Category Archives: Legal Analysis

Ostreicher Case: US-Imposed Legislation Still Dictates Drug Prosecutions

Although the case of Jacob Ostreicher, an American accused of money laundering and awaiting trial in Bolivia for over a year, has received recurring attention in the US press and has been taken on by several US members of Congress, it has not been a defining factor in US-Bolivia relations.  First, strong statements about Ostreicher’s case from legislators demanding the Bolivian government provide him with bail immediately demonstrates that they grossly underestimate US influence in Bolivia, which has declined consistently even before the 2005 election of Evo Morales.  In previous decades, the US embassy could “call the shots” in the drug war and other areas of Bolivian politics as a result of successive Bolivian administrations’ heavy reliance on US funding. After the expulsion of the US ambassador and the US Drug Enforcement Administration in 2008, as well as the Bolivian decision to define its own drug policy and foot a substantial part of the bill, US funding and influence have shrunk considerably. Furthermore, congressional assumptions that the State Department has the means to put pressure on members of the Bolivian executive branch or influence the judicial branch are inaccurate.  As a result, denunciations by family members that the US Embassy in La Paz has acted negligently in this case appear unfounded.

read more

Indigenous Autonomies in Bolivia; Part I: Legal Guidelines and Gaps

Bolivia’s new constitution sets important precedents for indigenous autonomy. Drawing from the 2007 United Nations Declaration on the Rights of Indigenous Peoples, the 2009 Constitution intends to grant greater self-determination to indigenous groups across the country. The 2010 Autonomy and Decentralization Framework Law outlines definitions and procedures for indigenous communities that wish to declare their autonomy.  This legislation is an important step to grant indigenous peoples greater political rights by establishing government structures based on their own norms, procedures and institutions. Unfortunately, the bureaucratic process to declare and ratify autonomy is prohibitively complex.  Many indigenous peoples have expressed frustration with this system and its potential implementation.[i]

read more

Bolivia: New TIPNIS Law Fails to Mollify Protestors and Reflects MAS Divisions

On October 13, the Bolivian congress approved a new law to protect the contested TIPNIS indigenous territory and national park, temporary halting construction of the planned highway.  However, TIPNIS marchers, who are expected to arrive in La Paz next week after a two-month march on foot from the lowlands, reject the legislation, particularly because its article about indigenous consultation on the road is non-binding.  Beyond a last ditch appeasement to protestors, the law’s passage provides potential insights into dynamics and opposing stances within the MAS administration.  Morales has yet to ratify the legislation, and continues to reject that consultation with indigenous peoples within TIPNIS should be made binding.

read more

Bolivian Judicial Elections Provoke Controversy and Criticism

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.

read more

Pending Bolivian Judicial Elections: Opportunity for Reform in Uncharted Territory

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.

read more

Bolivian Jurisdictional Law: A Step in the Right Direction, but Requires Further Clarification

On December 29, the Bolivian legislative assembly passed the “Jurisdictional Law,”(Law 73) which recognizes indigenous, first nations’ and campesino judicial authorities, and establishes the jurisdiction of these tribunals versus the central court.  Law 73 helps to clarify which cases and individuals can be tried in alternative judicial systems.

Most importantly, the law upholds and clarifies Bolivian statutes that strictly forbid lynching or any other form of the death penalty.  However, the law still contains gray areas about specific mechanisms for legal coordination and cooperation among overlapping jurisdictions and definitions of indigenous identity and territory. Follow-up guidelines or legislation for the Jurisdictional Law are crucial to clarify these issues and avoid future conflicts.

read more

Conflict and Consensus Part II: Bolivian Anti-Racism and Discrimination Regulations Address Freedom of Press Concerns

This is a follow up to “Conflict and Consensus Part I: The Anti-Racism and Discrimination Law in Bolivia; Content and Justification of the Legislation.”

On January 5, three months after the ratification of the “Law against Racism and all Forms of Discrimination,” the Morales administration approved a supreme decree to establish the implementation guidelines mandated by the original law. The regulations include clarification of penalties for violations by the Bolivian media, implementation of new educational programs to combat discrimination, and new public administration norms.

read more

Conflict and Consensus: The Anti-Racism and Discrimination Law in Bolivia; Part I: Content and Justification of the Legislation

On October 8, Bolivian President Evo Morales signed the “Law against Racism and all Forms of Discrimination” (O45) into effect.  Despite protests from journalists across the country, the Bolivian Legislative Assembly passed the law without modifying contested articles 16 and 23, which outline potential penalties for members of the media who publish racist or discriminatory ideas.

While the majority of national and international criticism has focused on how this law might potentially limit freedom of speech in Bolivia, the measure’s twenty-four articles go far beyond simply regulating the media to combat racism and discrimination in all public and private institutions. International accords on racism and discrimination provide the foundation to address the long history of these problems in Bolivia.

read more

Bolivian Congress Passes Law to Appoint Interim Justices

During the past five years, numerous high-ranking Bolivian judicial officers resigned amidst political controversy or stepped down when their terms ended, leaving many vacancies. This trend left the Constitutional Tribunal without members since June 2009. As a result, there was no way to rule on the constitutionality of government or other initiatives. The Supreme Court maintained a quorum only through the use of temporary replacements with limited terms.

In recent years, legal experts, MAS officials and the general public advocated reform of the ineffectual judicial branch and called for thousands of backlogged cases to be addressed, without consensus on how to implement change. The 2009 constitution included new procedures for appointing candidates for judicial positions in an effort to address these concerns. The charter stipulates that a two-thirds majority of the Legislative Assembly must select candidates that meet specific qualifications, who will then be elected by popular vote.[i] In the past, the Bolivian Congress negotiated their two-thirds approval of magistrates to directly install justices sympathetic to their party or agenda. The new selection procedures represent an effort to eliminate this “political quota” system.

read more