On December 1, a year late, Bolivians will go to the polls to elect for the third time 26 senior judicial officials, those who lead the Council of the Judiciary, the Plurinational Constitutional Court, the Supreme Court of Justice and the Agro-Environmental Court. The novelty is that this time the elections have the support of the opposition to the Movement Towards Socialism (MAS), the party of Evo Morales, responsible for the constitutional reform that introduced the popular vote to select those in charge of the Judicial Branch, as the judiciary is called in Bolivia. Previously, the opposition had asked to annul the vote to express their rejection of the system. The opposition now stresses that at least the election date will be met, a step forward compared to what they describe as an attempt by the government of Luis Arce to thwart the right of citizens to choose.
According to the opposition, a coalition between pro-government parliamentarians and the Constitutional Court prevented, through parliamentary and legal maneuvers, the judicial elections from being held in 2023, as planned. This drift became inevitable when the MAS split into two parts, each loyal to one of its two leaders, Evo Morales and Luis Arce, and the parliamentary majority was dissolved. The Constitution establishes that the list of candidates for the Judicial Branch, 139 in total, receives the vote in favor of two thirds of the Legislative Assembly.
Due to the postponement of the elections, the magistrates of the previous administration extended their mandate for one more year, through a ruling by the Plurinational Constitutional Court. The legitimacy of the decisions they made during this time is being questioned and it is not known whether these rulings will be challenged in the future by those who consider them contrary to their rights.
After conflicts of all kinds, an agreement was reached between the parliamentary forces and the courts stopped accepting appeals against the elections, so that the call for elections on December 1 could be issued. It was thought that, together with the judicial elections, there would be a referendum called by President Arce, but since the authorities have not complied with the procedures in the required time, it has been postponed.
The election of judges by vote has faced all kinds of problems in Bolivia. In the two elections that have taken place in the country so far (2011 and 2017), the number of spoiled and blank votes has been higher than the number of votes actually given to the candidates. On the first occasion, they amounted to almost 60% and on the second, 66% of the votes cast. This has prevented the main reason why this method was adopted in the Bolivian Constitution of 2009 from being fulfilled, which was to increase the legitimacy and, therefore, the independence of the judicial authorities.
The high number of annulled votes was due to the fact that the electorate did not recognize the candidates, who are prohibited from campaigning, and also to calls from the opposition to boycott the elections and thus block what they considered a political “capture” of the courts. A statement published in 2017 by the alliance of the main opposition parties stated: “A path with a predetermined result, the installation of a majority of citizens affiliated with or militant to the MAS in the leadership of our judicial system.”
Bolivia does not elect all judges by vote, only the 26 main judicial positions, those that lead the Council of the Judiciary, the Plurinational Constitutional Court, the Supreme Court of Justice and the Agro-Environmental Court. Candidates must be 50% women and have an indigenous identity – at least one indigenous person in each institution.
Candidates are selected by the Legislative Assembly through a procedure that changed between 2011 and 2017 to avoid it being purely political. The second time, law schools intervened and examined the candidates in writing. The innovation was of little use, because some universities boycotted the measure, while those that participated were so numerous that they were unable to produce a well-founded questionnaire. In addition, the parliamentarians, who were in charge of interviewing the candidates orally, inflated the grades of some in this phase to compensate for their low results in the written exam. In the end, on both occasions, the MAS elected the majority of the candidates.
The biggest criticism against the method of electing magistrates by popular vote is that it has not achieved a change in the administration of justice, which continues to be questioned by specialized national and international organizations due to its politicization and high corruption.
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