Friday, September 5, 2008

Is the OAS Undermining Constitutional Law in Bolivia?


Jose Miguel Insulza and Evo Morales

Last Friday the Secretary General of the Organization of American States (OAS), Jose Miguel Insulza, made the following statement to the press on the situation in Bolivia:

"One can say a lot about Bolivia, one can write a lot; they can say many things in the press, but the democratic vocation of the Bolivian people never will be written about enough.  This is a government that is disposed, as President Evo Morales said, to settle all subjects by the ballot box and not by arms.  And it is that everyone who wants to vote is going to vote; everyone who wants to express their opinion is going to express it. . . ."

". . . Understanding is then the only way that Bolivia can come out elegantly, not only for approving its Constitution -which is something so necessary, so good- but also to be able to put limits on inequality, and to be able to have peace and harmony in a society in which all Bolivians can have a place. . . ."

At first glance, Secretary General Insulza appears to speak for the cause of democracy in Latin America and we can view his statement as a policy that deserves our support.  But there could be more to his easy generalizations about democracy that we should take into account.  It is not so much what Insulza said as what he did not say that should give us pause to look more closely at his statement.

Insulza only mentions democracy and elections, he said nothing about constitutional law in Bolivia, and that is a major failing on his part, because the underlying problem that is impelling the current crisis in that country is the total absence of constitutional law, not the security of elections nor the will of the people to accept the results of voting.  The central complaint of the four departments of the so-called Media Luna, which were joined recently by the Department of Chuquisaca, is that Evo Morales and the MAS party have governed outside the norms of the Bolivian constitution, especially with respect to their virtual abolition of the power of the Bolivian Senate, which is the principal legislative body in which the five departments have political weight.  And what is most disconcerting about these actions on the part of Morales and his government, and which Insulza ignored in his statement, is that they were carried out by means of the exercise of violence and intimidation of their opponents.

While there are important ideological differences between Morales and his opponents that are contributing to the tension in Bolivia, the opposition has presented two principal charges against his governance that are of immediate importance, and which refer to the use of the violent intimidation and obstruction of the Bolivian Senate as a means of the achievement of the political program of the MAS.  In November, 2007, by means of a surprise maneuver in the Bolivian Congress that required opposition delegates to rush at full speed to the legislative precincts at the Plaza Murillo in La Paz, MAS delegates and their allies began a special and unexpected session to examine their legislation designed to repeal part of the Hydrocarbons Law of 2004.  In the original form of this law, which Bolivians approved in a national referendum that same year, producing departments, which include the Media Luna and Chuquisaca, were guaranteed a level of revenues from the Direct Hydrocarbons Tax (IDH in its Spanish abbreviation) equal to the revenues of the non-producing departments of the west of the country, something which the MAS intended to change in order to dedicate these revenues to the renta Dignidad, a pension that would be paid to Bolivians over 60 years of age.  But when the opposition delegates arrived, they were denied entry into the special session by a large number of MAS supporters, who surrounded the legislative precincts and used intimidation and some small acts of violence so as to permit only MAS delegates and their allies to participate in the legislative deliberations.  The La Paz daily newspaper La Razón reported that the head of the Podemos opposition party, which controls the Bolivian Senate, requested guarantees for the security of their delegates to enter the building and join the special session, which proceeded with only MAS members and their allies present, who voted to approve the legislation.  It was not legal and the Constitutional Tribunal of Bolivia, which was already weakened by the resignations of some of its members, was unable to force Morales and the MAS to change course.

The second and much more serious charge the opposing departments make against Evo Morales and the MAS for their delegitimization of the Bolivian Senate relates to the violence of the last days of February of this year in the Plaza Murillo in La Paz that is associated with the voting in the Congress on Morales's project for a new constitution, an event now known in the country as El Cerco (the siege).  During three days between the 27th and 29th of that month MAS supporters, including many mobilized from labor unions and other organizations known as the Sectores Sociales (Social Sectors), occupied the Plaza Murillo in the center of the seat of government in La Paz, a mobilization begun as a manifestation of political support for Morales and his Political Constitution of the State (CPE by its Spanish abbreviation).  But the MAS legislators in the Bolivian Congress transformed the process on the 28th when they moved to present their version of the new charter, commonly known as the Oruro Draft for a new constitution, which the MAS wrote without opposing delegates present in the sessions of the constituent assembly in the department of the same name.

Again La Razón informs us of the details of what occurred in the Plaza Murillo during the legislative session of the 28th of February.  Though the day began with no more than a few hundred protesters participating in the demonstration, the situation changed in the afternoon.  After midday groups of miners began arriving, announcing their presence with dynamite explosions, and later the local capital police, who were present up to this point, were pushed aside and replaced by representatives of the unions who acted as policemen in their place.  In the legislature a MAS deputy brought some 50 of the "Ponchos Rojos" -- a farmers organization known for their intimidation of MAS opponents -- into the interior of the building to serve as "Official Deputies," who were joined later by a group of miners accompanied by another MAS deputy and who exercised strict control over the proceedings.  The opposing Podemos Party pleaded from the seat of the vice presidency that they not try to pass the constitution by means of an illegal session, but without result.  While a Bolivian television audience watched as events unfolded live before their eyes, two female opposition deputies who tried to enter the building were beaten and they were denied the opportunity to participate in the session.  Only the delegates and representatives allied with the MAS were permitted to enter and, naturally, in the absence of opposition in the Senate, the Oruro Draft was approved through acts of violence, and moreover it can be said, without legitimacy.

The two above-mentioned controversies can be found at the heart of the charges the opposition makes against Evo Morales and his MAS party.  Morales's opponents have presented their case before the Bolivian people and the world as a plea for the invocation of constitutional law in their country.  And their argument is easy to understand.  If they must accept the results of elections that have awarded the presidency to Evo Morales and have converted the MAS into the prime political force in the country, is it not so that Evo Morales and the MAS must accept the results of those elections for seats in the Chamber of Deputies and especially the Senate that were decided in favor of opposition candidates? The two issues of the refusal of Evo Morales and the MAS to permit opposition delegates to the Congress to participate in the deliberations on modifications to the Hydrocarbons Law of 2004 and the approval of the presentation of the new constitution to the people suggest that it is officialdom that will not accept the results of elections in Bolivia, not their opponents.

But there is still more to the actions of Evo Morales and the MAS that confirms the accusation that they intend to abolish the power of the Bolivian Senate, where the opposition can exercise an influence over the country's political process.  The Bolivian Constitution requires the approval of the Congress for nominations to the Constitutional Tribunal of the country.  As of today, of the five positions on this body, four are unfilled owing to resignations and Evo Morales has not presented new candidates to the Congress to fill these vacancies, because he will have to obtain the approval of the Senate.  What has resulted is an institutional vacuum that has permitted Morales to proceed with the restructuring of the Bolivian state, without laws or judicial bodies to restrain his actions.

More than anything, it is this institutional vacuum that has impelled today's crisis in Bolivia, and opposition leaders in the Media Luna and Chuquisaca have made a call to have their pleas for its restoration heard, but with little success.  A recent statement of the Prefect of the Department of Pando, one of the four of the Media Luna, makes the case that the world is not paying attention at this moment:

“With an illegitimate constitution one will not be able to govern.  They have broken institutionality in the country since we no longer have a Constitutional Tribunal.  [Evo Morales] swears that the Constituent Assembly is legal and we have sworn from the first day that it is illegal.  Who can decide whether you or we are right? We have not advanced a millimeter.  I am so disappointed. . . .”

Leopoldo Fernandez
Prefect, Departament of Pando

As of this moment, the importance of reinforcing constitutional law in Bolivia grows each day.  After the recent revocatory referendums, both Evo Morales and the prefects of the Media Luna believe their positions have been strengthened.  The five eastern departments have launched a full-scale shutdown of important transit routes so as to put economic pressure on Morales and his government to return the fiscal revenues of the IDH tax.  Evo Morales has responded by throwing constitutional law to the ground once and for all.  He now claims that he has the power to convene a national referendum on his constitution by presidential decree and he has fixed December 7 as the date of the voting, while the five eastern departments have pledged they will not recognize the call to go to the polling places that day.  This week the National Electoral Court declared that the referendum can only be called by an act of the Congress, a decision Morales has chosen to ignore  And without a Constitutional Tribunal to resolve the controversy, chaos does not appear to be very far away for the country.

And what does Jose Miguel Insulza offer Bolivians as a means of bringing the crisis to an end through dialog? Nothing more than a statement that does not mention the crisis in the exercise of constitutional law in Bolivia and which instead of that solution opts for an endorsement of the position of Evo Morales -- everything should be submitted to the will of a simple majority of voters.

In the absence of constitutional law the exercise of the will of the majority can be converted into tyranny.  But the tyranny of the majority is still tyranny.  The support for constitutional law, at the very least, apportions a degree of control to this tyranny.  But if a people is stripped of their access to constitutional law, they have few other recourses at their disposition to protect their liberties.

One of these recourses is the right of revolution.

Let us hope that Jose Miguel Insulza learns this lesson with all due speed and that it is manifested in the support of the OAS for constitutional law in Bolivia with the same fervor they show for supporting democracy, because the two are inseparable.


NOTE:  A Spanish version of this article is available at

1 comment:

Bolivian Constitution said...

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