Recipe for Peace: Firmness and Flexibility
The National Constituent Assembly, elected November 4, 1984, finished its long work of writing the Political Constitution of Nicaragua on November 19, 1986. Exactly seven years and four months had passed since the triumph of the revolution. "The Constitution, our commitment to the future" was the theme chosen to build Nicaraguan public awareness of the effort and of the transcendence of the constitutional process. The theme had two meanings. First, the writing of the Constitution amounted to a pluralistic commitment and a noteworthy effort to conciliate positions for the sake of national unity. In addition, its completion in the midst of an acute economic crisis and prolonged suffering from the war reflects the firm political will to establish the legal basis on which the new Nicaragua is being built.
envío will attempt here to analyze the main contents and most novel aspects of the new Constitution, to be promulgated on January 10, 1987, and to explore its harmony or dissonance with the type of society that Nicaragua has been developing through its revolutionary process.
One and a half years of intense workThe constitutional debate ended in the National Assembly approximately a year and a half after the Special Constitutional Commission began drawing up a first draft. Five phases of work took place during that time. The first involved consultation with the political parties, popular organizations, trade unions and all other officially registered organizations in the country that wished to make proposals. The draft that came out of that process, presented to the full National Assembly on February 21, 1986, constituted the second phase. The third, covering the months of June and July 1986, was the cabildos abiertos or public hearings in which the draft was widely discussed in meetings by interest groups within the population (educators, artists, unionized workers, women, peasants, professionals, etc.) throughout the country, with the participation of some 100,000 citizens and hundreds of visiting or resident foreigners. The fourth phase was the work of the Advisory Commission on the Constitution, formed February 21, 1986, which, with the exception of the two members of the Independent Liberal Party who had withdrawn from the Special Constitutional Commission, maintained the same membership as that earlier body. Its work was concluded on September 5, 1986, with a proposed Constitution. Finally, September 16, 1986, began the fifth phase: the plenary debate in the National Assembly, which concluded November 19 with the approval of the final constitutional text.
The new Constitution has a Preamble and eleven Titles. The Preamble evokes the principal efforts in the struggle for independence and sovereignty of Nicaragua and at the same time invokes the role of those social groups that distinguished themselves in the most recent revolutionary struggle and remain faithful to it.
In the first seven Titles the Constitution takes up the basic political and ideological principles, the recognition and guarantees of rights and the programs for defense, the economy and education. The eighth Title deals with the organization of the state. Title IX establishes the administrative divisions of the country, and confers special autonomy status on the Atlantic Coast. Title X deals with the Constitution's authority and stipulates the articles that can and cannot be suspended in case of a national emergency. It also establishes the procedures for interpreting and amending the Constitution. Finally, Title XI is devoted to questions of transitional laws and structures until those set out in the Constitution are fully in place.
It must be said at the outset, before analyzing the Constitution article by article, that contrary to the image in US propaganda of growing Sandinista intolerance, a large number of the parliamentary opposition's proposals were agreed to in compromise motions. The constitutional text thereby expresses the policy of the revolution based in the search for patriotic national unity. Also, contrary to the line that the threatening economic and military situation would force the Sandinistas to declare their totalitarian inclinations, the successful writing of the Constitution shows the Nicaraguan government's capacity to accommodate political resistance and its desire to subject any possible arbitrariness to institutionalized legality
The Preamble: The people's historic memorialThe Preamble of the Constitution evokes in a few lines the struggles for liberty and liberation carried out in different historic periods. These are today based in the nationalizing struggle, in which the seminal legacy of Sandino's anti-imperialism is inscribed. The name of God appears in the text of the preamble not as a ritual invocation but as living content of the faith of so many Nicaraguan Christians who have participated in the revolutionary process with their non-believing brothers and sisters. The Christian base communities themselves, in one of the open forums, proposed this way of recognizing the God of their faith, who acts in history through the testimony of many Christian martyrs for justice.
A nationalizing constitutionThe principles contained in Title I of the Constitution precisely define the present nature of Nicaraguan society. The process of growing national identity and the desire to give it political reality through the liberation struggle are laid down in Article 1. The Nicaraguan Constitution begins by affirming independence, sovereignty and self-determination as rights of the people and of the nation and declares that interference in internal affairs and attempts to diminish independence are attacks on the life of the people. The article establishes the right and the obligation of citizens to preserve and defend these supreme values, if necessary, "with weapons in hand." The Constitution thereby consolidates the new consensus that has developed in Nicaragua. This is in contrast to the political history of the country, which, although formally independent, was completely subjected geopolitically to the United States. The political and cultural stage of Nicaraguan society is a nationalizing stage, a stage of construction and consolidation of national viability and dignity, and an affirmation of sovereignty vis-à-vis the great world powers. The reference to the defense of sovereignty evokes Sandino's famous line: "You don't discuss a people's sovereignty; you defend it, weapons in hand."
Many other Constitutions begin with the recognition of supreme values based on the juridical order and respect for internal legality. When these are not simply utopian, they refer in general to phases in the history of nations in which the first concern involves ensuring civil liberties in the face of possible arbitrariness, which these countries, with an already strong national structure, had experienced in the past. Socialist Constitutions begin by affirming as the supreme value that the state belongs to the laboring classes—workers and peasants. They thereby reflect the transition from capitalism to socialism in which the class definition of politics and the winning of economic and social liberties take precedence over civil liberties and national unity.
The Nicaraguan Constitution attempts to deal with the danger of autocracy, prevalent in many nationalizing states, in Article 2, centered in democracy. Although the aspiration to national liberation is foremost in Nicaraguan political thought, the aspiration for liberation from internal tyranny is fully intertwined with it. The popular uprising that marked the national rebellion is consecrated in the Constitution when it not only refers to the people as sovereign but also calls them the "forger of their own destiny." Grassroots mobilization thereby appears as the guarantor and counterweight to the many possible circumstances in which a nationalizing state might establish that it is led by a single party in power, referred to as a "vanguard party"—something the Nicaraguan Constitution does not do. The experience of mass mobilization is recognized in the Constitution's commitment to participatory democracy, which is not limited to the political sphere but extends to the economic organization of society. The Constitution assigns equal value to direct democracy and to representative democracy, which it stipulates is exercised through universal, free, direct and secret suffrage.
Article 3 reflects the current reality of Nicaraguan society once again through the commitment to the establishment of a just international order and the struggle for peace, viewing the present international disorder as the profound cause of many of the military conflicts ripping apart the third world. The article refers as well to the solidarity of Nicaragua with peoples who are struggling against oppression and discrimination, giving constitutional status to the Nicaraguan people's experience of the solidarity of other peoples in this nationalizing stage.
Article 4 establishes the character of the new state. The first subparagraph notes the origin of this state: a popular revolutionary process that destroyed the foundations of an oligarchic and semi-bourgeois state established for the benefit of a minority. The Constitution does not fall into the legal fiction of declaring the new Nicaraguan state to be a state for the majority, much less a workers' and peasants' state. In accord with the real process of Nicaraguan society, the new state is defined by its aims—to serve as the people's "principal instrument" for ending submission and exploitation, for enhancing the nation's material and spiritual progress and for guaranteeing that the interests and rights of the majority shall prevail. That is, a point of departure is acknowledged, which although still far away, grows out of the present transformation process, which seeks an increasingly just and developed society
Nicaragua begins its current nationalizing stage modestly, with a civil society that is still weak. In the Assembly debate, it was noted that the preeminence of the state, although instrumental, could obstruct the growth and functioning of the grassroots organizations. But if Article 2 on participatory democracy is taken seriously, it, combined with the experience of seven years of grassroots pressure and demands on the state, can ensure that social practice does not degenerate into statism.
These first four articles of the Constitution, involving the aspiration for the creation and consolidation of the nation, for real democracy, for a just international order that favors peace and unites peoples, and for a social transformation in favor of the majority, are the constitutional reflection of the basis of the new Nicaraguan society in this stage. This becomes clearer when one considers that the present stage was not brought about by a national bourgeoisie but rather was the revolutionary work of the vast majority activated by a revolutionary organization open to multiple alliances.
The principles of political pluralism, mixed economy and nonalignment are established in Article 5 of the Constitution. Although, in our judgment, the principles mentioned earlier are the most representative cornerstones of the new Nicaragua, it was these three principles that provoked the greatest confrontation among parties of markedly different ideologies.
The Assembly acknowledged the reality of political pluralism with its diversity of political organizations and mixed economy, with different forms of property. Only one restriction was placed on political pluralism: no organizations aiming to return to Somocismo would be permitted. The mixed economy is subordinated to the "higher interests of the nation" and the productive orientation of the various forms of property so as to satisfy "the needs of the country and its inhabitants." These three principles were not further defined, partly owing to the difficulty of achieving consensus and partly because to do so would box in the evolution of a process as open as Nicaragua's.
Paragraph three of Article 5, on nonalignment, was perhaps the most debated of the three. The text as finally approved was based on the standard position of the Nonaligned Movement regarding discrimination, racism, colonialism and imperialism. The position of the Popular Social Christian Party on "independence from hegemonic centers of power" and opposition to the "policy of blocs and military alliances," a position supported by the Nicaraguan Socialist Party, was not accepted. This was despite the remarks from Sandinista members of the Assembly that President Daniel Ortega had proclaimed in Harare, Zimbabwe, during the recent summit conference of the Nonaligned Movement that "Nicaragua is not the strategic reserve of any bloc, but rather of the Nonalignment Movement." A Sandinista member's suggestion describing nonalignment as "not consulting anyone before making a decision, nor asking permission of anyone" was approved.
These three principles appear in the constitutional text as the concrete channels of a revolutionary model in this nationalizing phase more than as the basis itself of the new Nicaraguan society
State and nationalityThe aims of the state are a more important basis for defining the nature of the new Nicaraguan state than the formal features stated in Title II.
The most important of these features is the form of the state. The Constitution declares Nicaragua "a democratic, participatory and representative Republic," consistent with the definition of democracy established earlier on, and above all consistent with the practice of many sectors of Nicaraguan society not to restrict the practice of democracy to the casting of a vote in an election. In the rest of the constitutional article some legal bases are given to the channels of political participation by the people.
Within the chapter on political rights, the Constitution recognizes the right of organization not only into rural and urban labor unions but for all interest groups in the population (Article 49). These organizations are permitted to adopt a party affiliation or not, as they wish. The right, both personal and collective, to petition, criticize and denounce state authorities and any public agency and to receive a prompt response, that may be public, is recognized in Article 52. The right to hold peaceful meetings not requiring advance notice is declared in Article 53. The right to demonstrate in public is recognized in Article 54, with the terms to be established by law. The public's right to take up arms to defend the nation's sovereignty and revolutionary conquests is established in Article 93, which establishes that the state has the responsibility to direct, organize and arm the people in order to guarantee this right. (Many international observers have remarked that one of the clearest proofs that the revolutionary process has the support of the population is the wide distribution of arms to tens of thousands of citizens, who have never risen up against the government.) The defense of the country doesn’t appear in the Constitution as a private fief of the army, but rather a matter for "the mobilization and organized participation of all the people in the struggle against their aggressors" (Article 94).
The Constitution establishes the obligation of the four branches of government (executive, judicial, legislative and electoral) to answer to the people for the correct carrying out of their functions and to inform the people of their work and official activities. They must additionally listen to their problems and strive to resolve them (Article 131). For seven years, the government has carried on weekly meetings with sectors of the population in events called "De Cara al Pueblo" (Face the People).
Finally, "Appeal regarding the unconstitutionality of any law, decree or regulation ... may be filed by any citizen" (Article 187). A proposal made by several sectors for a constitutional stipulation for a "permanent open meeting" or chamber for grassroots organizations did not prevail in the voting in the National Assembly.
Article 8, in Title II, characterizes the Nicaraguan population as "multiethnic in nature." The different ethnic groups on the Atlantic Coast are thereby recognized and the Constitution establishes the basis of their rights and their territorial autonomy (Articles 89-91 and 180-181). The same Title declares that the languages of the the Atlantic Coast communities shall have official use in cases established by law (Article 11), while Article 121 in a later section on education guarantees their right to education in their own languages as established by national norms.
Article 8 also declares the Nicaraguan people to be "an integral part of the Central American nation." In this context, the Constitution defends Central American unity and efforts toward Central American integration, adding, in light of the prolonged conflict in the region, the commitment to peace efforts and the aspiration to unity of the peoples of Latin America and the Caribbean (Article 9). Finally, the secular character of the state is established in Article 14: "The state has no official religion."
Title III takes up the question of Nicaraguan nationality. The Advisory Commission on the Constitution produced a draft containing an article dealing with grounds for loss of citizenship by Nicaraguan "nationals" (i.e., Nicaraguans from birth). A Democratic Conservative member called for cutting the article and was seconded by Socialist and Sandinista members who noted that Nicaragua is a signatory to international treaties that strictly limit the grounds for lifting of citizenship from nationals. It was also noted that the article could hamper the operations of the amnesty law for counterrevolutionaries who lay down their arms. In the article as finally accepted, the only way a Nicaraguan national can be deprived of nationality is by voluntarily acquiring another, and only then when there is no dual nationality agreement between that country and Nicaragua (Article 20).
The Nicaraguan Constitution also grants the right of nationality to other Central Americans when they request it, without requiring that they renounce their original citizenship, the only condition being residency in the country (Article 17). This follows a Central American tradition aimed at legally underwriting the aspiration for unity of the region’s peoples.
Finally, the National Assembly is empowered to grant nationality, not as a "nationalized" citizen but as a "national," to foreigners who have distinguished themselves in service to Nicaragua (Article 18). This article was one of those that provoked considerable disagreement: opposition parties may have feared that it would be granted for distinguished service to the Sandinista Front, even though it is not the party that grants it.
Rights, duties and guarantees of the peopleSixty-eight articles in the new Constitution (Articles 23 through 91) are devoted to rights, duties and guarantees of the people. The sessions in which these articles were discussed were the most lively of the whole debate.
Title IV is divided into six chapters, touching on individual, political, social, family and labor rights, and on rights of the Atlantic Coast communities.
Article 24 declares that all persons have duties to their families, their community, their country and humanity. An individual's rights, the article adds, are limited by "the rights of others, the security of all and the reasonable requirements of the common good."
Leading the list of individual rights is the right to the inviolability of human life. Article 23, which declares this, adds that "in Nicaragua there is no death penalty." One representative of the Democratic Conservative Party wanted to add to the article a constitutional prohibition on abortion, but the Assembly considered the issue too controversial and divisive to be handled at this time.
Many countries have an admirable list of guarantees for individual rights in the text of their Constitutions but ignore them in practice. It was interesting in this context that all the parties fought as long and as hard as they did over the phrasing of each article, thereby showing confidence that the constitutional commitments they were writing were serious.
Under Article 25, all persons have the right to individual liberty, to their security and to recognition of their legal identity and capacity. Article 26 grants them the right to personal privacy and to the inviolability of their domicile, their correspondence and communications. The Constitution stipulates that a private home can be searched only with a warrant from a judge, or when a competent authority must enter in order to prevent a crime from being committed or to avoid damage to persons or goods, in accordance with procedures established by law. Private documents may only be examined when they are indispensable for an investigation by a court or for fiscal reasons, and letters, documents and other private papers illegally seized "shall have no weight in a trial or elsewhere." Article 27 establishes equality before the law and bans discrimination on the basis of birth, nationality, political beliefs, race, color, sex, language, religion, opinion, origin, economic position or social condition. It further grants foreigners all rights except the right to take part in the politics of the country. Freedom of conscience, thought and religion are recognized, including the right not to believe in a religion (Article 29). All coercive methods limiting these rights are banned (Article 29). Article 30 establishes freedom of expression "in public or in private, individually and collectively, in oral, written or any other form." The Constitution guarantees freedom of movement in the country and the right to enter and leave (Article 31). Article 44 declares that "Nicaraguans have the right to personal property that guarantees the essential and necessary goods for the comprehensive development of the person."
Among individual legal protections and guarantees of personal freedom is the stipulation that "an individual may only be detained by a written order from the competent judge or officials expressly authorized by law, except in cases of flagrante delicto" (being caught in the act of the crime). Article 33 adds that "all detained persons have the right to be informed in detail of the causes of their detention and the accusation against them without delay in a language they understand, to have their families informed and to be treated with respect in accordance with the dignity inherent to human beings." All persons detained have the right to be brought "before the official expressly authorized by law within 72 hours." This is an improvement over current law, in which detainees must be brought before a judge within seven days. Seventy-two hours is the limit used in Spain and many other countries. The article stipulates that "no one shall be detained after a release order has been granted by the appropriate authority, or once the sentence imposed has been completed," and adds that "the responsibility for any illegal detention lies with the respective authority." As regards conditions of detention, the article stipulates that those awaiting trial must be detained apart from those who have been sentenced.
Article 34 establishes "that all those awaiting trial have equal rights to the following minimal guarantees: that they are innocent until proven guilty according to the law; that they shall be brought to trial without delay by the competent court established by law; that they shall not be removed from the competent judge except in cases set forth in this Constitution and the law; that their right to defense and to intervene in their own defense shall be guaranteed from the outset [and] they shall also be guaranteed adequate time and means to prepare that defense; that a public defender shall be named when, by the time of the first hearing, a defender has not been designated or in the event that no prior call was decreed; that detainees shall have the right to communicate freely and in private with their defender; that they shall have the assistance of an interpreter free of charge if the detainee does not comprehend or speak the language used by the court; that they shall not be obligated to testify against themselves," or against close relatives or to confess their own guilt.
Article 34 also provides the right of appeal in all cases for all crimes, and guarantees no double jeopardy and no ex post facto prosecutions. Finally, it states that trials must be public, although a judge can rule to exclude the press and general public for moral considerations or for reasons of public order or national security.
The Constitution bans capital punishment and "any penalty or penalties that independently or together total more than thirty years" (Article 37). Article 36 bans torture and declares that any type of violation of personal integrity is a crime.
The draft written by the Advisory Commission on the Constitution restricted non-retroactivity of laws to penal laws. The Popular Social Christian Party and other opposition parties proposed non-retroactivity for all laws, trying, apparently, to create a constitutional provision against enlarging the law on agrarian reform or any other public utility provision that would affect existing property titles. The Sandinista side of the hall did not have a common position on this question. Finally, the Assembly approved non-retroactivity for all laws, except criminal law when the change favors the detainee (Article 38). On penal questions, the Constitution institutionalized the increasingly humanitarian practices of the penitentiary system, imposing the obligation to promote "family unity, health care, educational and cultural advancement and productive occupation with financial compensation for the interned" in the progressive steps of the internment system (Article 39).
The right of asylum is recognized, and the extradition of asylum recipients to countries where they are sought is banned (Article 42). Extradition is not recognized for political crimes, and Nicaraguans may not be extradited from national territory for any crime.
Habeas corpus is recognized in Article 45, in accordance with the Law of Amparo. (In Nicaragua, amparo is a form of legal protection to review administrative acts and functions similarly to writs of prohibition, writs of mandamus and writs of habeas corpus. It is originally a Mexican constitutional concept.) The Law of Amparo, which has not yet been written, will now be taken up by the National Assembly and is to grant much more specific rights to defendants. It will have the same legal standing as the Constitution.
Full constitutional status is given to international declarations and agreements to which Nicaragua is a signatory on human, economic, social, cultural, civil and political rights (Article 49).
The Constitution also decrees the right to elect and be elected in periodic elections (Article 51), the right to organize political parties and affiliate with them with the aim of opting for political power (Article 55) and the already mentioned rights of meeting, demonstration, petition, denunciation and criticism of state powers and officials.
Social and family rightsSocial rights are headed by an article affording special attention in all state programs to defenders of national sovereignty and their families and to the families of those fallen in the defense of the country (Article 56). The Popular Social Christian Party proposed and won passage of an article recognizing the right to a healthy environment and the state's obligation to protect the environment (Article 60). Social security is established as the right of all Nicaraguans, not only workers (Article 61). The right to information cannot be subjected to prior censorship, only to legal obligations after the fact (Article 66). The Constitution recognizes the existence of state, corporate and private mass media, none of which can be subjected to prior censorship. On this point, an opposition motion was defeated that would have prohibited state monopoly of mass media. Instead, the Constitution prohibits monopolies by any economic group (Article 67).
One of the major controversies was over the question of conscientious objection. Article 68, which recognizes the individual and collective right to public and private exercise of religious beliefs through services, practices and teachings, opened the way for this debate. Obviously the emotional weight of the war imposed on Nicaragua impeded the Sandinista majority from accepting the principle of conscientious objection, even in times of peace or with the provision that military service be replaced by some sort of civil service or non-active service in the army ranks. It must also be taken into consideration, however, that since neither military service nor conscientious objection are traditions in Nicaragua, such petitions would be difficult to fairly evaluate by a young military institution that has had practical problems even organizing precise medical examinations for recruits.
Nicaragua's limitations also create obstacles in other areas. The country's level of poverty, for example, makes it difficult to put in practice many of the rights recognized in the Constitution, such as the right to health, or to a "decent, comfortable and secure" home (Articles 59 and 64).
In the chapter on family rights, the most notable aspect is the comparability of matrimony and a stable common law union (Article 72), although the definition of what constitutes "stable" is left for ordinary legislation. Amazingly, the National Assembly not only elevated divorce to constitutional rank, but also eliminated any need to establish cause, stating that the will of one of the parties is sufficient to dissolve the union. While acceptance of the comparability of formal and non-formal stable unions corresponds to practice in Nicaraguan society—and is happening in many other Latin American societies as well—it is somewhat difficult to see the compatibility between the ease of obtaining divorce and the constitutional recognition of the family as the "fundamental nucleus of society" which must be protected by society and the state (Article 70).
Other articles respond to growing consciousness about the rights of women: equal rights and responsibilities of the man and the woman in the home (Article 73), special protection for pregnant women (paid leave from work and social security assistance) and the prohibition of denying employment to or firing pregnant women or those in the post-natal period (Article 74). Any discrimination for reasons of filiation or any denial of equality among children is forbidden (Article 75).
Given the already noted impoverishment of the country, state programs for the benefit of minors, the elderly or the disabled (Articles 76, 77, 79) are laudable declarations of priority, but limited in their applicability.
Labor rights and rights for the coast communitiesThe new Nicaraguan Constitution commits the state to strive for full and productive employment for all Nicaraguans (Article 80), a really enormous challenge in any society. The right of workers to participate, through their organizations, in management of their workplaces is also recognized (Article 81). Article 82 guarantees equal pay for equal work and recognizes the right to a salary that "assures a wellbeing compatible with human dignity" rather than a minimum wage. The right to strike is recognized (Article 83). Full labor union freedom and autonomy is established, as is the non-obligatory nature of union membership (Article 87). The right of all Nicaraguans to freely choose and exercise their profession or trade, their place of work and apprenticeship is recognized (Article 86).
Analyzing the chapter on labor rights, there is nothing really novel, no revolutionary "surprise." One notable thing is the absence of the right to retirement. The most revolutionary aspect of the labor issue is found further on, in the programmatic declarations about the economy —agrarian reform, for example—and in the conception of education as a synthesis of intellectual and manual labor.
The Title dedicated to rights, duties and guarantees concluded with the rights of the Atlantic Coast communities. Their right to preserve and develop their cultural identity, be granted their own forms of social organization and administer their local affairs according to their traditions are recognized, as are their communal forms of property and the benefits of the waters and forests where they are situated (Article 89). Free expression in their own languages, art and cultural forms are established as a right whose exercise enriches national culture (Article 90).
A study of the totality of Title IV of the Constitution makes it clear that the Nicaraguan people are guaranteed all the rights that are expected of any state ruled by law. In this sense, the Constitution attests to the fact that the search for a synthesis between the nationalizing and transforming revolutionary process of society and respect for the freedom and legal security of its citizens is an aspiration in Nicaragua. It also corresponds to a growing social practice, although not without isolated breaks.
The state of war Nicaragua is suffering thanks to the US government is clearly an objective obstacle to the consolidation of this social practice. The Nicaraguan Constitution establishes—as do many others—the state of emergency to be regulated by the law of emergency. This law implies the suspension of many of the recognized rights, although not some of the most fundamental ones, particularly those in the international agreements the Nicaraguan government has signed. Article 186 lists 55 articles or parts of articles that may not be suspended by the President of the Republic.
National defense: A thorny issueTitle V of Nicaragua's new Constitution is dedicated to national defense. This issue was unquestionably another of the points of major controversy.
The opposition has consistently criticized the FSLN for the fusion between the army and the party and called for the end to this fusion in the constitutional debate. The majority Sandinista bench agreed to modify the draft in part. The result of the compromise was a conciliatory motion by the Assembly president, incorporating another from a Popular Social Christian Party representative. The approved motion states that the Sandinista Popular Army "has a national character and must protect, respect and obey the present Political Constitution" (Article 95).
It should also be noted that a Christian Sandinista representative introduced a motion suggested by the Christian base communities listing in order the values for which the duty and right of Nicaraguans to take up arms is justified: the defense of life, homeland, justice and peace (Article 92).
As has already been pointed out, the whole concept of national defense in the new Constitution rests on the mobilization and organized participation of the people. Although it is clear that such a conception has the danger of militarizing society, it also has the virtue of reducing the distance between the army and the people, thus neutralizing the possible coercive efforts of a state on society. In a geopolitical situation in which Nicaragua cannot do away with a defensive army, its popularization is one of the few ramparts against the danger of militarism. Obligatory military service is part of this democratic popularization of the army.
Economic programsMaterial development and justice appear in the Constitution as fundamental goals in the leadership role conceded to the state for the planning and guidance of the national economy (Articles 98 and 99). The nationalization of the financial system, the insurance system and foreign commerce are constitutionally ratified (Article 99). The immense difficulty of controlling the economy of a country in revolution, at war, under an embargo and in which diverse modes of production coexist is reflected in the Constitution by assigning the state's economic leadership the aim of defending the interests of the "majority," but that this be "in order to serve the objectives of socioeconomic progress." The difficulty of finding the means to carry out this constitutional goal can be gleaned from the heterogeneity of the "majorities" (peasants, state agricultural workers, cooperative members, industrial workers, artisans and the huge contingent of the urban informal sector), whose various members can often be found even within the same family.
The chapter on the economy reinforces the mixed economy, guaranteeing "the democratic coexistence" of distinct forms of ownership, obliging them all to subject themselves to "the higher interests of the nation and fulfill a social function" (Article 103). All this receives even greater guarantees through the "equality before the law and the economic policies of the state" of all the enterprises organized under any form of ownership established in the Constitution (Article 104). Finally, the right to "participate in the creation, execution and control of economic plans" is established not only for the workers but also for "other productive sectors" (Article 101). Workers' participation in the economic plans of any kind of enterprise is also recognized (Article 104). Representatives of small and medium producers and of the large "patriotic" producers struggled to assure this article, which in the economic plane corresponds clearly to the long nationalizing stage reflected in the other fundamental principles of the Constitution.
Although not without broad debate, articles were given constitutional rank that oblige the state to regulate domestic commerce of basic consumer goods and their supply to the countryside and city (Article 105) and to legalize foreign investments for development as long as national sovereignty is respected (Article 100).
The constitutional text establishes the agrarian reform "to permit the complete fulfillment of the historical demands of peasant farmers" (Article 106). Landed estates, tenant farming systems, inefficient management of property and the exploitation of peasant farmers is forbidden (Article 107). Ownership of their land is guaranteed to all who work it productively and efficiently (Article 108). Voluntary cooperatives, with no discrimination against potential members based on sex, will be promoted and given technical assistance, according to Articles 109-110, which also promote the voluntary association of small- and medium-sized agricultural producers. Finally, the Constitution recognizes the right of peasant farmers to participate in defining the agrarian transformation policies through their organizations (Article 111).
The last chapter of the constitutional section on the economy, dedicated to public finances, assigns the President of the Republic the responsibility of preparing the national budget and the National Assembly that of approving it (Article 113), although this reverts exclusively to the President in times of emergency (Article 185). Finally, a system of taxes that would procure a more just distribution of wealth and revenues is established (Article 114).
State education with private participationThe seventh Title defines the state as planner, director and organizer of the national education system, with integrated national teaching plans (Article 119). Christian representatives succeeded in including an article obliging the state to promote "participation of the family, community and people" in education (Article 118), as well as another that grants private teaching centers with a religious orientation the right to impart religion as an extracurricular subject (Article 124). This in turn was based on raising to constitutional rank the possibility of private teaching centers at all levels (Article 123).
Without recognizing freedom of teaching plans, the state cannot give up its monopoly on teaching. On the other hand, there is recognition of academic freedom in higher education; financial, institutional and administrative autonomy; and the free creation, research and dissemination of the sciences, arts and letters (Article 125). This is further reinforced by defining the free and unrestricted character of artistic creation and guaranteeing freedom of choice in the creation of forms and means of expression (Article 127).
The most interesting, most revolutionary aspect is found in the first two articles of the Title. Education is given the objective of "the full and comprehensive development of Nicaraguans; to provide them with a critical, scientific and humanist way of thinking; to develop their personality and their sense of dignity, and to prepare them to assume the tasks of common interest demanded for the progress of the nation" (Article 116). In the same article, education is understood as a "fundamental factor for the transformation and development of the individual and society."
The clear tendency to rise above rubber-stamp ideological orthodoxy is reinforced even more in the following article, which describes education as a democratic, creative, participatory, dynamic, permanent process "which links theory with practice, manual with intellectual labor and promotes scientific research." This tendency away from dogmatism becomes clarified once and for all by establishing that education is not based on a single ideological conception of the world but that through "knowledge of our history, reality, national and universal culture and the continual development of science and technology, it cultivates the values of the new Nicaraguan."
There is an evident dialectic between the singleness of the educational system and its democratic nature. Here too, however, the positive or negative resolution of this dialectic will be decisively influenced not only by the genuine commitment of governors and officials to the "creative application of educational plans and policies" recognized for national teaching in Article 120, but also the real availability of educational materials and the level of training possible for the educators.
A republic with a strong President and four independent branchesAs general principles of the organizational part of the Constitution, Title VIII ratifies the existence of four branches of government: executive, legislative, judicial and electoral, which are independent but harmoniously coordinated (Article 129). It also stipulates that all government officials must provide an accounting of their goods before and after assuming the position (Article 130), that administrative careers will be established and, as already mentioned, that officials of the four branches, whether directly or indirectly elected, must answer to the people, inform them of their management, listen to their problems and try to resolve them (Article 131).
The members of the National Assembly, the President and Vice President of the Republic and the mayors of the municipalities are designated by direct election among the regional, national and municipal electorate respectively. The term of office for these positions is six years (Articles 136, 148 and 178). No restriction on the possibilities of reelection was established.
It was on this latter point that the greatest conflict in the entire debate was unleashed. Led by representatives of the Democratic Conservative Party, and especially by Rafael Córdova Rivas, former member of the Junta of the Government of National Reconstruction, the majority of the opposition parties insisted on restricting the number of presidential terms that one person may fill. Raising what they imprecisely called the "principle of alternation" to the level of a touchstone of democracy, the opposition walked out of the debating sessions when their motion on this point failed. The conviction of their struggle originated in the repugnance that the dynastic presence of the Somoza family in the presidency generated among all people of Nicaragua. Furthermore, reelection awoke even older historic memories among the Conservatives, based on the perpetuation in power between 1895 and 1912 of Liberal President José Santos Zelaya. The Sandinista representatives did not exclude an eventual regulation of the number of presidential terms a single person could accumulate in later legislation, but they refused to constitutionally negate the right of the electorate to give its confidence successively to one ruler who satisfies their aspirations. Reelection is not necessarily a synonym of dictatorship. The long periods in power of heads of democratic governments—various Swedish prime ministers, German Chancellor Adenauer, President Roosevelt, etc.—impeded an easy theoretical resolution of this controversy that so fired up the Nicaraguan Assembly representatives. Finally, after various days of absence from the Assembly, most of the opposition returned to the debate and continued their constituent tasks, with the most important exception of Conservative Clemente Guido, one of the vice presidents of the Assembly. (The presence in the debates of Virgilio Godoy, the former presidential candidate of the Independent Liberal Party who withdrew from the elections at the eleventh hour, should be noted here. His presence—following the decision of his party—was characterized by a total silence throughout the discussions.)
The Constitution sanctifies the proportional system for the election of representatives, as has already been regulated in the Electoral Law that operated for the 1984 elections (Article 132).
In addition to the National Assembly’s legislative function, the most important of its many functions include the faculty of exercising the right of pardon, questioning ministers and other high officials, rejecting or approving the national budget and international treaties, approving or canceling legal status to individuals and institutions, electing the Supreme Court justices, Supreme Electoral Council magistrates and Comptroller General of the Republic from slates presented by the President, determining the country’s political and administrative division and delegating legislative functions (with the exception of the Codes of the Republic) to the President during its period of annual recess (Article 138).
The initiating of bills corresponds to the representatives, the President of the Republic and, in areas of its competency, to the Supreme Court and the Supreme Electoral Council as well (Art. 140). The National Assembly’s legislative power is limited by the President's partial or total right to veto, which may be exercised within 15 days after receiving the approved bill (Article 142). The Assembly, for its part, retains the possibility of rejecting the presidential veto by an absolute majority vote (Article 143). (The draft demanded a 70% vote of the qualified majority.)
The attribution of the functions of Head of State, Head of Government and Commander in Chief of the Defense Forces to the head of the executive branch (Art. 144) makes the Nicaraguan state a strong presidential Republic. The election of the President and Vice President will be by direct universal suffrage and election requires only a simple majority relative to other candidates, without a second electoral round being necessary (Article 146). Permanent vacancies of the President and Vice President will be filled by the National Assembly and those selected will terminate the period of those they replace (Article 149).
Among the principal functions of the President are some that reinforce the strong presidential character of the state: the faculty to enact executive decrees of a fiscal and administrative nature with the force of law; to appoint and remove ministers and other high officials of the executive branch, leaving their number and organization at the discretion of the President; to legislate during the recess of the National Assembly (a period that in practice has been the three months between December and February); to regulate laws; to conduct foreign relations and formalize international treaties; to decree a state of emergency, which must be submitted within 45 days to the National Assembly for ratification; and to direct the economy and determine the country’s socioeconomic programs (Article 150). Both the function of formalizing international treaties and of guiding the country's economy are counterbalanced by the fact the Assembly must approve treaties and the national budget—the latter in times of normality. Another control over the economic policy is exercised by the functionally and administratively autonomous institution of the Comptroller General of the Republic (Article 156).
The judicial branch is established in the Nicaraguan Constitution in a unitary system of justice, with only one special jurisdiction, the military, which shall be regulated in a later law (Article 159). The National Assembly shall name the Supreme Court justices—a minimum of seven—for six-year terms, but it is the President of the Republic who selects from among these the President of the Supreme Court, which is also the Constitutional Court, responsible for resolving appeals of unconstitutionality and of amparo (Article 164). Consequent with the fundamental principle that justice emanates from the people and is imparted by the judicial branch in their name (Article 158), the Constitution establishes grassroots participation in the administration of justice, not by a jury system but by incorporating into the judiciary—with the exception of the Supreme Court—citizens who are not necessarily judges but who have equal faculties to those who are (Article 166). The Constitution establishes the independence of judges within the framework of the Constitution and the laws, requiring them to abide by the principles of legality, the public nature of their work and the right to defense (Article 165). As a consequence, their decisions are binding on any state authority (Article 167). The provisions of the Constitution thus presume a dissolution of the Special Tribunals such as the Anti-Somocista People's Tribunal.
The fourth branch of the state, the electoral branch, is to include a Supreme Electoral Council and other subordinated bodies, which will exclusively deal with the organization, leadership and oversight of the electoral processes (Articles 168, 169). This independent branch is thus the institution of final recourse for resolving problems of the subordinated electoral bodies, as well as claims by the political parties. It must equally guarantee freedom of the electoral processes and has faculties to demand security conditions from the corresponding bodies for the competing political parties. This fourth branch of the state is also responsible for the electoral calendar (Article 173). The five magistrates of the Supreme Electoral Council and its president are elected by the National Assembly for a six-year term (Articles 170, 172).
The Constitution and its reformRegrettably, the major question that remains is when the new Constitution will be put fully into effect. The answer is that the full effectiveness of the Constitution and the recovery of peace in Nicaragua have the same final date. In a situation of war probably not much time will pass between the promulgation of the Constitution on January 10, 1987 and the decree of the state of emergency which de facto suspends some of its articles, particularly some of the individual rights and guarantees of Nicaraguans. As we have already indicated, the Constitution gives the President of the Republic the faculty of decreeing the state of emergency (Article 185). In 1987 the priorities of the Assembly will be the constitutional laws: the new electoral law, the emergency law and the Law of Amparo; the real situation—how near or how far away peace is—will have much to do with the relative restrictive reach of the last two.
Constitutional control will be exercised through appeals of unconstitutionality, amparo and habeas corpus, which will be regulated by the Law of Amparo.
This Constitution responds to a nationalizing stage of Nicaraguan society, to new social values and goals, those of justice and development, which cannot be reached in a short period of time. The war, furthermore, has cruelly prolonged that period. Corresponding to this reality, constitutional reforms must be considered in two successive legislatures, after requiring for their proposition an initiative either of the President or of a third of the Assembly representatives. Such reform proposals will require the approval of 60% of the representatives to be accepted. A total reform of the Constitution may only be proposed by half plus one of the representatives and to be accepted must receive the favorable vote of two thirds of the Assembly. Should this occur, the Assembly will fix a date for the convoking of elections for a new Constituent National Assembly. In cases of reforms approved by the Constitution, the President of the Republic may not exercise the right to veto (Articles 191-194).
Transitional constitutional provisions, brought together in the eleventh Title, refer to the continuing period of validity of Nicaragua’s codes and laws that do not oppose the Constitution. The Special Tribunals will also continue to function temporarily, until the unification of the judicial system has been carried out, and the ordinary tribunals as long as grassroots representation is not yet put into practice in them. In addition, the current administrative division of the territory will be maintained until the corresponding law is promulgated. Finally, the members of the Supreme Court of Justice and those of the Supreme Electoral Council will continue to exercise their offices until selection according to the Constitution takes place.