The Bolivian Constitution, drafted by a Constituent Assembly and approved in 2009, states that the 26 magistrates of the Judiciary Council, and the Constitutional, Agro-Environmental and Justice courts, are “elected by universal suffrage”, which is mandatory in Bolivia. The Plurinational Legislative Assembly carries out by two-thirds of its members present “the pre-selection of the applicants for each department” and sends to the Electoral Body “the list of those pre-qualified so that it can proceed with the sole and exclusive organization of the electoral process.”
Elections must be held every six years and magistrates cannot be re-elected, although this has changed due to a recent decision of the Constitutional Court; They can now be re-elected but in a position within a court in which they would not have been previously. They have also been allowed, contrary to the letter of the Constitution, to belong to political organizations.
The recent Mexican elections have put the spotlight on the Bolivian system of judicial elections – unique in Latin America – because Morena, the party of the current president, Andrés Manuel López Obrador, and the elected one, Claudia Sheinbaum, has achieved a qualified majority in the Congress, which would allow it to approve the pending reforms, including that of the Judiciary, which contemplates that judges, ministers and magistrates can be elected by popular vote.
Requirements
It is prohibited for applicants or third parties on their behalf to carry out electoral campaigns, under penalty of disqualification. The Electoral Body is solely responsible for disseminating the merits of the candidates. Those who obtain a simple majority of votes are elected. To qualify for the magistracy, it is necessary to meet the general requirements established for public servants: to have reached 30 years of age, to have a degree and eight years’ experience as a lawyer, and the application of the indigenous community justice authorities is considered. Candidates must be 50% women and have an indigenous identity – at least one in each institution.
The way in which the preselection was carried out in 2011 was considered unacademic, so for the 2017 elections the law faculties intervened and examined the applicants 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 develop a well-founded questionnaire. Furthermore, parliamentarians, who were in charge of orally interviewing applicants, inflated the grades of some in this phase to compensate for their poor results in the written exam.
The work of disqualification for non-compliance with the requirements and qualification of the applicants is entrusted to mixed commissions of senators and deputies. For the final vote in the plenary session, the qualifications obtained only serve as a reference and are not binding.
Power conflict and blockade
Bolivia is the only country in Latin America that has this mechanism. There have been attempts to change the procedure to prevent it from being purely political, because, in the end, in the two elections held so far (2011 and 2017), the ruling Movement towards Socialism (MAS) prevailed over the majority of the candidates. Now the conflict between the judiciary and the legislature has paralyzed the approval of laws and the calling of judicial elections scheduled for last year. Last Friday, Parliament suspended the judges of the high courts in a session declared illegal by the Constitutional Court.
Added to this is another factor: in the past elections, null and white votes have been more numerous than those favorable to the candidates. On the first occasion, they amounted to almost 60% and on the second, 66% of the preferences issued. This has prevented the main reason why this method was adopted, which was to increase the legitimacy and, therefore, the independence of the judicial authorities. The high annulment of votes was due to the electorate’s lack of knowledge of the candidates and also to calls from the opposition to boycott the elections and thus block what they considered to be a political “capture” of the courts.
Today these same opponents are united behind the opposite slogan: they demand that the judicial elections suspended in 2023 be held, because the alternative is the extension without an end date of the magistrates elected in 2017, who they consider related to the ruling party of Luis Arce. Last year, the Plurinational Constitutional Court disqualified Evo Morales, the main rival of the current Bolivian president, from participating in the 2025 presidential elections.
The system “failed”
When the former president, exiled in Mexico, was going to designate the candidate who would represent him in the 2020 elections, in which he could not participate, he first thought of Eduardo Rodríguez Veltzé. In the end he ended up appointing Luis Arce. Rodríguez Veltzé had already been president for a brief period between 2005 and 2006. He had reached this high position without engaging in politics, by occupying the presidency of the Supreme Court of Justice just at the time when Carlos Mesa, who did not have a vice president, submitted his resignation. He was in office for a year; He later held important diplomatic positions during the Morales governments. Today he is one of the most prominent legal analysts in the country. He believes that the idea of electing judicial magistrates by popular vote “failed.”
The jurist opposed it at the time because, he stated in an interview with EL PAÍS, he came to “the conclusion that the volume of the structural problems of justice is so great that more than just new judges was needed.” “The senior magistrates do not solve the structural problems. In turn, the popular election of these did not resolve their partiality, because the fact that the people elected them did not make them wiser, impartial or efficient. Instead, to be elected they had to court politicians during the pre-selection of candidates, which is done by two-thirds of the votes of the Legislative Assembly, and then they had to make themselves known to voters in an electoral process without any tradition in the country. The popular vote obeys a logic: people vote out of sympathy, out of identification, but voters are not capable of evaluating the merits of an official who, above all, is technical,” reasons Rodríguez Veltzé, who advocates for “more simple and practical, meritocratic.” “I think the fundamental thing is to verify the quality of the judges’ performance, which requires changes in society and in academia.”
For the former president, the performance of the courts also left “a lot to be desired.” “The Plurinational Constitutional Court (TCP) granted double authorization to Evo Morales for his re-election in 2014 and in 2019, forcing the Constitution. The TCP, being the guarantor of fundamental rights, until today does not notice that Bolivia has the record of putting people in prisons. There are 30,000 prisoners and, this is the serious thing, 70% are in preventive detention, without a sentence. The magistrates have been functional to this abusive practice. That is very eloquent. And let’s not say today, when the adherence of a faction of the TCP and several magistrates to government policies is very clear, and it has issued rulings that have stopped the judicial elections and has defined their extension after the expiration of their term. , on January 1 of this year. The TCP thus failed to comply with the ethical and legal norm of not speaking out on issues that represent a conflict of interest,” he concludes.
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