Mauricio Ochoa Urioste *
More than once the Civic Committee of Santa Cruz - Organization funded primarily by agribusiness entrepreneurs, farmers and multinational - is attributed to the high quality of interpreter of the Constitution (CPE) and the laws of Bolivia. Thus, justifying their actions as expressions of upholding the rule of law and citizens of Santa Cruz, without which would yield the transition to forms of totalitarianism.
However, collection law firms listed below, to glimpse its major claims and propaganda have no legal basis. On the contrary, is evident that his speech is based purely linguistic misrepresentations of law and constitutional jurisprudence, and planned legal arguments that are implemented by teams of lawyers and political influence in the judiciary and the media.
In these circumstances, the Movement Toward Socialism of Evo Morales - for fear of electoral areas in the eastern region - rather than sound legal reasoning repel with the actions of the Civic Committee of Santa Cruz that violate the law, or held positions contemplative simulated, and even bring to the demands of this social organization through "covenants" that lacked constitutional rigor.
The choice for the selection of prefects
Notwithstanding Article 109 of the CPE gives the President of the Republic appointment of the departmental prefects, former President Carlos Mesa, then the former President Eduardo Rodriguez - due to pressure from the Santa Cruz Civic Committee and the political forces on the right - called for elections for the selection of a Prefect in each Departments of the Republic.
Article 30 of the EPC requires that public authorities can not delegate the powers conferred by the constitutional provision. This constitutional provision is primary in the rule of law, whose basic feature that all state activity is exhaustively partitioned into a sum of powers clearly defined. In the specific case, the President of the Republic could not delegate all or part of its exclusive constitutional power to appoint prefects. The first characteristic of this competition shows that it is only he who appoints the discretion of the departmental prefect, because of the decentralized unitary state model. This competition is distorted when the President is limited to swear to the candidate by popular vote. The same would apply if the prefect appointed from lists proposed by either government.
addition, the decentralized unitary state model held in the CPE and the Administrative Decentralization Law has not changed at all, if so, that the actions of the Departmental Prefect are inevitably subject to the decision of the head of the executive branch, while there is no delegation of powers, which is only possible through constitutional reform.
Nonetheless, political parties unanimously supported in 2005 the unusual "choice for the selection of prefects" to this effect by adopting the 3090 law, rule of law which clearly violated the constitutional rule, more precisely, the process of reform constitutional. In this makeshift
breach of the CPE, the legislators did not foresee, however, a major issue: the succession of the Prefect of the Department in case of death, resignation, removal or prohibition. The DS 28 429, Act 3090, the DS 28 229 - which were the legal framework of choice for the selection of prefects of December 18, 2005 - in none of the headings referred to how it would carry out the succession of authority for these causal. Only, DS 27 988 issued by former President Carlos Mesa - which predates all of these laws and governing for the unfulfilled election of June 12, 2005 - establishes in its Article 6 that "when the prefects of departments appointed by the procedure laid down in this Decree, left office in final form, will be replaced by people directly appointed by the President of the Republic "(sic).
Unfortunately, the managers of these, do not foresee any" life insurance or severance pay "to compensate for the social grievance of a possible direct presidential appointment or not provide a "hedge fund" to repair the economic damage caused to the State as a result of a possible waste of money in the conduct of these elections.
conflict
of parliamentary elections and in the process just days before the general election 2005, Gerardo Rosado, a member of the Movimiento Nacionalista Revolucionario (MNR), along with other parliamentarians right - and with the collaboration of the advisory team in the Santa Cruz Civic Committee - sued the unconstitutionality of Article 88 of the Electoral Code. A clear motivation for this claim was, once declared admissible, against the approval of Parliament in a former draft law on the division of seats largely favorable to Bolivia's eastern departments - have been in recent years the right defenses - although the principle of estoppel regulated in art. 3 inc. f) of the Electoral Code "stages of the electoral process is not repeated or revised."
The operative part of the constitutional decision 066/2005 - the only one with legal - Declared unconstitutional Article 88 of the Electoral Code and urged the Parliament enact a new law of distribution of seats under Article 60 VI. of the Constitution (CPE), without order, subpoena or suspend the elections initially scheduled for December 4, 2005, much less vulnerable to a redistribution of seats.
Beyond that, this exhortation of the Constitutional Tribunal (TC) was clearly illegal, since it had posed a direct action of unconstitutionality and the Bolivian legal system does not provide the remedy of unconstitutionality by omission. That is, the TC failed ultra petita and in clear violation of Article 58 of the Constitutional Court Act (1). The constitutional complaint is rejected by omission in the literature and Bolivian law, and generally is not feasible in comparative law from the Roman tradition - Germanic. As the constitutional Argentina, Néstor Sagüés, "the traditional doctrine and jurisprudence of the Court have understood that the regulation of a program clause of the Constitution is a subject reserved for caution and discretion of Congress, so that if no Case law dictates, the person concerned will not be any action ... The production unconstitutional omission general rules generates more questions ... "(2).
Once known in constitutional decision 066/2005, the Civic Committee of Santa Cruz celebrated with high-sounding band and shouts of joy this ruling, distorting its effect, and creating a demagogic sense of social achievement in the population of Santa Cruz, in addition to exasperate regionalism. The next day, much of the press following this disinformation campaign announced that thanks to the constitutional ruling, the departments of Santa Cruz and Cochabamba increase four and two seats respectively The criteria used to clear the old bill parliamentary brigade Santa Cruz. No However, the constitutional decision 066/2005 on any of its headings said the new designation of seats, complex issue that varies according to the allocation of the minimum number of seats for the departments with smaller populations and less economic development under Article 60 VI. of the CPE.
To all this, added the statements of then-President Eduardo Rodriguez Veltze, some tribunes and members of the National Electoral Court, who also deftly twisting the legal effect of this constitutional ruling, public opinion led to the erroneous conclusion and illegal that the electoral process would be subject to the new Law reallocation of seats. Even the President of the Republic, announced publicly that it not be the country risked a "power vacuum."
All of these fallacies, corrupted the principle of impartiality of the 2005 general election, to the extent that the proposed electoral candidates in seat allocation formulas addressing their electoral calculations and the opinion polls. Verbigracia, presidential candidate of National Unity, with greater opportunities for political representation in eastern Bolivia, proposed more seats to Santa Cruz for the donation of an airport for the department Potosi.
The Movement Toward Socialism - with greater political representation in western Bolivia - only managed to say that behind all this was a black hand operating in Washington, referring, of course, former President Gonzalo Sanchez de Lozada, and the right intended to stop his ascent to the presidency of the country. But justice never received any complaint about the alleged involvement of Sanchez de Lozada in this conflict, it seems clear that this political group used to it as a scapegoat to stay out of the debate and not lose electoral areas in Santa Cruz and Cochabamba.
Finally, a few weeks before the elections, all political parties in contention "negotiated" a new distribution of seats, giving only three new seats to the department of Santa Cruz, and not four as originally intended by the Civic Committee of Santa Cruz, PODEMOS, MNR and UN, among other political forces.
Many conservative media applauded this approach they called "democratic commitment", and according to them, saved Bolivia from a de facto State. However, few had the courage constitutional ethical denounce this abuse of law that directly resulted in weeks of public uncertainty, widespread fear of a possible dictatorship, and finally, the postponement of general elections (3).
referendum on departmental autonomy
The month of February 2005, leaders of the Civic Committee of Santa Cruz, Santa Cruz parliamentary brigade, and business organizations in Eastern Agricultural Chamber (CAO) and Chamber of Industry and Commerce (CAINCO), delivered 6 000 books with 421 000 signatures to the National Electoral Court and launched a popular initiative for calling a referendum on autonomy. The electoral body validated only 299,866 accessions.
The first referendum question proposed by the Civic Committee of Santa Cruz claimed, inter alia, that the consultation defining and establishing the constitution in the country of departmental autonomy with effective transfer of responsibilities and tasks, they would aim, in its territorial jurisdiction, freely dispose of their resources - without defining what would they - to elect their authorities - undefined what kind of authorities - and given its own administration - without defining the method of administration -. Furthermore, the committee proposed that this referendum precede the constitutional reform, and even that is convened by presidential decree during the presidency of Carlos Mesa, although the Framework Law on Referendum itself defines that this is exclusive power of Congress.
Finally, on March 6, 2006, the current Bolivian parliament unanimously approved the following referendum question of autonomy:
"Do you agree, within the framework of national unity, to give the Constituent Assembly, the mandate binding to establish a system of departmental autonomy implemented immediately after the promulgation of the Constitution of the State in the departments where this referendum with the majority so that the authorities are elected directly by citizens and the state received national executive powers, regulatory powers administrative and financial economic resources assigned to them by the new Constitution State policy and laws? ".
The legal consequences of the referendum on departmental autonomy are quite problematic. Beyond the vagueness of this question which has been alleged even by the former Deputy Minister of Justice and constitutional lawyer, Carlos Alarcon is unprecedented in the history of mankind a binding mandate to the members of a Constituent Assembly. The constituent power - and not the legislative branch in many countries, including Bolivia, also has the power to amend the Constitution - is paramount, this means that it is superior to any manifestation of authority, from creating or is (constituted power) determines nature, organize its functions and sets its limits. In this regard, the lawyer Sánchez Viamonte said that the Constituent Power is the original sovereignty, superb, supreme and direct in the exercise of political society is identified with the state to give birth and personality, and to create you their bodies and continuous expression necessary .
also struck by the fact that the intended purpose of binding national referendum at the departmental level, when clearly in Article 2 of the Referendum Law Framework requires that the national referendum is decided in the national constituency. On the contrary, the question arises whether this national referendum, have the legitimacy and law sufficient to introduce a state of autonomous under the new Constitution - under the principle of voluntariness or device - when more than 50% of voters in the national constituency decided by the "No" to the question of the referendum on autonomy, and this is the only official result issued by the National Electoral Court.
Once approved the English Constitution on December 6, 1978 which recognized the state of autonomous with the consensus among almost all parties, the provinces called for a referendum for approval of their statutes of autonomy, under the new Constitution - the first provinces to hold a referendum for the adoption of its Statute of Autonomy were the Basque Country and Catalonia in 1979 -. By contrast, the claimed process of the Autonomous State in Bolivia is carried in the opposite direction, since from the result of the referendum on autonomy, some civic groups and political parties wishing to form a system of provincial autonomy without prior political consensus , and prior to the entry into force of the Statute of Autonomy.
Moreover, to date the Constitution or laws have defined the meaning and scope of provincial autonomy, and there are no historical antecedents - legal in the republican era of territories with a provisional system of autonomy, or pre-autonomous bodies. Nor is it known how the assembly would be coerced in case of violating this mandate binding. Would they be responsible to justice despite the Constituent Power is the quintessential supreme?. Would also responsible for those Assembly members who refused to approve the new constitution if it recognizes provincial autonomy?
It seems that this abuse of the institute of referendum in Bolivia aims rather to legitimize through devices the "personification" and "corporatization" of political and economic decisions major, in order to prevent a process of consensus and peaceful change and real participation of citizens in political life (4).
The adoption of the text of the new Constitution
Despite being allocation of the Constituent Assembly Debates regulate its regulation according to art. 21 of the Special Law Convocation of the Constituent Assembly, the Civic Committee of Santa Cruz threatened to promote division of the country if that body does not regulate the procedure for approval of each article of the new constitution by two-thirds vote. While
art. 25 of the Special Law Convocation of the Constituent Assembly requires that the adoption of the text of the new Constitution should be done by two-thirds vote of the assembly, does not clarify or regulate the vote required for approval of each article - also called approval in detail - the quorum, the amendment of its regulations, censorship assembly, etc. (5). Whenever the ruling party won more than 50% of votes in the Constituent Assembly, the Civic Committee of Santa Cruz and right-wing political forces insist that every article of the new constitution is approved by two-thirds vote of the instance.
Thus, having an imprecise art. 25 of the Special Act to the House Call Constituent, and taking as its premise the art. 32 of the current Constitution is quite clear that the approval of each article in the new constitutional provision is optional for the Constituent Assembly. However, for the approval of the final text of the new Constitution, it is undeniable the concurrence of two-thirds vote of the assembly.
Parliamentary procedure invoked as a model of the new regulations of the Constituent Assembly debates lacks rigor, given that from a strictly legal standpoint, nothing prevents a detailed approval precedes the approval of the final text of the CPE.
Despite all this, the Civic Committee of Santa Cruz, as so often, without slightest power or legal authority, ordered the population of the vast and populous province of Santa Cruz cessation of work activities and instructed members of the Santa Cruz Youth Union to stop the passage of motor vehicles under penalty of causing damage, as form of "protest", to which they claim is an attack against the rule of law.
Notes:
1. Article 58 of the Constitutional Court Act, concerning the content of the sentence of a direct constitutional appeal, reads:
"58 .-
JUDGEMENT AND EFFECTS .- I. The statement declared the constitutionality of the law, decree or resolution of general appeal, in whole or in part.
II. The decision declaring the unconstitutionality of the statute total contested will abrogate the same.
III. The decision declaring the unconstitutionality of the statute partially contested take effect derogatory items that had fallen on the declaration of unconstitutionality and shall survive the rest.
IV. The ruling may be declared unconstitutional other provisions that are related or consistent with the challenged statute, with the same effects as in the main.
V. The decision declaring the constitutionality of the challenged statute makes illegal any new constitutional claim against it. "
2. Cf SAGÜEZ, Nestor, Elements of Constitutional Law, Volume I, Issue 3, Edit. Astrea, Buenos Aires, 1999, p. 112.
3. Vid. PELAEZ, Gabriel, The pacts are not constitutional in
http://www.la-razon.com/versiones/20051021_005336/nota_246_213923.htm 4. Vid. OCHOA, Mauritius, the referendum on departmental autonomy in Bolivia, at http://www .bolpress.com / opinion.php? Cod = 2006062404 or http://www.rebelion.org/noticia.php?id=33580
5. The constitutional jurisprudence in Bolivia even equates "Constitution" with the CPE, and no well with each of your items. The SC 0037/2000 states: "... has violated the arts. 7-h) and 200 of the Constitution ...". This same meaning is expressed in the SC 0577/2000, 038/2000 SC, and many others.
* Lawyer, legal science researcher and writer. He was legal adviser to public and private institutions, university professor and associate media
