Previous conflicts lay the foundation for confrontation

The Morales government has consistently criticized Bolivia’s generally weak judiciary. Tensions mounted after a National Unity (UN) party senator filed a petition with the Constitutional Tribunal charging that the nationalization of the Posokoni mine was unconstitutional.  Concerned that the Tribunal, perceived to be aligned with the neoliberal governments that proceeded Morales, 4,000 state miners protested in front of the Constitutional Tribunal building in April 2007. During the protest a group of miners blew the doors of the Constitutional Tribunal open with dynamite, injuring two police officers.

In response, the Constitutional Tribunal called for the government to guarantee its safety from threats and attacks from any groups attempting to violently coerce them. The president of the Constitutional Tribunal dramatically stated that as a result of the lack of security the tribunal was “fatally wounded.” A government spokesperson accused the UN senator of trying to stir up another conflict between the cooperative and COMIBOL miners and stated “the only way to avoid a repetition of these acts and another conflict between cooperative and [COMIBOL] miners is that the congressman withdraw his demand.”  

Tribunal ruling contains legal errors and oversteps its mandate

The conflict reached a fever pitch in May after the Constitutional Tribunal ruled that Morales’s appointment of interim Supreme Court Justices, although constitutional, was only valid for ninety days.  Since Morales’s inauguration four Justices had resigned or retired.  After the Congress failed to elect new justices during 2006 legislative sessions, the president appointed four justices by Supreme Decree. The executive argued that the openings in the Court impeded progress on key cases, such as the Trial of Responsibility of ex-President Gonzalo Sánchez de Lozada.  The political opposition accused Morales of attempting to create a Court partial to his political agenda.

The Constitutional Tribunal began functioning in 1999 as part of a package of Constitutional reforms which included the Human Rights Ombudsman (Defensor del Pueblo). The tribunal was designed to be an independent entity to guarantee that Bolivia’s leaders and legislators respect Bolivian’s constitutional rights.

Unfortunately, the May 2007 ruling did not comply with this lofty mission.  Although the Tribunal affirmed that Morales’s decision was initially constitutional, it cited a 1911 law, stating that presidential interim appointments could last a maximum of 90 days.  This law had been revoked by subsequent legislation.[1]   Furthermore, the Tribunal’s ruling oversteps its mandate by firing the four justices appointed by Morales, although it has no authorization to do so.  Nor did the ruling provide the Morales administration with an opportunity to appeal the decision, as required by law.

Morales administration accuses judges of misconduct

The executive quickly denounced the Tribunal’s decision as a strategy to protect Bolivia’s political old guard and announced that it would bring charges for a responsibilities trial against the Tribunal judges, which according to Bolivian law, must be investigated by the Constitutional Commission of the lower house of Congress.[2]   This move brought accusations from the judges that the “trial of responsibilities constitutes a flagrant interference of the Executive in another power of the state, what he’s [the president] looking for is the accumulation of all three branches in his hands.”[3]    

Ironically, although they were investigating the Tribunal for procedural flaws and unauthorized conduct, the members of the Constitutional Commission also cut corners and failed to follow legal guidelines.  The commission issued arrest warrants for the judges under investigation in spite of the legal appeals they had submitted and before the deadline for them to testify.  Tensions soared and the Bolivian Judicial Branch carried out a one day strike.

Clash shifts to Congress

In a show of compromise, Podemos and MAS congress members came to an agreement in July and elected four new Supreme Court judges.  The judges got the 2/3 approval necessary to take their seats, proving that both sides in the congress are able to make concessions and work together.
Although the fundamental issue questioned by the Tribunal’s ruling had been resolved with the congressional election of the new Supreme Court Justices, the conflict continued. The MAS dominated Constitutional Commission forged ahead with its campaign to formally indict the four members of the Tribunal that had signed the ruling.  Following existing legal stipulations, the Tribunal members filed an appeal with the Podemos dominated Human Rights commission, which ordered that the investigation start again from scratch as a result of procedural flaws.

MAS representatives dismissed the measure as politically motivated and convoked a full session of the lower house of congress. After almost two days of contentious debate, an extended free- for-all erupted on the floor.  MAS representatives left the Chamber and called for a new session in the Vice President’s office. While opposition representatives refused to participate, the representatives in attendance formally indicted the four Tribunal members, who were automatically suspended from duty. As a result only one member of the Tribunal remains and the body is unable to make further rulings. MAS initially called for immediate elections for replacements, provoking accusations from the traditional opposition of scheming to impose its political agenda.  One affected tribunal member protested and refused to resign.  

Opposition pundits decried the decision to indict the Tribunal members, declaring “This session is completely illegal; they plotted this session behind our backs.  What happened in the morning session is shameful, because democracy is not constructed with punches or kicks.  Today’s session did nothing except completely destroy the Constitutional Tribunal as an institution.  We are on the verge of a dictatorship.”[4]    

Defending the Congress’s decisions, the Vice President stated, “These members of the Tribunal did not want to accept the power, mandate and sovereignty of this Congress.  They thought they were untouchable, celestial beings and now they say they will not obey the decision.”[5]

   
The move to indict the Tribunal representatives will almost certainly be struck down by the Bolivian Senate, in which MAS does not have a majority. According to Bolivian law the Senate must rule to convict or acquit the accused.  Increasingly in Bolivian politics, all sides adhere to deeply entrenched positions and no side feels compelled to follow the rules, yet they continually attack their opponents for failing to do so.  As a result, the bitter and divisive skirmish will most likely remain unresolved and could lay the foundation for future conflict.  Willingness on all sides to admit their mistakes, negotiate and compromise to overcome this impasse is essential for lasting political reform.

  1 La Prensa.  “Evo pide juicio político contra el Tribunal Constitucional.” According to ex-Vice Minister of Justice, Carlos Alarcón on May 16, 2007.
  2 See Ley No. 2623, Ley Procesal para el juzgamiento de altas autoridades del poder judicial y del fiscal general de la Republica. December 22, 2003.
  3 La Razón.  “Guerra verbal entre el Gobierno y el Tribunal.”  May 18, 2007.
  4 La Razón.  “La sesión es calificada de ilegal e inconstitucional.”  August 23, 2007.
  5 ABI.  “Vicepresidente afirma que tribunos acusados de prevaricato están obligados a acatar la ley.”  August 23, 2007.
  6 ABI.  “Vicepresidente afirma que tribunos acusados de prevaricato están obligados a acatar la ley.”  August 23, 2007.