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. - - - - - - - - - - - - - - - - - - A "Unanimous" Declaration Minus Two - - - - - - - - - - - - - - - - - - ¶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. - - - - - - - - - New Rules of Play - - - - - - - - - ¶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.) - - - - - - - - - - - - Different Rules for Two - - - - - - - - - - - - ¶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.) - - - - - - - - - - - - - - - - - - - - - - - - - Interpretation v. "Technical Criteria Adjustment" - - - - - - - - - - - - - - - - - - - - - - - - - ¶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.) - - - - Comment - - - - ¶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