Thread by @db_beaulieu

I explain the unconstitutional nature of #EvoMorales indefinite reelection in #Bolivia and the Constitutional Tribunal's ruling used to justify his 2019 candidacy.
link.medium.com/tYkhSCbjU9

A popular misstatement propagated among foreign journalists and observers that Bolivia “abolished” term limits or “invalidated” the results of the 2016 referendum. Both of these qualifications give the false impression that reelection of Evo Morale was legally uncontroversial.

On the heels of his reelection victory in late 2014, Evo Morales immediately began campaigning for permitting a subsequent presidential term. Evo Morales’ 2019 reelection bid for a fourth term was the central focus of his third term agenda.

The constitutional referendum held on February 20 2016 failed, 51% to 48%. The MAS party initially did not accept the results. Vice-President Alvaro Garcia Linera claimed that the referendum was “technically tied”. It took three days for Evo Morales to publically admit defeat.

Evo Morales' supporters claimed that term limits violated his “human right” to political participation. They cited the American Convention on Human Rights, Article 23 which guarantees the right to political participation, “to vote and be elected in genuine periodic elections”.

The Constitutional Tribunal decision ruled for “preferred application” of the right to participation in ACHR Art. 23, permitting indefinite reelection, overruling articles on term limits in the constitution. The court declared term limits “unconstitutional”.

The decision of the Constitutional Tribunal to declare term limits in election law unconstitutional (by virtue of human rights) violated the constitution and the court’s powers of judicial review. How so? Let us review.

The court exceeded its interpretative role defined in the constitution. Article 196 sec. II, the “interpretative role” of the court “shall give preference to the intent of the constituent assembly [which drafted the text] … as well as the literal tenor of the text”.

Evo Morales’ case rests on the supposed existence of an interpretative conflict between articles in the constitution defining term limits and his human rights. However, that supposed legal conflict in the letter of the constitution does not exist.

Article 410 sec II. establishes that the Normative Hierarchy for the “application of the legal norms shall be governed by the following hierarchy”: 1. Constitution of the State, 2. International Treaties, 3. National Laws, 4. Executive Decrees.

Even if we were to accept the flawed premise that term limits are a violation of the human right to political participation, articles of the constitution cannot be invalidated by international human rights conventions. The constitution has supremacy.

The ruling of the Constitutional Tribunal modified the constitution in its application. The decision declares articles of constitution defining term limits as “unconstitutional”. However, the court does not have the power to modify the constitution.

Article 411 strictly defines only two mechanisms for modification of the constitution. 1) is the convening of an elected constituent assembly to revise the constitution. 2) is a constitutional referendum for partial reform, which Evo Morales attempted in 2016, but failed.

Article 196 sec. I., the court’s power is rather to uphold application of the constitution. The court does not have the power to declare articles of the constitution “unconstitutional”. The court only holds power over the constitutionality of laws, not the constitution itself.

Article 7 of the Bolivian Constitution states, “Sovereignty resides in the Bolivian people and is exercised directly and by delegation. The functions and attributes of the organ of public power emanate, by delegation, from sovereignty; its inalienable and unlimited”.

The Bolivian people exercised their sovereignty over the question of presidential term limits on two definitive occasions. First with approval of the text of constitution in 2009 , and then again, with rejection of the 2016 constitutional referendum.

The court’s decision, negating articles of the constitution through recourse to an international human rights convention is a direct affront to the sovereignty of the Bolivian people. Only the Bolivian people have the power to modify the constitution.

There is great irony here. Not the least of which is the political figure of Evo Morales, who rose to power with a populist discourse of socialism, imposing the privilege of his individual human right over the collective will and democratic sovereignty of the Bolivian people.

The Constitutional Tribunal’s decision against term limits is fundamentally illegal. The judges of the court usurped legal authority to modify the constitution. They abused the powers of public office.

The Supreme Electoral Court announced their decision to allow Evo Morales’ run for reelection. They recognized the validity of the 2016 referendum but only applied the ruling in favor of indefinite reelection. They ignored the constitutional referendum as binding.

Recent polling indicates that Bolivians overwhelmingly believe the 2019 elections to have been fraudulent. The study also demonstrates widespread public mistrust of state institutions and political parties.

The survey found that 83% believe that the current political crisis originated with Evo Morales’ refusal to abide by the results of the 2016 constitutional referendum prohibiting his reelection.

Following Evo Morales’ resignation, the Constitutional Tribunal has responded positively to petitions for a review of the court’s ruling on constitutional term limits. The judicial review is currently in process.

At the end of September (28–30th) the Inter-American Court of Human Rights will hold hearings on the subject of indefinite reelection and human rights. It is the highest authority on enforcement and interpretation of the human rights convention.

While the damage to Bolivia’s political system has already been done, the possibility exists for the legal precedent of constitutional abuse to be rectified.