Bolivia’s president, Evo
Morales, resigned on November 10, 2019 after an audit by the Organization of
American States found that the results of the election held the previous month
could not be validated because of “serious irregularities,” including “failures
in the chain of custody for ballots, alteration and forgery of electoral
material, redirection of data to unauthorized servers and data manipulation.”[1]
Election officials had stopped the count for about 24 hours without
explanation; when the count resumed, Morales’ lead was much greater.
Accordingly, along with Morales, the vice president, and the president of the
state senate, the president and vice president of the electoral council
resigned. Before the end of the day, the two officials of the council had been
arrested for “electoral crimes.”[2]
Although the state police were justified in arresting the officials, I submit
that the police acted beyond their proper sphere when they joined with the
military, which also acted beyond its sphere, to force Morales to resign.
To be sure, Morales controlled
both chambers of the state legislature, the electoral council, and even the
Constitutional Court, rendering the problem of holding the president
accountable to the law particularly acute. As for the legislature, the
presidents of both chambers resigned along with Morales, making the matter of
Morales’ successor quite messy even from a constitutional standpoint. These
resignations suggest that the leadership of the legislature would have been
unlikely to act as a check on the president.
As for the high court, Morales
had argued that it was his human right to run for reelection for a third term even
though the constitutional limit was two terms. In 2019, he was running for his fourth term, sailing through the
constitutional constraint yet again. Citing the American Convention on Human
Rights, the Constitutional Court ruled that the term limits violated Morales’
human right to run for a third term. The Court had a basis to consider the
treaty on par with the state’s constitution. In the U.S. Constitution, for
example, Article VI, Clause 2 states that a treaty, like the Constitution
itself, is the “supreme Law of the Land.” In the Bolivian case, the
Constitutional Court put the treaty above
the constitution. In general, where two parts of supreme law conflict, one
must be put above the other.
Article 23 of the Convention,
which covers the right to participate in government, is the relevant part of the
treaty. Every citizen has the right and opportunity “to take part in the
conduct of public affairs, directly or through freely chosen representative; to
vote and to be elected in genuine periodic elections . . .; [and] to have access,
under general conditions of equality, to the public service of his country.”[3]
Taking part in the conduct of public affairs can be by being elected to a
governmental office. Such participation can be regulated “only on the basis of
age, nationality, residence, language, education, civil and mental capacity, or
sentencing by a competent court in criminal proceedings.”[4]
Even though term limits do not fall under any of these legitimate means of
constraining the underlying right to the opportunity to run for office, term
limits are under general conditions of equality concerning public service, of
which serving in elected office pertains. That is to say, being elected to a
governmental office falls within public service, and term limits are consistent
with general conditions of equality because the limits apply to any citizen. Hence
we need not look at the legitimate rationales for constraining the right. I am
assuming that the enumerated legitimate means by which to regulate the right to
serve in elected office are exceptions to the general conditions of equality.
We need not look at the exceptions because term limits satisfies general
conditions of equality. The Bolivian Court thus erred in determining whether
term limits falls within any of the exceptions.
The Court had no legal
justification for putting the treaty above the state’s constitution. The leap
in having done so is suspicious because the Court’s primary role is to
interpret the constitution. Molares had “packed the court” (i.e., put the
sitting justices on the bench),[5]
so the errant legal reasoning may have been more the fault of political bias
than logic. If so, Molares had control over the judiciary as well as the legislature,
electoral council, and executive branch. Without any operative checks on his
power, he could turn a democracy into a de
facto dictatorship for life. Indeed, up until the end, he controlled the
state police and military.
That the police and military
are under the executive power of a president does not justify the involvement
of the police and the military in taking it upon themselves to remove that
president. If the Bolivian military chief made a deal with the opposition
party, then he became a partisan politically. In his designated capacity to
defend the state from foreign enemies, a military chief does not have the authority
to pick partisan sides in a political dispute. Likewise, in unilaterally
deciding to stop guarding the presidential palace, the police went beyond their
authority and became partisans. That the police kept to their designated duties
in arresting the president and vice president of the electoral council suggests
that the decision to walk away from the presidential palace was partisan in
nature.
Even relative to Morales’s
usurpation of constitutional prerogative by running for a fourth term in
violation of the term-limit general
restriction, the refusal of the police and military to stay within their
respective spheres of authority is particularly problematic because they
possess weapons. Even in requesting that the president step down, the military
chief acted inappropriately because the president is the commander-in-chief. In
other words, the military chief evinced an unwillingness to stay within his
gift. Such a mentality, plus the legal possession of many accumulated weapons,
is why it is important that a military answer to a civilian, such as a
president, who is not subject to the military. In a democracy, that civilian is
an elected official, and it is not within the purview of a military (or police
department) to question the veracity of the election as that would violate the
president not being subject to the military (or police). In the U.S., this is
why the impeachment and removal from office are conducted by the Congress. This
is also university
police-departments in the U.S. are inherently problematic from a democratic
standpoint, for the chiefs of such departments report to university managers
rather than elected officials.
That the Bolivian police and
military sided with the president’s political opposition in removing the
president from office demonstrates the maxim that the ultimate power in a government
lies with whomever can legally hold a (near) monopoly on weapons. Parchment is
no match for officials with power and guns if a
self-aggrandizing, even aggressive mentality is involved. The matter of
holding such officials accountable can be quite difficult, as has been
demonstrated by all the failed efforts to hold municipal police accountable in
the United States. Unfortunately, a police employee can leverage his or her
power to arrest and ultimately to use a gun to be able to act
disproportionately (and prejudicially) on even trivial local laws.
On the very evening of
Morales’ resignation, I was stopped by a policeman in Tempe, Arizona while I was
walking in an alley. He informed me that walking in alleys is illegal in the
city, which is home to Arizona State University. Doubtless the local police had
looked the other way when students take such shortcuts, but in my case, the
policeman assumed that enough residents of the apartment complex where I was
living use alleys as shortcuts that he would issue me a formal warning, which
means that I would be arrested the next time I was apprehended in an alley. Such
a serious matter in Arizona! Being from another state, I felt myself a
semi-foreigner there in part because the police tended to over-react, even in
demonstrating an excessive police-presence on the supposition that intimidation
is the best deterrent. In my case, the policeman was trying to use me as a
deterrent for other residents in a low-income apartment complex even though as
a research scholar I had very little in common with the other residents (except
for the few students who lived there). I had the impression that the policeman
was grouping me in with homeless people just because I was carrying my laundry
to a nearby laundry-mat. That Arizona was ranked 49th out of the 50
states of the US on primary education, including High School, suggested to me
that I was being confronted by ignorance (and prejudice against the poor) with
a gun. So police (and even a military) can go too far even in a state in which
democracy is ostensively well-established. Personal discretion can be easily misused
by people with the authority to arrest and use lethal force.
Therefore, when government
institutions are captured by a president, such as Molares in Bolivia, it is a
mistake to look to police or the military to use their threat of lethal force
beyond their sphere of authority; their power is too much to rely on their
discretion. When a democracy has succumbed to a dictator, the People, who together
are the popular sovereign, have a duty to restore their democracy. In a
representative democracy, the People are the font of sovereignty, whereas
governmental sovereignty is delegated. The duty is not rightly preempted by the
will of the police or military, because, as parts of a government, they are
below the popular sovereign and its elected representatives. To be sure, the
weaponized machinery of the state could fall under the control of the People as
they make progress, but the movement would not be led by the police or
military. Put another way, the police and military would no longer be so as
individuals from those departments decide to join the People against the state.
In a democracy, the People, acting as the popular sovereign, are the
foundation. For the will of the People to be preempted by the wills of the
police or military is itself dictatorial rather than democratic. Even if the
heads of the police and military have good intentions in getting rid of a
corrupt government, doing so lies with the People even if doing so is
extraordinarily difficult.
In conclusion, protecting a
democracy, such as against violations of term limits or, moreover, against a
dictator generally, is the right and duty of the People acting as the popular
sovereign. This duty is particularly pressing when no checks and balances exist
within and between the three branches of government, such as when a dictator
controls the legislature and judiciary. This does not mean that police or a
military share that duty, for they are not only artifacts of government, but
also given to the temptation for absolute power owing to the power of the
threat of arrest and their use of guns. Also, enforcing criminal law does not
extend to assuming a political role, especially if it is partisan. The U.S.
Department of Justice, which houses the FBI, is thus not supposed to do the
president’s political bidding. It would be ludicrous for the head of the
Justice Department to join the opposition party in “requesting” that the
president step down; to use the FBI to enforce the “request” would violate the
constitutional language that puts the president as the head of the executive
branch, as well as the fact that Congress, made up of elected officials, makes
the case for impeachment and determines whether the president is to be removed
from office. Otherwise, the president’s political opposition could simply call
the FBI or even the local police to have the president arrested. The same logic
pertains to the military, as if it could legitimately detain or remove its
commander-in-chief, thereby violating the constitutional language on
impeachment and removal from office as a political matter. The sovereign state
of Bolivia violated its democratic system even in how Morales was removed from
office in 2019.
[1]
Kay Guerrero and Dakin Andone, “Bolivian
President Evo Morales Steps Down Following Accusations of Election Fraud,”
CNN.com, November 10, 2019 (accessed on November 12, 2019).
[2]
Ibid.
[4] Ibid.
[5] Guerrero
and Andone, “Bolivian
President Evo Morales Steps Down Following Accusations of Election Fraud.”
