Will the Bolivian Constitutional Tribunal Rise From the Ashes?

During the first days of June 2009 the last member of the Bolivian Constitutional Tribunal (BCT), Silvia Salame Farjat, resigned. Judge Salame was the only active member of the BCT since November 2007, because the other four members of the Tribunal had either resigned (some under the threat of impeachment) or left when their ten year tenure expired. The BCT has not legally disappeared but it has actually ceased to operate, its budget has been sharply reduced, and its administrative operations have been kept to a minimum.

As of today, the future of the Bolivian Constitutional Tribunal is unclear. The new Bolivian constitution adopted in February 2009 establishes a very peculiar, probably unique, method of selection. Judges to the “Plurinational Constitutional Tribunal” are to be democratically elected for a six-year tenure with no possible reelection; they should represent both the ordinary justice system and the “originary” and peasant (i.e. indigenous) justice system (Arts. 197, 198, and 182, 183). Candidates should meet certain requirements, but a law degree is not necessarily one of them since having experience as an “originary authority” under the indigenous justice system can be enough. Civil and indigenous organizations can propose candidates for the Tribunal, but before the final vote by the people candidates must be pre-selected by a super majority of the National Assembly (art. 183). It will be very interesting to see how this peculiar system operates in practice given the debates on the “counter-majoritarian” difficulties posed by the indirect election of judges capable of nullifying unconstitutional legislation.

For this new system to become operational, however, transitory articles in the Bolivian Constitution call for the enactment of some regulatory laws within six months (e.g. the organic law of the BCT, a new electoral code), and then for the institutionalization of the Electoral Tribunal which is the organ in charge of calling for elections. Taking into account these steps, it is possible that the first universal election of the Bolivian Constitutional Judges does not take place within the next year but until 2011. Given this situation, some Bolivian politicians are calling for a temporary Congressional appointment of constitutional judges (the former method of selection in Bolivia), which would allow this organ to function and process the pending cases left in limbo after Judge Salame’s resignation.

Hopefully, the Bolivian Constitutional Tribunal will rise from its ashes. It was first established constitutionally in 1995 . During the decade it actually operated – January 1999 to February 2009- the TCB encouraged a surge of legal activity and a new profile for the Judiciary, deciding close to 20,000 cases, most of them revisions of amparos and habeas corpus suits decided by lower courts. It also made some noteworthy decisions limiting the power of the government in the economic and political realms (which, according to some observers, explain the government’s decision to dismantle the court). It will be interesting to follow the fate of the constitutional tribunal in Bolivia, one of the countries that have experienced “Constitutional Revolutions” in recent years in the region, along with Ecuador and Venezuela.