BOLIVIA: ELECTORAL COURTS CHANGE RECALL RULES

C O N F I D E N T I A L LA PAZ 001657

SIPDIS

E.O. 12958: DECL: 08/01/2018
TAGS: PGOV PREL BL
SUBJECT: BOLIVIA: ELECTORAL COURTS CHANGE RECALL RULES

Classified By: A/EcoPol Chief Brian Quigley reasons 1.4b, d


1. (C) Summary: In a presentation offered to the diplomatic
corps on August 1, National Electoral Court President Jose
Exeni announced that the National Court and seven of nine
Departmental (state) courts had agreed to modify the rules
for revocation of the prefects: now more than 50 percent will
have to vote against a prefect for him to be revoked. The
rules to revoke the mandate of President Evo Morales and Vice
President Garcia Linera will remain as they were in the
original May 2008 law. To be recalled, Morales must receive
more "No" votes (both in percentage and absolute number) than
there were votes in his favor in 2005: this means that
Morales will only be revoked if more than 53.7 percent vote
against him. Court President Exeni insisted that this
adjustment of the law was merely a "technical decision" and
not an interpretation. President Morales and Vice President
Garcia Linera publicly stated later in the morning that the
move to more than 50 percent for the recall of prefects was
only a suggestion and that Congress would have to issue new
legislation to bring it into force. Tarija Electoral Court
President Miguel Angel Guzman said that there was a deal
between the National and Departmental Electoral courts that
required the more than 50 percent change, otherwise some
Departmental Courts would not partipcate. Exeni announced
that a number of international bodies including Mercosur,
Unasur, the OAS, the Carter Center, and the Andean Parliament
intend to send official observers. The European Union has
parliamentarians coming in, but not as official observers
(note: Exeni misstated this, to the consternation of
attending European diplomats. End note.) Russia will also
provide observers. End summary.

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A "Unanimous" Declaration Minus Two
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2. (C) National Electoral Court President Exeni provided the
diplomatic corps with copies of a declaration agreed upon in
a meeting of the National and Departmental Courts on July 31.
Despite the absence of two departmental courts (Oruro and
Santa Cruz),the declaration states that "The National Court
and the Departmental Electoral Courts reaffirm in a unanimous
manner..." Exeni claimed that Oruro joined in the
declaration in spirit, but that the president of the Oruro
Departmental Court had been unable to attend for "technical
reasons". Exeni confined himself to saying that the Santa
Cruz Departmental Court had not participated because it had
not decided on its position. The "unanimous" declaration
states that all the courts will proceed with the referenda on
August 10.

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New Rules of Play
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3. (C) Citing the unconstitutionality of recalling an elected
leader with less than a majority of votes against him, Exeni
stated that the Departmental and National Courts had agreed
to a "technical criteria adjustment": the prefects (all of
whom won with less than 50 percent of the vote in 2005 and
therefore all of whom would be vulnerable to recall with less
than 50 percent of votes against them under the original May
2008 rules) will now only be revoked if more than 50 percent
of valid votes are cast against them. Exeni (and the written
declaration) also clarify that to be revoked, the prefects
will have to receive more votes against them than originally
voted for them in 2005 (that is, more than 50 percent of
votes and more votes total than in 2005.) This adjustment
takes into account the odd rules of the original May law,
while also making allowances for low voter turnout...prefects
will not be able to be voted out with fewer total votes than
originally voted them in. (Note: In a simplified example
under the new rules, imagine a department where only three
people vote. Two vote against the prefect, one votes for
him. Therefore the prefect has a majority of votes against
him: two out of three. However, since there are only two
votes total against him, which does not exceed the number of
votes that he originally received in 2005, he will remain in
office. End note.)

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Different Rules for Two
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4. (C) Prefect Savina Cuellar of Chuquisaca is exempted from
the recall referendum by the new declaration. Cuellar's
situation was always a weakness of the May 2008 law: since
she was elected in June 2008 by a large majority, it was not
clear how the electoral results of her predecessor (who won
with a minority) would apply to her. The July 31 declaration
clarifies that Cuellar will not be subject to a recall
referendum. Instead Chuquisaca voters will receive a ballot
that provides them with only one yes/no decision: on the
mandate of President Morales and Vice President Garcia Linera.


5. (C) Different standards also apply to President Morales
(and with him the vice president.) Citing "unfairness" if
Morales could be voted out by a lower precentage than
originally voted him in, Exeni explained that more than 53.7
percent of voters will have to vote against Evo for him to be
recalled. The "number of votes" rule will apply to him as it
does to the prefects: more votes total will have to be cast
against Evo for him to be recalled, AND more than 53.7
percent of the valid votes will have to be against him.
(Note: The July 31 declaration provided to the diplomatic
corps does not mention the President at all. In the oral
presentation Exeni was clear that Evo will be safe as long as
47.3 percent vote in his favor, but this is not stated
explicitly in the written declaration. End note.)

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Interpretation v. "Technical Criteria Adjustment"
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6. (C) Although Exeni was adamant that the Electoral Courts
had not "interpreted" the law when they changed the voting
rules explicitly stated in said law--at one point going so
far as to correct the German Ambassador on this point--he did
say that since there is no viable Constitutional Tribunal,
the Electoral Courts "took that role." After being corrected
by Exeni, the German Ambassador drew chuckles from the crowd
when he questioned the National Court's "non-interpretation."
In fact, Article 28 of the 1999 Electoral Code establishes
the National Electoral Court as the final decision-making
body on electoral matters, stating that its decisions on
electoral matters are "not subject to appeal." However, if
Bolivia had a functioning Constitutional Tribunal, it is
likely that interested parties would submit the Electoral
Court's declaration for constitutional review: after all, the
Electoral Court's declaration contradicts the May 2008 law
passed by Congress and signed by President Morales. When
asked, Exeni claimed that because the declaration is just a
"technical adjustment", it would not need to be ratified by
the Congress or the President. (Note: The long-time
National Court employee who seated Emboff said, "This has
nothing to do with rules; it's all improvisation." End note.)


7. (C) Later that morning, President Morales and Vice
President Garcia Linera told the press that the Electoral
Courts' decision announced by Exeni was merely a "suggestion"
which would have to be ratified by Congress before it entered
into force. (Note: MAS diehards were dismayed by Exeni's
deal, saying that only Congress could change the percentages
required to survive the recall referendum. Since under the
original rules a number of prefects were expected to be
recalled--leaving those positions open for MAS
appointments--the new deal is seen as a loss for the MAS.
End note.) Meanwhile, Tarija Electoral Court President
Guzman told the press that the National Electoral Court and
the Departmental Electoral Courts had agreed to the change in
percentages as the price of several Departmental Courts'
participation. A Tarija Electoral Court official told Emboff
that the more than 50 percent change had received President
Morales' approval and that Morales had authorized release of
the combined Courts' declaration (provided to the diplomatic
corps and the press.)

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Comment
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8. (C) Although the Electoral Courts' declaration does
clarify a confused law, the constitutionality of their action
is dubious. Members of the diplomatic corps who received
Exeni's presentation thanked him for the information but
clearly doubted whether the decision was legal. They seemed
less in doubt as to whether the referenda would go ahead:
after the main meeting, countries providing official
observers met with the Secretary of the Court Chamber to
discuss certification steps and transportation logistics.
There is still no word whether Santa Cruz's Departmental
Electoral Court will comply with the declaration made by the
National Electoral Court and seven of the Departmental
Electoral Courts. Exeni stated confidently that Santa Cruz
would "have to follow the law," but in a meeting dedicated to
explaining how the courts would "non-interpret" and
"technically adjust" the law, this statement rang hollow.


9. (C) The President and Vice President's statements that the
electoral court's decision was only a "suggestion" that
Congress will have to ratify throws the whole issue back into
debate. If Tarija and other media luna Departmental
Electoral Courts see the President's declaration as a
double-cross, there is a possibility that they will pull out,
once again throwing into doubt the question of whether the
referenda will go forward. End comment.

GOLDBERG