Latin America's Document-Driven Revolutions
Team of Spanish Scholars Helped Recast Constitutions in Venezuela, Bolivia, Ecuador
February 17, 2009 - The Washington Post

By Joshua Partlow, Washington Post Foreign Service

LA PAZ, Bolivia -- Once a product of armed rebellion, the revolution in Latin America today is taking place on paper in the form of new constitutions, a mostly peaceful process influenced by the work of European legal scholars who have played a behind-the-scenes role in drafting the populist documents.

Venezuela's referendum Sunday on whether to amend a constitution less than a decade old to allow President Hugo Chávez to run for office indefinitely is just the latest example. Two other South American countries have embarked in the past decade on rewriting their societies' fundamental rules, creating enormous new charters that vastly expand the social and economic rights granted to citizens, particularly the poor.

In all three cases, from the Venezuelan charter in 1999 to the new constitutions in Ecuador last year and Bolivia last month, a team of Spanish legal scholars influenced the conception, drafting or implementation of the documents, which have stirred domestic class tensions and harmed relations with the U.S. government. The leader is Roberto Viciano Pastor, an author and constitutional law professor at the University of Valencia whose technical, and some say ideological, assistance in writing the constitutions is generating new scrutiny across South America.

"Why now? Because I believe that there is a popular crisis in these countries," said Raúl Prada Alcoreza, who served in Bolivia's constitutional assembly. "In these recent constitutions, there is a very strong sense of political history, and leaders have emerged who synthesize this passion and the demands of the people."

Constitutional law scholars point to several similarities among the constitutions of Venezuela, Bolivia and Ecuador, including the emphasis on "re-founding" those nations to correct historical injustices, to solidify the power of the leader and to focus public policy and spending on the social needs of classes traditionally overlooked by the government.

The leaders of those three countries have linked themselves with "what they consider the most important aspects of history for their country," such as the legacy of founder Simón Bolívar in Venezuela or the experience of the indigenous people in Bolivia, said Alfonso W. Quiroz, a history professor at Baruch College at the City University of New York, who is studying the constitutional history of Spanish American countries.

"They rely on that to achieve even more power for the executive," he said. "You definitely have to conclude that the three of them are driven by concrete political objectives."

Chávez has ruled for a decade. And President Rafael Correa in Ecuador and President Evo Morales in Bolivia both easily won referendums on their new constitutions that give them the possibility of a decade or more in office.

Each governs with a strident populist tone, animated by an anti-U.S. spirit, that places him to the political left of liberal Latin American governments such as those in Brazil or Chile.

While the three leaders' speech often borrows from a Cold War-era anti-imperialist message, each of them has relied on democratic polls to be elected and to approve new constitutions, unlike earlier rebellions by the armed left in Cuba and Nicaragua.

"What we have achieved in these last years was, in truth, the result of the deaths of many people, many young people, who decided to take up arms to bring down the authoritarian regimes in Chile, in Argentina, in Uruguay, in Brazil, in almost all the countries," Brazilian President Luiz Inácio Lula da Silva said at a social forum last month. "They died, and we are doing what they dreamed of doing -- and we have won this by democratic means."

The popularity of these new populist movements could complicate the Obama administration's anti-narcotics efforts in the cocaine-producing Andes. Venezuela and Bolivia have sharply curtailed cooperation with U.S. drug agents, while a military base in Ecuador used for U.S. surveillance flights is scheduled to close this year. Each of these leaders has also questioned the benefits of free trade, a long-standing U.S. policy goal in the region.

In this process, the role played by Viciano and his fellow Spaniards has generated controversy among some opposition figures, who consider the team to be agents of the ruling parties intent on translating government wishes into legally binding text. One Spanish newspaper, ABC, described Viciano in a 2007 article as Chávez's "gray matter" and the "principal ideologue" of Venezuela's constitutional amendments. Viciano objected, and the paper later retracted the assertions. But an air of mystery still clings to the work of the group, which operates largely beyond the scope of the public debate, according to assembly members in Ecuador and Bolivia.

Before Martha Roldós, the daughter of a former Ecuadoran president and a member of the country's constitutional assembly, first met Viciano at a university gathering in Quito, Ecuador's capital, she had heard only rumors about this man she described as an "almost ghostlike figure."

"I half-jokingly said to him, 'Ah, you are the one who already wrote our constitution,' " she recalled.

The criticism was perhaps most vocal in Ecuador, where the group worked as advisers to the president of the constitutional assembly, Alberto Acosta, and were paid more than $120,000 by the attorney general's office. A report on their work, apparently co-written by Viciano and published in the Ecuadoran press last year, discussed how they sketched political "red lines" for Acosta and received suggestions from the president's office. They also provided analyses on constitutional issues such as same-sex marriage, according to the news Web site Ecuadorinmediato.

The controversy impelled Acosta to deny that the Spaniards had written Ecuador's charter. He said the constitutional experts were helpful but had contributed no more than his Ecuadoran advisers. While Viciano shared an "ideological empathy" with President Correa, Acosta said, "Viciano's fingerprints are not on our constitution."

"They did not write drafts of the constitution, not that I know of. They contributed with issues," he said in an interview. "There was no time to get organized, so their experience became very valuable."

Kintto Lucas, an author and adviser to the Ecuadoran assembly on issues of sovereignty and foreign relations, said his committee asked the advisers to stay out of their work. "I always disagreed with their presence, because I believed that they truly didn't know the country," Lucas said. "Their fundamental role was to help the government put its ideas into the constitution."

Viciano has not responded to questions about his role in the constitutions, but in the past he has denied that he or his colleagues influenced any of the texts.

Rubén Martínez Dalmau, who worked as an adviser with Viciano in all three constitutional processes, said in a phone interview from Spain that his group had played only a technical role, helping assembly members "understand what would be the result if you put a comma in one place or another, or an article in one place or another."

"We are not the fathers of any type of concept," he said. "We are not machines that think all the same. There is not a common politics or a common ideology."

Martínez, also a constitutional law professor at the University of Valencia, said members of the group occasionally differed among themselves, as well as with the governments they were advising. For example, Chávez initially wanted a bicameral legislature, he said, but the advisers argued for a unicameral system, which the assembly eventually adopted. Acosta said the Spaniards also disagreed with the Ecuadoran assembly's decision to outline inherent rights for nature, which environmental groups said was unprecedented language in a constitution.

The final products are sprawling documents. While the U.S. Constitution has seven articles and 27 amendments, Venezuela's constitution has 350 articles, Bolivia's has 411, and Ecuador taps out at 444. Each document spells out a lengthy list of rights. The Bolivian constitution, for example, guarantees rights to food, water, free education and health care, sewer service, electricity, gas, mail and telephones, cultural self-identification, privacy, honor, dignity and a life free from torture and physical, psychological or sexual violence. There are special rights for children, old people, families and the disabled and 18 different rights for indigenous groups.

"It makes it almost impossible not to vote for them, they are promising all these rights," Quiroz said of the government. "I think they are clearly populist types of constitutions. Some of their provisions are so difficult to enforce, impossible, that the criteria for enforcing such very difficult things have to be left to the executive and the president himself."

Jaime Aparicio, a former Bolivian ambassador to the United States, said the problem is that such constitutions, "in which you mix good wishes with laws, become a shopping list."

"You can't solve problems by creating a constitution. You can say everybody's entitled to public health, but that doesn't solve the problem of public health," said Aparicio, who helped oversee the assembly elections in Ecuador and is vice president of the Inter-American Juridical Committee, based in Rio de Janeiro.

The new constitutions also give weight to the collective rights of groups, such as indigenous peoples and human rights and environmental organizations, enlarging their opportunities to act alongside, or as a check on, governments. In Venezuela, the Spanish advisers were influential on those issues, according to Carlos Ayala, a prominent Venezuelan jurist.

"They were, in our opinion, departing from what the constitution said, toward a more radicalized popular orientation, in the bad sense of the word," he said. "Popular power in terms of rule of law."

Supporters of such changes consider them necessary, and democratic, transformations.

"We are trying to resolve historical contradictions," said Carlos Romero, Bolivia's minister of agriculture and a member of the constitutional assembly. In the past, he said, Bolivia failed to protect indigenous people as "collective actors," was weak in dealing with its regions and was "divorced from its economy." The new constitution attempts to rectify those problems, he said.

In a panel discussion the day after Bolivians voted for the new charter Jan. 25, Viciano spoke critically of the document, particularly a series of amendments the National Congress had approved in October that he said acceded to too many of the opposition's demands.

"This is what those who call themselves revolutionary sometimes don't understand: In the revolution, you can't always reach consensus," Viciano said. "You either have revolution or you don't. But you can't force consensus."

Special correspondent Andres Schipani contributed to this report.