Publicados en European Review of Latin American and Caribbean Studies, no. 67, December 1999

The Friendly Liquidation of the Past: The Politics of Diversity in Latin America, by Donna Lee Van Cott. Pittsburgh: University of Pittsburgh Press, 2000.

The formal recognition of the multiethnic and pluricultural make-up of Latin American societies through recent constitutional reforms is a remarkable and until now little studied phenomenon. Van Cott notes that when she started her research-project in 1996 only a few states had made this move but since then the debate over such reforms has spread and new reforms got under way which suggests that a "multicultural regional model" might be emerging.

The study examines the processes of "constitutional transformation" in two countries: Colombia and Bolivia. Whereas most of the democratization literature has focused on regime changes, that is the transitions from authoritarianism to a democratic regime, constitutional transformation is more about a consolidation of democracy through a transformation of a society's political and legal institutions. In the cases studied such efforts at transformation were triggered by a conjuncture of crises of representation, participation and legitimation which convinced political elites that the cost of failing to reform would be higher than maintaining the status quo.

Such conjunctures have provided an auspicious context for indigenous peoples to influence the reforms. Recognition of the failure of the creole nation-building project may be a source of renewed moral legitimacy as the recognition of indigenous rights resonates with the need for symbolic renewal and the search for a new social pact. Ideas about "strength and unity in diversity" open the way for a new "post-nationalist Constitutionalism" and which entails recognition of indigenous peoples' collective rights. A further feature of the Colombian and Bolivian constitutional transformations is the incorporation of mechanisms of participatory democracy.

To study the processes of constitutional transformation a three phase-model is proposed which provides the framework for the subsequent case studies. A "constitutional conjuncture" is followed by a "creative phase" of constitutional reform which, in turn, is followed by an "implementation phase."

The context for the recognition of the pluricultural character of society is quite different in the two countries. In Colombia the indigenous only constitute some 2% of the total population. In Bolivia the highland indigenous population together with the scattering of indigenous peoples of the lowlands make up some 60% of the population. In both countries mobilizations over the past decades rapidly increased indigenous peoples´ visibility and ability to take advantage of a change in the political opportunity structure.

The conjuncture for reform also was different in the two countries. In Colombia spiralling violence and the deadlocks of the traditional bi-party system prompted a civil society campaign for constitutional reform which found support with presidential candidate César Gaviria who was elected in 1990. Later that year a Constituent assembly was elected which besides the traditional parties included a strong representation of demobilized guerrilla groups as well a representatives of social movements, among them two indigenous delegates who came to play a prominent role in the constitution-making process. This yielded a new Constitution in 1991. Bolivia had seen the return to formal democracy in 1982 after which the country had been subjected to harsh structural adjustment policies implemented under precarious political pacts. The election, in 1993, of Gonzalo Sánchez de Lozada, with Aymara intellectual Victor Hugo Cardenas as vice-president, opened the way for a "second generation of reforms" following upon the earlier shock-treatment. In Bolivia the reform was much more of a top-down process, though debate over the recognition of the multiethnic and pluricultural character of Bolivian society had been gathering force and resonated with the reform-minded elite. In 1994 the Constitution was amended. Both constitutions thus came to enshrine important ethnic rights.

In the case of Colombia implementation of the new charter turned out to be difficult and after a few years virtually stagnated under the Samper administration elected in 1994. The most significant gains of the process have been in the area of judicial reform through the establishment of a Constitutional Court, a Human Rights Ombudsman and a National Prosecutor's Office. Where ethnic rights are concerned, the Constitution contributed to a consolidation of indigenous territories in the form of resguardos (reserves) and increased resource transfers. The implementation of a new territorial regime with broader competencies for indigenous authorities stalled, however. Black communities of the Pacific coast also gained some new rights. The Constitutional Court has played a central role in upholding some of the rights enshrined in the new charter, particularly through widely popular the tutela (writ of protection) a simple appeal mechanism for citizens against violations of their fundamental rights. Furthermore, in the absence of implementing legislation, the Court developed standards for the recognition of a "special indigenous jurisdiction" which allows indigenous communities to judge civil and criminal matters according to their own norms and procedures.

In Bolivia a policy of popular participation became a centerpiece of the reform-package of the Sánchez de Lozada administration. Popular participation and the recognition of local level indigenous authorities were embedded in a policy of decentralization and municipalization which in fact created some 300 municipalities in an until then very centralized polity. The share of municipalities in intergovernmental transfers increased substantially and was distributed more equitably among the municipalities. The local population, including indigenous peoples, was to participate through Vigilance Committees at the municipal level that should guide and monitor municipal spending. Meanwhile other reforms that might benefit indigenous peoples were carried through in the areas of agrarian legislation and education while a start was made with reforming the judiciary. For their implementation the reforms received strong backing from the international donor community. Nevertheless, although the reforms garnered quite some adherence, further implementation stalled under the administration of Hugo Banzer, elected in 1997. State discourse on participation and multiculturalism has been abandoned and priorities have shifted. The international donor community has largely been silent about such shifts since economic reform and coca eradication are viewed as more important.

In the final chapters the author seeks to evaluate the impact of the reform efforts along two lines: participation and representation, on the one hand, and the effects of special measures and special rights for previously marginalized groups, on the other. Additional factors taken into account are inequality and violence. In terms of participation and representation the outcome of the reforms are mixed, though Bolivia seems to have done somewhat better than Colombia where violence has obstructed advances. On the other hand, in Colombia the reform of the judiciary has contributed to curb excesses of the executive and legislative branches of government and consolidated indigenous jurisdiction. In both countries the consolidation of a multicultural model and of ethnic rights remains precarious, partly due to the policy reversals after the constitutional reforms and partly due to the modest ability of indigenous organizations to assume powers previously monopolized by the state. Moreover, in both cases the reforms were not accompanied by significant redistribution. Economic policy was carefully shielded from the reform process and the reforms strengthened the neoliberal model. And in the Colombian case little progress has been made in curbing violence. Thus the reforms are in a delicate stage in both countries. The initial euphoria has waned and the prospects for democratic transformation that would contribute to further consolidation of democracy are uncertain.

Despite these somewhat disappointing outcomes, Van Cott argues that we can recognize the challenges of constitutional transformation without dismissing constitutions as mere impotent rhetoric. New rights have become enshrined and may provide a basis for future mobilization. Moreover, as she illustrates in the last chapter, the mode of indigenous-state relations exemplified by Colombia and Bolivia, is being adopted in a series of other Latin American countries.

This carefully researched and well-written study is a pioneering contribution to the debate over and comparative analysis of the prospects, dilemmas and impasses of Latin America's emerging multiculturalist constitutionalism. Taking the perspective of democratic transformation it draws attention to the problems of consolidation once formal democratization has been achieved and seeks to highlight the normative aspects of the effort to shore up state legitimacy. The study signals the fact that the Latin American transitions were "double transitions," toward democracy and market-oriented economics. Throughout the study the constraints deriving from this "doubleness" come into view and it becomes clear that economic policy issues, for example, fall beyond the scope of the constitutional transformations discussed. This may constitute one area for further research which takes into account the "doubleness" of the constitutional transformations themselves. They not only seek to renew legitimacy but also provide a framework for neoliberal policies which gives rise to the classic issues of legitimation and accumulation. Moreover, it should be noted that neoliberalism also has a strong cultural and moral component. While terms like "participation" and "the rule of law" may be agreed upon among different actors, substantial understanding may be quite disparate and this, perhaps, also accounts for policies that seem to be at odds with the expectations generated by the constitutional reforms. Before he was elected vice-president of Bolivia, Victor Hugo Cardenas had contributed to developing the Katarista theory of "looking at reality through two eyes," which stressed the association between the struggle of the Indian population against ethnic oppression and their struggle as an exploited peasant class. When he had become vice-president in the Sánchez de Lozada government he was criticized for "having closed one eye."

Willem Assies

This review was first published in the European Review of Latin American and Caribbean Studies, no. 67, December 1999.