July 24, 2008

The Recall Referendum is Stopped

MABB © ®

The scheduled August 10 recall referendum (Law 3850) has been stopped by the Constitutional Tribunal. On July 21, Silvia Salame, the only (and lonely) Constitutional Tribunal acting judge reminded the National Electoral Court (CNE) the course of the law. This, in turn, would implicitly stop the oncoming recall referendum, until, that is, the tribunal considers the matter and issues an official pronouncement.

The pronouncement was the result of a legal action UN Deputy, Arturo Murillo, started back in May (27) by formally asking the CNE to stop the referendum because it was unconstitutional. For its part, the CNE, did not want to deal with the issue and it referred the case directly to the Constitutional Tribunal.

Now, the decision is taken and neither the government nor the CNE will stop the referendum. Much less, if a clear decision is missing from the Constitutional Tribunal. The CNE has already said it will continue with the referendum, and the government will take legal action against Judge Salame.

This brings the recall referendum into even murkier legal grounds, when it had already been born in legal limbo. Let's remember that on January 19, 2007, President Morales submitted a bill to Congress. This bill, which was a response to the disturbances in Cochabamba (January 7-12), asked Congress to debate a recall referendum. This bill was never debated nor considered. On December 6 of the same year, Morales sent a bill to Congress again, challenging them to pass it. Ten days after the bill was submitted, the MAS controlled lower chamber passed the bill (December 16). It was in the Senate chamber where the proposed bill was stopped because the Senate is controlled by the opposition. Back then, there were reservations coming from both sides that the bill would have to be fair. The government was reluctant and the opposition was initially in favor. The government argued that the majorities (those incumbents who won with more than 50%) should have to be respected. The bill presented by the government on December 6, took into account the government's arguments. Precisely that was what the opposition wanted to stop in the Senate. However, and surprisingly, on May 8, 2008 the Senate passed the law, and subsequently on May 12, the president signed it into law.

The ink wasn't even dried and the legal grounds of the referendum were already being scrutinized. One argument was that the current constitution does not provide for a recall referendum. Another observation is the mechanism of acceptance or rejection. It is not clear, in the text of the law, which figure will be the measure stab, the percentage of votes or the number of votes. It could be that one person gets a different number of votes than the stipulated in the law. Also, with the change in the voting register, that number will most certainly be different (source). Finally, an argument that seemed to be uniting both, government and opposition, said that the referendum would not bring any solution to the conflict. The solution is negotiation.

The referendum novela goes on!


mcentellas said...

I'm not so sure the referendum is "unconstitutional." The 2004 Constitution does allow for referendums and citizen initiatives. And it doesn't explicitly disallow recall referendums.

mabb said...

I would imagine if you are trying to remove a constitutionally elected president, you need a provision in the constitution. That's how I understand this argument.

The 2004 constitutional reform (s) was designed with the intention to consult the people in regards to issues, not as a mechanism to remove a president.

The government and the opposition here are not paying attention, at all, to legality. That's because, in my opinion, the inability of the courts (anyone) to function or issue opinions. The law, right now, is up to the interpretation of anyone...

Aaron said...

Yes, if the constitutional court gets its quorum, both the recall and the autonomy statutes may be in trouble.

mabb said...

Depends on who gets elected!

galloglass said...

Miguel C:
According to what I've read, these referendums have to be proposed by the people, i.e., citizens, and signatures gathered. Then the Congress can act. Congress can't unilaterally decide to create a referendum. Also isn't there anything like "equal protection" in Bolivian jurisprudence?


Ufffff, what I can tell you all, it is obvious that you all are not really aware that Bolivia is not running under the law since the ousting of Goni, and principally under the Morales regimen. Remember, this is a president the textually and publicly said that “the laws are prejudicial to us”; meaning to his regime’s intents to rule the country under a fascist dictatorship.

So you have it clear, some things that the constitutional tribunal has to review and everybody knows are going to be deem unconstitutional if a decent and fair tribunal is establish are:
1. The law to elect prefects
2. The proposal of new constitution presented by the Constituent Assembly
3. The referendums in Santa Cruz, Beni, Pando and Tarija.
4. The law to recall the president (the elected prefects don’t count because their election is unconstitutional)

As you all can see, the country is living Evo’s revolution, you don’t always need weapons with bullets to make one; especially since the army and the police, where the guns are, belong to you. The MaSSist has used Trotsky’s philosophy to destroy everything to make a new country to eliminate the vestige of anything that seamed order in Bolivia because they needed chaos to create their newborn country. The destruction of the constitutional tribunal is a key part of that strategy.

You should stop seen Bolivia as ruled by Evo alone, the guys running the show are behind him and are the ones that are well prepare beyond any doubt to sink our country into the abyss of the XXI socialism.

mcentellas said...

Perhaps I'm overly influenced by Anglo-American jurisprudence (where what is not disallowed is allowed), but I see no problem w/ any of the referendums. Here are my reasons:

1) The prefect elections. Technically, the president can still appoint (and remove) prefects. But the law doesn't stipulate *HOW* the president does so. It's my understanding that Evo has respected the plurality winner in each of the elections, though he's in no obligation to do so (and this is hardly ever noticed by his opponents, btw).

2) Both the constituent assembly and referendums are mentioned in the 2004 Constitution. I am therefore assuming that a referendum on whether or not to accept the constitution is allowed. Perhaps such a referendum is only "consultative" and will depend on the legislature to ratify it. But that's a technicality (just like the prefect elections).

3) Likewise, I see no problem w/ the media luna referendums. As far as I know, the passage of the referendum did not automatically create a "federal" Bolivia. So we can take those referendums also as "consultative," in the sense that it expresses the wishes of a region's population and will serve as the basis for negotiation for the movement's leaders (does anyone really believe that the final compromise solution will be identical to the statute voters approved?).

4) My understanding is that the president could declare a recall referendum "consultative" and then merely respect the result. Again, w/ prefect elections no such move is even necessary, since constitutionally the president can simply remove prefects; but having a "No" vote would help legitimize such a move. If the president *AND* vice president resign, and if the presidents of the Senate and Chamber of Deputies resign (as they did in 2005), the constitution calls for new elections to be scheduled within 90 days (which is why Evo was elected in 2005, not 2007).

Finally, I would add that extra-constitutional norms have been used in the past to resolve political impasses. In 1979 and 1980 the lack of a clear winner at the polls resulted in caretaker interim governments headed by the president of the Senate (in 1979) and House of Deputies (in 1980).

mcentellas said...

PS. A long, long time ago I posted a brief overview of the (new) 2004 Constitution. Here is that post:


Gringo said...

New constitution in 2004, new constitution in 2008.Some car models last longer. That says a lot, unfortunately.

mcentellas said...

Bolivia also got a new constitution in 1994/5 (it was written in '94, but formally approved in '95). So, yeah, I'm currently driving a car older than Bolivia's last THREE constitutions. It does say a lot

mabb said...

That is exactly my point. Bolivia tends to resolve its problems, at times, with extra-constitutional means. The constitution is not the last source for guidance, it is not inviolable, as for the US, for example.

There are a number of problems I see, and I am not constitutionalist. :-)

Yes, the president is obliged to respect the simple majority winner. It says so the law. See the interpretative law of July 2005 and law 3015 from April 2005. The last one gives the guidelines for the Prefects to be elected by popular vote.

To call or carry out a referendum, a procedure has to be followed. As far as I know, aside from the signatures gathered, there has to be a convocatoria (convocation or summon law). This can only be done by Congress, as far as I know (here is where they give it funding). The president has to sign it. And of course, the CNE has to start working.

And, the referendum has a "consultative" character, but it is more than that, in practice, I would say. The constitution says the people governs and deliberates through .... a referendum (as well). See article 4.

At this point I would go back to Bolivia libre's omnipotent wisdom and agree Bolivia is not playing, let's say, strictly by the rule.

mcentellas said...

MABB is completely correct about the enabling law used to elect prefects in 2005. My point was merely that the actual constitution doesn't stipulate *HOW* prefects are elected. The enabling law could also be changed. For example, it currently merely recognizes the plurality winner. It could've been modified to require a majority (50%+1) w/ either a second round runoff or some other procedure.

My objections w/ the Bolivian constitution(s) aren't that it's inherently flawed. But rather that it is at times too precise. The idea that the constitution can solve all social problems is problematic. I prefer short constitutional texts that only give guidelines to be interpreted by legislatures, executives, and courts. Britain, after all, functions quite well w/o a constitution at all!