Identifier
Created
Classification
Origin
08LAPAZ560
2008-03-12 18:37:00
CONFIDENTIAL
Embassy La Paz
Cable title:  

ELECTORAL COURT RESOLUTIONS MUDDY WATERS

Tags:  PHUM PGOV PREL BL 
pdf how-to read a cable
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C O N F I D E N T I A L LA PAZ 000560 

SIPDIS

SIPDIS

E.O. 12958: DECL: 03/10/2018
TAGS: PHUM PGOV PREL BL
SUBJECT: ELECTORAL COURT RESOLUTIONS MUDDY WATERS

Classified By: A/DCM Mike Hammer for reasons 1.4 (b) and (d).

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Summary
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C O N F I D E N T I A L LA PAZ 000560

SIPDIS

SIPDIS

E.O. 12958: DECL: 03/10/2018
TAGS: PHUM PGOV PREL BL
SUBJECT: ELECTORAL COURT RESOLUTIONS MUDDY WATERS

Classified By: A/DCM Mike Hammer for reasons 1.4 (b) and (d).

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Summary
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1. (C) The National Electoral Court (CNE) issued two
resolutions March 7 dealing setbacks for the referendum plans
of both President Morales' Movement Toward Socialism (MAS)
and the opposition. The first calls for a postponement of a
national referendum on the MAS' draft constitution and
requests that Congress pass new legislation that would give
the CNE 90 days to organize an election. The second
overturns the decisions of the departmental electoral courts
(CDEs) in the opposition departments (states) to organize
referenda on the departments' autonomy statutes )- referenda
the MAS strongly opposes. The opposition-led departments'
CDEs have announced that they will not follow the CNE's
decisions.


2. (C) Comment: On the surface the resolutions appear
balanced, hindering both the MAS and opposition; but in fact,
they impart significant advantage to the MAS. By declaring
the departmental courts' actions illegal, the CNE sided with
the MAS' position that only Congress can convoke departmental
referenda. As the MAS is committed to halting the autonomy
statutes, the MAS-dominated parliament will likely be
extremely slow to approve the autonomy referenda, if it ever
does. The resolutions also provide the MAS political cover to
backtrack on the clearly undemocratic actions it took on
February 28, actions which have garnered significantly more
condemnation domestically and internationally than the party
was expecting. President Morales on March 11, recognizing
the chance to appear democratic and conciliatory called on
both sides )- the MAS and opposition -- to respect the CNE's
decision. Morales' willingness to accept the CNE decision
after the MAS went to such drastic measures on February 28
leads us to believe (as the opposition argues) that the
government orchestrated the CNE's March 7 resolutions.
Another reason the MAS may actually favor the CNE's recent
resolutions is that some public opinion surveys show that the
MAS constitution could lose at the polls. End Comment.
End Summary.

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Resolution One ) Postpone Constitutional Vote
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3. (U) The National Electoral Court (CNE) issued two
resolutions March 7. The first CNE resolution (013/2008)
calls for a postponement of a national referendum on the MAS'
draft constitution. The resolution also requests Congress
pass new enabling legislation which would provide the CNE the
minimum 90 days required to organize a national referendum.
All three CNE justices signed on to the decision.


4. (U) The CNE's decision was a response to the events of
the February 28 in which MAS Congress members rammed through
legislation enabling a national referendum on the MAS' draft
constitution while opposition parliamentarians were
physically blocked from entering the legislature. The
February 28 enabling legislation stipulated the CNE execute
the referendum in 60 days, by May 4, the same day as the
opposition-led Santa Cruz department's autonomy statute
referendum. Under Bolivia's Electoral Code, the CNE requires
90 to 120 days to organize an election.

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Resolution Two ) Revoke Referenda on Autonomy Statutes
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5. (U) The second CNE resolution (014/2008) overturns the
decisions by the lower electoral courts in the opposition
departments (states) of Beni, Pando, Santa Cruz and Tarija to
organize and administer referenda on each of the departments'
autonomy legislation. (Note: The four opposition-led
departments had presented their petitions to their respective
Departmental Electoral Courts (CDE) to organize referenda on
institutionalizing their demands for greater autonomy. A
"yes" vote on the departmental autonomy statutes would
greatly reduce the central government's control over the
departments. End Note). While charging the lower courts had
exceeded their authority, the resolution acknowledges (does
not dispute) that the citizens in each of the opposition-led
departments had mustered the requisite number of signatures
to call for a referendum. The CNE resolution calls on
Congress (to draft legislation) to convoke a referendum on
each department's autonomy statutes. One (Jeronimo Pinheiro)
of the three CNE justices dissented.


6. (SBU) There has been considerable debate on whether it
was legal for the CDEs to sanction and execute referenda
without Congress authorizing the referenda via legislation.
Even some prominent opposition senators had pronounced that
the CDEs' actions were on questionable legal ground. The MAS
tried to eliminate any ambiguity regarding the issue by
passing a law during its February Congressional session that
stipulates that only Congress could convoke departmental
referenda. However, because the opposition was locked out of
the session, the opposition contends that any of the laws
passed on February 28 should not be respected.

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Reactions to the CNE
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7. (C) While the Human Rights Ombudsman and some human
rights groups lauded the CNE's decisions, the resolutions
managed to anger both the MAS and the opposition. MAS
congressional representatives immediately responded by
threatening impeachment trials against the CNE justices,
arguing they committed a crime by not following the February
28 legislation regarding the constitutional referendum.
However, by March 11 President Morales changed the MAS line,
arguing that the CNE's decision should be respected. Morales
stated, "I understand the court has to guarantee democracy,
fundamentally based in legality and the unity of the country
. . ." He continued, "If this institution (the CNE) makes a
decision, they (the decisions) have to be respected by all
Bolivians." (Comment: President Morales is seeking to
capitalize on the CNE's resolutions to recast himself and his
party as the protector's of democracy and democratic
institutions. End Comment).


8. (SBU) The leadership of the four opposition-led
departments has stated they will continue with their plans
for autonomy referenda, regardless of the CNE's resolution.
The CDEs of Beni, Pando, Santa Cruz and Tarija have also
announced they will proceed with their respective
departmental referenda, despite Exeni's pronouncements that
the CNE will not respect the results if they do proceed.
Santa Cruz Prefect (governor) Ruben Costas argued that the
CNE had no authority to rule over the decisions of the lower
courts, stating only the Constitutional Tribunal could pass
such a judgment. Opposition figures such as the leader of
the PODEMOS party Jorge "Tuto" Quiroga argues that CNE
President Jose Luis Exeni (a Morales appointee) should resign
because the CNE now lacks credibility, independence, and
impartiality.

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Exeni Flips
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9. (C) The March 7 resolutions are curious when one
considers that they directly contradict what the CNE's
justices told the Ambassador just four days earlier. On
March 3, CNE President Exeni explained it was not the CNE's
role to determine the legality of the convoking legislation
-- be it the February 28 legislation for the constitutional
referendum or the departmental petitions. On March 3, Exeni
noted that the Constitutional Tribunal is only body permitted
to overturns laws and decrees issued by the executive and
legislative branches; but, by March 7 Exeni was comfortable
with the CNE taking on this attribution. Although, the March
7 resolutions did acknowledge the Constitutional Tribunal's
limited authority over the CNE.


10. (C) Comment: While we cannot definitively determine why
Exeni and his colleagues flipped, Senate President Oscar
Ortiz and his fellow opposition colleague Luis Vasquez shared
with us their belief that the decision was orchestrated by
Vice President Alvaro Garcia Linera. We tend to agree with
their analysis, as both President Morales and the Vice
President readily accepted the CNE's decision. That the
government would lay down without a fight is inconsistent
with the considerable effort the ruling MAS exerted in order
to pass the enabling legislation for the constitutional
referendum on February 28. Polls showing weakening support
for the MAS draft constitution and a stronger than expected
adverse (domestic and international) response to the February
28 Congressional session seems to have steered the MAS toward
pressuring the CNE. End Comment.

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The Constitutional Tribunal: The MAS' Next Target?
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11. (C) The lack of a functioning Constitutional Tribunal
continues to haunt Bolivia's fractured democracy. The
Tribunal, not the CNE, should have ruled on the MAS' February
28 legislation and on whether the Departmental Electoral
Courts have jurisdiction to organize a referendum without
Congressional input. But, due to political pressure by the
MAS only one magistrate remains on the Constitutional
Tribunal leaving it without a quorum to function. The
appointment of new Tribunal magistrates requires the approval
of two-thirds of Congress, but thus far the MAS and
opposition have failed to agree on appointments. The
opposition argues the MAS is purposefully blocking
appointments, the MAS blames the opposition. A
non-functioning Tribunal greatly favors the MAS. Without the
Tribunal there is no judicial check on the executive and
legislative branches.


12. (C) However, the MAS has also threatened to stack the
Tribunal. Vice President Alvaro Garcia Linera on March 3
stated that the MAS might opt for an alternative (presumably
extra-constitutional) mechanism for selecting Tribunal
magistrates. Opposition Senator Luis Vasquez responded to
Garcia Linera by stating, "I hope this is not a veiled threat
against Congress, in that when Congress decides to select
magistrates, they (the MAS) will encircle (Congress again)
and will then choose MAS militants (to fill the vacancies)."
(Comment: A MASista Tribunal will be rejected by the
opposition leading it to undertake its own potentially
extra-legal actions. Both the MAS and opposition now view
the co-opting of institutions as a means to further their
political agendas, regardless of the legality or damage they
inflict on Bolivia's fragile democracy. The CNE appears
firmly in the MAS' ranks, but the opposition manages to
influence at least four of nine CDEs. The Constitutional
Tribunal may be the next victim of this disturbing trend.
End Comment).
GOLDBERG