Economist Wrongly Reads “Rough Justice” into Bolivian Judicial Reforms

The Economist’s January 7th article, “Rough Justice: The wrong way to reform the courts,” offers a misleading picture of Bolivia’s recent judicial elections. While the newly elected magistrates face real challenges in renewing the Bolivian public’s faith in the national justice system, this article erroneously claims that appointed judges would were be better suited to tackle these challenges.  Moreover, it draws unsupported links between judicial reforms and lynching, a practice that is strictly forbidden by legislation passed under Morales’ tenure. Overall, the author uses incomplete or inaccurate information to dramatize crime and corruption; it suggests Bolivia’s justice system that approves of vigilantism and falsely implies that the judicial reforms will lead to an increase in this troubling phenomena.

Bolivia’s justice system does contain many flaws and endemic problems, and Morales’s initiatives to address them have been mixed at best.  However, the Economist should take care to analyze the real problems, and not sensationalize and misrepresent complex Bolivian dynamics.

The article begins with a dramatized portrait of El Alto as a city without law: “In the streets of El Alto, Bolivia’s poorest and fastest-growing city, scarecrow dummies hang grotesquely from lampposts with ropes around their necks as a macabre warning to potential thieves and criminals. The threat is not idle. Residents have little faith in the police or the courts. Instead, they often take justice into their own hands: the lynching and killing of alleged offenders is not infrequent in El Alto, nor elsewhere in Bolivia.”

  • The author suggests that lynching in Bolivia is common practice.  Lynchings have been a problem in Bolivia decades before Morales’s election and  continue to  occur, largely in impoverished peri-urban areas as a result of lack of faith in law enforcement.    Yet, law approved during the Morales administration strictly forbids the practice.  According to Bolivian Jurisdictional Law, which outlines acceptable forms and guidelines for alternative indigenous justice, lynching is a human rights violation.[i]

The author then wrongly correlates the judicial elections as an attempt to address lynching: “The socialist government of President Evo Morales reckons that the way to restore public faith in the judicial system is to replace the judges with elected ones. On January 3rd, with much fanfare, he swore in 56 judges elected in a national ballot last October. They will now compose the country’s four highest courts.”

  • The election of high-ranking judicial officials is only one part of a long-term, broad-based overhaul of the Bolivian judiciary, which has had mixed results.  By focusing on public rejection of judicial elections, the article misses the broader impact of these systematic reforms.

The article continues, “For Mr. Morales’s supporters, this represents popular justice. The judiciary was “packed by middle-class opportunistic lackeys of the government of the day”, complained Idon Chivi, an official responsible for the reform. The new judges, he says, are more representative: 50% are women and some, for the first time, are Amerindian.”

  • MAS implemented judicial elections to rectify the former established 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.[ii]
  • The judicial elections also ended the terms of interim justices directly appointed by Morales, a move that provoked criticism from international human rights monitors and legal experts.

The author also fails to accurately explain the complexities of the October judicial elections: “The opposition complains that the new judges are in practice handpicked government appointees. It sees the judicial election as intensification of the politicised justice already dispensed under Mr. Morales. Many Bolivians heeded an opposition call to register a protest vote in October. Only 40.5% of the votes cast in the judicial vote were valid; 41% were spoiled and 18.5% blank.”

  • Unfortunately, voided ballots impeded citizen participation and the voice of the political minority in the judicial system; the impact of the elections would have been far more representative if all citizens had used their votes. Furthermore, the opposition campaign shifted 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 campaign to void ballots greatly increased the chances that candidates with a similar politics to MAS will be elected a self-fulfilling prophecy. 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]
  • Bolivian law clearly stipulates that the candidates receiving “the highest number of valid votes” would win elections. As a result, blank and void ballots had no legal weight in the electoral process.[iii]
  • Furthermore, 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.  The results of the judicial elections are legal, system is a valid effort to eliminate political influence in the judiciary, despite the complications caused by null and voided ballots in October.

The author also exaggerates and misrepresents the content and reach of MAS legislation: “In 2010 it used its legislative majority to approve a law that requires elected officials to be suspended from office if charges of any kind are filed against them, even before any evidence has been presented in court.”

  • The Bolivian legislation in question only applies to departmental governors and municipal officials and council members. Their own autonomously elected local councils, not the national MAS administration, can vote to temporarily suspend them.  The accusations must be approved by public prosecutors as a formal indictment after a legal investigation demonstrating sufficient evidence to formally charge the accused and proceed to trial. This norm only applies to criminal indictments.[iv] Prohibition from serving other offices can only occur after the conviction and sentencing for crimes.

The author continues to speculate on MAS motives: “Two opposition governors and two mayors have been ousted in this way. Next may be the governor of Santa Cruz, Rubén Costas, one of the government’s fiercest critics, and the current mayor of La Paz, Luis Revilla, from Mr. del Granado’s party.”

  • The majority of high profile opposition figures do face legal charges against them, as did current MAS politicians during the tenure of previous administrations. Yet, few of these cases have ended in conviction.
  • Under the current system. MAS officials cannot make these decisions alone. For example, members from the Opposition MNR (Sanchez de Lozada’s) party voted to suspend Governor Ernesto Suarez in December 2011, and their party, not MAS, took over interim control of his seat.
  • Although charges have been pressed against Ruben Costas, a judge recently revoked an arrest warrant against him, suggesting specific judicial review is, in a fact being applied.

“Juan Antonio Morales, president of the Central Bank from 1995 to 2006 and an internationally respected economist, has been under house arrest since September.”

  • Unfortunately for Juan Antonio Morales, the disappearance of large sums from Bolivia’s central bank in the days preceding ex-President Sanchez de Lozada’s resignation during Morales’ tenure as bank president eroded his credibility.  No evidence has been presented implicating Morales, personally.  Testimony and video footage did implicate ex-Government Minister Yerko Kukoc,[v] who, in turn, claimed Juan Antonio Morales should be held responsible for the disappearance of funds.[vi] Police later found approximately $200,000 of this money at the home of Kukoc’s friend.  A legal investigation of the missing funds ended abruptly after the unexplained removal of the case prosecutor and has not been reinitiated in spite of evidence of embezzlement.

“He is accused of receiving salary bonuses during his term at the bank, a normal practice for most senior civil servants at the time.”

  • Although salary bonuses “were a normal practice” for high-ranking government officials, the practice was neither transparent nor legally sanctioned.  These bonuses often exceeded the officials’ salaries and came from a large government account, “Reserved Expenses,” which was supposed to be used for state emergencies, national disasters and other unforeseen events, and not for salaries or monthly expenses.  Accounting requirements and prerequisites for withdrawal for these funds were considerably less than normal procedures. The amounts of bonuses, their recipients and other “reserved expenses” were not available to the public or subject to external audit. Yet, only Morales, and a handful of other officials, have faced charges for receiving these bonuses, although scores of officials benefited from the same practice for decades.

“The first court hearing of Mr. Morales’s case was postponed six times last year.”

  • Unfortunately repeated delays and postponements have long characterizes every Bolivian legal investigation and trial and cannot be directly attributed to a political vendetta against Mr. Morales.

“All of Bolivia’s living former presidents since 1996 have been charged with offences, and in some cases have  yet to be given a hearing. Their work and travel rights have been periodically restricted.”

  • Congressional investigative committees have cleared two former presidents of charges.  In September 2011, the Justice Commission dropped charges against Carlos Mesa pertaining to hydrocarbons contracts signed during his presidency.[vii] In December 2011, the a MAS-dominated Senate Commission ruled that there was no evidence implicating former president Eduardo Rodriquez, in the removal of Chinese missiles to the US for destruction. [viii] Investigating past corruption and human rights violations is an important step in consolidating democracy.  Apparently, MAS officials discerned between reasonable and unjustified criminal proceedings.

“As well as slow, the courts are underfunded, inefficient and often corrupt. The judicial system’s budget was just $75m last year, and it is due to shrink in real terms this year.”

  • The accurate assertions of judicial problems inherited by the Morales administration are not unique to Bolivia.  Internationally, there are few judicial systems that have adequate budgets and most, with the current worldwide economic crisis will “shrink in real terms this year.”

“Salaries of top judges are capped at $2,174 per month, an invitation to graft. Even the new judges have asked for the cap to be doubled.”

  • Ironically, the MAS administration capped all salaries, including President Morales’s at that amount in 2006 in an effort to provide greater funds for government programs and initiatives and reduce disproportional benefits to high-ranking officials at the expense of the general public with a monthly minimum wage of less than $80 dollars.[ix] Although this initiative did provoke multiple resignations in the judicial branch and newly elected justice have requested pay increases, no one has asked for the “cap to be doubled.”  There were multiple documented cases of graft with the previous, higher salaries. It not a forgone conclusion that this is “an invitation to graft.”

The author again misrepresents the context of lynching in Bolivia: “Many rural Bolivians have no access to the courts. The new constitution drawn up by Mr Morales’s party and approved in 2009 has legalized traditional justice dispensed by village elders. Community justice can sometimes resemble legalised lynching, featuring stoning, strangulation or burning with petrol.”

  • Anthropologist Daniel Goldstein, an expert on lynching in Bolivia highlights clear distinctions between lynching and community justice.“ Lynchings  are not examples of community justice. Community justice emphasizes reconciliation and rehabilitation. Rather than violent torture and execution, community justice promotes the “reeducation” of community members who violate collective norms and rules, Typically, the last resort for this kind of community justice would be to exile offenders, prohibiting their return to the community where their family, lands, and all other signs of their social existence are located. Such punishment has a powerful deterrent effect on would-be criminals, such that extreme forms of violent punishment are rarely required. Punishments under this system are not decided upon in anger, but are the result of a deliberative process in which elected elders of the community participate and pronounce judgment.”[x]
  • The Jurisdictional Law passed during Morales’s tenure emphasizes that all rulings must follow national and international human rights laws and accords, as well as the national constitution.  These stipulations effectively allay popular concerns that Constitutional recognition of indigenous and campesino judicial authorities could permit lynching.
  • While correctly differentiating between the legal practice of community justice and the illegal practice of lynching as an ongoing challenge for some Bolivian and international observers, the Clause 5 of Article 5 bans the latter entirely: “Lynching is a human rights violation, and is not permitted in any jurisdiction and will be prevented and sanctioned by the Plurinational State.”[i]

“The police do not keep separate records of these acts. Carlos Valverde, an investigative journalist, chronicled 16 such killings in 2009 and 13 in the first half of 2010, including the kidnap, torture and murder of four policemen.”

  • This particular incident occurred in Uncia, Potosi where residents lynched four policemen in June 2010, apparently to punish the officers for extortion. The Morales administration clearly identified this lynching as a crime and demanded a full legal investigation through the central justice system.  Although some members of the affected communities tried to classify their actions as “community justice” to justify the killings, other indigenous organizations and leaders rejected this stance.  The killings coincided with the release of the proposal for the draft Jurisdictional Law, which added fuel to the opposition’s fire against the pending legislation; MAS opponents skewed this example to equate “mob rule” with indigenous justice.[xi] Reputable journalistic publication such as the Economist should avoid committing these same errors.
  • The Bolivian constitution also forbids any form of the death penalty.  As a result, the jurisdictional law strictly sanctions murder and considers the death penalty a criminal act.[xii]
  • By recognizing indigenous legal systems, the Bolivian government gains the legal right to regulate and oversee these authorities to avoid human rights abuses and discrimination wrongfully labeled as community justice.
  • Most importantly, lynching is not a product of the MAS’s rise to power, but has occurred in Bolivia since at least 1995. [xiii]

The author unfairly concludes: “Far from improving the quality of justice in Bolivia, Mr. Morales’s reforms risk making it worse.”

Like many Latin American countries, Bolivia suffers from a long history of corruption, inefficiency, and impunity in the judicial system.  Limited government finances and prioritizing of other social reforms, limit the pace and depth of reforms.  The Bolivian public, MAS officials, and the opposition all recognize the gaps in the current system as well as difficulty in implementing the new system. Given the widespread public rejection of judicial elections and waning confidence in MAS reforms, the administration must work to restore public confidence in the judicial system and its clearly imperfect execution.

Implementing a new judicial system is an arduous task.  While the new system may continue to suffer from partisan politics, and a lack of accountability it is an effort toward a more democratic model.  The jury is still out on how effective the changes will be.  Critiques of the new system should focus on the real challenges such as backlogs, inexperienced justices, and social movement pressures, rather than conflating longstanding unacceptable practices, such as lynching with Morales’ judicial overhaul. Dramatizing Bolivian justice does little to advance positive policy reforms or provide constructive criticism. In short, the Economist fails to do justice to the inherently complex, longstanding and uphill battle for judicial reform in Bolivia.

[i] AIN, “Bolivian Jurisdictional Law: A Step in the Right Direction, but Requires Clarification,” 28 March 2011.

[ii] For more information see: AIN’s  Pending Bolivian Judicial Elections: Opportunity for Reform in Uncharted Territory and Bolivian Judicial Election Provoke Conflict and Controversy.

[iii] Plurinational State of Bolivia,  Legislative Assembly, “LEY DEL REGIMEN ELECTORAL,” 30 June 2010.

Articulo 79. (Organizacion de la votación).  I.  … Será electo como Magistrada o Magistrado titular en cada Departamento la candidata o candidato que obtenga el mayor número de votos válidos de las dos listas. II. … Las Magistradas o Magistrados titulares serán las y los siete (7) postulantes que obtengan el mayor número de votos válidos.  III. … Las Consejeras o Consejeros titulares serán las y los cinco (5) postulantes que obtengan el mayor número de votos válidos. IV. …Las Magistradas o Magistrados titulares serán las o los siete (7) postulantes que obtengan el mayor número de votos válidos.”

[iv] Plurinatioanl State of Bolivia, Legislative Assembly, “LEY  MARCO  DE  AUTONOMÍAS  Y  DESCENTRALIZACIÓN “ANDRÉS  IBÁÑEZ”, Ley 031 19 July 2010.

Y CAPÍTULO I :SUSPENSIÓN TEMPORAL Artículo 144. (SUSPENSIÓN TEMPORAL).- Gobernadoras, Gobernadores, Alcaldesas y Alcaldes, Máxima Autoridad Ejecutiva Regional, Asambleístas Departamentales y Regionales, Concejalas y Concejales de las entidades territoriales autónomas, podrán ser suspendidas y suspendidos de manera temporal en el ejercicio de su cargo cuando se dicte en su contra Acusación Formal. Artículo 145. (PROCEDIMIENTO).- Para proceder a la suspensión temporal de funciones prevista en el Artículo anterior necesariamente deberá seguirse el siguiente procedimiento:

1. Habiendo acusación formal, el fiscal comunicará la suspensión al órgano deliberativo de

la entidad territorial autónoma respectiva, el cual dispondrá, de manera sumaria y sin mayor trámite, la suspensión temporal de la autoridad acusada designando, al mismo tiempo y en la misma resolución, a quien la reemplazará temporalmente durante su enjuiciamiento.

2. Cuando se trate de la Máxima Autoridad Ejecutiva, la autoridad interina será designada de entre las y los Asambleístas y/o Concejalas y Concejales.

3. Si se tratara de asambleístas departamentales y regionales, concejalas y concejales, la Asamblea Departamental, la Asamblea Regional o el Concejo Municipal respectivo designará a la suplente o el suplente respectivo que reemplazará temporalmente al titular durante su enjuiciamiento.

Artículo 146. (RESTITUCIÓN).- Si concluido el juicio el juez determinare la inocencia de la autoridad procesada, en la misma sentencia dispondrá su restitución inmediata al cargo sin perjuicio de

los recursos legales que la Constitución Política del Estado y las leyes franquean a las partes y al Ministerio

[v]Los Tiempos, “Ex funcionario acusa a ex ministro Kukoc,” 27 July 2006.

[vi] El Diario, “Banco Central de Bolivia inicia investigación interna,” 23 June 2006.

[vii] Opinión, “Petrocontratos”: Congreso libera de culpa a Mesa y pide procesar a Tuto,” 6 September, 2011. And El Deber, “Excluyen a Mesa de Petrocontratos.”

[viii] Los Tiempos, “Expresidente Rodríguez Veltzé es exonerado del caso “misiles chinos” 7 Dec 2011

[ix] The Morales administration has since raised the minimum wage to approximately $123 a month.

[x] Goldstein, Daniel. On Community Justice. 28 Jan. 2008.

[xi] Bolivian Jurisdictional Law: A Step in the Right Direction, but Requires Clarification

[xii] Bolivian Jurisdictional Law: A Step in the Right Direction, but Requires Clarification

[xiii] On Community Justice