Diverse decree components
In addition to seeking approval of the constitutional draft, the decree establishing the referendum would:
a) Determine the ceiling on permitted individual landholding (5,000 or 10,000 hectares);
b) Call elections to replace the Cochabamba and La Paz prefects who lost their seats in the August 10th Recall Referendum;
c) Establish and set the date for direct election of sub-prefects (according to existing Bolivian law they are currently appointed by prefects) and departmental council members (currently selected by municipal councils).
Until the prefectural elections can be held, President Morales has named two interim officers. Pablo Ramos, ex-rector of San Andres University will hold this seat in La Paz, and Rafael Puente, social scientist who had been acting as presidential delegate, will be the interim prefect for Cochabamba. Although Puente has held several MAS posts, he is perceived as a relatively neutral choice, and it is probable that both men will not be candidates for the permanent post.
In contrast, the status of the Oruro prefecture is still ambiguous. Alberto Luis Aguilar (MAS) was the prefect prior to August 10. According to guidelines adopted by the National Electoral Court (the CNE), prefects needed to win at least 50% of the votes to be ratified. However, the Law Convoking the Referendum stipulates that prefects obtain at least the same margin of votes by which they were elected. In Aguilar’s case, this means he needed to earn 59% of the votes, but he was only able to garner 50.8%. In a press conference on August 29, Aguilar claimed that he has many enemies in the MAS party and the prefecture, and turned over his duties to his second in command. However, the Oruro prefecture is not currently included on the December 7 ballot, and it is unclear how this impasse will be resolved.
Debate on legitimacy of referendum
In March 2008, a CNE resolution cited congressional authorization regarding any constitutional matters as a perquisite for the referenda. Thus, on September 1, the CNE announced that it would not authorize or carry out the referenda and elections called for by President Morales's Supreme Decree until the Bolivian Congress passes a law to officially authorize the initiatives. Eight out of nine of the departmental courts support the CNE’s position.
In a press conference, Presidential Minister Juan Ramon Quintana and Hector Arce of the Legal Defense stated that the CNE’s decision does not have legal standing, and therefore cannot invalidate the Supreme Decree. “The constitutional process should conclude [with the referendum]. The opinions of the electoral body lack legal basis,”2 Arce argued. Quintana echoed these comments by defending “the legitimacy and legality of the [Convocational] Decree.”3 Shortly thereafter, President Morales responded by saying that he would “exhaust all legal resources”4 to ensure that the referenda will take place.
The laws controlling constitutional reform are complex and ambiguous. [Please refer to the list below for summaries and links to relevant laws.] Although Bolivian law granted the Executive power to convoke referenda in 2004, other laws that apply to each of the components of the December 7 referendum condition this stipulation. The problem seems to be that President Morales has combined several dynamic issues on one ballot.
For example, Law 3728 grants Congress the right to convoke referenda on issues which did not receive 2/3 approval in the Constitutional Assembly, a “tie-breaker” provision originally demanded by the PODEMOS opposition party. Although this law also gives the Executive the right to convoke the referendum to approve the constitutional draft, it does not explicitly allow him to call for a vote on pending constitutional articles, in this case the land tenure ceiling.
This law was subsequently modified by Law 3837, which gives Congress the authority to call for both the constitutional referendum and the “tie-breaker” referendum to decide the landholding issue. It is not clear whether or not this nullifies the Executive’s power to convoke the constitutional referendum.
As stated above, in addition to addressing constitutional reform and private land tenure, the referendum will call for prefectural and sub-prefectural elections. The Recall Referendum Law legally obligates Morales to call for prefectural elections. Furthermore, continued postponement of these elections, thus prolonging the tenure of Morales' hand-picked interim replacements, would provoke accusations from the opposition of undemocratic conduct.
The proposal to popularly elect sub-prefects and departmental council members is productive, although, logically, this should have occurred simultaneously with the direct election of prefects in 2005. Unfortunately, this initiative now gives the impression that MAS is merely acting in response to the lowland prefectures who have threatened to call for these elections independently. It is unclear whether or not Morales had the legal mandate to call for these elections.
Both sides have valid legal arguments supporting their assertions regarding the legality of this Decree. At this time it is not clear who will prevail or who is most correct.
Legal Precedents related to the Constitutional Referendum:
1. The Law establishing the Framework of Referenda (July 8, 2004): Gives the Bolivian executive power the right to convoke referenda. http://www.bolivia.com/noticias/autonoticias/DetalleNoticia21383.asp
2. The Special Law to Convoke the Constitutional Assembly (March 6, 2006): Article 26 stipulates that after the conclusion of the Constitutional Assembly, the Executive Branch must call a referendum to approve the constitutional text within 120 days. http://www.cne.org.bo/centro_doc/normas_virtual/acra2006/ley_convocatoria_ac.pdf
3. Law 3728, Modifying the Law to convoke the Constitutional Assembly (August 4, 2007): Article 8 gives the Bolivian Congress the legal mandate to convoke referenda on issues that did not receive 2/3 approval in the Assembly, (i.e. the pending private landholding issue), but allows the Bolivian Executive to retain the right to convoke the final referendum to approve the constitutional draft. http://www.derechoteca.com/gacetabolivia/ley-3728-del-04-agosto-2007.htm
4. Law 3837 modifies law 3728 (February 29, 2008): Article 6 gives the Bolivian Congress (not the executive) authority to simultaneously convoke the referendum on the constitutional draft and any undecided articles.
http://www.derechoteca.com/gacetabolivia/ley-3837-del-29-febrero-2008.htm
5. On February 29, in a session that many opposition members did not attend, the Bolivian congress set the date for both the referendum on the constitutional draft and the land tenure ceiling for May 4, 2008. The national electoral court rejected the legislation, stating that it required a minimum of 120 days notice to prepare for voting and demanded that Congress pass another law authorizing the referenda, apparently as a result of a one-day discrepancy in the ratification dates. (CNE Resolution 013/2008.) http://www.cne.org.bo/centro_doc/prensa_virtual/documentos/ResolucionesCNE070308.pdf
6. The Supreme Decree authorizing constitutional referenda:
http://www.derechoteca.com/gacetabolivia/decreto-supremo-29691-del-28-agosto-2008.htm
MAS government accedes to CNE requirements
After initially rejecting the CNE observations, Morales sent bills for debate in the Bolivian Congress to authorize the referenda and push the proposed voting date to January 25, allowing the CNE sufficient time to prepare. The proposed bills would also change existing electoral legislation to permit the direct election of sub-prefects and departmental council members. Unfortunately, Senate President Oscar Ortiz (PODEMOS) has already publically stated that his party will vote against the initiatives, eroding the possibility of productive debate or compromise regarding the content of the legislation.
Decree provokes controversy and conflict
Apart from the official opposition stated by the CNE and the Congress, the Supreme Decree has incited violent conflict in some sectors. On Saturday, August 30, a crowd of about 500 MAS supporters marched through Santa Cruz to show their support for the political party and the decree. One block from the main plaza the pro-autonomy supporters attacked marchers. Several individuals were seriously injured. The Bolivian press reported that a number of unarmed indigenous women who may not even have been participating in the march were beaten. One source alleges that they were profiled for wearing the traditional pollera skirt, a symbol of their cultural heritage.
Existing tensions heightened by the decree were also expressed in other areas of the country. The Youth Civic Committees of Beni, Trinidad and the Cercado province tried to take over the regional Beni office of the government tax service on Tuesday, September 2. They attempted to enter the building, but it was guarded by military officials. After some discussion the press reported that the guards began firing tear gas to try to disperse the group. Three children in the vicinity were accidentally gassed, and the public responded angrily. The Beni prefect, opposition supporter Ernesto Suarez, criticized the military’s reaction and civic leaders said that they could no longer guarantee the safety of the regional military commander there. This follows an increasing and disturbing trend of lowland officials and leaders rejecting the presence of national security forces. Leopoldo Fernandez, the neighboring Pando prefect, carried the accusations further, claiming that the military’s response in Beni demonstrated the central government’s interference in regional politics. The presidential delegate to the region claimed that the prefecture and the civic committees who attacked the governmental institution were to blame. Roadblocks and threats to turn off gas pipelines continue in Tarija and other lowland areas. Ironically, this has lead to fuel and cooking gas shortages primarily in their own departments. Persisting and deepening divisions continue between the central government and the Media Luna region.
The discord surrounding the referendum also further hampered congressional debate about filling vacancies in the Constitutional Tribunal, the Supreme Court, and electing a new attorney general. Representatives from different parties have not reached consensus about how long these officials would remain in office if elected before the Constitutional reforms are completed — the ten-year terms stipulated by the existing constitution — or until the implementation of the new document.
Despite all of these challenges, Congressional debate regarding MAS bills provides an opportunity to overcome the unwillingness to compromise that continues to characterize Bolivian political dynamics. The Morales administration has created the conditions for dialogue within the nation’s legislature, and the opposition now has the responsibility to engage in this process to establish legal clarity.
1 http://www.ansa.it/ansalatina/notizie/notiziari/bolivia/20080829120434718894.html
2 http://www.lostiempos.com/noticias/02-09-08/02_09_08_ultimas_nac9.php
3 http://www.lostiempos.com/noticias/02-09-08/02_09_08_ultimas_nac9.php
4 http://www.lostiempos.com/noticias/02-09-08/02_09_08_ultimas_nac9.php