Nicaragua
Dora María Téllez Assesses the National Assembly
Dora María Téllez, one of the most authoritative voices in the National Assembly over the past six-and-a-half years, summed up for envío the Assembly's legislative work in that period from the perspective of her own bench, and analyzed the challenge it faced in its last days. The following are transcribed highlights of her taped talk.
Dora María Téllez
The first two years of the National Assembly that was elected in 1990, which I was part of first as a Sandinista representative for the FSLN and since 1995 as a Sandinista representative for the MRS, were very tense, confrontational and polarized. The fact that the UNO alliance fell apart in the first moments of the Assembly, on April 25, when Violeta Chamorro took office, was decisive. The majority of UNO representatives in the Assembly took various positions in opposition to the government, according to the circumstances and the political, economic or whatever other interests that began to move within the Assembly.
Once the polarization ended, we managed to develop a scheme in the Assembly that combined the interests of the Sandinista bloc and of the representatives of what had been UNO parties. The common interest everyone shared to a greater or lesser degree was opposition to the government. The Assembly was never linked in to the governmental interest, except for a very small group of representatives called the "center group," which more or less acted like the government's parliamentary group.
The Constitutional Reforms: Heart of a Common Program The articulation we achieved among representatives of such diverse positions made it possible to build a program common to all. The constitutional reforms were the heart of that program. Those reforms had to do with a political desire to change the nature of Nicaragua's institutions. Fundamentally, we wanted to move from a strong presidential branch in legal and constitutional terms to a greater balance of power. We wanted to give the institutions more independence and strength, to open more democratic spaces and place certain legal limits on future governments.
I have to be frank; much of what we structured in that program we did thinking about the country's current reality. The possibility of a government like Alemán's winning the 1996 elections had a lot of weight in determining the constitutional reforms.
In deciding to push through the reforms we faced two choices: we could either make them or we could maintain certain alliances with the government, but not both. At that time, it was clear that since the government had no party, its family and friends and the economic groups were its main reference points. We had no doubt about our choice: constitutional reforms, at whatever cost necessary, knowing the conflict that the reforms would create. In the case of the Sandinistas, one of the costs was to break with the FSLN.
The FSLN opposed the reforms because, given various shared interests, it put its alliance with the government first. At that moment the perspective of certain economic groups or political power groups within the government were more important to the FSLN. It didn't want to clash with them.
What issues interested us most in the reforms? The balance of power. That meant giving power to the Comptroller General's office and making that institution independent. Before the reforms, the President of the Republic chose the comptroller; now the post is named by the National Assembly. We also wanted to make the Supreme Court more independent. Before the reforms, the President gave the Assembly lists of candidates and it had to choose from among them. With the reforms, the Court justices are elected by the Assembly by a 60% vote from lists that can be presented not only by the President, but also by the Assembly and by civil society.
We were also very interested in the issue of taxes. Until the reforms, the President could raise and lower taxes, invent them or eliminate them. We went through a long period when we would wake up on Monday morning and go through the papers for what they called the government's "tax ambush": some new tax decreed from the desk of the Finance Ministry. With the reforms, there can be no new taxes or tax changes without passing through the Assembly.
We wanted to participate in the issue of the foreign debt, too, knowing that the President contracted the foreign debt directly and unilaterally. And to have effective control over the national budget, since we had already proven that the budget the President sent to the National Assembly for approval every year did not tell the truth. And even if it was truthful it didn't matter, because the President could change it once the Assembly approved it. All of this was within the framework of the law, according to the excessive or total powers that the 1987 Constitution gave the President.
Many people warned us that we would run a risk by transferring so much power to the Assembly--of course, it is power that many congresses or parliaments around the world already have--since not all legislators have the ability to address such complex economic issues or make such sensitive appointments. This is true, we responded. The general level is low and we lack advisers, but the worst Assembly in the world is still the best place to discuss national issues for one simple reason: it is public debate. And when issues are debated in public, society can take action. In contrast, when a minister decides on a new tax behind closed doors and announces it to journalists on Monday morning, society can no longer act.
After the reforms, everyone knows about a new tax proposal as soon as it comes to the National Assembly. The newspapers begin to talk about it, the radios to offer opinions, the pressure groups to review the parts that interest and affect them. They come to the Assembly, they meet with the representatives and lobby. In the end, the decision the Assembly makes is more representative than the one that would be made by a minister in his office. So no matter how weak the Assembly might be, it's always better to transfer powers to it, thus opening the game to society rather than keeping it behind the closed doors of ministerial offices.
So the first and foremost achievement of the constitutional reforms is the balance of power. The power that the reforms gave to the institutions--Supreme Court, Supreme Electoral Council, Comptroller General--was fundamental, as was much of the power transferred from the executive to the legislative branch.
The clarification of various social rights that are not clear in the 1987 Constitution was another fundamental goal of the reforms. For example, the Constitution said that "basic education" was free. Period. When we Sandinistas were in office, basic education went through secondary school. When we left the government, it was reduced, and only went through fourth grade. With different ministers, the concept of basic education could continue to vary. The reforms established that primary education [through sixth grade] is free and obligatory, and that secondary education is free, with voluntary contributions welcome.
The clarification does not mean that these social rights are now guaranteed, but the clarification is an instrument that helps people demand and fight for their rights. We all know that the law is applied insofar as there are those who defend it. That's always how it has been, everywhere. All law has to have an articulation with society. If people take up the law, learn it, use it and defend it, the law serves them. If not, it's useless.
The Framework Law Only in its last year could the Assembly begin to exercise the new faculties regarding the economic issues granted it by the constitutional reforms. But that was 1996, an electoral year. We also had the Framework Law's restriction on the reforms, which prevented some of them from being put into practice until now, until January 10, 1997. We made that series of concessions to get the government to stop opposing the reforms.
Many jurists believed that the concessions the legislative branch made to the executive in the Framework Law were illegal, and they probably were. They believe that with those concessions, the Assembly gave the executive back part of its original power as well as the new power provided by the reforms. And that was also true. The Framework Law was highly criticized, but we had no other options: either constitutional reforms that would go into effect in January 1997 or nothing. Either lose the reforms completely or concede to the Framework Law.
In addition, at that moment no one yet wanted or understood the reforms, and wouldn't have defended them in the streets. At that time the FSLN was saying that the reforms were "a cat and dog fight," so people said that we in the Assembly only wanted to fight with the President. The press said the same. There came a moment when the Assembly was left to fight for the reforms completely alone. But we were clear that there should be reforms no matter what, even if they only went into effect on January 10, 1997, with the new government. They were what mattered to us. It mattered less that we had to share many of the Assembly's new powers with the executive through all of 1996, according to the mutual agreement of the Framework Law.
Lame Duck Assembly Races Against Time Once the battle for the reforms was over, we in the Assembly turned to other issues. The first and most complicated was the property issue. The resolution we found, basically, was the legalization of all actions taken with respect to small properties by the revolution and the Sandinista government, and the requiring of payment for or the return of large properties, as well as compensation for those who had been confiscated and expropriated.
Then we began to get into tax issues, other economic issues linked to producers, issues of government organization and the like, beginning to make use of the powers we had. But time was short; we were working in the shadow of the elections.
When Alemán won the elections on October 20, 1996, we were barely beginning this new legislative stage. We already had a very tight agenda, with important pending laws. And obviously, when Alemán won, the agenda got bigger. There's no reason to hide it. We drew up an additional "agenda of protection" to leave a series of problems resolved and set limits on what the Liberal government might want to impose.
We quickly tried to push through some of the pending bills as well as others we introduced. Since the Liberal Alliance was not pleased with any of them, the first thing it did was begin to woo representatives within the National Assembly with flattery and promises of future posts.
Why go around trying to buy representatives at the very end of a legislative session? Precisely because at that moment, in the transition from one government to another, the Assembly as an institution has nothing to lose; the retiring representatives have no commitments. We could legislate with our hands totally free, which the Liberal Alliance interpreted as dangerous.
Arnoldo Alemán began meeting with groups of representatives to try to break the Assembly quorum and thereby prevent the Assembly from continuing to meet and legislate. He and other Liberals worked very hard and managed to get some representatives out of the Assembly, but they didn't break the quorum and the Assembly continued working.
Many important laws were passed in that final period, despite the obstacles being put up by the new government. They would have provided valuable protection, had the Supreme Court not annulled them. For example, the Civil Service Law was fully reestablished in an attempt to prevent the blanket firing of public officials that the Alemán government has already begun. Then there was the law to restructure the debts of agricultural producers with the state bank; the executive branch organization law, which would have prevented Alemán from making the appointments he did and in the manner it did it; the law against nepotism in appointing public officials, which would have kept him from naming so many relatives and relatives of relatives; and the general budget of the Republic, in which we established where spending would and would not take place in 1997 by raising salaries for teachers, health workers, soldiers and police and putting restrictions on spending in some ministries and establishing assignments to municipalities. Equally important was the new Tax Reform Law, a tax package we had spent two years discussing in order to figure out how to balance it. Really, bills were being discussed that responded to serious problems.
There were also other issues in the additional agenda of protection. For example, we wanted to make the Attorney General's Office independent. Why? Because that's the office that does the accusing in cases of official corruption. If the Attorney General is named by the President, how can he or she accuse? What employee would accuse his or her employer of being corrupt? It never happens. The scheme of an independent Comptroller, achieved with the constitutional reforms, had to be combined with an also independent Attorney General's Office.
We had been discussing the attorney general issue since starting the reforms. We didn't introduce it then, as a constitutional reform, because many people said we were taking too much power away from the executive. But, with the arrival of a new Liberal executive, we decided it was time to introduce such a bill. We did, and it was approved.
We also decided that the moment had come to make the Central Bank partially independent of the executive branch's economic policy. The Central Bank has often been used to support the political project of those in office.
The Supreme Court Goes Duck Hunting We knew perfectly well that all the laws we were approving and decisions we were making could not possibly appeal to the incoming Liberal government. We played a totally open game, not kidding anyone. We were pressured from all sides to stop legislating, but we said our mandate to legislate was until 9 am on January 9, 1997 and we planned to make use of it whether the incoming government liked it or not. It obviously didn't like it.
When the Liberal Alliance couldn't pay off enough representatives to abandon their work and break the quorum, only one mechanism was left to it. It got the Assembly president and two or three board members to file suit against our legislative work with the Supreme Court, where the Liberal Alliance was at that very moment building a favorable correlation of forces.
On January 7 the Court decided to annul all 80 laws we had passed in one fell swoop, basing itself on an interpretation of the reform we had made to the Assembly's internal statutes to continue legislating. That decision is exactly contrary to four previous decisions by the same Court on the same issue over these last years. Given internal conflicts in the Assembly over the interpretation of its own statutes, the Court ruled on four occasions that the Assembly statutes were an internal issue of the legislative branch over which the Court has no authority, and that anything the Assembly did was legal as long as it did not violate the Constitution. The fourth time the Court took this stand was only 15 days before the January 7 verdict. It took less than two weeks for the new Liberal government to pressure the Court justices enough for them to reverse themselves. They invalidated all the work we had done in the Assembly--all of it.
The Court acted illegally, outside of the legal framework, which is very serious. What could it have done, what did we hope it would do, had it maintained its competence and authority? It could have annulled the publication of some of the approved laws in the media to which acting Assembly president Doris Tijerino had sent them, and ruled that the process of forming the law should continue. That is to say, rule that the approved laws themselves were valid, but that the new government should either publish them or veto them. The Court could legally have made that ruling without violating its competence or interfering in the Assembly.
Had the Court made that decision, we would have protested, knowing the new government could veto all the laws as Alemán had already announced he would do, but we would have had to admit that the Court ruling was legally centered, impeccable and correct. But instead the Court plainly and simply stepped outside of the law to clear the way for the new government, so the Liberals wouldn't have to deal with the legal restrictions we were imposing with the 80 laws.
Controversial Assembly Actions: Tempests in a Teapot? That the Assembly legislated very rapidly? That's not the problem. It's good when the Assembly legislates well and even better when it does so quickly. And why did it legislate so fast this time? Because in this last stage all the representatives, despite their diversity, had basically the same interest. They wanted to strengthen the country's institutionality, prevent the wholesale firing of functionaries, give the judicial branch independence through the Organic Law of the Judicial Branch, conclude the privatization of a series of businesses to workers, defend some 130 spontaneous settlements in Managua with almost 200,000 people living there from evictions...
Very serious issues were at play in the Assembly, much more serious than the four months of severance pay for the retiring representatives that we also approved in those days. Why was that highly criticized compensation introduced and approved? The main reason was the desperation of representatives who knew that when they left the Assembly they wouldn't find work. After seven years of being a representative in the conditions we worked in, there's not a single person who doesn't have some gripe against you. And if at the end, you design a series of laws in open and direct confrontation with the entering government, worse yet. You're in bad shape everywhere. They don't want you, they don't trust you, if they hire you they get burned, and so on. Many representatives envisioned exactly what is now happening to them. Not one person from the MRS bench, even highly qualified people, had found work by the end of January.
Nicaragua works based on family links, in which those who have a job with a fairly acceptable salary maintain a huge number of people. Benigna Mendiola maintained 30 people on her salary as a representative. What cushion did she have when she left the Assembly? None.
I didn't like the compensation, but it exists in other parts of the world and we knew that executive officials were writing out their own hefty severance compensation. The media, especially the official media, exaggerated their coverage of the compensation proposal to discredit the Assembly even more. Many people were only aware of that controversial issue. That's how it is in Nicaragua; we prefer to believe the simplest interpretation rather than try to understand the complexity.
Needed on the Left: A Clear Opposition Program The new Liberal government means huge changes for the country. It is a centralizing government with strong presidential power and is coming in with a long-term political project. The work that the new Assembly can now develop must be set within that framework. Changing the correlation of forces in the Assembly will be difficult since the Liberals already control the majority of commissions, but that doesn't mean nothing can be done. A lot can be done, but only if there's a clear opposition program.
An opposition program shouldn't consist of simply opposing the government; it has to be a positive program of what we want to do. If we're clear about what we want to do, we can take the initiative at this moment, seeking positive initiatives and converting them into laws. We have to be aware not of what Alemán wants, but of what we want.
The question for the left, for the popular movement, for the social movement, is: what do we want? Do we want to wait to see what they throw out and then respond? No, we ourselves should seek the issues, invent proposals. The opposition program has to deal with jobs, with reactivating small and medium producers, with the problems that worker-owned businesses have, with housing... There are any number of things of concern to people around the tax issue. Taxes take money out of one person's pocket to put it in the pocket of another. So either you know the law, debate and offer your opinion and act, or you lose.
Norms for the municipality law are also up for Assembly debate. What norms should be set for community participation in municipal decisions? In the case of women, an opposition program will have to deal with the conservative wave the Liberal Alliance is on around the issue of women, families and children, which is expressed, among other ways, in the new Ministry of the Family. The women's movement has to take the initiative, proposing a program that puts the government on the defensive by being for something, not just against.
There are spaces on all sides. There are bills that, just by submitting them to the Assembly, whether they are approved or not approved, mean that you must at least be taken into account; the press must listen to you, people find out about your work You have an instrument to be working within the Assembly.
What is the position of women, of youth, of parents on education? It's possible to put together a program and much more feasible to turn it into a bill. It's feasible to use all legal and institutional mechanisms available.
But to act we must overcome two great problems in the grassroots movement. First, the movement hasn't learned to use the institutions. And if it doesn't learn to use them, it will remain talking in the street. We have to learn to use institutional instruments effectively. In the grassroots movement we can't go on thinking that we're marginal to institutionality or even to society.
And another problem. We're accustomed to discussing politics in the grassroots movement, but politics in this stage will be the economy. So the government will make economic policy while we go on discussing politics. We have to discuss the economy. We have to learn to act in economic terms. From now on legislation will mainly be economic: how to distribute the pie, who'll get which piece, how it'll be divided, the size of each piece, what flavor it will be--if it has flavor and if there's a pie... Making the institutions work for us and thinking economically become the greatest challenges facing the popular movement in this new stage we're moving into in Nicaragua.
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