The Evolution of the Bolivian Constitution: From Independence to Social Constitutionalism

The constitution is a set of rules created by societies to facilitate peaceful coexistence and build a common ground for societal aspirations. In the case of Bolivia, the constitution traces back to the founding of the republic on August 6, 1825. The founding fathers, including Antonio Jose de Sucre and Casimiro Olañeta, invited liberator Bolívar to draft the first constitution in 1826, marking the beginning of a series of constitutional changes under the 'Constitución Política del Estado.'

The birth of Bolivia as an independent nation stemmed from conversations between Casimiro Olañeta and Antonio José de Sucre in February 1825. They deliberated on the fate of Charcas (now known as Alto Perú) amidst the broader context of South American independence movements. Olañeta persuaded Sucre that the people of Charcas should determine their destiny, leading to the convocation of the first National Congress and the eventual independence of Bolivia on August 6, 1825.

Political trials are inherently political in nature, focusing on judging offenses related to national interest and governance. Dishonest administrators of national interests face scrutiny and accountability through political trials, emphasizing the importance of upholding ethical standards in public service.

The formation of Bolivia as a nation culminated in the historic decision on August 6, 1825, when 45 out of 47 national representatives voted for independence, with only 2 advocating for annexation to Peru. This pivotal moment, following extensive debates and deliberations, solidified Bolivia's status as an independent state. Key figures like Casimiro Olañeta, José María Serrano, and José María Mendizábal played crucial roles in this nation-building process.

The Declaration of Independence of August 6, 1825, marked the separation of the Alto Perú region from the oppressive rule of King Fernando VII of Spain. It declared the region as a sovereign and independent state, distinct from neighboring republics. The founding fathers emphasized self-governance and adherence to a republican form of government.

On August 13, the Founding Assembly of the country established the first norms that laid the groundwork for constitutional principles. The State of Alto Perú declared a representative republican form of government, with powers separated into legislative, executive, and judicial branches to protect the sacred rights of individuals.

The concept of democratic and representative government was embraced, where sovereignty resided in the people who entrusted their representatives with governance. The separation of powers into legislative, executive, and judicial branches, as advocated by Montesquieu, ensured a system of checks and balances to prevent tyranny and safeguard freedom.

The principle of separating powers into executive, legislative, and judicial branches was crucial for effective governance. Each branch had distinct responsibilities: the executive to promulgate and execute laws, the legislative to make laws and oversee the executive, and the judicial to apply the law. Coordination among the branches was essential for proper administration.

In 1825, the assembly requested Simón Bolívar to draft a constitution for the new Republic. The First Constituent Assembly convened on May 25, 1826, and after deliberations and revisions, the first constitutional text was sanctioned on November 19, 1826. Bolívar's Constitution introduced innovative elements like a fourth electoral power and a complex legislative structure.

The Bolivarian Constitution of 1826 departed from traditional models, incorporating a fourth electoral power and a complex legislative system with three chambers. Bolívar's vision included a unique role for the president, sparking debates over the nature and functions of the executive branch.

The most discussed concept was whether Bolívar wanted the presidency to be lifelong, resembling a disguised monarchy. However, the interesting idea was that the president was actually a head of state, a concept successfully executed in many modern democracies. The executive power paradoxically resided with the vice president, who had direct administrative authority over the state and interaction with ministers. Bolívar's constitution was fundamentally liberal, emphasizing political liberalism, citizenship, individual rights, and equality among all citizens. Bolívar incorporated principles from the Constitution of Cádiz, the United States Constitution, the French Declaration of the Rights of Man, and introduced the concept of electoral power as a controlling mechanism.

The Bolivarian constitution did not survive, facing a similar fate to a model rejected in Peru. In 1828, a coup against President Sucre led by Agustín Gamarra further weakened the constitution. The backbone of Bolivian constitutions emerged in 1831 with the new constitution drafted under Mariscal Andrés de Santa Cruz, establishing a republican, popular representative government with three powers: legislative, executive, and judicial. The constitution introduced a bicameral Congress, direct and indirect election methods, and outlined the roles of the President, Vice President, and judiciary.

The 1831 constitution expanded on guarantees, proclaiming freedom from slavery since August 6, 1825, and emphasizing that no Bolivian is obligated to do what the law does not mandate or prevented from doing what it does not prohibit. The focus on rights and guarantees in a constitutional text serves as a protection mechanism against state or public authority abuse, ensuring the safeguarding of individuals' fundamental rights.

Throughout its republican history, Bolivia has had 16 different constitutions and 5 constitutional reforms, totaling 21 modifications. These changes, except for the 2009 constitution, should be viewed as a single constitution with various amendments. The 2009 constitution maintains the essential principles and philosophical nature of a social contract established by a national community. Historical instances show that some new constitutions in the 19th century were more about legitimizing de facto presidents through constitutionalization rather than making substantial changes to the constitution.

On August 13, 1825, Bolivia's first constitutional norms were established by the founding assembly, defining the essence of a unitary republic with three branches of government and recognizing basic citizen freedoms.

The liberal principles imposed by Bolívar have remained unchanged for almost two centuries, but a fundamental conceptual shift divides Bolivian constitutional history into two stages, with the first stage characterized by a strict liberal vision, notably in 1880 after the defeat in the Pacific War.

Throughout the 19th century, Bolivia's various constitutions established fundamental guarantees reflecting liberal values, such as individual security, property rights, equality before the law, and freedom of expression.

Despite the constitutional ideals, historical reality saw frequent disregard for the constitution, with systematic violations of human rights, sedition, coups, and unconstitutional power grabs becoming common occurrences in both the 19th and 20th centuries.

The concept of private property, integral to individual and citizenship ideals, plays a crucial role in defining the philosophical underpinnings of liberal constitutions in Bolivia and the Western world, emphasizing the importance of property rights for individual fulfillment.

The debate over maintaining a unitary or transitioning to a federal state was a persistent issue in Bolivia throughout the 19th and 20th centuries, with a notable discussion in 1871 resulting in a narrow victory for unitarism over federalism, postponing the ideas of federalists like Ibáñez and Lucas Mendoza de la Tapia.

Following the defeat in the War of the Pacific, Bolivia had to reassess its state functioning, leading to the ratification of the oligarchic state model in the 1880 Convention, characterized by qualified voting rights and a political divide between conservatives and liberals lasting until around 1920.

The year 1880 marked a significant political milestone in Bolivian history, as it saw the reinstatement of the vice presidency, which had been abolished in 1839, and the establishment of two vice presidencies. While not a fundamental change in the liberal roots of Bolivian constitutionalism dating back to 1826, 1880 was pivotal for political reasons.

The Revolution Federal of 1899 brought about substantial changes in Bolivian history, including constitutional amendments, a shift in the seat of government, and the transfer of economic power from the south to the north. Despite these significant transformations, a new constitutional text did not emerge from this period.

The current Legislative Palace in Bolivia, located in what is now Plaza Murillo, has a rich history. Originally known as Plaza de Armas in 1549, it was later named Plaza 16 de Julio before adopting the name Murillo on February 3, 1901, in honor of a key figure in Bolivia's independence movement that began in 1809.

The old Loreto building, which later became the site of the current Legislative Palace, witnessed tragic events such as the Llanes Massacres on October 23, 1861. These massacres, ordered by Colonel Llanes, resulted in the execution of over 60 Bolivians, including former President Jorge Córdoba, marking a dark chapter in Bolivia's republican history.

The foundations of the current Legislative Palace were laid in 1900, with the building's design reflecting an eclectic style that incorporates classical architectural elements typical of many Latin American congress buildings. The edifice was completed in July 1905, with the first official session held on August 6 of the same year under President Ismael Montes.

During the 20th century, significant constitutional changes were made in Bolivia. In 1931, under the government of Carlos Blanco Galín, a referendum was used for the first time to address important issues such as the inclusion of habeas corpus, recognition of administrative decentralization, and university autonomy. These changes were approved through a popular vote on January 11, 1931.

The voting system in Bolivia evolved over time. From 1826 to 1834, an indirect voting system was in place, followed by qualified direct voting from 1839 to 1947. Universal direct voting was established from 1961 onwards. The vice-presidential position had varying recognition in different constitutions, disappearing between 1839 and 1871, reappearing in 1878 with two vice-presidencies, and later returning to a single vice-president from 1921.

Presidential terms in Bolivia typically lasted four years, with exceptions such as an eight-year term in 1843, a five-year term in 1851, a three-year term in 1861, a six-year term in 1945, and a five-year term for the president from the 1994 reform onwards. Only a few presidents, like Andrés de Santa Cruz, Mariano Melgarejo, and Víctor Paz Estensoro, were reelected in consecutive terms.

Crucial moments in Bolivia's history, such as the Pacific War and the Chaco War, led to fundamental constitutional reforms. Despite significant transitions like the shift of the government seat from Sucre to La Paz and the economic power moving from the south to the north, there was continuity in liberal ideology shaping the constitutional norms in the late 19th and early 20th centuries.

The transition to social constitutionalism in Bolivia began in the 1938 convention convened by President Bush. This shift questioned certain liberal principles, emphasizing the common good, state ownership of natural resources, and the introduction of special economic and financial regimes. Subsequent reforms introduced a new vision of the state and social contract.

The 1938 Constituent Assembly during Germán Bush's presidency marked a significant change in Bolivia's constitution, not just in form but also in philosophical and ideological orientation. Influenced by global events like the Russian Revolution and the Mexican Constitution of 1919, the reforms in Bolivia reflected a departure from traditional liberal doctrines, sparking debates and criticisms.

The concept of goods that are originally owned by the State is deepened by mentioning all natural riches in that context. It is highlighted that the State will regulate commerce and industry through law when necessary. Despite the continued validity of private property, a new criterion emerges - the common good above individual interest, which flexibilizes the concept of absolute respect for private property.

The country's history was shifting post the Chaco War, leading to the rise of political movements towards revolutionary nationalism. This ideological shift culminated in the 1952 revolution, marking significant economic, political, and social changes not seen since the Republic's inception.

The revolution of 1952 brought about major changes in Bolivia, including agrarian reform, nationalization of mines, educational reforms, and universal suffrage. These changes were later incorporated into the 1961 constitution, which was perceived by some as designed to ensure the reelection of Víctor Paz Estenssoro.

On February 2, 1967, the Political Constitution of the State was promulgated, becoming the second-longest-applied constitution in Bolivia's history after the 1880 Constitution. The Congress elected in 1966, under President René Barrientos Ortuño, transformed into a Constituent Congress to draft a new constitutional text.

The 1967 Constitution is divided into four parts: individual rights and duties, the Bolivian State with its three branches of government, special regimes covering various sectors, and provisions for constitutional primacy and reform. The special regimes have been a point of contention due to their potential conflict with evolving ideologies and economic policies.

The 1967 Constitution remained unchanged until 1994 when reforms were made following the established mechanisms. These reforms included recognizing Bolivia as a multiethnic and pluricultural State, lowering the voting age to 18, and altering the election system for deputies to enhance direct citizen representation.

In Bolivia, the presidential term was extended from 4 to 5 years, with a provision that the president and vice president cannot be reelected. They can only run for office once more after a constitutional period. Additionally, significant reforms were made in the judiciary, including the establishment of the Constitutional Court to ensure the constitutionality of state decisions, the creation of the Judicial Council for administrative management, and the introduction of the Ombudsman position to protect citizens' fundamental rights.

By the end of the 20th century, Bolivia faced a severe crisis in its social fabric. Civilized agreements among citizens began to break down, leading to a loss of trust between society and the state. This breakdown resulted in violence, systematic law violations, and the manipulation of laws for both legitimate and illegitimate citizen demands.

The escalating spiral of distrust and violence necessitated the reconstruction of the relationship between the state and society through a new social pact. This pact had to be born from popular will, specifically through a constituent assembly with representatives genuinely reflecting the grassroots population.

In February 2004, Bolivia approved constitutional reforms that enabled a transition to a new model for the 21st century. These reforms introduced mechanisms like the referendum for direct citizen participation, the constituent assembly for constitutional amendments, and emphasized citizen participation in governance.

In April 2004, the Bolivian government proposed the direct election of prefects and the path towards autonomy. Subsequently, in April 2005, direct elections for prefects were called, leading to the historic election of all nine department prefects through direct popular vote in the December 2005 general elections.

Following President Morales' inauguration, 255 constituent assembly members began deliberations in Sucre from August 2006. However, after a year and three months of discussions, the assembly failed to approve any articles of the constitution due to severe government-opposition confrontations.

In November 2007, after three deaths and a hundred injuries, the constitution was approved at the Military Lyceum of La Glorieta near Sucre. Subsequent detailed approval took place in Oruro, with only the ruling party and its allies present, leading to the official adoption of the new constitution.

Through negotiations and modifications involving the government and opposition, around a hundred articles of the Oruro Constitution were altered. The revised constitution was then put to a referendum for public approval.

On January 25, 2009, a new constitution was approved in Bolivia with 61% of citizens supporting it. The constitution was promulgated by President Evo Morales on February 7, 2009. This new constitution broke away from the continuity established by Simon Bolivar in 1826, introducing a mix of liberal and social communitarian elements. It established a plurinational state recognizing 36 indigenous nations, including Quechuas and Aymaras, totaling nearly 4 million inhabitants, along with 10 other nationalities with smaller populations. The constitution also recognized 36 official languages and introduced changes in citizenship categorization based on origin, skin color, and language.

The new constitution in Bolivia replaced the Republic with a plurinational state, granting special rights to indigenous nations. It introduced two levels of justice administration: community justice without appeal and traditional republican justice. The judiciary authorities would be elected through direct universal vote, and special electoral constituencies were created for indigenous nations. Indigenous peoples were granted exclusive rights to renewable natural resources like water and forests in their territories. The constitution also maintained a 5-year presidential term with the possibility of immediate reelection.

While maintaining the concept of a unitary state, Bolivia's new constitution introduced various levels of autonomy: departmental, regional, municipal, and indigenous. This autonomy framework aimed at modernizing the Bolivian state and could potentially lead to a shift towards an autonomous state, deepening the decentralization process.

The new constitution in Bolivia strengthened state presence across all levels and enhanced several citizen rights and guarantees, particularly emphasizing women's rights and equality. It also aimed to prevent the concentration of power in a tyrannical or authoritarian manner, safeguarding individual freedoms and preventing the establishment of an authoritarian state.

The transition from the 20th to the 21st century in Bolivia reflected a deep crisis in internal relations, particularly between the state and society. The increase in violence during the late 20th century within a democratic system highlighted underlying issues that needed addressing collectively. The foundational ideas of the state, dating back to Simon Bolivar's constitution in 1826, remained relevant, but the new social pact's components were in the hands of Bolivian society to define and shape.