In spite of this statement, the National Electoral Court has decided to proceed with the referendum as scheduled. Article 67 of Bolivian constitution stipulates that the National Electoral Court must rule on the legitimacy of elections, and that Congress cannot reverse this decision. At the same time the Constitutional Tribunal can rule on the constitutionality of the Electoral Court’s rulings and the questions posed by referenda. These stipulations have provided fodder for the current legal conflict.
Although the departmental electoral courts are legally bound to obey the dictates of the national electoral court, the lowland branches (Santa Cruz, Beni, Pando and Tarija) expressed their opposition to the referendum and their rejection of the National Court's decision to follow through with the referendum. The Santa Cruz Departmental Court representatives refuse to attend a meeting called by the national electoral court to discuss the referendum and they plan to file an appeal to the Constitutional Tribunal regarding the legality of the referendum. This initiative would be similar to Murillo's petition, which has already received a response.
Media Luna employs contradictory discourse
It's interesting to note that the legal logic employed by these departmental electoral courts also applies to the autonomy referendums that they carried out without the approval of the National Court or the ratification of the Constitutional Tribunal. A statement by Santa Cruz Prefect Rúben Costas highlights this irony: "We have said it and will confirm it: it's a biased law; we are prepared to fight it. In any case, the departmental government will support the decision of the Santa Cruz departmental court."2 Costas critiques the recall legislation, even though the arguments of the recent Constitutional Tribunal decree highlight the illegality of the departmental autonomy referendums he supported. No petition with the constitutional tribunal against autonomy referendums has been filed, and hence the remaining judge made no ruling to approve or disapprove these referendums before they took place. If the opposition was not so blatantly opposed to any MAS initiative, the recall referendum would not have been brought to the Constitutional Tribunal. The lowland departments clearly ignored the constitution when convenient for their agenda, but are now using it to try and block MAS.
Minister of the Presidency Juan Ramón Quintana captured this sentiment when he said, "It would be incredibly absurd for the regional courts to decide to obstruct the recall referendum.3
As if things weren't complicated enough….
Cochabamba prefect Manfred Reyes Villa has filed an appeal with the Inter-American Commission on Human Rights to try to block the referendum. Reyes Villa, probably more out of fear of being voted out of office than as a result of respect for existing legal norms, has also claimed the referendum unconstitutional. He said, "All is not lost until the courts decide if they will comply with or turn their back on the Constitution. The lonely legal defense undertaken by a few of us, has finally evoked the sense of justice from magistrates, members [of judicial institutions], and jurists."4
Adding to the current tensions, many MAS delegates have used inflammatory language to push through this referendum. When asking the National Congress to approve the referendum and stop supporting lowland departments and "the remnants" of neoliberalism, President Morales said, "I believe we must not repeat neoliberal laws."5 He also affirmed, "I ask the departmental electoral courts and their members to respect the law;[they should] be careful– the people could rise up against these entities because they don't respect democracy, the law or the people's sovereign will."6 On July 30, the Vice Minister of Justice asked that the lower house of Congress try Constitutional Tribunal Judge, Silvia Salame, for judicial impropriety as a result of her decree, although there was no clear legal transgression.
Following an established pattern of Bolivian political dynamics, each side stubbornly attempts to push its current agenda through, bending and creatively interpreting existing legal norms to suit them. The results of this continuing dynamic remain unclear.
1. In August 2007 the Constitutional Tribunal overstepped its legal mandate by ruling that interim Supreme Court justices appointed by the Morales administration for more information see: Brawl in Bolivian Congress over Constitutional Tribunal.
2. Los Tiempos "CDE cruceña va contra la consulta y Evo pide "no respetar" las leyes" July 30, 2008.
3. La Prensa, "La CDE cruceña recurrirá al Tribunal para frenar consulta" July 30, 2008
4. La Prensa, "La Corte ratifica realización del referéndum revocatorio" July 29, 2008.
5. Los Tiempos, "CDE cruceña va contra la consulta y Evo pide "no respetar" las leyes" July 30, 2008.
6. La Razón, "Evo advierte levantamiento popular contra las cortes electorales" July 29, 2008.