Photo Credit: Flickr user magnusvk
On February 18, Bolivian President Evo Morales appointed 18 interim justices to fill long-vacant posts in the Supreme Court of Justice, the Constitutional Tribunal, and the Judicial Council. These appointments were made possible by the recent passage of the “Ley Corta,” which empowered Morales to fill 20 of 27 total posts in the three judicial bodies until new justices are elected in December 2010. This controversial law has been the subject of a heated debate between its adherents, who argue that the new appointments will strengthen the country’s judicial system by bringing an end to the judicial paralysis created by the vacancies, and its critics, who counter that the law was a political move geared towards increasing government control over the judiciary. On the day the law was passed, opponents wore black to symbolize mourning, with some carrying signs lamenting the death of democracy. While this estimation of the situation may be extreme, Morales’ direct appointment of judicial officers, when viewed alongside the myriad issues already debilitating and complicating the Bolivian justice system, does raise serious questions about the government’s view of justice.
Addressing the severe case backlogs, which number some 13,000 in the Supreme Court and the Constitutional Tribunal combined, is undoubtedly crucial. But Morales’ attitude—and that of his Movement towards Socialism (MAS) party more broadly—has led opponents to argue that the government does not respect the very concept of judicial independence. Executive interference in the Bolivian judiciary certainly did not start under the MAS. However, the fights regarding the composition of the judiciary contributed to the creation of the judicial vacuum in the first place, as justices who resigned from their posts in the Constitutional Tribunal in 2007 cited executive harassment as their reason for leaving, and the Supreme Court has also been the forum for political squabbles. Thus the logic becomes somewhat circular: we must appoint judges to fix the backlog that our political disputes helped cause.
It is worth emphasizing that justice in Bolivia has never been blind. Nonetheless, since coming to power, the MAS has often seemed to be more vigorous about prosecuting opponents rather than supporters. Since Morales’ landslide victory in the December 2009 elections, in which the MAS attained a two-thirds supermajority in the congress, the situation has intensified. Shortly following Morales’ January 2010 inauguration, Vice President Alvaro Garcia Linera announced that a priority of the Legislative Assembly would be to continue with the judicial proceedings against former government officials including ex-presidents Eduardo Rodriguez Veltze and Carlos Mesa, former Supreme Court Justice Eddy Fernandez, and ex-magistrate Rosario Canedo, along with a number of government ministers. While some of the cases brought against these officials are undoubtedly merited given Bolivia’s history of corruption, several of the charges are questionable, blurring the line between political disagreement, incompetence, and criminal negligence. What’s more, 59 opposition members currently face charges, including all six of the ex-governors of the departments in the opposition-dominated “Media Luna” region, mostly for corruption or abuse of office. The fact that only one MAS official has been charged along with these opposition members raises concerns over the role that politics has played in these accusations.This slew of cases against opposition members has been accompanied by legal initiatives with other unclear consequences for justice. In addition to the “Ley Corta,” other laws with troubling provisions include the controversial anticorruption law, which is currently being debated in the legislature. More effective anticorruption efforts in Bolivia would be welcome, but certain provisions – in particular, the issue of what provisions will be retroactive – are extremely controversial. If retroactivity merely signals that corruption crimes that previously would have been dismissed on the basis of statute of limitations are now prosecutable, it is a debatable proposition. If the term means that former officials or citizens can be punished for acts they did not know to be criminal at the time of commission, it is far more problematic. In general, the boldness with which MAS members call for investigations or judgments of people with whom they disagree politically is at times jarring. Finally, the decision to include the election of high judicial authorities in the constitution is controversial in its own right. Very few countries select judges through elections – the US being a massive exception – precisely due to the unavoidable clash between political responsiveness and nonpartisan justice.
Justice for regular citizens is fraught with unresolved questions as well. Although geared towards improving the security of citizens and strengthening law enforcement in the country, the recently proposed changes to the penal code set out in the Fast Law Enforcement Bill also stand to decrease the due process guarantees afforded to alleged criminals. Another issue complicating the country’s justice system includes the problematic process of reconciling community justice with civil law. The new constitution officially endorses the communal justice system, but the question of how the two legal regimes will mesh remains fluid. The recent case of Felix Patzi, a candidate for the governorship of La Paz, Bolivia’s biggest department, is illustrative. After being arrested for drunk driving on February 4, Patzi was sentenced to make 1,000 bricks under the community justice system. Although Patzi initially withdrew his candidacy at the request of Morales, he later changed his mind, and now argues that his drunk driving charge should not disqualify him from the La Paz race due to the fact that he has already served out his community justice sentence. However, his civil case remains open, leading to controversy over whether or not the communal punishment should suffice. Due to the MAS party’s commendable insistence on using Patzi to set an example regarding behavioral expectations for its candidates and continued unwillingness to allow Patzi to run, he abandoned the MAS.The MAS envisions its political project as a refoundation of Bolivian society, and citizens have repeatedly endorsed its vision in elections. But justice and politics reside in tension in every country, which is the reason that separation of powers is considered such an essential element of democracy. The MAS has not always abused its power – indeed, Morales’ interim selections were viewed as fairly credible by most observers – but the government’s actions have been controversial in many different spheres related to the rule of law. With such political hegemony as the MAS now possesses inevitably comes temptation to abuse it, especially in conditions of unconsolidated institutions. How these issues are addressed will say a great deal about the MAS’s attitude toward basic democratic tenets more generally.