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The New Constitutions and the Transformation of Democracy in Bolivia and

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Chapter · January 2012

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 The New Constitutions and the Transformation of Democracy
in Bolivia and Ecuador

Jonas Wolff, Peace Research Institute Frankfurt (PRIF), wolff@hsfk.de

Published in: Detlef Nolte/Almut Schilling-Vacaflor (eds.): New Constitutionalism in

Latin America: Promises and Practices, Farnham: Ashgate, 183-202.

Introduction
Already in 1998, Alvarez et al. (1998: 1) noted that “much of the political struggle”
waged in contemporary Latin America was “over possible alternative blueprints for
democracy.” The social movements that Alvarez et al. looked at not only questioned
particular (neoliberal) economic and social policies, but also challenged the
fundamental parameters of post-transition democracy as it had emerged from the twin
processes of political democratization and neoliberal restructuring. Looking at the
region’s indigenous movements, Yashar (2005: 30) alludes to a “postliberal challenge,”
“that aims to contest and reformulate the terms of democratic and multicultural
citizenship,” and which ultimately has an impact on “the future course and quality of
democracy.” Regarding the recent political shift to the left in Latin America, Arditi
(2008: 67) finds evidence of “experimentation with post-liberal formats of political
participation” among the new and heterogeneous left in the region. Thus, we find
“important debates over the meanings and interpretations of democracy” (De la Torre
2007: 384) in contemporary Latin America.
With new governments promising and, indeed, initiating national “re-foundations”
via constituent assemblies, disputes about the parameters of democracy and bottom-up
challenges to the political system have culminated in processes that aim to profoundly
transform political regimes. Bolivia under Evo Morales, Ecuador under Rafael Correa,
and Venezuela under Hugo Chávez are prime examples of this.
Although there are important differences between these processes of political


Previous versions of this chapter were presented at the 5th ECPR General Conference, 10-12 September
2009, in Potsdam, and at the VIII Annual Conference of RedGob, 25-26 November 2010, in Hamburg.
Research was supported by the Deutsche Forschungsgemeinschaft (DFG). All translations into English
are the author’s.
 2

change, all three cases have experienced a complex, contentious and contradictory
process of transforming democracy under broadly democratic conditions. On the one
hand, the fundamental features of procedural democracy or polyarchy according to
Robert Dahl and Charles Lindblom have been maintained; on the other hand, the
ongoing political changes are meant to amend, transcend and partially break with the
standards of what is nowadays understood as “liberal democracy,” namely
“constitutional, representative, individualistic, voluntaristic, privatistic, functionally
limited, political democracy as practiced within nation-states,” as Schmitter (2006: 1)
puts it.
In this sense, the “post-liberal politics” that Arditi refers to are not about the
“replacement [of the liberal state and electoral democracy] with something else,” but
about promoting new forms of participation and citizenship that add to, and thus
transform, democratic politics (Arditi 2008: 73). Similarly, the local experiences with
indigenous-party-controlled “alternative municipalities” studied by Van Cott are
characterized by the incorporation of “indigenous political and cultural institutions and
values, as well as ideas offered by NGOs [...], into existing liberal-democratic
institutions,” creating “a unique laboratory for mixing distinct governing logics” (Van
Cott 2008: 233–234).
These experiments generally correspond with the notion of post-liberal democracy
as proposed by Schmitter (2006, 1995) and others, when they refer to the “established
liberal democracies” in the North-Western part of the world. However, some features of
the Andean variant of transformed democracy may be closer to what Schmitter calls
“preliberal democracy.”1 The use of terms such as “participatory” (Pérez et al. 2009),
“plebiscitary” (Conaghan 2008), “radical” (Postero 2010), “populist” (de la Torre 2007)
or “illiberal” (Whitehead 2008) to characterize democracy in Bolivia, Ecuador and
Venezuela suggest that there is a basic agreement about what is happening in these
countries, notwithstanding the different theoretical and normative perspectives of these

1
The writings on post-liberal democracy in the North-West are mostly normative, focusing on how a
transformed democracy might look (Schmitter 2006). They complement theories of “radical” or
“deliberative” democracy (Van Cott 2008: 13–23). In empirical analyses of really existing democracies,
European and North American scholars debate the question of “post-democracy” (Crouch 2008), a
pessimistic diagnosis that resembles Schmitter’s “more liberal [and less democratic] democracy”
(Schmitter 1995). The repercussions of this post-democracy debate in Latin America have been limited.
Scholars there continue to focus on democratic “deepening,” emphasizing the (potential) role of active
citizens in particular (Cheresky 2006; Smulovitz and Peruzzotti 2000).
 3

authors: they convey the idea that really existing democracies are being transformed
into something less liberal – and somehow differently democratic. However, how to
evaluate this transformation is highly contentious.
In order to contribute to this debate, this chapter analyzes the transformation of
democracy in Bolivia and Ecuador as envisioned by the new constitutions. After a brief
overview of the political context in each country, there is a discussion of the three
dimensions of constitutional change – politico-institutional, socio-economic, and
cultural. The analysis shows that constitutional change in Bolivia and Ecuador is neither
simply a deepening of democracy nor a non-democratic break with liberal democracy;
rather, it is a contradictory and partial process of rebalancing democratic principles and
mechanisms. If we accept the theoretical premise that each really existing democratic
order is a specific blend of contradictory democratic principles – sovereignty of the
people vs. constitutionalism, majority rule vs. protection of minorities, real political
equality vs. formal equality and individual freedom, representation vs. direct
participation, individual equality vs. recognition of cultural differences –, then the
transformation of democracy in Bolivia and Ecuador can be interpreted as a process of
readjusting and rebalancing these principles by strengthening the plebiscitary and
participatory aspects of democracy as well as the economic, social and cultural
dimensions of human rights. These readjustments include deviations from the
mainstream liberal democratic model, and so do actually suggest what a post-liberal
democratic order might look like in these particular places.2

Political Context: The Correa and Morales Governments

Rafael Correa was elected President of Ecuador on 26 November 2006. One of his main
election pledges was that the rule of the traditional political parties would be broken,

2
When talking about really existing democracies and basic democratic standards, I adopt Dahl’s and
Lindblom’s procedural definition. The mainstream model or usual standards of liberal democracy are,
however, much more substantial and include the features listed by Schmitter. Post-liberal democracy is
used as proposed by Arditi. Although it is a vague definition, this is an advantage when trying to analyze
complex, contradictory and open-ended processes of political transformation. First, it urges us not limit
our assessment to whether the minimal procedural conditions of polyarchy are met, and explicitly draws
attention to different mechanisms of political representation, participation, contestation and control that
may complement (and, at times, contradict) basic polyarchic processes. Second, it helps us to avoid the
narrow – linear and ultimately teleological – perspective that is based on a fixed and uniform
understanding of what democracy (in fact liberal democracy) should be, and then identifies its “defects”
and “deficits when assessing its state or quality.
 4

and that the country’s political system would be fundamental restructured through a
Constituent Assembly. During 2007, Ecuadorians approved the convocation of that
Assembly by an impressive 82 percent of the vote; they then proceeded to elect the
constituents and gave Correa’s Country Alliance (Alianza País, or PAIS) movement a
comfortable majority. Finally, on 28 September 2008, 64 percent of voters approved the
new constitution.3
Evo Morales took office one year before his Ecuadorian counterpart, and the
Bolivian Constituent Assembly started working in August 2006. But the constitutional
process proved much more complicated and contentious in Bolivia. The Constituent
Assembly ended in open confrontation: in December 2007, in the midst of fierce
criticism from the (absent) major opposition groups, the Assembly approved the draft
constitution by two thirds of the members that were present. However, after renewed
escalation of conflict between the government and the (mainly regional) opposition in
September 2008, negotiations began and culminated in an agreement in October 2008
between the governing Movement toward Socialism party (Movimiento al Socialismo,
MAS) and parts of the opposition in Congress. This agreement, which included a series
of changes to the constitutional text, finally led a two thirds majority in Congress to
convoke a referendum on the constitution. On 25 January 2009, Bolivians approved the
country’s new constitution by 61.4 percent of the vote.4

The Politico-Institutional Dimension: From Representative to Participatory

Democracy?
Those who believe that participatory democracy has deepened in Bolivia and/or
Ecuador point to new or expanded channels for direct popular participation. Others
believe there has been a populist undermining of liberal democracy, and emphasize that
plebiscitary and presidential powers have been strengthened at the expense of
institutional checks and balances. If one examines the new constitutional texts one can,
in fact, see that changes have been made to “classical” representative institutions: there
are strengthened plebiscitary mechanisms and new institutions for civic participation

3
On the constitutional process in Ecuador, see Célleri and Chávez (2008), Martínez (2009: 40–1), Ospina
(2008b: 10–7), Ramírez (2008), and Torres (2009).
4
On the constitutional process in Bolivia, see Aruquipa (2008: 80–99), Gamarra (2008: 138–41),
Lehoucq (2008), Martínez (2009: 38–40), Romero et al. (2009), and Zegada (2008).
 5

and social control. But this does not mean that institutional controls and checks and
balances are undermined, but rather that they have undergone a partial change in form.
The notion of direct democracy has a prominent place in both new constitutions.
The sovereignty residing in the people is exercised “in direct and delegated forms”
(Bolivia 2009, article 7) or “through the organs of public power and the forms of direct
participation envisioned by the constitution” (Ecuador 2008, article 1). This translates
into strengthened role of plebiscitary mechanisms, particularly referenda (Pérez et al.
2009: 4-7), as outlined below

Recall referenda
This institutional innovation, called revocatoria del mandato, is characteristic of new
“participatory” constitutions of Venezuela, Bolivia and Ecuador. This new mechanism
of vertical accountability or popular control gives voters the opportunity to revoke the
mandate of elected representatives, and, thereby, also can help resolve political
stalemate and crisis.5 This mechanism can be used against all directly elected state
authorities at different levels (Bolivia 2009, article 240; Ecuador 2008, article 105).6

Popular ratification
In Bolivia, constitutional changes (Bolivia 2009, article 411), the ratification of
international treaties (articles 257-259),7 and the establishment of departmental,
regional, municipal or indigenous autonomies (articles 274-5, 280, 294-5), all require
popular approval via referendum. In Ecuador, the formation of autonomous regions and
of special indigenous or Afro-Ecuadorian administrative units requires popular approval
(Ecuador 2008, articles 245 and 257). However, minor constitutional changes do not
always need to be put to a referendum (article 441). Further, citizens or the president
can call for international treaties to be ratified by referendum (article 420). In both

5
In Bolivia, this mechanism was tested before the new constitution entered into force. In August 2008,
Morales easily survived the recall referendum; among the prefects (governors) at the departmental level,
Morales’s major opponents also won their recall referenda while two (oppositional) prefects lost their
offices (ElPais.com, 15 August 2008).
6
In Bolivia the judiciary is not affected by revocation although its highest authorities are also elected by
popular vote (Bolivia 2009, article 240/I).
7
To be precise, international treaties require popular approval if they imply border issues or processes of
monetary, structural economic or political integration, or if a referendum is requested by 5 percent of the
registered voting population or 35 percent of the members of parliament (Bolivia, 2009, articles 257 and
259).
 6

countries, major reforms or wholesale rewriting of the constitution require the

convocation of a directly elected Constituent Assembly (Bolivia 2009, article 411;
Ecuador 2008, articles 441-4).

Direct election of justices

One of the changes introduced in Bolivia is the direct election of the top echelons of the
judiciary, namely the Plurinational Constitutional Court (Tribunal Constitucional
Plurinacional, TCP), the Supreme Court of Justice (Tribunal Supremo de Justicia, TSJ),
the Agri-Environmental Court (Tribunal Agroambiental, TA) and the Judicial Council
(Consejo de la Magistratura, CM). However, this plebiscitary-majoritarian mechanism
is limited by a “classic” form of institutional control: the national parliament, the new
Plurinational Legislative Assembly (Asamblea Legislativa Plurinacional, ALP) must
pre-select candidates by a two-thirds majority (Bolivia 2009, articles 193–5).8 In
Ecuador, justices are not subject to direct election, but the newly established Council of
Citizen Participation and Social Control (Consejo de Participación Ciudadana y
Control Social, CPCCS) allows citizens to have an indirect influence on the designation
of important judicial (and other) authorities (see below).
The “participatory democracy” alluded to in both constitutions is not just about
electoral participation. The constitutional texts not only broaden the usual channels of
political participation but also incorporate additional mechanisms of direct civic
participation and social control, as outlined below.

Political participation outside political parties

Both constitutions end the monopoly on representation of political parties, thus
reinforcing changes in the modes of political representation already under way since the
mid-1990s. In Bolivia, indigenous organizations (organizaciones de las naciones y
pueblos indígena originario campesinos) and citizen groups (agrupaciones ciudadanas)
can compete with political parties for elected public office on an equal footing (Bolivia
2009, article 209). The Ecuadorian constitution recognizes political parties and political
movements as organizations that can nominate candidates for elections, but only parties

8
This parliamentary pre-selection is one of the various changes made by Congress to the original
constitutional draft (Böhrt 2009: 84).
 7

receive public funding (Ecuador 2008, article 110).

Popular initiatives
Both constitutions allow citizens to propose legislation, and provide for popular
consultation via referenda. In the Ecuadorian case, the “popular normative initiative”
allows proposals on “the creation, reform or revocation of juridical norms.” When 0.25
percent (or 1 percent for constitutional reform) of registered voters support proposals,
the legislative power must address it (Ecuador 2008, article 103). Alternatively, citizens
can request a referendum (consulta popular) “on any subject.” If a referendum is
approved by the majority of the population, the results are immediately binding (articles
104 and 106).
Similarly, referenda and citizens’ legislative initiatives are included in the Bolivian
constitution as forms of “direct and participatory” democracy (Bolivia 2009, article
11/II.1). Referenda can be held at the national, departmental and municipal levels
(articles 298/II.1, 300/I.3 and 302/I.3), although the precise competences and
corresponding procedures for these referenda are not specified.

Direct participation and social control

Both constitutions have a specific chapter devoted entirely to “Participation and Social
Control” (Bolivia 2009, title VI) or “Transparency and Social Control” (Ecuador 2008,
chapter 5). According to the Bolivian text, the “sovereign people, through organized
civil society, participates in the design of public policies.” In addition, “organized civil
society exercises social control” over state administration, public enterprises and
institutions. How to organize this kind of participation and social control is left up to
“civil society,” but the constitution stipulates that there will be a law establishing a
general framework (Bolivia 2009, article 241).9 Assemblies (asambleas) and councils
(cabildos) are mentioned (once, but prominently) as vehicles for “direct and
participatory democracy,” but it is clarified that they have a “deliberative character”
(article 11/II.1).

9
The latter was the result of the abovementioned congressional revision. In the original draft, organized
civil society was meant to participate in decisions about public policy (“en la toma de decisiones de las
políticas públicas”) and was free to independently establish “its own norms and way of working” (Zegada
2008: 54).
 8

The Ecuadorian constitution is, again, more specific. It establishes a Transparency

and Social Control Function as an additional branch of the state, the task of which is to
promote “the control of public sector entities and bodies,” facilitate “citizen
participation,” protect the “exercise of and compliance with rights,” and combat
corruption (Ecuador 2008, article 204). Citizens participate via the CPCCS, which is
composed of citizens proposed by “the social organizations and citizenry,” who are
selected in a merit-based public competition (articles 207-210). The main function of
the Council is to designate officials for important controlling authorities, and to promote
citizen participation and control over governance.10 The constitution stipulates that
bodies for social participation should work at all levels of government, such as in the
elaboration of development plans and “participatory budgets” (articles 100, 85 and 95).

The Socioeconomic Dimension: From Liberal to Social Democracy?

A core element of both Morales’ and Correa’s political projects is the shift away from
“neo-liberalism,” the market-based outward-oriented social and economic policies of
their predecessors, and a turn towards a more state-centred and socially-oriented
development model. This shift involves changes in the conception and balancing of
civil, economic and social (human) rights. Neither country has moved to abolish the
market economy and corresponding private property rights, even though some feared
this and others advocated it. Rather, the new constitutions amend and qualify the role of
the market and the protection of private property rights, and strengthen social and
economic entitlements.
Both constitutions unequivocally expand social and economic rights (Acosta 2008:
46; Hernández et al. 2009: 13–5; Romero Bonifaz 2008: 61–4). The provision of key
public services is defined as a basic universal right. The Bolivian constitution
establishes universal entitlements to free education and health care, access to potable
water/sewage, electricity, cooking gas, and basic postal and telecommunication services
as well as social security and retirement (Bolivia 2009, articles 16-20 and 45). The
Ecuadorian constitution includes in what it refers to as “rights of good living” (derechos

10
The authorities designated by the Council include, inter alia, the highest electoral authorities (the
National Electoral Council (Consejo Nacional Electoral, CNE), and the Court for Electoral Disputes
(Tribunal Contensioso Electoral, TCE), and the Judicial Council (Consejo de la Judicatura) (Ecuador
2008, article 208/12).
 9

del buen vivir), a “human right to water,” to a healthy environment, free education, “a
secure and healthy habitat and adequate and dignified housing,” and to health care,
work and social security (Ecuador 2008, articles 12–34). All forms of precarious labour
are prohibited, and social security should cover everyone, including non-paid domestic
workers, subsistence farmers and the unemployed (articles 327 and 34). In addition, the
“rights of nature” include a new generation of rights (articles 71–4). In both cases, all
these constitutional rights and guarantees are immediately applicable (Bolivia 2009,
articles 109 and 135–6; Ecuador 2008, article 11/3).
Because of this new recognition of social rights, both constitutions prohibit the
privatization of public social services. In Bolivia, this prohibition applies to the supply
of water, sewage, public health and social security services (articles 20, 38 and 45). In
Ecuador, “strategic sectors” such as energy, telecommunications, non-renewable
resources, transportation, and water can either not be privatized at all (the case of water)
or are limited to “exceptional” cases (articles 313-318; Ospina, 2008b: 16–7). The social
security system can also not be privatized (article 367).
As regards the role of the market and private property rights, both constitutions
characterize the national economy as mixed. In Bolivia, the “economic model” is
“plural.” Its goal is to “improve the quality of life and the well-being of all Bolivians”
and it involves “communitarian, state, private and social cooperative” forms of
economic organization (article 306). Ecuador’s economy is “social and solidarity-
based” and aims to promote “good living” (buen vivir, or sumak kawsay in Quichua),
with “public”, “private,” “mixed” and “popular and solidarity-based” forms of
economic organization (article 283).
Private property rights are respected and protected within this plural economic
framework. The Bolivian state “recognizes, respects and protects private initiative,”
“free enterprise and the full exercise of entrepreneurial activities” are guaranteed, and
“entrepreneurial initiative and legal security” are respected (articles 308 and 311/5).
However, economic activities must play a positive social, economic and environmental
role (article 312). Every person “has the right to individual or collective private
property, provided that it performs a social function,” and expropriation requires “prior
just compensation” (articles 56 and 57). Similarly, Ecuador’s constitution recognizes
and guarantees the “right to engage in economic activities, individually or collectively,
 10

according to the principles of solidarity, and social and environmental responsibility,”

and with respect for “the right to property in all its forms, with social and environmental
function and responsibility” (articles 66 and 321). Expropriation in Ecuador also
requires “prior just valuation, compensation and payment” (article 323).
Specific limits on the reach of liberal private property rights have been placed
where land is concerned. On the one hand, collective land rights of indigenous peoples
are inalienable and indivisible and their lands cannot be seized (Ecuador 2008, article
57/4; Bolivia 2009, article 384/III); on the other hand, latifundios and the concentration
of land is prohibited (Ecuador 2008, article 282), with a stipulated upper limit of 5,000
hectares in the case of Bolivia (article 398).11 In Bolivia, the failure to perform the
required “social-economic function” is just cause for expropriation (article 401/I). It
should be noted that the social function is not an Ecuadorian or Bolivian aberration: this
requirement exists in democratic constitutions around the world (Gargarella 2009).

The Cultural Dimension: From Exclusive to Inclusive Democracy?

One reason why the 2005 election of Morales was a historic event is that an indigenous
person became the president of Bolivia for the first time. There is little doubt that the
electoral victory of Morales and the MAS was the result of a process of political
empowerment of the indigenous population, which permitted a new level of political
inclusion into a democratic system that had been quite exclusive whatever its formal
stipulations.
The process of inclusion has followed largely classic liberal-democratic procedures,
but the recognition of particular indigenous rights partially transcends and/or contradicts
liberal democratic standards and principles (Böhrt 2009; Gargarella 2009; Prada 2008).
Critics claim that indigenous justice systems involve clear “breaches of liberal-
democratic norms of justice” (Van Cott 2007: 139), and emphasize that the
“incorporation of political actors who previously lacked direct access to decision-
making channels” has been accompanied by “a new pattern of exclusion” (Gamarra
2008: 134).
In Ecuador, the topic of indigenous rights has been much less prominent, given the

11
However, this limit does not apply to already existing properties (article 399), a crucial concession to
large landowners who led opposition in the eastern lowlands (Böhrt 2009: 103).
 11

lower proportion of the indigenous population,12 the current weakness of the indigenous
movement and the non-indigenous nature of the Correa government. However, the
recognition of indigenous peoples, their languages and rights did feature (contentiously)
in the Constituent Assembly and found its way into the new constitution (Célleri and
Chávez 2008: 9–13; Grijalva 2008a; Simbaña 2008).
The multi-ethnic and pluricultural nature of the two countries had already been
acknowledged during the constitutional reforms of the 1990s, but the indigenous
demand for a “plurinational state” was rejected. Thus, the constitutional declaration of a
plurinational state in Bolivia (article 1) and Ecuador (article 1) is probably the most
powerful sign that both countries have turned away from the classical liberal democratic
conception of nation-state.
Bolivia has recognized the languages spoken by the thirty six indigenous peoples as
“official languages of the state” on an equal footing with Spanish, which means that
central and departmental governments must use at least two official languages (article
5). Ecuador stopped short of full equality: Spanish is the “official language of Ecuador,”
Spanish, Quichua and Shuar are considered “official languages of intercultural
relations,” and other indigenous languages can be officially used by “the indigenous
peoples in the zones where they live” (article 2).
Both countries also recognize indigenous (customary) law and the indigenous right
to self-government. The two constitutions recognize the collective right of the
indigenous peoples to apply and practice their own customary laws, within the limits
imposed by constitutional rights (Bolivia 2009, articles 190-192; Ecuador 2008, articles
57/10 and 171). The Bolivian constitution goes so far as to place ordinary and
indigenous legal jurisdictions on an equal footing (Bolivia 2009, article 179/II).
Whereas the Constitutional Court in Ecuador – representing the ordinary legal system –
protects the constitutional order as the highest judicial body of the land, in Bolivia the
TCP includes representatives of the ordinary and the indigenous justice systems (Bolivia
2009, article 197).13
In Ecuador, indigenous collective rights include the right to “preserve and exercise

12
It is estimated that the indigenous population represents approximately 60–70 percent of the total
population in Bolivia, and 30–38 percent in Ecuador (Yashar 2005: 21).
13
In the original draft, the members of the TCP would have been elected with equal representation from
both jurisdictions (Böhrt 2009: 84).
 12

their own ways of living together and organizing socially, and to generate and exercise
authority in their legally recognized territories and in their ancestral community lands”
(article 57/9). Indigenous (and Afro-Ecuadorian) peoples can establish special
administrative units “that exercise the authority of the corresponding territorial
autonomous government, and which are guided by the principles of interculturality,
plurinationality and in accordance with collective rights” (article 257).14
The Bolivian constitution alludes to “indigenous autonomy,”15 the “self-
government” (autogobierno) of indigenous populations who share “territory, culture,
history, languages, and distinct juridical, political, social and economic organization or
institutions” (article 289). Indigenous self-government, if adopted by referendum, is
exercised in accordance with customary indigenous “norms, institutions, authorities and
procedures” (article 290). Indigenous forms of self-government constitute are the third
form of “communitarian” democracy, along with “direct and participatory” democracy
and “representative” democracy, and it works “through the election, designation or
nomination of authorities and representatives according to the particular norms and
procedures of indigenous peoples” (article 11/II.3).
Apart from the abovementioned special subnational administrative units, indigenous
political participation largely follows the usual liberal-democratic procedures. In
Ecuador, the only special provision for indigenous peoples concerns their right to
“participate, via their representatives in the legally established official bodies, in the
definition of the public policies that concern them, and in the design of and decisions
about their priorities in state plans and projects” (article 57/16).16 In Bolivia, the new
constitution allows indigenous organizations to propose candidates for all elected

14
It is the relevant subnational unit that decides (through a referendum approved by a two-thirds
majority) about the creation of a special indigenous (or Afro-Ecuadorian) government unit of this kind.
Given the share of indigenous people even in areas with high indigenous presence, it will be difficult to
establish such special entities (Célleri and Chávez 2008: 11-12).
15
The Bolivian constitution refers to naciones y pueblos indígena originario campesinos, translated here,
for the sake of simplicity, as “indigenous peoples.”
16
This right to participation concerns one of the so-called National Equality Councils in particular, which
will focus on “formulating, mainstreaming, monitoring, following-up and evaluating” public policies
related to ethnicity (Ecuador 2008, article 156; the constitution provides for councils dealing with gender,
ethnic, generational, intercultural, and disablement issues). This Council, like all other National Equality
Councils (Consejos Nacionales de Igualdad, CNI), will be composed of representatives of both civil
society and the state in equal measure, but will be presided over by a representative of the executive
(article 157). This is not a new indigenous achievement, however: in the prior Council for the
Development of the Nationalities and Peoples of Ecuador the representatives of the indigenous peoples
were even in the majority.
 13

legislative and executive offices on the basis of their norms and procedures (Bolivia
2009, article 210-211); it also guarantees the “proportional participation” of indigenous
peoples in parliamentary elections (article 147/II); it determines that at least two of the
seven members of the TSE must have indigenous origins (article 206/II); and it
stipulates that there must be representatives of the indigenous legal authorities in the
TCP (article 197/I). The constitution also establishes special electoral districts for
indigenous peoples living in rural areas who are a minority in their departments (article
146/VII). However, just like the indigenous members of the TPC, members of Congress
must be elected in regular elections, while the members of the TSE are designated by
the parliament (articles 146/III, 197/I, 198 and 206/V).
An important question for indigenous peoples in both countries is the demand for
free and informed prior consent of the exploitation of non-renewable resources in their
territories. The Ecuadorian constitution establishes a collective right of indigenous
peoples to “prior, free and informed consultation,” the right to partake in the benefits of
such exploitation, and to receive indemnification for social, cultural and environmental
damage. However, it explicitly refrains from requiring the consent of the community for
natural resource exploitation (article 57/7). In general, indigenous peoples have the right
to be consulted “before the adoption of a legislative measure that could affect any of
their collective rights” (article 57/17).
Likewise, Bolivian indigenous peoples have the right to “be consulted […]
whenever there may be legislative or administrative measures that may affect them”
(article 30/15). As regards the exploitation of natural non-renewable resources on
indigenous territories, the formulation is stronger than the Ecuadorian: it emphasizes the
“right to mandatory prior consultation by the state, in good faith and in a concerted
fashion” (article 30/15; author emphasis).17

Discussion: Towards Post-Liberal Democracy?

In their comparative analysis of the participatory mechanisms included in the new
constitutions of Bolivia, Ecuador and Venezuela, Pérez et al. (2009: 19) conclude that in

17
Again, this includes the right to partake in the benefits of such exploitation (Bolivia 2009, article
30/16). In general, the population affected by the exploitation of natural resources has the right to “free,
prior and informed” consultation; in the case of indigenous peoples, this consultation process must
respect their particular norms and procedures (article 352).
 14

all three cases the texts “broaden considerably the mechanisms of citizen participation
beyond traditional representative institutions.” The new mechanisms of co-
administration, control and accountability have “the potential to radicalize citizen
practice,” allowing them to exercise “constant control over the actions of the
representatives” (Pérez et al. 2009: 19; see Romero Bonifaz 2008: 61). By contrast,
critics emphasize the allegedly populist and ultimately authoritarian consequences of
participatory democracy as promoted by Correa and Morales (Mayorga 2008; Oporto
2008; Torres 2009; Verdesoto 2008). They claim that it is not the people who gain more
power but the executive and the president in particular; and the strengthened political
role of civil society only gives power to a certain segment of (government controlled)
society. Thus, far from contributing to the deepening of democracy, critics argue, this
process helps to consolidate the hegemony of the ruling alliance and undermines the
conventional representative institutions that guarantee equal conditions for participation
for all, including opposition groups.
The constitutional changes of both countries do in fact strengthen, or at least
consolidate, executive and/or presidential powers (Gargarella 2008; Oporto 2008: 110–
2; Sánchez 2008). Executives are now more constrained by plebiscitary mechanisms of
vertical accountability than by the classic liberal mechanisms of horizontal
accountability (although the latter generally remain in place) (see Oporto 2008: 110–1;
Ospina 2008b: 15; Romero Bonifaz 2008: 61).18 This means that as long as they have
majority support, presidents are extraordinarily strong vis-à-vis the other branches of
government and the opposition in particular. The broadening of plebiscitary
mechanisms indeed constrains the relative autonomy of representative institutions, it
favours majorities, and facilitates populist-style governing that relies on directly

18
In Bolivia, all three classical branches of government are subject to increasing vertical control: the
president and parliament are subject to both election and possible recall referenda; the top judicial
authorities are subject to popular election. Ecuador also has new mechanisms of vertical control (recall
referenda and social control). The new parliament, the National Assembly (Asamblea Nacional, AN) has
been partially weakened (it has a lesser role in designating public authorities) but it has won the
competence to unseat ministers (Ecuador 2008, article 131). And while the president can dissolve the
Assembly, the latter can also depose the president; and in both instances, early general elections for both
branches of government are held (articles 130 and 148). Finally, a strong Constitutional Court acts as a
new counterweight (articles 429-440). In this sense, the Ecuadorian constitution establishes institutional
limits to prevent virtually unchecked presidential powers (Acosta 2008: 45; Grijalva 2008b; Ospina
2008b: 15). The fear that the Constitutional Court may be co-opted politically by the president is perhaps
due to entrenched political practices and the strength and attitudes of Correa rather than a result of
specific rules in the new constitution (Grijalva 2008b: 132–5; Ospina 2008b: 16).
 15

appealing to the people “against both the established structure of power and the
dominant ideas and values” (Canovan 1999: 2). In this sense, there is a clear-cut tension
between the participatory and rights-based focus and the centralizing presidentialist
features of these constitutions.19
Analysts have been particularly critical of excessive presidentialism in Ecuador and
of a conception of citizen participation that increases government power rather than
strengthening social control of government (Burbano de Lara 2009; Célleri and Chávez
2008; Torres 2009: 414–24; Verdesoto 2008). In contrast to Bolivia where “organized
civil society” and “communities” are the main agents of participation, citizen
participation in President Correa’s rhetoric and Ecuador’s new constitution is essentially
liberal and individualistic (Ospina 2008a: 15–8; Denvir 2008). As noted above, citizens
are selected to sit on the CPCCS on their merits rather than because they are
democratically elected or representative (Torres 2009: 421; Verdesoto 2008: 187–8), and
they could be easily politically co-opted. The explicit aim of the new National Equality
Councils (Consejos Nacionales de Igualdad, CNI), in which civil society and state share
an equal representation but which is presided by a representative of the executive
(articles 156–7), is to “de-corporatize” existing councils (for children, women, and
indigenous peoples, among others). Ultimately, Ecuador’s key new mechanisms for
citizen participation may be unconventional among representative democracies but it is
more liberal than participatory in nature.
As noted above, the new elements of participatory democracy in Bolivia are clearly
under the control of representative institutions. The role of (popular) assemblies and
councils is explicitly deliberative (article 11/II.1). Legislative initiatives by citizens
must pass through parliament (article 162/I), and the framework for civil society
“participation and social control” is defined by law, in other words, parliament (article
241/IV).
In both countries, politico-institutional “innovations” remain within the boundaries
of a largely representative democratic setting. The usual three branches of government
of representative democracy are more important than any institution of participatory

19
By contrast, both new constitutions are based on the premise that “strong presidentialism and
significant popular participation” are perfectly compatible (Gargarella 2008: 95; Romero Ballivián 2008:
35).
 16

democracy. Thus, Ortiz (2008: 17) argues about Ecuador that while there are new
mechanisms for “participatory,” “direct” and “communitarian” democracy, “the
representative form seems predominant.” And according to Prada (2008; 38), the
Bolivian constitution “has not ceased to be a liberal constitution, although it is a more
pluralist version incorporating four generations of rights: individual, social, collective
and environmental rights.” At the same time, he adds, it is “also an indigenous and
popular constitution, since it incorporates institutions specific to indigenous peoples”
(Prada 2008: 38; see also Molina 2009). In this sense, the constitutions examined here
add and extend plebiscitary and participatory mechanisms of political participation and
vertical control, formalize and expedite mechanisms of indigenous self-governance, and
partially weaken liberal representative democracy, even though they maintain its basic
institutions. This constitutional design thus reflects the notion of post-liberal democracy
as conceived by Arditi (see also Postero 2010: 75).
In socioeconomic terms, the analysis of the new constitutions shows they support a
concept of democracy that is much more substantial than the mainstream liberal version.
They aim to permit a shift from “formal” to “social democracy” as defined by Huber et
al. (1997: 324), to deepen democracy by adding “high levels of participation without
systematic differences across social categories (for example, class, ethnicity, gender)
and increasing equality in social and economic outcomes.” This also fits with expanded
definitions of democracy “emphasizing economic equality and social justice,” which are
supported by indigenous movements (Van Cott 2007: 135). However, this tendency also
reflects a view of democracy held by many citizens in Latin America, which
emphasizes “social and economic equality and progress” (Camp 2001: 9). Clearly, there
are broad social sectors that support the general trend to reinforce the economic role of
the state, to strengthen its social policy function, and to limit the scope of the market
(Lagos 2009: 120).
The constitutions discussed in this chapter consolidate and push forward these
changes by placing constitutional limits on privatization and establishing explicit social
entitlements, among other elements (Gargarella 2009). They seem to provide a (post-
neoliberal) alternative to (neoliberal) market democracy (Hernández et al. 2009: 13–5;
Sánchez 2008: 80–1), limiting but not abandoning the market and private property
rights. Left-wing analysts have even highlighted the moderate economic changes
 17

introduced by the two constitutions (Célleri and Chávez 2008: 13–5; Gargarella 2009;
Gaudichaud 2008). The main tension in this domain is between a resource-based, state-
centred development model and the emphasis on a diversified, community-based and
ecologically sensitive model. The increased role of the state and of state-controlled
resource exploitation, on the one hand, and the emphasis on alternative community-
based and ecological principles for organizing the economy, on the other, constitute
shifts away from the mainstream politico-economic model underpinning (neo-)liberal
democracy – but they arguably point in rather different directions.
As regards the cultural dimension of constitutional change, the debate in Bolivia
and Ecuador is at almost polar opposites. In Ecuador there is little criticism of
strengthening indigenous collective rights (criticism focuses only on the partial and
limited nature of this process).20 By contrast, there are serious worries that Bolivia is
taking an “ethnicist” or “indigenist” constitutional turn (Mayorga 2008: 2; Oporto 2008:
106–10; Molina 2009). Critics argue that the inclusion of formerly excluded indigenous
peoples has led to new forms of exclusion of non-indigenous sectors (Gamarra 2008:
134; Oporto 2008: 106–10); they also feel that the “plurinational” state with its
autonomous indigenous territories means the “atomization of the Bolivian state”
through the establishment of indigenous “mini-states” (Mayorga 2008: 2–3; Oporto
2008: 112–5).
On closer inspection, these worries seem exaggerated, at least as far as the new
constitution is concerned (Gargarella 2009; Molina 2009).21 Recognition of the
plurinational nature of the state and of thirty six indigenous “nations and peoples” does
not mean the “Bolivian nation,” “Bolivian nationality” and “citizenship” cannot be
inclusive (Böhrt 2009: 67–9; Aruquipa 2008: 102). Above all, the establishment of the
new plurinational state and indigenous self-government expresses the plurality of
Bolivian social and political life (Prada 2008; Simbaña 2008). Of course, indigenous

20
See Célleri and Chávez (2008: 11–3), Denvir (2008) and Grijalva (2008a). In fact, the resistance of
PAIS to the inclusion of important indigenous demands (particularly the principle of free, prior and
informed consent regarding the exploitation of natural resources in indigenous territories) led to the
rupture between Correa’s party and the indigenous party, the Plurinational Unity Movement (Movimiento
Unidad Plurinacional, MUPP) in the final phase of the Constituent Assembly (see Célleri and Chávez
2008: 12; Denvir 2008). Ultimately, the indigenous movement called for a positive vote in the
referendum anyway, in order to at least secure what were seen as partial, but important improvements
(CONAIE 2008; Simbaña 2008).
21
On Ecuador, where similar concerns about the demand for a “plurinational” state have been voiced, see
Simbaña (2008).
 18

autonomies are part of a complex model of decentralization that includes departmental,

regional, municipal and indigenous autonomies; these various subnational entities can
be regarded as “mini-states” but they are framed and regulated by a national structure.
Further, indigenous autonomies are limited to “ancestral territories currently inhabited
by those peoples and nations” (Bolivia 2009, article 290/I; Böhrt 2009: 97–9; Aruquipa
2008: 101).22 And as mentioned above, the main arenas for indigenous “communitarian
democracy,” the assemblies and councils are explicitly solely “deliberative” (Molina
2009).
The special electoral districts for indigenous peoples have an effect on how the rest
of the population is represented in parliament. But these cover only certain indigenous
minorities in rural areas; the major groups, the Aymara in La Paz and Oruro or the
Quechua in Cochabamba, Potosí and Chuquisaca, which are those that could possibly
dominate or exclude non-indigenous sectors are not beneficiaries of this provision
(Böhrt 2009: 78).23 The requirement that public administration officials should speak
two of the country’s languages (article 234/7) is an important barrier for Spanish-
speaking Bolivians who refuse to learn an indigenous language. But the constitution’s
transitory dispositions explicitly state that this requirement is to be “progressively
applied according to the law” (tenth transitional disposition). Gargarella (2009)
therefore predicts that “the dominant structure of government will remain occupied by a
majority of white officials, in a country with an indigenous majority.”
There is a serious challenge for democracy in Bolivia and Ecuador, namely
coordinating parallel legal systems and jurisdictions (see chapter 18 in this volume). But
this problem is not new (indigenous customs and practices had already been recognized
and applied, if only partially, by previous constitutions). And this problem does not
affect constitutional law as much as it is a matter of passing secondary legislation to
regulate the relationship between the two systems (Bolivia 2009, article 192/III;
Ecuador 2008, article 171). Indeed, both constitutions clearly delimit the scope of

22
It should also be emphasized that Bolivia’s indigenous peoples are far from united. Indeed, explicitly
indigenous organizations like the National Council of Ayllus and Markas of Qullasuyu (CONAMAQ)
and the Confederation of Indigenous Peoples of Bolivia (CIDOB) frequently claim that the Morales
government favours its main constituents in the more trade union based organizations of rural laborers,
indigenous settlers and coca growers.
23
The transitional electoral law, approved in April 2009 actually reserves 7 out of the 130 seats in the
Chamber of Representatives for these special indigenous electoral districts (see LaRazón.com, 14 April
2009; LaPrensa.com.bo, 15 April 2009).
 19

indigenous jurisdiction: it applies within indigenous communities, it is limited by

established constitutional rights, and it comes under the aegis of the constitutional
courts (Bolivia 2009, articles 191 and 202; Ecuador 2008, article 171).24

Conclusion
The new constitutions of Bolivia and Ecuador provide a normative framework that
suggests the emergence of some form of post-liberal democracy. The democratic
transformation envisioned in the constitutional texts amalgamates different democratic
concepts and traditions that are not free of tensions but which are clearly within the
broadly representative democratic family. Both constitutions open the door to more
participatory, social and inclusive versions of post-liberal democracy. But only a
monitoring of how these new constitutions are implemented will tell us the extent to
which this opportunity is being taken advantage of. This is beyond the scope of this
chapter, so the conclusion will briefly highlight four challenges that seem crucial to
bring to fruition the promise contained in these new constitutions.
First, there is the risk that the centralist and presidentialist features will hollow out
the participatory and rights-based focus of these constitutions. Plebiscitary and
participatory mechanisms can become instruments of political control and cooptation
“from above,” and can effectively silence opposition resistance or demands for
participation. Second, it will be a challenge to shift from dismantling the old political
regime (which was instrumental in enabling political change) to building strong and
relatively autonomous institutions (which is necessary to sustain change). Third, there
are tensions involved in the construction of plurinational states that aim to combine
indigenous autonomy and self-government with the “ordinary” democratic rule of law.
Fourth, the resource-based, state-centred development strategy that made it possible to
focus more on socioeconomic rights may stand in the way of seriously searching for a
post-neoliberal model of development based on economic diversity and environmental
sustainability. But these challenges do not mean that the search for post-liberal
democracy is a futile exercise. They only point to the fact that the attempt to transform

24
All the same, this delimitation of indigenous justice shows that there are tensions inherent in the whole
endeavor: While all constitutional (and legal) constraints on indigenous justice infringe on the collective
right to autonomy of indigenous peoples, it is also the case that some elements of indigenous (customary)
law violate individual rights to freedom and autonomy (Brandt and Franco 2006; Kuppe 2010).
 20

democracy democratically is a complex and contradictory process (Acosta 2008;

Postero 2010).

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