On March 7, a mob of Bolivians occupied the home of Victor Hugo Cardenas, an indigenous politician who served as vice president under former president Gonzalo Sanchez de Lozada. The group, which justified the action as an expropriation based on a provision of the new constitution requiring that land holdings serve a social function, also acted roughly with Cardenas’ wife and children. The mob explicitly stated that they specifically targeted Cardenas due to his opposition to the new constitution. The responses of government officials to this seizure have been contradictory and unclear thus far. High-level officials including Vice President Alvaro Garcia Linera and Deputy Interior Minister Marcos Farfan, however, have implied or stated outright their support for the action. Unfortunately, the incident is but one in a series of occurrences that have observers – even those sympathetic to the Morales administration – scratching their heads regarding the government’s relationship with the rule of law.
In the Cardenas case, indigenous Bolivians determined that the provision on land holdings gave them the green light to apply indigenous communal justice. While it is certainly important to protect the rights of the traditionally exploited indigenous majority, it is very much in the Bolivian government’s own interest that a line be drawn between community justice and mob rule. As a previous post explains, numerous lynchings have been carried out in the name of communal justice. This is in large a product of the lack of an effective state-run judicial system in the countryside, and is by no means unique to Bolivia. While the government has consistently ruled that lynchings cannot be considered a permissible form of communal justice, the will to investigate and punish perpetrators has been lacking, thereby providing ammunition to opposition members who argue that under MAS rule the less progressive elements of community justice will be extended throughout the country.
Another complaint concerns the lack of respect for basic judicial procedures and protections. Since last fall, the situation has been especially troubling. The most egregious violation of habeas corpus transpired during and after the infamous Pando Massacre of September 11, when the government was justifiably preoccupied with apprehending both material and intellectual perpetrators. In the days after the incident, police forces arrested 14 participants in the conflict without showing a court order and used violence both during the initial arrest and the resulting confinement. In February, months after the massacre, several additional Pando residents were questionably detained. In an ironic twist, the tactics bear an uncanny resemblance to administration those used in the past by anti-drug units against coca growers –many of whom now staff the administration.
Bolivia’s respect for the principle of equality before the law has also been suspect. Since Morales’ election, opposition members have been targeted on a consistent basis. This has frequently played itself out at the upper echelons of Bolivia’s government. Investigations have been initiated into the conduct of several of Bolivia’s former presidents. Some of the accusations made by Morales and the MAS are plausible (the case against former President Gonzalo Sanchez de Lozada is probably the best example). In several cases, however, allegations have seemed shaky at best and politically motivated at worst. The investigation into former President Eduardo Rodriguez’s involvement in the destruction of Bolivian anti-aircraft missiles in 2006 is illustrative. While the details of the mysterious transfer of 28 missiles to the United States for destruction are still hazy, Morales immediately called for the indictment of Rodriguez, a well-regarded former head of the judiciary with center-right leanings, on charges of treason.
In addition to former presidents, members of the high courts have been frequently beleaguered when they have protected the rights of opposition members instead of bowing to the wishes of the MAS. For example, when the Supreme Court ruled that the arrest of Governor Leopoldo Fernandez and others in connection with the Pando massacre was illegal, the government responded by initiating an investigation of two of the Court’s Justices for aiding a fugitive. More recently, the MAS has moved to investigate Justice Eddy Fernandez, the current head of the judiciary, for delaying judicial proceedings in the cases against opposition members including former Minister of Health Tonchy Marinkovic and former President Gonzalo Sanchez de Lozada.
In response, the opposition has accused the MAS of undermining the justice system. They certainly have a strong case: as there is currently no quorum in the Constitutional Tribunal, the country’s highest legal authority, the court has been inactive during a period in which numerous pressing constitutional questions have arisen. The Supreme Court also is just one vacancy away from being inquorate; in the case of neither court has the government shown any interest in appointing replacements. The unstated goal is likely to be delay until justices can be elected, as provided for in the new constitution. However, the willingness to allow such prolonged institutional paralysis seems to symbolize the Morales administration’s highly ambivalent attitude toward separation of powers and the rule of law.
The chaos currently shaking the foundations of Bolivia’s rule of law is largely rooted in the inability or unwillingness of President Evo Morales and the ruling Movement Toward Socialism (MAS) party to work within the confines of the country’s political system. In the early 2000s, the MAS was created to challenge a preexisting institutional framework which perpetuated the exclusion of the indigenous majority. Resistance and opposition are at the very core of the party. Thus the generous interpretation of the crisis is that Morales, the embodiment of this social movement, has yet to break free from his confrontational cocalero mentality in favor of a more accommodating approach. The less generous take – offered daily by the opposition – is that the MAS is simply an authoritarian movement. Either way, the result is the persistence of sharp divisions between MAS supporters and Bolivians residing in the opposition stronghold known as the Media Luna.
Thus far, Morales has proved reluctant to adapt himself and his party to the formal workings of government under both constitutions old and new. He has been loath to negotiate with or appease the opposition in any way. At the government level, conflict and debate within the congress have been quite heated. In some cases, Morales has even threatened to bypass Congress in order to implement his agenda. For example, before the new constitution was approved, Morales declared his intention to implement the document’s new provisions through the use of decrees if the Congress should prove uncooperative. At other times, the MAS has utilized the cerco to exert pressure on the Congress. More specifically, the bases of the MAS have surrounded the Congress in order to impel members to vote in favor of such measures as the Constitutional referendum proposal. In the most extreme cases, the MAS rank and file blocked opposition members from entering the building. To be fair, however, the opposition has often been just as disobliging and hostile throughout these deliberations. Nonetheless, the use of coercive tactics, aside from its essential ethical and legal shortcomings, can easily become an irresistable temptation that creates a downward spiral.
The administration seems to have adopted a “we must destroy the institutions in order to save them” stance. The rule of law in Bolivia cannot begin to be protected and enhanced unless President Morales and the MAS send clearer signals that they embrace the concept. An unwillingness to demonstrate magnanimity even at notably strong moments, may even be counterproductive, insofar as it contributes to further polarization and gives the opposition the opportunity to adopt a mantle of democratic righteousness. Despite the violence, judicial inefficiency, and general disorder that has gripped the nation in recent times, Bolivia’s problems are not unresolvable. The compromise on the draft constitution, despite its less than ideal conditions (see above), proved that common ground is possible. For any country with aspirations of progress, however, some things are nonnegotiable. Until Bolivia decides that the rule of law is a priority, the prospects of sustained success will remain cloudy at best.
Photo credit: Flickr user germeister
