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.

President Morales recently proposed a transitional law, commonly referred to as the “short-term law,” giving the Executive special powers to appoint judicial seats until officials can be democratically elected in December 2010, in accordance with constitutional requirements. Both houses of Congress quickly approved the initiative. The first of many obstacles in interpreting the new Bolivian constitution has been legislated by temporarily modifying its dictates, although opposition leaders question the legality of this measure.

The Main Points of the Law:

• Establishes a transition period to the new judicial system, guaranteeing continued operation of the administration of justice.
• Sets the date for all judicial elections at December 5, 2010, conforming to the stipulations of the Constitution.[ii] All newly elected judicial officials will begin work on the first business day of 2011.
• Interim justices are considered temporary until permanent officials are established. The Law cites the 6^th transitory provision of the new constitution,[iii] which states that a new law reforming the judicial branch must be passed within one year to further reorganize the judicial hierarchy.
• Implies that the remaining justices will also be required to step down at the end of 2010, although interpretations are unclear. For many of these officials their preexisting 10-year terms will expire after that date. [Bolivian press reports that several judges disagree with this reading.]
• Stipulates that interim Constitutional Tribunal officials should only hear cases registered before February 6, 2009. [This appears to be an effort to avoid potential conflicts of interest in which Morales appointees would rule on recent executive initiatives. It may also be an attempt to guarantee that the backlog of approximately 6,000 cases are prioritized.]
• Guarantees that pre-existing laws and constitutional jurisprudence prior to the approval of the new constitution will be upheld, as long as they do not contradict the new charter.
• Prolongs the tenure of the Attorney General, Mario Uribe, a pre-Morales interim appointee with no affiliation to MAS, until the Legislative Assembly names his replacement in accordance with the new constitution. If district attorneys complete their term or leave office during the interim period, the Attorney General will name interim replacements. The current Public Prosecutor’s Law will continue to regulate and specify the duties of the Attorney General and all district attorneys, unless specific clauses contradict the new constitution.

Diverse Appointees

Although speculation prior to the announcement of President Morales’ appointments suggested the “short-term law” would permit him to handpick justices closely aligned with his political objectives, the selected magistrates named on February 18 represent a diverse pool. Morales chose justices from each of Bolivia’s nine departments except Pando. Of the 18 officials named, seven are women, and three identify themselves as indigenous. Although according to the constitution, justices are not supposed to identify with any political organization, three seem to have party affiliations – one with the moderate National Unity (UN) party, and two with MAS.

It is important to note that legal experts are impressed by the selections. Following the swearing in of new justices, the President of the La Paz Bar Association and frequent critic of the Morales administration, Bernardo Wayar, commented:

“I want to confirm my surprise that they did not appoint people with political connections or allied with the, although many people predicted they would. You have to admit that these are notable jurists, important people in the field of law with a lot of experience; I think that this could facilitate and contribute to strengthening the judicial branch… I think that if in this short period they are able to change the image of the Judiciary, the country will benefit a great deal. It’s important that… the justices appointed exercise their independence.”[iv]

Analyst Fernando Mayorga also observed that, ironically, executive decisions tend to make MAS more moderate:

“Once again, the president’s decisions end up toning down MAS’s hegemonic inclinations. This tension will persist for the duration of the administration—presidential determinations temper the temptation to use the two thirds [majority in Congress] to impose decisions.  You have to take into account necessary that we are in the constitutional transition process, which always has greater costs than [just] reforms. Furthermore, we are coming out of a long [political] party crisis that provoked vacancies in the judicial branch, which were always filled by presidential appointment.”[v]

Conclusions

Although the previous Bolivian constitution stipulated that Congress chose judicial candidates by two-thirds vote, it permitted the president to appoint interim magistrates under special circumstances when the legislature was not in session. Within the framework of the new law, a decision to require legislative approval of appointments would have undoubtedly mitigated conflict surrounding its implementation. Although it’s likely that Congress would have rapidly ratified Morales’s choices, the process itself would have enjoyed greater legitimacy.

It will be interesting to monitor the newly conformed judicial bodies’ progress on processing the thousands of cases awaiting them. They also face the tremendous challenge of establishing credibility and impartiality for the new judicial branch; Bolivians and the international community will closely observe their efforts.

Background On New Appointees

Supreme Court: President Morales appointed five new justices to will join the existing seven.

• Esteban Miranda Terán: From Cochabamba. 25 years legal experience. Previously considered for Supreme Court appointment. Served as spokesman and president of the Agrarian Tribunal. Worked as a university professor in postgraduate studies for justice and human rights.
• Ana María Forest Cors: From Chuquisaca. Worked for 14 years in the Supreme Court, and as an officer of the Electoral Court of Chuquisaca. Also served as Assistant Secretary and General Director of the Ministry of Labor, and Legal Counsel to the Mining Ministry.  Specializes in labor and human rights, and suffered political persecution during the dictatorships. Served as General Secretary in the Attorney General’s office, and Vice President of the electoral court in Chuquisaca. Legal adviser and director of the institute for Public Prosecutors’ training Institute.
• Ramiro Guerrero: From Potosi. Served as legal counsel for Chuquisaca indigenous populations, and served as a representative of the MAS party during the Constitutional Assembly for the Land and Territory Commission. Worked for the Ministry of Education as Director of Transparency.
• Jorge Isaac Von Borries: From Santa Cruz. Served in the Santa Cruz district court, and as a university professor. Worked as an attorney since 1969. Previously had been considered for the Supreme Court.  He is the father of Monica Von Borries, a district attorney killed by a car bomb in 2004 while investigating several high profile cases.
• Jorge Monasterio Franco: From Beni. Ex-public prosecutor and district judge. 19 years experience. Worked for many years as a university professor.

Constitutional Tribunal: President Morales appointed all temporary justices since all seats were vacant. The Tribunal is made up of five justices and their five substitutes, as stipulated by the Constitution.

Justices

• Marco Antonio Baldivieso: From Chuquisaca. Previously worked as an assistant attorney for the Constitutional Tribunal, and as a university professor in Bolivian studies. He was a candidate for the Constitutional Assembly representing the UN (moderate/conservative) party, and is known to be critical of the MAS government. Worked as legal counsel to the Association of Attorneys, Judges and Magistrates of Bolivia. Here is a video (in Spanish) of his presentation on challenges in implementing the new constitution: http://www.icalp.org.bo/videos/accion-de-cumplimiento-y-accion-popular.htm
• Fausto Lanchipa Ponce: From Cochabamba. Previously worked as a tax law judge in La Paz, and also specialized in civil law. Served as an officer for the Superior Court in La Paz.
• Ernesto Félix Mur: From Tarija. Served as the ranking Penal Court judge in Tarija. Earned a Masters in Penal Science and Criminology, as well as a diploma in Superior Education, and worked as a university professor.
• Guillermo Burgoa Ordóñez: From Potosi. Formerly a public prosecutor, and served as a judicial official. Spokesman and president of the Superior Court in Potosi. Also worked as the Departmental Superintendent of Mines in Potosi.
• Ligia Mónica Velásquez: From Cochabamba. Practiced law independently with a specialty in constitutional law. Served as a public defender and a special investigator in anticorruption cases. Also served as legal counsel for the Constitutional Assembly.

Alternates

• Lily Marciana Tarquino López: From La Paz. A member of the La Paz Bar Association, practiced law independently in El Alto.
• Agapito Alpire Pérez: Former municipal court judge in Concepción, Santa Cruz. 21 years of legal experience with a specialty in constitutional law. According to the Bolivian newspaper, La Prensa, Aplire was disciplined in 2004 for appearing drunk in court.
• Eve Carmen Mamani Roldán: From Oruro. Served for many years as an attorney for the National Service of Public Defense in many departments, primarily La Paz and Pando. Specializes in criminal and constitutional law.
• Magalí Calderón Maldonado: Practiced law independently with a specialty in Administrative Law. Served as legal counsel for many years for the Cooperative of Potable Water Services. Worked as a university professor, and was the departmental director for the Penitentiary System.
• Nelma Tito Araujo: Practiced law independently with a specialty in Constitutional Law, gained recognition for  work with social organizations in Potosi.

Judiciary Council: This tribunal will be called the Magistrates’ Council under full implementation of the New Constitution.[vi]

• Amalia Morales Rondo: From La Paz. Twelve years of experience as an attorney and served as a judge in Inquisivi in the La Paz Yungas region. Also worked on civil cases in La Paz. The first high-ranking justice to serve wearing traditional indigenous dress.
• Lindo Fernández: Served as a PODEMOS (conservative) representative in the Constitutional Assembly, but later left the party to ally with MAS. Practices law since 1966 with a specialty in Administration. A respected university professor who has written six books, including topics such as Bolivian public administration.
• Freddy Torrico: From the Chapare region. Closely allied with President Morales, MAS party member since 2005. Worked as the general consul for Bolivia in Santiago, and previously in the human rights ombudsman’s office in the Chapare. Has very limited courtroom or litigation experience.

II. The Plurinational Legislative Assembly will elect candidates from each department by a two-thirds majority of those present and submit to the Electoral Court the list of qualified candidates.  [The Electoral Court] has the sole authority to organize the electoral process.

III. No one, including the candidates, can campaign for the election, or they will be disqualified. The Electoral court is the only entity authorized to publicize the candidates’ qualifications.

IV. The justices cannot belong to political organizations (parties or groups).

V. The justices will be elected by a simple majority of votes. The president will swear them in.

VI. It is necessary to fulfill the general requirements established for public servants to become Supreme Court Justice: be at least 30 years old, have a law degree, to have carried out, with honesty and ethical morals, judicial functions, the profession of attorney or university professor for at least eight years, and to not have received any sanctions from the Council of Magistrates. The evaluation of qualifications will take into account experience as an indigenous authority according to that system of justice.

VII. The system of restrictions and prerequisites that controls public servants will apply to all Justices

Article 183. I. The Magistrates may not be reelected. Their term will be six years.

II. The Magistrates of the Supreme Tribune of Justice will end their functions when they complete their term, by executive order following suit.

[ii] Apparently the Law erroneously cites Article 208 of the Constitution. Article 182, cited above, stipulates that magistrates should be elected by popular vote.

[iii] “Within one year after the Judicial Branch Law goes into effect, the revision of judicial hierarchy will proceed in accordance with this law.”

[iv] ABI, “Destacan que autoridades interinas del Poder Judicial estén alejadas de niveles politicos.” 18 February 2010.

[v] http://www.eldeber.com.bo/2010/2010-02-19/vernotaahora.php?id=100219013757

[vi] Article 193. I. The Magistrates Council is the organism in charge of disciplining the regular, environmental and special jurisdiction courts and providing oversight for and implementing the financial management and administration. Citizen participation will be the guiding principle of the Magistrate’s Council.