President Evo Morales and his party MAS (Movimiento al Socialismo -Movement Towards Socialism) retained the presidency and won a comfortable supermajority in both chambers of Congress in the elections held last December 6, 2009. The consequences of that unquestionable triumph are beginning to be felt in Bolivia. A law passed last week, as several news services report, allows President Morales to directly appoint judges to fill the vacancies in the country’s Supreme Court (five, 41 %),the Constitutional Tribunal (five with their respective substitutes, 100%), and the Judicial Council (three, 75 %).In addition, that law ratified the interim Attorney General in his post and gave him the capacity to designate prosecutors in the regions where there local chief prosecutor office is vacant.
The government explains that these presidential designations are temporary and limited: the designees will serve until judicial direct elections are held on December 5, 2010; and, in the case of the Constitutional Tribunal, it is allowed only to decide cases that were filed no later than February 6, 2009. The explicit aim of the government’s law is to solve the huge amount of cases pending, update the judicial system and leave it up and running for the first elected judges that will take their posts at the end of this year. When announcing the appointments last week, President Morales added that these designations mark the beginning of the process that will “decolonize justice in Bolivia”.
Critics do not completely share the efficiency, neutrality, and revolutionary reasons given by President Evo Morales. True, ten more months with the top judicial institutions out of work would put the system in the brink of a disaster. However, it is important to remember that at least some of the causes of the huge backlog can be found in the undue interventions by President Morales’ previous government (2006-2008) in top judicial institutions. During those years, given that the government lacked the necessary 2/3 supermajority in the Senate to unilaterally appoint judges, it simply failed to fill the vacancies. Moreover, the government also used other more overt interventions such as impeachments, forced resignations, and even direct threats. With the use of these methods, the government completely dismantled the Constitutional Tribunal, and partially intervened also in the Supreme Court and the Judicial Council.
More important, among the cases filed before February 6, 2009 that the appointed Constitutional Judges will solve there are a few but important politically charged cases, which raise neutrality concerns. These cases include decrees passed by Morales in his previous administration, and also cases that the governors of the provinces dominated by opponents to Morales government (i.e. Santa Cruz, Chuquisaca, Tarija, Beni, and Pando) submitted to the Constitutional Tribunal asking it to ratify the constitutionality of the referenda on the autonomy of their regions. Interestingly, the Attorney General just ratified by Evo Morales will, also during this year, continue the prosecution of political figures that openly oppose the government such as the case against former president Gonzalo Sánchez de Lozada as well as cases against the very same regional governors who have been accused by the government of illegally funding the referenda that called for the autonomy of their regions.
It will be very interesting to follow closely the politically charged cases that the judicial designees will decide during the months they will be in office. This will allow us to make an empirically grounded evaluation of president Morales’s intentions regarding the “decolonization” of justice in Bolivia. Also, and perhaps more important, the performance of the current judges will send a strong signal to the Bolivian citizens about their justice system. Remember that those citizens will eventually vote to elect their judges at the end of this year.
*I thankfully acknowledge the valuable discussion with, and information shared by Law Professor Neyer Zapata Vázquez from the Universidad Mayor de San Simón in Cochabamba, Bolivia.