo [Morales]’s turn to campaign around and later to place on his government’s agenda this popular program, this Indigenous program, which basically is the demand to participate in building the institutions, to participate in the common good and in the use of that common good, which is nothing but the political definition of a state. But obviously this conflicted with an entire experience, with an entire conduct, with an entire way of doing things of the ruling classes, the racist elites of the country, for whom the constitution was like a kind of personal and family heritage. constitutions had always been made in that way, they had always been put together among 20, or 40 or 60 friends, relatives and associates; and amendments had always been made to suit the related rulers in their management of government. And when it was the plebeian, the marginalised sectors, who asked to participate, these people had to agree reluctantly at first and, when they could, to conspire against the new constitution. And that is the sad, tragic, complex history of the constituent assembly. Called in March-April, elected in June, installed in August 2006. From 2006 until a week ago the history of the constituent assembly was the history of a majority will of a people that seeks to build its institutions collectively confronted by the obstacle of an opposing dominant racist elite prepared to convert its political minority into a right of veto in order to forestall the adoption of the constitutional draft. The majority in the constituent assembly developed proposals, laid down bridges to include the distinct sectors. But from September-October 2006 on, I would say, within two months from the installation of the assembly, there was set in motion an entire conspiratorial machinery in the assembly and in the constitutional draft, on various pretexts. First there was the debate on the famous two-thirds majority to approve the constitutional text, then the debate on the location of the capital, a discussion between regions of the country on where the seat of government and the seat of the Congress should be located, and later, despite the efforts of the assembly members to work out agreements between majorities and minorities, the paralysis of the constituent assembly through threats, harassment, assaults on the members that ended with the burning down of the homes of some members, the expulsion of the members from the city of Sucre by fascist groups organised in opposition to the very existence of this constituent assembly. The office of the vice-president and later President Evo repeatedly sought to counter this, proposing agreements, some consensus, that would allow the completion of a constitutional text. These attempts were all unsuccessful, because there was a distinct attitude that we should not have a new constitution, that possible agreements should be avoided at all costs and that it didn’t matter how much was conceded by the majority force in the assembly, it didn’t matter how many concessions were made in the proposed text of the constitution. The slogan was: "No constituent assembly'', and this conspiracy lasted, I said until a week ago, while even now in the Congress the political force of the right wing, the right-wing majority — a minority in the Congress but a majority in the opposition — is pursuing its demand that there be no constitutional text, that it must be blocked. So, once the constituent assembly met, in August 2006, 2007, August 2008, two years — in August things change. It has been two years of opposition, blockade, threats [and] blackmail that have forestalled the approval of a constitutional document that fully reflects the will of the people. A text was approved in Oruro, but not without difficulties. And it was in August — given that it was Congress’s job to call the referendum to approve the draft of the new constitution — that Congress got to debating it, but this time in quite different circumstances. There are various factors that enabled the convening of this session on the new constitution. The first, and perhaps the most important, was the overwhelming political victory of President Evo in the recall referendum. The referendum was held on August 10, and the president went from 54 per cent electoral support [in the 2005 presidential election] to 67 per cent, which is without precedent in the political life of Bolivia. This led to majority voting control over 96 of the 112 municipalities in the entire country. The right wing, territorially entrenched in four departments, lost two of the other five departments, lost municipalities and territories and remains confined to a marginal strip of the country. This was the decisive point that altered the correlation of territorial forces in Bolivian politics. It meant that imminently, rather sooner than later, the constitution would be approved. What did the right wing do? They set out to launch a coup d’état. They occupied institutions, destroyed institutions, occupied airports, blocked the legally constituted authorities from being present in the regions, murdered Bolivians, destroyed the country’s gas and oil pipelines in acts of terrorism. And the government marked time and then made a strong decision, [declared] the state of siege, arrested a prefect, protected the people, jailed persons involved or potentially involved in those assassinations. And, following the electoral defeat, that was the second moment, the military defeat of a portion of the golpistas [those forces attempting a coup]. They were isolated. UNASUR unanimously backed the constitutional government, the [US] ambassador was expelled, which meant that the conspiracy was left without a coordinator. Militarily, we took control of one department and in the others that were violently taken by that gang of criminals the people took their distance, turning their backs on those violent acts, so that was a military defeat that once again empowered the government with greater force to take decisions and proceed with the constituent process. And the third moment, clearly, was the great mobilisation, the great mobilisation of the social sectors, beginning in Santa Cruz. In a territory that was seemingly the property of the landowners, under the unfettered control of the landowners, the labouring masses rebelled, rose up, encircled the city, and mobilised to defend democracy and the new constitution. Later, President Evo led a gigantic, heroic march, the largest march in Bolivia’s history. Bigger than the march of the miners that closed the national revolutionary cycle back in the 1980s. The reception in La Paz was huge, 200,000 persons came to the Congress and demonstrated that there is social support. So it enabled the constituent process to get back on the rails, led to the approval of a referendum law in this new political context — the new electoral majority from 54 to 67 per cent, the new territorial power of the government throughout the country, east and west, north and south, city and countryside, the military defeat of the fascist right and the gigantic social mobilisation — which meant that in the Congress the right-wing forces were left isolated in the reactionary fascist sector, the democratic sector was strengthened, and the government — within the limits of certain flexible concessions — was able to ally with the democratic sectors and this ultimately gave us the two thirds, which is what made it possible to adopt a law setting the date and terms for the referendum that has been socially accepted by the entire country. The country has experienced tensions and risks of a civil confrontation over the constituent assembly, of course, because we have had an obstinate right wing that has resisted reaching any agreement that would allow the Indians to be co-participants as well in the development of a foundation text of the state. Its defeat, its rout, its political errors have meant that the right has split and as a result the government was able to build temporary alliances on the basis of certain agreements and adjustments to the constitutional text that isolated the right and gave us the two thirds that you have seen during the last week. The post-Oruro process and the 100 changes in the approved text On this very day, this morning, we had a meeting with the Central Obrera Boliviana,[3] Conalcam,[4] the Confederación Sindical de Campesinos,[5] the Confederación Sindical de Colonizadores,[6] the Federación Bartolina Sisa,[7] the Conamaq,[8] the Cidob[9]… and what not. The discussion was very valuable, it lasted throughout the morning and until five o’clock in the afternoon, very productive and very mature. It is not these social sectors who are complaining. It is some members of the constituent assembly, who are saying: “Excuse me, I was elected as a member of the Assembly and now they are changing this or that article of a text that I put together.” Legitimate complaints, which were answered by the government in this way: In the Congress we maintained, we preserved, we defended and we improved the fundamental core of the constitutional text, which is this process of building a state that has, as its structural core — with moral, intellectual leadership, hegemony in the Gramscian sense — the campesino and popular Indigenous movement. That core has not been touched at all. What we did was to make some clarifications, which in some cases improved the position in regard to Indigenous autonomy, for example, or in regard to the land question, in terms of constitutionally entrenching the procedures for reversion of lands that were not in the draft constitution. In other cases we corrected terms to make them express more effectively the essence of the text. For example, the word “República” [Republic]. There was no word “República” but the entire text takes the form of building the Republic: division of powers, rule of law, individual freedoms, etc. The word was lacking. So the word was added, amending eight of the 100 articles that were changed. The same thing was done with the Consejo de la Adjudicatura [Council of Appointment], which is the professional body for choosing judges. It was changed to Consejo de la Magistratura [Judiciary Council]. That one-word change amended nine articles. We did not change the essence, we changed one word. Discussion on the autonomy problematic There were, however, some points, some profound changes on the question of autonomy, of course. There was some confusion of levels between Indigenous autonomy, regional autonomy and departmental autonomy. What was done with the agreements is to establish more clearly the separation, the levels of autonomy, to consolidate the control and role of the State, of the central government, of the material, institutional and objective foundations of national unity, the unity of the country; and to decentralise in the Indigenous sphere, the departmental and municipal sphere, secondary functions, let’s put it that way. So yes, in this case some corrections were made. In the previous constitution, there was “legislative-regulatory authority”, which was expressed that way for later dialogue, negotiation and adjustment. Legislative authority followed by regulatory authority. This is an important change because things were separated so that now there is authority to legislate within the exclusive powers of the departments, but also to regulate. Those ambiguities have been overcome. In the case of the land question, for example, on which there is a whole debate, the referendum or the article that is going to be put to a vote in the referendum dirimitorio [the separate referendum question] in which the people will decide whether the limit on land ownership is to be five or ten thousand hectares, [10] what was done — without affecting the question in the referendum — was to bring it into line with international law, so that whatever the result, five or ten thousand, it will be prospective because the law cannot be retroactive. [11] What the constitutional text does is simply to add this provision, which any latifundista is going to win in any international court anyway, since the law cannot be retroactive to the disadvantage of the offender. And what the Congress has done is to clarify this fact, that the result, whether five or ten thousand hectares, will run both forward and backwards (if someone has 20 or 30 thousand hectares). If he is fulfilling a social and economic function, it will be respected, if he is not fulfilling an economic and social function, it will revert to the state. It is a procedural question, of normal reversion of lands to the state. The explanation was very well received by the social organisations. There were no objections. I have noted the protest of some members of the constituent assembly, who felt somewhat mistreated because others had altered the constitutional text, but in the organisations I believe there has been a more lucid understanding of the importance of the historical moment, of the importance of achieving a rapprochement with centrist sectors in order to achieve the two-thirds majority, but at the same time of being very careful that the central core of the constitution not be displaced and, in fact, it has not been displaced: plurinational state, Indigenous autonomies, absolute Indianisation of the entire state. Today the Indigenous are not only a nucleus of resistance in the state. The Indigenous, the popular, the plebeian, the campesino, the worker are present throughout the institutional structures of the state — government, Congress, Supreme Court, National Electoral Court, the public services, universities, education, health, justice…. We have here a constitution that had a core of plurinationality in the sense of the Indigenous as citizens and participants in building the unity of the state. This core has not been altered. The core of the economy, the strong presence of the state as a director of the economy, responsibility of the private economy but also of the community economy, the campesino economy, the urban micro-enterprise economy. It’s all there, guaranteeing ownership of natural resources by the state, constitutionally entrenching the nationalisation of natural resources. In terms of human rights, this is an extremely advanced constitution. We have corrected and relaxed some matters that have a lot more to do with political management. For example, if we elect members of Congress solely by territorial unit: uninominal (single-member representation), or members of Congress by presidential list: plurinominal members. [12] Uninominality favors majorities, we have known that since Sartori, who educated us on the matter. [13] Uniplurinominality to elect members of Congress favors the territorial majority, but also allows regional and local minorities to be expressed, which is good for a democratic society. That is what we have done. We have combined half unis, and half pluris. Does this have anything to do with the Indigenous movement? In truth, no. On the contrary, it does help to forge alliances. For example, in the north of Potosí. If it is only a uninominal election, conceivably the cooperativistas [14] will elect the deputy for the region. Fine, but the communities will remain on the margin. If we combine uni and pluri we can have a mining cooperativista as the uni deputy and a community deputy from the north of Potosí as the pluri representative. It allows us to form those wifala webs [15] in the social alliances and the compañeros understand it perfectly. There was no concession whatsoever on this, on the contrary the text was improved in order to allow mutual alliances of the social sectors with the social organisations in future. Guaruni, miners and campesinos. If it were only a uni system the miners would be elected and nothing more, but via a pluri system it is the miner and it is the campesino that can go in the same electoral formula. That type of correction improved the constitutional text. On the matter of how to amend the constitution, the major contribution of the members of the constituent assembly in Ororu was to say that any alteration that is made to the constitution must necessarily be put to a referendum. That is the central idea. In Oruro the changes were made by simple majority while here in La Paz the changes were made by two-thirds, but in both cases it is the people in the end that will vote in a referendum to accept or reject this change in the constitution. [16] In this spirit, the discrepancy between majority and two-thirds was corrected, and here the Indigenous campesino and worker comrades were very lucid. They said, fine, today, right now, we have a majority in the Congress. This could last five or ten or fifteen years. But what if later we are temporarily an electoral minority and the right wing regains control of the state? The right could, with a simple majority, change what is a major historical achievement. This had better not happen, better that we guarantee that changes to the constitution be made with two thirds of the Congress, but still it will have to be the people who, with their vote, will say whether this amendment is correct or incorrect. If you look closely at the corrections you will see that what has been done is to adjust the text to improve it, to overcome some ambiguities and in doing so define the concepts more clearly, which has enabled us to win support from centrist sectors in the Congress that gave us the two thirds, and now that means this constitution has suddenly been converted into everyone’s constitution. There is no difference with the constitution adopted in Oruro in structure or in essence. It is the same thing, with the addition of some precisions, partial modifications, corrections of words or some further details that enrich the constitution of Oruro, but its core remains intact. How the right wing adopted the autonomist discourse In the case of Bolivia, the question of autonomy has been raised in two ways, historically. The most enduring is the Indigenous aspect. You must know that 109 years ago an Indigenous leader, Zárate Vilca, in that dispute between mestizo elites around the issue of where the seat of government should be located — Sucre or La Paz — mobilised the Indigenous and demanded a type of federalism in which the Indigenous would be recognised within the state, with their own ways and customs. That is, the idea of cultures and peoples living together under a form of federalism is an approach that emerges from the Indigenous movement and in fact modern democracy has demonstrated that it is a very interesting form of balanced coexistence between different peoples and cultures. This Indigenous federalist aspect over the years, eighty years later, was to give rise to a debate within the Indigenous movement over Indigenous autonomies, territorial systems of self-government in which ways and customs, forms of territorial organisation, of local government of the peoples and Indigenous nations are respected. But the other variant of autonomy has arisen in the abandoned regions of the country. In Bolivia, as in many parts of Latin America, the wealth, power and property have been concentrated in small centres that have lived on the basis of extraction from other regions. And this is very pronounced in Bolivia. There are regions, more accurately zones, populations, that have generated a regional sentiment and that have felt mistreated by the central government, which does not build roads, which collects taxes, but which does not promote local development, does not provide potable water, provides no services — zones that attract little attention from the state while paying taxes or generating wealth from rubber, mining or agriculture. This regional sentiment has also existed in the country since the mid-1950s at least, although it goes back 150 years. In the last 50 years this sentiment has deepened. Now, what has happened is that the Marxist left of the Fifties, Sixties and Seventies never took the Indian Indigenous question into account nor did it take into account the regional issue. The Indigenous question was developed by the Indianista Indigenous movement, the Kataristas and later the MAS. But the regional question was not taken up by the left, it was taken up by the right and it is the right that began to build regional and local hegemony around this popular subject matter. So there are two agendas: The egalitarian agenda of the Indigenous peoples, of a first-class citizenship for everyone that includes autonomy of the peoples, came to be paralleled and sometimes confronted by the agenda of regional autonomy of the peoples but under the leadership of their oligarchies and economic elites. Since 2003 these agendas have been in conflict with each other, unnecessarily. What the government has done is to take another look at the entire problem, separate the wheat from the chaff, separate the imposter elites from a profound sentiment of the people for autonomy, and take hold of this sentiment and this demand, incorporate it into its strategic plan for power and isolate the imposter business elites, who were simply manipulating the autonomy issue for their own interests: land, resources of the state, etc. This surgery is what you have seen in the recent weeks. The surgery of separating out the popular movement for autonomy and a legitimate demand for enhanced democracy, enhanced territorial decentralisation of authority, improved distribution of resources, greater efficiency of the state, a popular demand, from its manipulation by the oligarchy. What happened in the Congress was the culmination of this surreptitious political operation which has lasted for several months. And yes it was hard, it was hard to understand that autonomy was not an act of the oligarchy, that autonomy was a democratic act. But, autonomy was being confused with those who were abandoning it. And sometimes we would like to throw out the baby with the bathwater, when the key thing is to remove the baby, throw out the dirty water and replace it with clean water. What I am summarising in a little phrase is a political fact that was hard for us, that took a lot of internal debates, rapprochements, agreements, in short, understandings, and internal self-criticisms. But in the end, the part of the autonomy demand of the regions that is legitimate, democratic, necessary and left-wing, got back on track, as a proposal for state power of the people, and this banner was taken away from the right, who were manipulating it, who had usurped it for some time, a banner that was never unique to the right but that paradoxically, during the last 20 years, had appeared as a banner of the right wing. Departmental autonomy which enhances the presence and democratic participation of the region in its authorities, its necessities; Indigenous autonomy which allows the revaluation of the forms of regional self-government of the Indigenous peoples, all of this within a plurinational state in which the Indigenous, campesinos and workers are the constructive nucleus. The major difference between this state structure and the neoliberal one is that in the latter the organising nucleus was the foreign companies and their local intermediaries. In the epoch of revolutionary nationalism its constructive nucleus was the urban petty-bourgeoisie. Now the hegemonic and expanding constructive nucleus is the world of the Indigenous, campesino and popular forces. Three forms of state that Bolivia has gone through in 100 years and for the first time a form of state in which those who lead and with whom the other social classes identity and recognise themselves are the popular sectors of the country, including on the issue of autonomy of course. Relevance of the Bolivian process for Latin America In all humility, I believe it is the most radical experience of social transformation in the continent. At the state level, because the majority of the peoples deprived of the right to build the state and control its resources are now participating. That fact alone signifies the most important revolution in Bolivia in its 183 years of existence. A racist and anti-Indigenous state that is now Indianising internally and spreading out to and working together with the non-Indigenous, mestizos, business people, students and youth. This is a transformation in the colonialism of the country. We are smashing a colonial existence, a colonial state and clearing the way for a state of extensive participation and social representation. This is something that we have not managed to do in this continent up to now. Secondly, this latent contradiction between the state as a monopoly and the state as a government of the social movements. The government of President Evo, with its difficulties, is a government of the social movements, which seems contradictory because the state is a concentration of decision-making while the social movements are the democratisation of decisions. This tension is experienced all the time, in every decree, in every meeting, in every decision of the government and the most obvious expression of this extreme tension of a social movement state is what you have experienced in the Plaza Morillo,[17] where what ultimately triumphed, what ultimately defined the agenda was the social movements, with a President who kept watch alongside the social movements and a Congress that deliberated but which at times was observed by the social sectors and in the end had to opt for what their social sectors had identified as the agenda. Less dramatic and less tension-filled things we experience all the time in terms of laws, decrees, resolutions, actions and initiatives of the state. Nowhere else in Latin America is there another government of social movements. I have had the sense of a radical experience of organised participation of the plebeian, popular, Indigenous society within the state itself. And the third element is this process of redistribution of wealth, via the processes of nationalisation of gas, oil, telecommunications, energy and those that are to come, which give it the material base for this form of democratic construction of the state. So those are the three levels that allow me to talk modestly, but also with pride at times, of the more radical experience of democratisation of power, the more radical experience of distribution of power, and if, in some way this is of use to other peoples and other governments, they are welcome to it. It is possible to distribute wealth, it is possible to democratise power, it is not inconceivable that decision-making can have many levels of social deliberation and participation, that this is not the exclusive job of the Congress. We can live this way, we can govern this way. The excluded ones, the campesinos, workers, market women in the informal economy, domestic workers, labourers, can be ministers, deputy ministers, foreign secretaries, members of Congress or the constituent assembly and achieve enviable economic results in comparison with what has been done by the Harvard graduates, an [annual] growth rate of 6.5 percent compared with the 3.2 percent average of the Harvard and Chicago specialists. It is possible to have a budget surplus, for the first time in history, as opposed to the recurrent budget deficit we had before. It is possible to industrialise, it is possible to distribute wealth and all this through the actions of people who were not educated to govern, but who now feel that it is their right to be able to govern… a farmer and shepherd like our president. As an historic experience, we think this enriches the potentialities and possibilities for collective action and the will for power of other campesinos, other workers, other housewives, other youth, other shepherds, other dispossessed, who are no longer willing to live for all time as dispossessed, shepherds or campesinos, but who can be President one day or campesinos the next; workers today, Congress people tomorrow; once a truck driver, later a foreign secretary. It is a wonderful way of understanding the state. Notes [1] Historically, Indianismo was a literary current, prominent in the Andean nations in the 1920s and 1930s, that attempted to rediscover and revalorise their “Indian” sources and traditions. Indianismo promoted the assimilation of Indigenous elements into the dominant national Creole and mestizo culture inherited from the colonial epoch. However, its representations of the Indigenous tended to be stereotypical. In Seven Interpretative Essays on Peruvian Reality, the Marxist José Carlos Mariátegui wrote: “Indigenist literature cannot give us a strictly authentic version of the Indian, for it must idealise and stylise him. Nor can it give us his soul. It is still a mestizo literature and as such is called indigenist rather than indigenous. If an indigenous literature finally appears, it will be when the Indians themselves are able to produce it.” (p. 274) [2] Katarismo is a critical political current that blends peasant class consciousness with Aymara ethnic consciousness in an Indigenous national, anticolonial and anti-imperialist discourse. It takes its name from the Aymara peasant commander in La Paz, Túpaj Katari, who in 1781 strangled Spanish forces holding out in the city in the course of a siege that lasted five months. [3] COB – Bolivian Worker Central, the largest labour federation in the country. [4] Coordinadora Nacional para el Cambio [National Coalition for Change], which organised the October 2008 march of the social organisations for the Refoundation of Bolivia. [5] Full name Confederación Sindical Única de Trabajadores Campesinos de Bolivia [CSUTCB – Single Confederation of Rural Labourers of Bolivia], formed in 1979 through a merger of several peasant unions. [6] Literally, the Trade Union Confederation of Colonisers, the latter word referring misleadingly to the reconstituted native peoples of Bolivia, the original nations of Kollasuyo and the Amazon: http://tinyurl.com/6glvzf. [7] Federación Nacional de Mujeres Campesinas Indígenas Originarias de Bolivia "Bartolina Sisa" [National Federation of Indigenous Native Women Campesinas of Bolivia]. [8] Consejo Nacional de Ayllus y Markas del Qullasuyu [National Council of Ayllus and Markas of Qullasuyu], an Aymara and Quechua organisation. Ayllus were the basic political units of pre-Inca and Inca life: http://en.wikipedia.org/wiki/Ayllu. The markas are generally composed of 4 ayllus. [9] Confederación de Pueblos Indígenas de Bolivia [Confederation of Indigenous Peoples of Bolivia]. [10] In a separate question to be put in the January 25 referendum, voters will be asked to select one of two versions (Options A or B) of article 398 of the draft constitution. The language of both options is identical except for the last sentence, which in Option A limits the maximum size of a landholding to 10,000 hectares, and in Option B limits it to 5,000 hectares. The article, without the last sentence, reads: 398. Latifundios and dual ownership are prohibited as being contrary to the collective interest and the development of the country. “Latifundio” refers to unproductive possession of the land; land that is not fulfilling a social economic function; operation of the land using a system of servitude, semi-slavery or slavery in labour relations or property that exceeds the maximum zoning area established by law. “Social economic function” is defined in article 397 as “the sustainable use of the land in the development of productive activities consistent with its capacity for greater use to the benefit of the society, the collective interest and its owner.” [11] In the Congress negotiations a new article was added, now numbered 399, which provides that the new limits on ownership of agricultural land will apply only to properties that have been acquired after the coming into force of the new constitution. However, a second paragraph provides that surplus lands (lands in excess of either the 5 or 10 thousand hectares limit, depending on which is ratified) that are fulfilling a Social Economic Function will be expropriated. The “grandfathering” of existing properties in excess of the limit on land ownership is clearly a retreat from the draft constitution adopted by the constituent assembly. The Vice-President’s explanation is not compelling. The prohibition on retroactivity as a principle of law, including international law, pertains primarily to the criminal law; one cannot be convicted of an offence that did not exist at the time of one’s action. But international law allows sovereign immunity for expropriation of property, while usually calling for compensation and the application of due process. In fact, it is hard to imagine a serious land reform that does not provide for expropriation of large estates. And that seems to be the point of the second paragraph in article 399. [12] The new Plurinational Legislative Assembly is to be bicameral. Half of the 130 members of the House of Deputies (Cámara de Diputados) will be directly elected, the other half will be chosen from party lists headed by candidates for president, vice-president and senators in proportion to the votes obtained by each party, “group of citizens or indigenous people”, as determined by subsequent legislation. Men and women will be equally represented. There will be 36 senators, four from each department (two of the four elected on the basis of proportional representation). See articles 146.1 to 148. [13] See Giovanni Sartori, Ingeniería Constitucional Comparada: Una investigación de estructuras, incentivos y resultados (Fondo de Cultura Económica: Mexico City, 1994). [14] A reference to miners who are members of cooperatives, as distinct from those employed by the state mining corporation. [15] Wifala (or wiphala) symbolises the national and cultural unity of the Amazon Andes, dating back to the Inca homeland. The seven colours of the Wiphala flag are displayed in various patterns according to the different nationalities, but it is primarily associated today with the Aymara-speaking peoples. [16] The provisions of the original draft text were approved by simple majority in the constituent assembly in Oruro, while the new text adopted in the negotiations with the Congress in La Paz was adopted by a two-thirds majority. [17] The site of the parliament and presidential palace, where indigenous and peasant organisations had gathered on October 21 following their week-long march on La Paz in support of the government and the new constitution. See Hervé do Alto, “Bolivia: Compromise agreement allows progress”, http://www.greenleft.org.au/2008/773/39855

Our most important goal could be ditching monolithic view of power

by Nandor Tanczos from NZ Herald 1 April 2005 There is no doubt New Zealand is undergoing a process of constitutional change. Unusually, it’s not being forged in the fires of civil war, insurrection or coup d’etat, so we have the luxury of taking a more measured approach than some other nations. Our process of constitutional change is incremental, but not without tension. Our structures and processes of decision-making are altering inexorably, the forms and institutions of the state evolving, and symbols of authority that people hold dear are under question. People have an enormous emotional investment in their relationship to the flag, our head of state and our national anthem. However, when access to resources, privilege and decision-making is threatened, tensions come to the fore. Thus, it was no surprise to see some politicians once again turning to attack "activist" and "hero" judges. In a world where the sovereignty of the nation-state is becoming an increasingly tenuous concept with the advent of multinational agreements on trade, investment, intellectual property and the like, some parliamentarians are apt to get touchy about their remaining powers. In New Zealand, the repatriation of our final court of appeal has also inevitably highlighted tension. While the Privy Council remained our final court, inaccessible, distant and uninterested in the legal affairs of the South Pacific, tension between the Government and the courts was rare or largely unnoticed. A live Supreme Court, authoritative and assertively independent, is quite a different story. So we have seen sharp public debate around the parameters of judicial activity and Parliament's legislative ability. Yet, it would be mistaken to see this as a fight between judges and politicians. There are judges who strongly assert the supremacy of Parliament. There are parliamentarians, like myself, who see the judiciary as a basic protection for ordinary people against the arbitrary power of the state. What released Ahmed Zaoui from prison is not that we are a democratic country but that we uphold the rule of law. As Philip Joseph has said, "majoritarian rule can be as tyrannical as any totalitarian regime if it is not tethered to liberal ideas of tolerance, freedom and respect for human dignity". Those of us who dispute absolute parliamentary supremacy do not thereby assert judicial supremacy. While the argument that judges are unelected and, therefore, inferior in function to politicians is absurd, it clearly is true that their functions are different and claim legitimacy from different sources. The question is not who is top dog but how do we maintain a dynamic and healthy collaboration between the judicial and the political branches of government? The ongoing dialogue between the courts and the Government on the foreshore and seabed is illustrative. The Foreshore and Seabed Act was passed because the Government did not like a finding of the Court of Appeal that the Maori Land Court had jurisdiction to hear a case contesting ownership of some foreshore and seabed. Government ministers have since expressed concern because the Chief Judge has agreed to hear a claim asserting customary rights based on rangatiratanga and kaitiakitanga under the act. Parliament continues to assert its right to legislate and to access the courts, while judges continue to interpret and apply. Neither is a subordinate role. Yes, judges are unelected, which simply means their accountability is to the law in its fullest sense rather than to Parliament or voters. In a colonised country such as New Zealand, with a majority settler population, the tension between votes and rights is highly charged. The assertion that Parliament is sovereign because the majoritarian mandate is the highest form of legitimacy serves the interests of the Pakeha majority but does not tell the full story. The legitimacy of the parliamentary system has its origin not in the democratic mandate but in a genuine social contract. It was the Treaty of Waitangi, an agreement between two sovereign peoples, that provided the basis for Pakeha settlement and government in this country. It scarcely seems conceivable that the foundation of constitutional legitimacy can act as no enforceable constraint on Parliament. Yet the one thing the foreshore and seabed legislation showed most clearly was the lack of any real constitutional protection for Maori. It was a modern-day confiscation, breaching the Treaty of Waitangi, overturning common-law rights, and enacted in the face of enormous opposition. I suspect that if a more collaborative view of power was held by members of the executive towards the judiciary, Maori and the public, a far better outcome would have been achieved. It may be that ditching our monolithic and centralised view of power is our most important constitutional goal.

Changing the game plan: the Foreshore and Seabed Act and constitutional change

by Dr Maria Bargh from New Zealand Journal of Social Sciences Online May 2006 In June 2003, when the Government announced its intention to legislate regarding the foreshore and seabed, two of the Government’s central claims were that they sought to protect the foreshore and seabed for “all New Zealanders” and that they were treating all New Zealanders in a fair and equal manner within the legislation and according to the procedures of parliament. In this article, I will firstly examine a number of events which have occurred since the passing of the Foreshore and Seabed Act 2004 and which I argue bring into question the Government’s claims surrounding the foreshore and seabed legislation.1 Having the Government’s actions characterised as breaching Te Tiriti o Waitangi and national and international human rights laws and standards suggests a level of inadequacy in our constitutional arrangements. It is in respect of this inadequacy that a change in game plan appears now to be required. When players change the game plan in rugby they completely change the tactics of their play. I suggest that given the inadequacies of our current constitutional arrangements, a change is needed to provide for constitutional development and to adequately protect Te Tiriti, human rights law, and subsequently Maori. The second part of this article discusses the Maori Party. In particular, I will examine the ways in which the Maori Party is supporting and directing an increasing politicisation of Maori communities away from strategies based outside the State towards those associated with the electoral process. And it is these efforts which constitute the second change of game plan emphasised in this article. I argue that the Maori Party is encouraging a change in game plan both to Maori (to redirect politicisation away from activities outside the State to the electoral process) and to non-Maori politicians to halt actions which continue to normalise racism and injustice. This article concludes by suggesting that the Government’s breaches of Te Tiriti and human rights, and the Maori Party’s encouragement of a change of game plan for Maori, offer ample and persuasive reasons of the need for constitutional change (as well as some forms which such change might reasonably be expected to take). THE FORESHORE AND SEABED ACT In the months after the Foreshore and Seabed Act came into effect in 2005, there were a series of events which raised doubts about two of the Government’s claims surrounding the legislation: first, the claim of protection for all New Zealanders, and second, that of fair and equal treatment. The claim to be seeking to protect the foreshore and seabed was articulated quite specifically and is included in the introduction to the Act itself (Foreshore and Seabed Act 2004, 1: 3). The second claim of fair and equal treatment was a broader assertion regarding the conduct of the Government and was embodied in key statements made by the Prime Minister (Helen Clark), the Deputy Prime Minister (Michael Cullen), and the then Attorney-General (Margaret Wilson).2 This broader claim to be treating everyone fairly and equally also tied back to the argument in other ways, including reinforcing insinuations made by the National Party leader Don Brash that Maori are somehow receiving “special privileged treatment”.3 There are, of course, many other events and inconsistencies regarding, for example, certainty and public access, which we could investigate in relation to the foreshore and seabed legislation.4 However, due to space constraints, this study limits itself to the claims of protection and fair and equal treatment. The path to the Foreshore and Seabed Act itself began in June 2003 when the Court of Appeal ruled that the Maori Land Court had the jurisdiction to hear claims related to the foreshore and seabed. Shortly thereafter, the Government announced that it needed to legislate to protect the foreshore and seabed for all New Zealanders. The Act was passed in November 2004 and came into effect in January 2005. The Act vested the foreshore and seabed in the Crown and established a system under which Maori could take claims regarding customary rights to the Maori Land Court and territorial rights to the High Court. However, under the Act, these rights and remedies are of a radically lesser kind than would have been possible previously.5 The following series of events draw into question and make problematic the Government’s claims of legislating in order to “protect” the foreshore and seabed. It is important to note that they are part of a broader and long-standing government approach which seeks to continue privatisation and corporatisation, while encouraging a greater role for the market mechanism in areas of the community previously governed in other ways (Bargh 2002; Hindess 2002). These particular examples, provided below, highlight the precise difficulties regarding the extent and limits of kawanatanga with regard to resource management and development, which I argue require addressing. In early March 2005, information began to circulate about applications from national and international companies for licenses to explore and mine the ironsands from Raglan to Kaipara Harbour (Thompson 2005). Some mining had taken place in small sections of those areas, but the new applications were far more extensive and would involve mining and exporting huge quantities of ironsands. A number of environmental groups have argued that this kind of mining would have potentially devastating consequences for many species, including the Maui dolphin which lives in those waters and whose population now hovers at 100 (Thompson 2005).6 Also in March 2005, Steve Maharey (Minister of Research, Science and Technology) and Pete Hodgson (Minister for Land Information) announced a project to survey the ocean within our Exclusive Economic Zone and out to the edge of the continental shelf, which the Government has now submitted to the United Nations for inclusion in New Zealand’s Exclusive Economic Zone (Torbit 2006). The survey, they announced, was for scientific and economic purposes (Maharey & Hodgson 2005). Steve Maharey stated that: “There has been a huge increase in the income New Zealand generates from the oceans over the last decades … [and] there is potential for much greater increases in wealth … in the future … Future possibilities for new wealth that could be derived from the oceans are diverse. These opportunities could be in the biotechnology area; new species yet to be discovered could provide routes to novel substances. Or the microbiological community under the sea could provide new opportunities for a range of industrial and pharmaceutical processes. The mineral wealth could also provide considerable opportunities. (Maharey & Hodgson 2005)” In April 2005, it became public that the New Zealand Treasury was considering how the foreshore and seabed should appear in financial statements, and therefore how it was to be valued for the purposes of tendering out sections (for oyster farms or other exploitation) (Crewdson & Milne 2005). In July 2005, Crown Minerals made public its decision to allow Seafield Resources Ltd to conduct gold exploration of the seabed on the West Coast of Te Waipounamu (South Island). The exploration is not simply of the seabed, as defined from the low-water mark to the edge of New Zealand’s Exclusive Economic Zone, but also beyond towards the edge of the continental shelf (Madgwick 2005). With these events in mind, it is appropriate to consider the Government’s specific claim that it needed to legislate to “protect” the foreshore and seabed for all New Zealanders. It is difficult to imagine how creating a system to exploit the foreshore and seabed for monetary gain, including increasing mining of the foreshore and seabed (activity which is generally destructive of the environment and of ecosystems), might contribute to a concept of “protection”. It is clear from these projects that the exploitation of the foreshore and seabed in this way is not a random and unexpected development but rather part of a broader agenda of privatisation, commercialisation, and extension of the market mechanism, consistent with policies which the Government has pursued for some time and which played a key role in its unwavering intention to legislate.7 It also continues a much longer series of tensions between the Crown and Maori regarding the ownership of resources and how the benefits are to be distributed, highlighting the need for constitutional clarity on these points. The second set of events, as noted at the outset, brings into question the broader government claim that the Foreshore and Seabed Act treated everyone fairly and equally. Margaret Wilson, while serving as Attorney-General, analysed the Foreshore and Seabed Bill to assess whether it was consistent with the Bill of Rights Act 1990. She argued that while it appeared that the Act discriminated against Maori, this was justified and therefore acceptable under section 5 of the Act, which allowed for discrimination if it can be “demonstrably justified in a free and democratic society” (Bill of Rights Act 1990).8 Prime Minister Helen Clark also clearly stated her view that the legislation was in her mind fair and equitable. In a letter to members of the community, Helen Clark explicitly stated: “the legislation is fair” (Clark 2004). By contrast, however, after eight months of processing an application filed by Te Runanga o Ngai Tahu, the Treaty Tribes Coalition, and the Taranaki Maori Trust Board, the United Nations Committee on the Elimination of Racial Discrimination (CERD) released its report in March 2005, finding that the Foreshore and Seabed Act 2004 “appears … on balance to contain discriminatory aspects against the Maori” (United Nations Committee on the Elimination of Racial Discrimination 2005). In the kind of diplomatic language that is expected of the United Nations committees, which includes acknowledging the New Zealand Government’s efforts, CERD urged the Government to resume a dialogue with Maori to reduce the discriminatory effects, including thorough legislative amendment (United Nations Committee on the Elimination of Racial Discrimination 2005). In response, Helen Clark and Michael Cullen made statements suggesting that those on the Committee were not qualified to make such a ruling, and dismissed the tribes who took the case (cited in Erueti & Charters 2005). Such behaviour from the leading representatives of the New Zealand Government does not assist in strengthening what could be viewed as the New Zealand Government’s somewhat declining compliance with international human rights requirements.9 In June 2005, the Federated Farmers launched a campaign during a protest outside Parliament against proposals to introduce a Bill on public access to waterways. Cabinet had been considering a Land Access Strategy since mid-2004 and had been expecting to introduce legislation prior to the election (Sutton 2004). A week after the small Federated Farmers protest at Parliament and the blocking of access across their land, Associate Rural Affairs Minister Hon. Jim Sutton announced that introduction of the Bill was to be postponed. In a press statement, Sutton argued that given the protests against the proposal, the Government was persuaded that it should pause the introduction of legislation and re-enter negotiations with “major stakeholders in search of greater consensus” (Sutton 2005). It was also revealed that the Government had agreed in principle to pay compensation for any public access arrangements (Berry 2005). This treatment of protesting farmers stands in sharp contrast with the treatment of those opposed to the Foreshore and Seabed Act, who participated in numerous protests including the Hikoi to Parliament; who wrote and presented submissions; and who attempted peacefully through various events to halt the foreshore and seabed legislation. At no point did the Government consider not legislating on the foreshore and seabed issue, despite overwhelming opposition throughout their supposed “consultation” hui around the country, opposition in the streets, and also opposition in the form of 94% of the approximately 4000 submissions to the select committee considering the Bill (Fisheries and Other Sea Related Legislation Committee 2004). The alternatives put forward by hapu and iwi representatives—that is, covenants to guarantee public access and non-saleability—were never given due consideration by the Government. In addition, it may be noted that at no point did the Government agree to pay compensation for the effective expropriation of the foreshore and seabed or for denying Maori the legal capacity to bring particular cases to court. Under the Foreshore and Seabed Act, if Maori groups achieve a favourable ruling regarding territorial customary rights in the High Court, they can enter into negotiations with the Attorney-General and the Minister of Maori Affairs, including discussions on possible compensation, but there are no guarantees and no mechanisms for appeal if negotiations break down (Foreshore and Seabed Act 2004). Given the huge power inequalities in current Crown-devised Treaty of Waitangi settlements between iwi and the Crown, it can reasonably be assumed that negotiations regarding the foreshore and seabed would experience those same inequalities. It is important to acknowledge the very different circumstances in each of these cases. Arguably, in the foreshore and seabed case, the Government was under pressure from a large proportion of the Pakeha public to resolve quickly the question of foreshore and seabed rights, including property rights. In the public access to waterways case, however, the Government may not have felt the same sense of urgency. Nevertheless, the Government’s treatment of those opposing the foreshore and seabed legislation, and those opposing the public access to waterways proposals, proved inconsistent.10 The treatment of Maori within the Foreshore and Seabed Act itself has also been inconsistent to that afforded to other New Zealanders: the Act is inherently racially discriminatory. The different treatment of peoples within the legislation and in the legislative process aptly demonstrates the inadequacy of New Zealand’s current constitutional arrangements. In particular, it highlights the way in which Maori are not adequately protected from racial and other forms of discrimination. Specifically, I am here referring to the notion of absolute parliamentary supremacy and the idea that Parliament has the right to legislate without being overly constrained by human rights law, the Bill of Rights Act 1990,11 the Human Rights Act 1991, and by the Courts, as in the case of the Ngati Apa ruling (Attorney-General v Ngati Apa 2003) on the foreshore and seabed issue. In a democratic polity in which the majority rules, it is difficult to see how absolute parliamentary supremacy can be capable of protecting minority rights, in this case Maori rights, when these are in jeopardy. The discrimination against Maori surrounding the Foreshore and Seabed Act specifically highlights this inadequacy. It is for this reason that a change of game plan seems appropriate, indeed overdue, an issue to which I will return shortly. It is also important to note at this point that under the Bill of Rights Act (section 7) the Attorney-General is required to report to the House of Representatives on any provision of a Bill which is introduced which appears inconsistent with the Bill of Rights (Thomas 2002). Despite the generally unproblematic operation of this function, in the case of the Foreshore and Seabed Bill the tension within this provision was unmistakeable and constitutionally questionable, given that the Attorney-General had been overseeing the drafting of the very Bill—the Foreshore and Seabed Bill—on which, acting as Attorney-General, it was necessary to advise the House with respect to its compliance with (or breach of) the Bill of Rights Act. The extent of this tension can be seen in the Attorney-General’s acknowledgement that there might appear to be discrimination but that on the whole it was justified—a view problematic in itself, and in contrast to the view taken by a UN body, CERD, which emphasised that the Act had discriminatory features.12 What occurred was a clear conflict of interest for the Attorney-General, one which casts a shadow over the legislative process and the degree of protection given to New Zealanders’ rights as intended by the section 7 provision. Despite numerous human rights breaches, such as the right to freedom from racial discrimination, the right of access to and protection from the law, the right to own property, individually or collectively, and not to be arbitrarily deprived of it, the right to enjoy one’s own culture, and the right to self-determination, the post-foreshore and seabed political environment can perhaps be seen as an example of the almost tragically hopeful persistence of Maori. Throughout the past 160 years, despite the Crown constantly breaching the Treaty of Waitangi, Maori have continually regrouped, creating new political formations and testing new and established avenues to achieve change. In the face of blatant racism and other breaches of human rights, Maori have continually used non-violent means to achieve the goals of tino rangatiratanga. It is in this context that the formation and experience of the Maori Party can be considered. It is quite a feat to be politicising and mobilising so many Maori who have previously been unconvinced of the efficacy of participating in this particular form of governance—the formal electoral process—as it can not, of course, be assumed that Maori are not participating in other forms of decision-making in the community. THE MAORI PARTY AND THE POLITICISATION OF MAORI The increased politicisation taking place in Maori communities can not be solely attributed to the Maori Party. For many Maori it was the foreshore and seabed issue, and the meetings and educational campaigns of people such as Moana Jackson and Mereana Pitman, surrounding and during the Hikoi, which reminded people of the legitimacy of Maori perspectives and the crucial need for constitutional change. This increased politicisation was strengthened and facilitated by the participation of Whare Wananga and Maori Television. It needs also to be acknowledged that the impact and heightened level of public displays of racism following Don Brash’s 2004 Orewa speech may have highlighted for many people the stakes involved: that is, what a country can be reduced to in a climate of human rights abuses. By directing this politicisation into the electoral process, the Maori Party is encouraging Maori to continue pursuing avenues for change within the State system. Politicisation within the electoral process represents a distinct departure from the politicisation which surrounded the initial reactions to the Government’s unrelenting intention to legislate on the foreshore and seabed. At that time there was a great deal of disillusionment amongst Maori and Pakeha regarding the process, and the very legitimacy of government, when the Government was seen to be pursuing legislation despite overwhelming opposition and in defiance of criticisms of the legislation as blatantly breaching national and international human rights laws and standards as well as the Treaty of Waitangi.13 There were numerous groups questioning how long Maori could and would continue to respond in a non-violent manner to such human rights and Treaty breaches. Professor Margaret Mutu suggested that the Government’s actions could be interpreted as a “declaration of war” (Mutu 2004), while Maori Language Commission CEO Haami Piripi warned that civil war could potentially ensue from the legislation given that it “destroys any confidence we might have in Parliament and in Government to govern fairly” (Haami Piripi cited in Milne 2004). Direct action and other forms of protest further demonstrated the level of frustration and anger which existed in various communities. The New Brighton Pier was occupied in Christchurch and numerous other protests took place at bays around the country including Matauri Bay. There was also an axe attack on the Prime Minister’s Auckland electoral office as well as various non-violent street protests.14 These kinds of reactions can not be perceived as totally unexpected and are certainly not without precedent here or internationally in cases where human rights are violated and/or where historical injustices are not addressed and in fact continue to be committed. It is the actions of the Maori Party, directed at increasing politicisation in the electoral process, which can be described as encouraging a change in the game plan. In the face of blatant discrimination against Maori, it is not unexpected that various groups would feel compelled to deploy civil disobedience and direct action to achieve goals which appeared to be unachievable through the courts and the legislative process, as in the case of the foreshore and seabed. The Maori Party’s encouragement of a change in the game plan therefore can be understood as in part a message to the Maori community, to focus that frustration and despair away from resistance outside the State to the electoral process, and also, I would suggest, towards non-Maori politicians, some of whom are normalising public and overt displays of racism and injustice. As a strategy of resistance, or as part of the quest for achieving tino rangatiratanga, Maori have a long history of involvement in the electoral process and Parliament. Since 1868, there have been 79 Maori MPs in Parliament at various times and in various combinations.15 In the early 1900s, the Young Maori Party also had ideas about working within the parliamentary system to improve the status of Maori. More recently we have seen Mana Motuhake, Mana Maori, and arguably the “tight five” in New Zealand First representing themselves as specifically pro-Maori and part of a broader set of goals for Maori development.16 The idea therefore of attempting political change within Parliament is far from an untested one for Maori. What may perhaps differentiate the Maori Party from other Maori individuals, parties, and representatives who have been in Parliament could be its claims to be representing the Maori component of the Treaty of Waitangi, that is, as the “Treaty partner of the Crown in parliament” (Maori Party 2005). For instance, election material for the Maori Party’s Te Tai Tonga candidate, Monte Ohia, states: “Maori Party: your vote for the Treaty Partner” (Maori Party 2005). There are three issues which might make problematic the notion of the Maori Party as the Treaty partner in Parliament. Firstly, it is almost certain that party votes for the Maori Party will come from both Maori and non-Maori, meaning that the party’s support base is not exclusively Maori. Those who signed te Tiriti, however, represented whanau, hapu, and iwi exclusively. This creates a tension, therefore, if the Maori Party seeks to represent itself as literally the Treaty partner, if that is to mean only Maori, when its support base is not exclusively Maori. Secondly, votes for Members of Parliament come from individuals representing themselves, whereas again those who signed te Tiriti signed on behalf whanau, hapu, and iwi or on behalf of themselves as part of these larger social units. The third issue which might make problematic the notion of the Maori Party being the Treaty partner in Parliament is the question of whether those who enter Parliament and particularly those who form Government consequently comprise the Crown. Definitions of the Crown generally emphasise the executive or Cabinet as fulfilling that role (Office of Treaty Settlements 1999: 22). However, if we understand the Crown as those authorities which engage in the functions of governing, then government departments, local government, and Parliament can all be seen as the Crown in a broader sense (Potaka 1999). The Maori Party’s suggestion that it will represent the Maori Treaty partner in Parliament also has significant implications for how New Zealand’s constitutional arrangements are to be considered or conceptualised. If we utilise a “Maori Party as Treaty partner” framework, then our parliamentary democracy begins to lean more towards a dual house model, with political representation and decision-making divided in new ways. This is in fact consistent with a model of governance explicated by Professor Whatarangi Winiata, the president of the Maori Party, which envisages a Tikanga Maori House, a Tikanga Pakeha House, and a senate or Treaty of Waitangi House (Durie 2005b). Recently, Winiata has indicated that this framework is consistent with the Maori Party’s goals in Parliament (Winiata 2005). He argues that the two lower houses could effectively be placed “into the one house that we know as parliament”. Winiata appears to see no inconsistency with the Maori Party as the Treaty partner potentially involved in the exercise of Crown duties and those of tino rangatiratanga. He argues that “the Maori Party, jointly with all other parties, would be responsible for kawanatanga and rangatiratanga ...” The third house referred to in Winiata’s proposal could presumably be the Waitangi Tribunal, which currently has the function of investigating claims brought to it by Maori regarding breaches of the Treaty and consistency of legislation with the principles of the Treaty. Amendments to the Tribunal’s funding arrangements and powers would presumably need to be made to provide the capacity to deal with any broader tasks. In his report, the United Nations Special Rapporteur on the human rights and fundamental freedoms of indigenous peoples, Rudolfo Stavenhagen, made a number of recommendations which would complement a strengthening of the powers of the Tribunal. The Special Rapporteur was in New Zealand in November 2005 to investigate the human rights situation of Maori, in large part as a consequence of the CERD decision. In addition to recommending that the funding and powers of the Tribunal be expanded, he also recognised the need for constitutional reform to “clearly regulate the relationship between the Government and Maori on the basis of the Treaty of Waitangi and the internationally recognized right of all peoples to self-determination” (Stavenhagen 2006). There have also been suggestions that the Maori Party would seek to caucus all Maori MPs to foster a sense of common Maori kaupapa which might have the potential to destabilise the adversarial nature of party politics within Parliament. While the Maori Party might have intended to foster this manner of cooperation with Maori in other parties, this might prove difficult given the extent to which the Maori Party continues to highlight the foreshore and seabed issue and thus the complicity of the Maori Labour MPs, in particular, in the passing of that Act.17 It remains to be seen whether directing energy to a political party is the best way to achieve constitutional change. However, in the interim, the experience and outlook of the Maori Party raises some interesting issues to consider. CONCLUSION While the intensity of the issues surrounding the post-foreshore and seabed climate may well have appeared in 2005 to be election year posturing, there remains a continuing sense of Tiriti and human rights breaches and a sense of injustice stemming from the Foreshore and Seabed Act. There is a clear sense that once again in the history of our nation-state, those who hold particular positions of decision-making power have failed to be convinced by a calm and longer term vision of the great potential of fostering positive race relations. Some hope is provided, however, by the extensive mobilisation going on in Maori communities, where a non-violent response continues despite intense provocation. In summary, it has been noted that the Government’s actions post-Foreshore and Seabed Act have brought into question its claims for legislating in the first place. With that legislation breaching Te Tiriti o Waitangi as well as national and international human rights laws and standards, the flaws in our current constitutional arrangements are once again apparent. The foreshore and seabed legislation is not the only statute aimed specifically at removing Maori culture, rights, and property. This episode is part of a sad and sorry history and it is essential now that we change the game plan so that legislation is not used in such a manner in the future. The use of absolute parliamentary supremacy to enable these human rights breaches to be committed is a reminder of the inherently problematic nature of this notion, and the system which arises from it, one that fails to adequately protect Maori (and indeed other New Zealanders). This country does not simply require constitutional change if, by that, we are considering merely matters of institutional arrangements and legislative procedure. There is also a need for constitutional change to be grounded in a memory and a vision of who and where we are and where we come from. This should also be premised on Maori tino rangatiratanga and Te Tiriti o Waitangi. It is not too late to repeal the Foreshore and Seabed Act and to conduct ourselves in a manner which is respectful of human rights and which fosters positive race relations. This article has been entitled “changing the game plan” as this is what the Maori Party is attempting to do—change the playing tactics. But the game plan needs to be changed to bring to an end the human rights and Te Tiriti o Waitangi breaches, and instead to encourage the pursuit of constitutional change and positive race relations. As one avenue for exploring game plans and remaining within the sporting metaphor with which this article began, I would like to turn for a moment to the rugby game between the Maori and Lions teams that took place in June 2005. Let us think of what it means to have a national Maori rugby team which plays in a game with other nations, nation versus nation. This situation—which some might call separatism—has not destroyed the nation-state: indeed, it is seen as positive. Consider also the way in which on the night of that Maori-Lions game the definition of Maori often stood in for New Zealanders or the way that people conceived of the Maori team as being in some ways a partner to the All Blacks, another national team. It reminds us that we do have a number of polities existing and flourishing in this country at the flax-roots and grassroots. It is well past time for us to extend this to our national constitutional arrangements. REFERENCES Attorney-General v Ngati Apa 2003. 3 NZLR 643. Bargh M 2002. Re-colonisation and indigenous resistance: neoliberalism in the Pacific. Unpublished PhD thesis, Australian National University, Australia. Berry R 2005. Retreat on public access to farmland. The New Zealand Herald, 29 June. Bill of Rights Act 1990. Clark H 2004. Letter dated 7 April. Crewdson P, Milne J 2005. Putting a price on the foreshore. Herald on Sunday, 24 April. Cullen M 2004. Human rights and the foreshore and seabed. 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The paper, entitled “Calling an Audible: The Political Climate Post-Foreshore and Seabed Act”, drew on an expression used in the game of gridiron in the United States, in which leadership is sometimes displayed on the playing field by the quarterback surveying the situation and opting to change tactics. 2See, for example: Clark (2004), Cullen (2004), and Wilson (2004). 3The notion of “special privileged treatment” for Maori has been critiqued by numerous sources. See, for example, Durie (2005a). 4See, for example, the Waitangi Tribunal (2004) Report on the Foreshore and Seabed Act for a critique of certainty, arguing it could easily be conducted on a case by case basis. Regarding access, see the Land Access Strategy where the Office of the Minister of Rural Affairs (2004) admits that access to the “beach” (which the Government kept claiming the issue was about) is not covered by the Foreshore and Seabed Act 2004. Or see the Orakei Act 1991 for an example of legislation where Maori are trustees of land, and access is ensured without confiscation. 5See the Foreshore and Seabed Act 2004; and Jackson (2004). 6See also Kiwis Against Seabed Mining, www.blacksands.org.nz. 7For literature on neoliberal policies of privatisation in New Zealand see Kelsey (1993, 2002) and Jesson (1999). 8However, as highlighted by the Peace Movement Aotearoa (2004) submission on the issue, the test of whether or not a less discriminatory or non-discriminatory means by which the Government’s objectives could be achieved was not satisfactorily applied in her report. It is clear that the Government did not consider any less discriminatory alternatives to this legislation, having announced directly after the Court of Appeal ruling that it would extinguish customary title, and moving inexorably in that direction from that point on. 9Other breaches include those noted by UN committees monitoring compliance with conventions regarding the rights of the child, and against torture, which have also made criticisms of New Zealand policy in recent years. The Waitangi Tribunal in its report on the Foreshore and Seabed proposals, as well other commentators, had already warned the Government, prior to legislating, that it breached human rights and the Treaty by doing so; however, these concerns were dismissed. 10Let us put to the side for the moment the fact that some of these people may be the same and recognise that the majority of people who comprise the Federated Farmers Association are non-Maori. 11There is no provision under the Bill of Rights Act 1990 for judges to declare inconsistent legislation invalid. See McHugh (2002) and Thomas (2002). 12Ex-Judge of the Court of Appeal E. W. Thomas has argued that there are procedures available if it is thought inappropriate to entrust the Attorney-General of the day with the responsibility of assessing the inconsistency of legislation with the Bill of Rights Act; however, these procedures were not invoked in this case. See Thomas (2002). 13See, for example, Takutai Moana Poneke Collective (2004). 14See, for example Mair (undated); The New Zealand Herald (2004); and Takutai Moana Poneke Collective (2005). 15For a list of all see Maori Members of Parliament. 16Mana Motuhake and Mana Maori were small parties seeking to represent Maori interests. The “tight five” refers to five Maori MPs elected to Parliament for New Zealand First at the 1996 election, winning all of the then five Maori seats (traditionally held by Labour). 17Lindsay Te Ata o Tu MacDonald has suggested that the Maori Party needs to “build on the numbers of Maori in Parliament, rather than replacing those already there” (MacDonald 2004: 10).