October 30, 2017

The Re-election Issue Comes Back to Hunt Bolivia

MABB ©

Re-election has been a recurring issue in Bolivian politics. It seems the MAS forces as well as the government are intent on allowing Evo Morales remain in the presidential office. The first time, back in April 2013, Morales was allowed by the Supreme Court to run again by ruling the first time Morales was elected in 2005 did not count towards the two terms allowed because it happened before the new Plurinational State was founded in 2009. The second time, official political forces asked the population in a referendum whether the amendment of article 168 in the constitution, which would allow a one time re-election of Evo Morales and his VP for a period 2015 - 2020, would be allowed.The result was a narrow negative to amending the constitution.

Now, the third time, the same political forces have gone back to the legal path. This time around, the government is raising an issue of constitutionality about some articles within the same constitution. The government has submitted a petition (in Bolivia known in legal terms as Recurso de Inconstitutionalidad, and in English maybe translated to recourse or procedure or appeal) to the Constitutional Tribunal or in other words Constitutional Court to take a look at some articles within the current Bolivian constitution to see if they are unconstitutional. 

The argument is somewhat convoluted. Basically it says the term limit on the presidency of no more than two times restricts the political rights of Bolivians when it comes to having the human right to run for office without being restricted. Legally, the people who presented this appeal are arguing that by restricting terms in a public office, the constitution is unconstitutional because it is violating the political, which is equaled to human rights, to run for any office or to be elected. The argument finds the solution in article 256 in the same constitution, which allows the application of international norms superseding the same constitution, such as the American Convention on Human Rights, which in its article 23 defines the right to be elected as a human right.

I ask myself, what is the logic behind this argument? The more I think about it, the more I question the logic. Granted I am not a lawyer, I dare to think aloud about this issue.

The argument does not seem to be logic to me. To start of, it seems to me, it is being argued the Bolivian constitution can be subordinated to an international norm such as the above mentioned convention on human rights. As far as I know, these type of conventions or international laws have to be ratified by the country's congresses. These ratification processes go through, among other things, a process of constitutionality, i.e. whether they are not contrary to the constitution. This means to me that such laws have to be in accordance with the constitution, which is the supreme law in the land, and nothing and nobody is above it.

However, there is another point in the logic of the argument that makes me more skeptic. In such an appeal or procedure of unconstitutionality, where the objective is to see if a legal text is contradictory to the constitution, the text being looked at has to be compared to the constitution. Now I ask myself, how in the world are the constitutional judges going to take text from the Bolivian constitution and compare it to the same constitution to rule whether this text is constitutional or not? It seems they would be measuring something that is defective with itself.

Third, and final point, it is being assumed the political right of a person (lets say, from Evo Morales) is being restricted by applying the notion of terms in office. The result, a person cannot run for office, therefore his or her political right, which is also a human right, according to the convention, is being restricted. That cannot be. Well, that might be true, however we are forgetting here to differentiate between two things: One, the fundamental right of a person to run for public office in a country. Two, the equally fundamental notion of delimiting the terms of a president in office.

Because the first issue is so basic and easily understandable as well as being widely accepted, I will elaborate on the second issue. The reasons why a constitution allows for term limits in high office is to protect the democratic system from becoming eventually a de-facto authoritarian or dictatorship system of government. This is, in nature, a defense mechanism the system build within itself to protect the democratic process. In many countries, this restrictions are reserved for the higher positions, while other officials such as mayors or the like could be re-elected many times. 

In the particular case of Evo Morales, which is at the center of our concern, he was indeed guaranteed, with the current constitution and with the one before, his right to run for elections. In fact, he has been running for office since the early 80s. He has been deputy and is not president of Bolivia. In this manner, it seems to me his political and human right to run for office has been protected and guaranteed by the Constitutions of Bolivia.
 
Where will this issue end? We are all expecting the issue will end at the Constitutional Tribunal. Because the argument seems to be weak. However, if the tribunal allows Morales to run again the matter will last until the next elections in 2019. Then, the people of Bolivia will have the opportunity to once and for all tell Mr. Morales he should make place for someone new.