I’m Miguel Centellas, a political science professor at Mount St. Mary’s University. Because of academic interests, I post frequently on Bolivian politics. I also occasionally discuss interesting books, pop culture, and daily life in Baltimore.
There’s a running debate on the constitutionality of Bolivia’s recall referendums scheduled (tentatively) for August 10 over at MABB. I’ve weighed in w/ some thoughts on the legal backing of some recent related constitutional matters. But I’ve included the lengthier comment here:
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 constitution 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 under no obligation to do so (this is hardly ever noticed by his opponents, btw).
2) The constituent assembly & constitutional referendum. Both the constituent assembly & referendums are mentioned in the 2004 Constitution. I therefore assume that a referendum on whether or not to accept the constitution is allowed. Perhaps such a referendum is only “consultative” & will depend on the legislature to ratify it. But that’s a technicality (just like the prefect elections).
3) The autonomy referendums. Likewise, I see no problem w/ the media luna referendums. 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 & 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) Recall referendum. 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 & Chamber of Deputies also 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 December 2005, not June/July 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).
PS. The constitution also dictates that referendum elections will be determined by congressional law. And I assume that this gives leeway for the legislature to create such referendums, as well as their norms.
PPS. For a brief overview of the changes adopted in the 2004 Constitution, see this earlier post.
Miguel: I know that the Bolivian polity or political organization is different, but I have a problem when the Congress creates a law that revokes mandates of governors or prefectos. Can you imagine what would happen in the states if they tried that? They´re talking about inconstitutionality, but nobody here bats an eye about Congress passing laws that affect duly elected officals.
Posted by
galloglass
July 26, 2008 3:50 PM
And of course the Constitutional Tribunal could confirm these determinations if there was a quorum. But because both sides like to be unencumbered by the law we have the current situation.
Question: Is a referendum able to change constitutional law?
While I do have some reservations about referendums (they are binary, yes-no votes, not deliberative processes), I see nothing inherently undemocratic about them. I also believe in the principle articulated by Juan Linz (and others) that democracy must be by definition built on "pro tempore" arrangements.
Law is important, of course. But more important than legal binds are decision-making processes based on democratic principles. And since there is no solution to what kind of process is "democratic" (it all depends on the kind of decision, the context, etc), democracies should be flexible enough.
Impeachment is a process by which the legislature can remove a president. In parliamentary systems, a simple vote of confidence can remove a prime minister. If the legislature is meant to represent the popular will, then why can't the people directly give a vote of confidence on elected officials?
mcentellas: how can you have democracy without legal bindings? A democratic process IS the legal bindings. Not obeying the rules is undemocratic all by itself.
Certainly the rule of law is crucial in democracy. But I think you're misunderstanding me. A democracy must also be able to change its rules—if they are changed through some democratic process. Take the US constitution. Originally, it allowed slavery. It was later amended to make slavery illegal. The "legal binds" that recognized slavery weren't so sacrosanct that an evolving democracy couldn't change them. Another example: MLK Jr. didn't obey the rules when he employed civil disobedience. On the other hand, everything the Nazi regime did was "legal" in the strict sense that it followed its own laws. Which of the two was more "democratic"?
Yes, there was an amendment to outlaw slavery. But there was always the perception that the law is to be honored until it is changed. MLK didn't support ignoring the laws, in fact he says something completely different: "I submit that an individual who breaks a law that conscience tells him is unjust, and willingly accepts the penalty by staying in jail to arouse the conscience of the community over its injustice, is in reality expressing the very highest respect for law." That was a quote from MLK's "Letter from the Birmingham Jail."
The laws are being ignored.
A referendum is supposed to be brought by the people through the collection of signatures. Not by the president and congress.
Bolivia cannot have a functioning democracy without a functioning court.
Deputies should not be blocked from voting by protesters.
The new constitution was passed overnight.
As for Hitler, in the Reichstag of January 1933, over 50% of those who held seats were against the Nazi Party. An election was called but it looked like Nazi Party support had peaked. The Reichstag was burned down, and Hitler got the communists and socialist banned from the election campaign After the burning down of the Reichstag, politicians had nowhere to meet. The Kroll Opera House in Berlin was chosen. This was a relatively small round building - perfect for meetings. On March 23rd, elected officials were due to meet to discuss and vote on Hitler's Enabling Law. As politicians neared the building, they found it surrounded by SS and SA thugs who tried to ensure that only Nazi or Nationalist politicians got into the building. This is how Hitler got his power.
@DV: OK, perhaps my analogies weren't the best ones. So I'll concede that. But I still think you're overstating the Bolivian legal framework for referendums.
So far there have been TWO national referendums in Bolivia: The one on gas policy and the one on autonomy (the one voted on in June 2006, not the ones voted on recently by individual departments). Neither was initiated by petitions; both were initiated by congressional enabling law.
The constitution also stipulates that referendums can be initiated either by congressional initiative or citizen initiative. I even understand the 2004 Constitution to mean that citizens can initiated legislative bills to introduce in the legislature (which was previously a right granted only to legislators, the president, and the vp).
As for the process by which the 2007 draft constitution was approved: I couldn't agree more. It was done in semi-secret, w/o proper discussion, and w/o the participation of more than a third of the delegates.
And as for the functioning courts. I agree. But ... there needs to be a distinction between the regular civil/criminal courts & the constitutional court (the Constitutional Tribunal). The latter is the court that is missing individuals. It is the only court empowered strictly to interpret the constitutionality of laws (and, frankly, it's never worked very well). Though whether or not a democracy can function w/o such a court or not (some would argue that such a court de facto hinders democratic decisions) is a matter of interpretation, of course.
@DV: Actually, on the MLK issue ... I think I wasn't entirely clear. I don't think MLK was calling on people to "ignore" laws. But he was calling on people to break unjust laws (much in the tradition of Socrates, Ghandi, and others). One had to submit to the consequences of breaking the law, of course. But such measures are meant to highlight that there is a difference between what is legal and what is just (or "democratic").
The Nazi example is also good, now that I think about it more. The Nazis came to power through undemocratic means (mostly), as you describe. But once in power, they wrote laws that suited them. Thus, a person who protected Jews in the Third Reich was breaking the law, whereas Goebbels was not. But the argument: "I was just following orders" was not accepted at Nuremberg.
The concern I have is that the people we are talking about are not powerless. They ignore laws to achieve objectives they think are laudable by creating new sets of laws. Doesn't this sound futile?
Also I think there was another point to submitting to the laws after breaking them. When the law is changed, it is more likely to be respected because they showed respect for the law.
The lesson I draw from the Nazis is that its better to defend democracy at the beginning. When the Nazis were using mob intimidation, blocking parliamentary votes, banning parties, etc. Because later you must resort of armed struggle.
@DV: I think that on the whole we agree more than we disagree. Your points about defending democracy early & the need to respect the consequences of civil disobedience are both valid (and I agree w/ both). My point was merely to stress that law shouldn't be treated as entirely static. The old verse "The law was made for man, not man for the law" is still a good one.
I agree, the gas referendum was initiated without petitions. Mesa, however, was forced to initiate the autonomy referendum when 500k signatures were collected as I remember.
@DV: Yes, but the petition was to have a referendum, it was not a petition on the actual text of the questions to be asked (in other words, it was not a citizen initiated legislative proposal). Petitions of that sorts are widespread in all democracies (including petitions to get television stations to bring back cancelled episodes). But they have not legal weight. Similar petitions were floated around for autonomy, for Sucre as a national capital, for the UN to force Chile to return the sea, and other more mundane items.
