On October 16, Bolivia will hold a popular vote to fill the Supreme Court, the Constitutional Tribunal, the Judiciary Council, and the National Agrarian and Environmental Tribunal.  These elections are part of Bolivian judicial reform, designed to make the judicial system more representative.  While critics of the MAS administration continue to question the politics behind these elections, the process has provided an opening for a more inclusive judiciary.  An opposition campaign asking voters to void their ballots shows a lack of support for the Morales administration, yet further politicizes the already complex first time process and could make the high courts less representative.  Clearly, no process to select justices is infallible, and this new system and the transition to its implementation promise to be fraught with difficulties, friction and further controversy.

Clarification in candidate pre-selection and voting process

Although opposition forces have criticized the candidate selection process carried out by a congressional commission, as stipulated by the Bolivian constitution, , their representatives attended these sessions, although MAS had a majority.  Furthermore, the selection process included a mechanism to allow citizen and institutional observation and objections.  One candidate criticized the decision of some lawyers and officials for not running because they claimed the process was skewed in favor of MAS allies.

The best way to determine whether the selection process in Congress is politically-biased is to submit your candidacy. You can’t just decide that and not run; you have to test the system. I didn’t ask anyone for help, and I don’t have MAS support, I just sent my resume in with the rest of the required documents. I met the criteria, and the committee validated my candidacy.[i]

• Many candidates have distinguished résumés, although some have limited qualifications.  However, they all had to pass a screening process, during which they had to prove they had no current ties to political parties.[ii] The process included the right for the public or institutions to challenge the candidacies that did not meet established criteria leading to the elimination of some participants.  Of the 581 original candidates, 465 were eliminated either through the initial screening or citizen objection.  It is now up to Bolivian voters to weigh the merits of individual candidates.

• For example, opposition party Alianza Social (AS) protested 4 candidacies: Arminda Méndez, Ramiro Guerrero, Magda Lina Calvimontes and Víctor Ezequiel Borda for ties to MAS.[iii] After further screening the congressional commission removed them all from the list[iv]

• There are 116 candidates divided between the four branches.  The breakdown is as follows:

• Voters will elect one representative to the Agrarian and Environmental Tribunal, Judiciary Council and Constitutional council.  From the Supreme Court, each will elect two from the candidates in their department, one man and one woman.  Although only one justice will be elected in each department, the alternate judge will be the candidate of the opposite sex who received the second highest number of votes.[v]

Opposition Campaign for a “NO” vote to block Morales

Opposition leaders including Juan del Granado (MSM) and Samuel Doria Medina (UN) have actively campaigned for voters to void their ballots, claiming the candidate selection process was unfair, and the electoral process is invalid. This initiative has gained traction in Bolivia’s upper classes, and with those frustrated over Morales’s continued support for a highway through the TIPNIS indigenous territory and national park.  The opposition goal is demonstrate rejection for Morales initiatives.

Yet, a voided ballot impedes citizen participation, and the voice of the opposition– one key goal behind the switch to the new system.  Furthermore, it shifts the focus away from the merits of candidates to the opposition objective of demonstrating opposition to the MAS administration.  According to one respected legal analyst:

The opposition campaign to void ballots will greatly increase the chances that candidates with a similar politics to MAS will be elected; It will be a self-fulfilling prophecy, so that they can say, “I told you so.”  Although MAS is not free of political interests, the opposition themselves have politicized this race, turning it into a power struggle to see they can obtain votes in their “favor,” with voided ballots.  This is not a constructive effort.[vi]

Other critics claim that the judicial elections are merely a vehicle for Morales to solidify personal control over the judiciary in order to “legalize” his initiatives and policies and attack his political opponents, many of who already face legal charges. Yet, the MAS-dominated legislature could have directly filled all the seats under the previous system, which selected high court justices though a two-thirds congressional vote.

A third criticism of the process is that the restrictions on media publicity and propaganda have led to limited information on candidates.  While candidates cannot pay for publicity, every one of them had the chance to publish their resumes and responses to a set of questions in a supplement distributed by the electoral court in major newspapers, television, and radio.  While this process does not guarantee the public will be well informed on all candidates, it was designed to be fair and impartial.  Only after voting can its effectiveness be tested.

International and national observation

• Representatives from four international organizations will oversee the elections: The Organization of American States (OAS), The Andean Community of Nations (CAN), the Andean Parliament, and the Union of South American Nations (UNASUR). Their ruling on due process of the elections will encourage transparency and highlight any potential improprieties.

• Bolivia Transparente, a citizen observation organization coordinating with the National Electoral Court, has been disseminating information on candidates.   The organization has also created a hotline and website for citizens to denounce candidate propaganda outside of the officially mandated media and communications spots.  This source for citizenship participation is a valid idea, but because Bolivia Transparente is not a well-established organization, it may, too, face criticism.  Furthermore, their other citizen program to denounce electoral fraud on voting day is a new model and has thus yet to prove it effectiveness.

Conclusions

The attempt to create a more participatory judicial system is, at the very least, an interesting experiment.  The potential for a representative and inclusive judiciary exists in Bolivia, but this will demand participation oversight and the political will of all citizens and will be a painful process full of obstacles.  However, until international observers comment on the electoral process, outcomes remain uncertain.  Furthermore, even if the elections are considered free and fair, the elected justices will have to deal with many mounting challenges including the enormous backlog of cases that has recently increased during election preparation.  It is shortsighted to evaluate transparency, impartiality and efficiency of newly elected justices until they take their positions and test the new system.

[ii] See AIN’s previous memo: “Pending Bolivian Judicial Elections: Opportunity for Reform in Uncharted Territory.”

[iii] El Diario, “AS presenta impugnaciones contra postulantes judiciales,” 21 June 2011.

[iv] See Supplement from Pagina Siete on candidates and voting processes.

[v] Ibid.

[vi] AIN Interview. 14 Oct 2011.