The Bolivian judicial system has long required reform.  In 2009, the Morales administration proposed significant restructuring in the new constitution and set a staged timeline for these measures to be enacted.

One of the most significant modifications is the implementation of judicial elections, calling for popular vote on October 16, 2011 to fill the Supreme Court, the Constitutional Tribunal, the Judiciary Council, and the National Agrarian Tribunal.[i] This measure seeks to rectify the former system, which allowed political parties participating in government coalitions to negotiate the installation of justices sympathetic to their causes. Moreover, interim replacements filled many judicial seats and numerous remained vacant over the past several years, due to resignations and legislative gridlock.

In February 2010, the Bolivian Congress, dominated by the official MAS party, passed a “short-term” law[ii] to appoint interim justices until the first judicial elections could be held, calling judicial elections for December 2010.  In September 2010, a government decree extended the interim justices’ tenure due to failure to convene the national electoral court, responsible for organizing, and postponing the election until March 2011.[iii] However, the government and the electoral court quietly let that deadline pass, and finally formally convoked elections on October 16, 2011.

Implementation of judicial reforms will be complicated, and are likely to meet resistance among some political factions.  Stipulations controlling the judicial candidates access to the media have caused debate, as well as some of the specific guidelines requiring gender and ethnic diversity among contenders. The implementation of these reforms for the first time will be tense due to the voting public and the electoral court’s mutual lack of experience.

The election timeline could also cause a temporary freeze for already hopelessly backlogged national judicial proceedings by the end of June.   The Constitution requires high number of applicants currently holding public office to resign three months before elections and courts close for several weeks of vacation.  These mandatory resignations also put the conclusion of successful prosecution at risk in the high profile Black October human rights case.

With this initiative, Bolivia becomes the only nation to hold popular elections for its highest-ranking judicial officials.  The election of judges at the state and lower levels is quite prevalent in the United States, where requirements for candidacy are generally less stringent than Bolivian legislative guidelines.[iv] Japan and Switzerland also have limited judicial elections in specific circumstances.

Preliminary screening of candidates

The Bolivian Legislative Justice Commission collected applications for judicial candidates until June 12, 2011. As stipulated by a legislative resolution, the Commission then published the full list of 581 applicants: 390 men and 181 women. As of June 15 about 100 have already been disqualified for not presenting required documentation.

Among other basic guidelines, applicants must prove that they have not been a registered member of any political organization during the previous calendar year, or held any kind of leadership position in a political group during the past five years.[v] These regulations seek to select nonpartisan contenders. The requirement to speak at least two official languages is waived for the 2011 elections, but will be expected of future candidates.[vi]

Each special court also has specific requirements to ensure justices are adequately qualified or can demonstrate pertinent specialization. For example, candidates must demonstrate significant legal experience and prove they have never defended anyone found guilty of crimes against the state, that they did not participate in dictatorships, and that they never defended anyone found guilty of drug trafficking.[vii] These conditions reflect predominant national security concerns and the MAS government agenda.

Timeline and organizational structure

The legislative Justice Commission must then interview each candidate within 15 days. The Legislative Assembly is required to publicize these interviews on its website and state television to safeguard transparency. Candidates will be tested on general legal knowledge and specific information pertinent the tribunal to which they are applying. Their responses will be evaluated in addition to a review of their academic formation, general experience, and professional publications. One of the criteria calls for candidates who have worked with indigenous or rural communities, but does not require this experience of all potential applicants.

The President of the Legislative Assembly must then convoke a plenary session to approve each candidate by a 2/3 majority. If each tribunal does not receive the minimum number of candidates necessary to fulfill quorum, the voting will be repeated until the ballots are complete. At that time the Legislative Assembly will turn finalized lists over to the Electoral Court (OEP). In October, judges will be selected by a simple majority of popular vote.

Concerns and disputed elements

• The requirements for candidacy could potentially lead to the paralyzation of the highest judicial courts between July and October. The 2009 constitution requires any candidates for public office to resign from government appointments or elected posts three months before voting takes place.[viii] Since many of the candidates already serve as judges or public defenders and prosecutors, their resignations on July 16 could virtually bring upper levels of the judicial system to a halt.  In addition, court vacations begin at the end of June, in effect leaving the Supreme Court and other bodies operational for less than a week.  Some analysts expressed concern that if the government implements any major initiatives during the interim, there would be no judicial authorities to validate or evaluate them.

• For example, the Black October trial of ex-ministers and the ex-military high command from the second Sanchez de Lozada administration for the death of over 67 civilians in 2003 is close to conclusion. Unfortunately, both special prosecutors assigned to case are candidates for judicial posts. As a result, they will most likely be forced to resign before the conclusion of the trial.  In this high profile case, in which high ranking officials and members of the armed forces face human rights charges for the first time, it is unlikely that their replacements will have the authority or support to proceed with prosecution under intense pressure, which could permit continued impunity.

• One of the primary concerns during the open application period was that the requirements for candidates were too specific. Initially, few people expressed the intent to contend. The Judicial Commission’s screening and the subsequent Legislative Assembly vote will determine whether enough viable applicants. The high number of initial applicants suggests that contenders believed they had a chance to take advantage of the new system is legitimate. One experienced candidate still in the running commented to AIN, “It’s an interesting experiment. I am not sure what will happen, but I wanted to try.”

• Although 50% of the candidates must be women, there is no guarantee of gender equality once the ballots are put to vote. Moreover, the Chuquisaca department has not been able to garner the sufficient number of female applicants for the Supreme Justice Tribunal. This situation could potentially stall the entire process, and once again push back national elections to a later date. One MAS Senator, Eugenio Rojas, has suggested that the period to solicit applications should be extended just for the Chuquisaca department to allow for more women to apply.[ix] The statement received mixed reviews

• Following widespread protests in early 2011 questioning measures to control racism in the media,[x] some members of the Bolivian press continue to voice concern about freedom of expression. Some sectors interpreted Article 82 of the Electoral Regimen Law to further restrict these rights. Article 82 prevents candidates from conducting any form of media campaign, or expressing their opinions related to their campaigns.[xi]

• President Morales called for modification to this article in May 2011 as a concession, but some press outlets remain dissatisfied with the proposed changes.[xii] Legislators included this stipulation to in an effort protect all candidates’ rights to equal media coverage, but in practice, its implementation has faced obstacles and criticism.[xiii] Some electoral officials are proposing a strict fine of five days’ minimum wage for any candidates that participate in interviews or publicize their campaigns in any way.[xiv] It is interesting to note that U.S. judicial elections reflect the same problems the Bolivian reforms seek to avoid.[xv]

• Despite specific guidelines that stipulate candidates may have no recent political affiliation, concern remains that MAS control of both legislative houses will have inappropriate influence during pre-selection. It is also important to note that Vice President Garcia Linera serves as President of the Legislative Assembly; while he cannot vote on the candidates, he convokes the legislative determinations and presides over the hearings. Although the structure of the elections is democratic overall, it is impossible to guarantee that the process will be completely free of political bias. This situation is likely to fuel further criticism from political opposition, but is typical of partisan political systems.[xvi]

• The term for judges on each of the four tribunals is six years, and they cannot seek reelection. Some critics fear this may not be enough time to enact significant changes. Furthermore, six years could prove too short a time for magistrates to adapt to the system and gain necessary experience to function effectively.

• In general, the voting public has no previous experience in judicial elections to facilitate decision-making.

Conclusions

Although the motivation behind these reforms is sound – to create a more democratic and transparent, less politicized judicial system – the MAS government should work to ensure a smooth transition and resolve any emerging conflicts through negotiation. The previous system was corrupt and inefficient, and called for systemic change. However, the MAS government should be careful to maintain transparency throughout the pre-selection and electoral process to avoid accusations of political bias. The process to select viable candidates will also be difficult for legislators and voters because in this uncharted territory — no one can rely on previous experience.

The Bolivian government should also convene organizations such as the Organization of American States, the European Commission or trusted institutions like the Carter Center to observe elections in October. International oversight would help guarantee fair elections and sustainable outcomes.

[ii] See: http://ain-bolivia.org/2010/02/bolivian-congress-passes-law-to-appoint-interim-justices/.

The Law may be found here: http://www.google.com/url?sa=t&source=web&cd=1&ved=0CBsQFjAA&url=http%3A%2F%2Fwww.cedib.org%2Fleyes%2FLey040.pdf&rct=j&q=Bolivia%20Ley%20040&ei=qv34TdCNIImr0AG_54iWCw&usg=AFQjCNFOEvs4rTT-PjkEkvrhd8FKe2OK4w&sig2=9OrgvtYktGSGLkNswpZORQ&cad=rja.

[iii] See: http://www.cedib.org/leyes/Ley040.pdf. The delay was in part caused by new departmental autonomy statutes, which stipulate that local councils decide who will represent their department at the national electoral court. Beni and Santa Cruz did not nominate their electoral representatives according to schedule. It remains unclear whether this was an effort to block the judicial elections or general disorganization

[iv] The election of judges has received mixed reviews in the United States. Criticisms include undue political intervention and abuse of campaign financing. Advocates affirm that elected court officials are more responsive to their constituents.  According to the National Center for State Courts, in 2008, 87 percent of all state court judges were elected, and some judicial in at least 39 states. The New York Times, “Rendering Justice, With One Eye on Re-election.” 25 May 2008. <http://www.nytimes.com/2008/05/25/us/25exception.html>

[v] Articles 5 and 6 of Legislative Assembly Resolution No. 003/2011-2012.

[vi] Since native languages have only been recognized since approval of the 2009 constitution, national institutions are gradually including multilingual guidelines.

[vii] The right to fair trial and a defense could be called into question by this stipulation. Many defense attorneys are presenting applications for judicial seats, and it seems contradictory and inefficient to disqualify them for their court records, even if their clients were ultimately found guilty. Although some lawyers defending narcotraffickers could be accomplices to illegal activity, the way the judicial election law is written could violate the right to due process. To date, no one in Bolivia has protested this requirement.

[viii] Constitucion Politica del Estado, Artículo 238. No podrán acceder a cargos públicos electivos aquellas personas que incurran en las siguientes causales de inelegibilidad:

3. Quienes ocupen cargos electivos, de designación o de libre nombramiento, que no

hayan renunciado a éste, al menos tres meses Presidente y el Vicepresidente de la República.

[ix] Opinion, “Plantean ampliar plazo de postulación de candidatos a magistrados.” 15 June 2011. http://www.opinion.com.bo/opinion/articulos/2011/0615/noticias.php?id=14229

[x] See: http://ain-bolivia.org/2011/02/conflict-and-consensus-part-ii-bolivian-anti-racism-and-discrimination-regulations-address-freedom-of-press-concerns/.

[xi] I. Las y los postulantes, desde el momento de su postulación, bajo sanción de inhabilitación, están prohibidos de:

a) Efectuar directa o indirectamente cualquier forma de campaña o propaganda relativa a su postulación, en medios de comunicación radiales, televisivos, escritos o espacios públicos;

b) Manifestar opinión ni tratar temas vinculados directa o indirectamente a su postulación en foros públicos, encuentros u otros de similar índole;

c) Emitir opinión a su favor, o a favor o en contra de otros postulantes, en medios de comunicación radiales, televisivos, escritos o espacios públicos;

d) Dirigir, conducir o participar en programas radiales o televisivos, o mantener espacios informativos o de opinión en medios escritos; o

e) Acceder a entrevistas, por cualquier medio de comunicación, relacionadas con el cargo al que postula.

II. A partir de la convocatoria, los medios de comunicación, bajo sanción y sin perjuicio de su responsabilidad penal, están prohibidos de:

a) Difundir documentos distintos a los producidos por el Órgano Electoral.

b) Referirse específicamente a una o un postulante, en forma positiva o negativa.

c) Generar espacios de opinión de ninguna índole sobre los postulantes.

d) Dar espacios de opinión, conducción o participación en programas a cualquier postulante.

III. A partir de la convocatoria, ninguna persona particular, individual o colectiva, organización social, colegiada o política, podrá realizar campaña o propaganda a favor o en contra de alguna o algún postulante, por ningún medio de comunicación, incluyendo internet y mensajes masivos de texto por telefonía celular, constituyendo falta electoral sin perjuicio de su calificación penal.

IV. A partir de la convocatoria, ninguna autoridad o institución pública podrá emitir opiniones o realizar acciones que favorezcan o perjudiquen a alguna de las postulaciones, constituyendo falta electoral sin perjuicio de su calificación penal.

[xii] See: http://www.sipiapa.org/v4/index.php?page=cont_comunicados&seccion=detalles&idioma=sp&id=4564 and http://www.lapatriaenlinea.com/?nota=70379.

[xiii] “The spirit [of the media restriction measures] is not to create obstacles for the media or journalists, we only want to guarantee equal opportunities for candidates and that there isn’t partisan political or economic interference […] in the October elections,” commented another OEP source. Erbol, “TSE no controlará preguntas y quien haga propaganda pagará cinco días de salario.” 23 June 2011. <http://www.erbol.com.bo/noticia.php?identificador=2147483946346>

[xiv] Ibid.

[xv] “Some political scientists say voters do not have anything near enough information to make sensible choices, in part because most judicial races rarely receive news coverage. When voters do have information, these experts say, it is often from sensational or misleading television advertisements.” The New York Times, “Rendering Justice, With One Eye on Re-election.” 25 May 2008. <http://www.nytimes.com/2008/05/25/us/25exception.html>

[xvi] The U.S. is one of only a handful of other countries around the world that adhere to democratic judicial elections, and legal scholars continue to debate the merits of this system. Ibid.