Senior Fellow, DPLF
No other country in the world chooses the most senior members of its justice system by popular vote, but Bolivia first did so in October 2011. Despite the high voter turnout (nearly 80%), three of every five ballots were blank or null and void, and only two were cast in support of a particular candidate. As a result, no candidate garnered more than 10% of the vote, and most of those who were elected to serve as judicial authorities obtained around 6% of the vote.
Given this history, and broad criticism of this system for the appointment of the members of the high courts—the Judicial Council, the Plurinational Constitutional Court, the Supreme Court of Justice, and the Agro-Environmental Court—a new election must be held in 2017 to select judicial authorities by popular vote. The question is to what degree this experience will differ from the previous one.
Some changes have been made to the regulatory framework for the election. However, it already suffered a setback after the April announcement of this year’s electoral process. Although 489 candidates had been registered in May, nearly one third of them were declared ineligible in mid-June for failing to meet the established requirements. Among the 325 who were eligible to run for office, it was found in the cases of the Constitutional Court and the Supreme Court that the number of female and indigenous applicants was insufficient; the law requires a minimum number of candidates from both categories, which in the case of women must be half of all candidates for each position. Table 1 shows the breakdown by applicants and eligibility.
Judicial Elections in Bolivia: applicants and eligible candidates by origin and gender
|Plurinational Constitutional Court||9||123||87||25||58||29|
|Supreme Court of Justice||9||181||142||32||106||36|
In light of this situation, the Legislative Assembly decided in mid-June to suspend the judicial elections slated for October 22 and reschedule them for December 3. The elections scheduled for the Supreme Court and the Constitutional Court were called off, but the eligible candidates will remain as such throughout the process. With respect to the other two bodies, the process will continue as originally planned.
This challenge has been addressed through a new regulatory change that refers to overall male/female parity rather than requiring it for each position. Nevertheless, strictly speaking, this issue does not go to the heart of the election. The key, as noted by Indacochea and Orías, lies “in the candidate vetting phase,” as demonstrated in the 2011 process. That phase is under the responsibility of the Plurinational Legislative Assembly, which selects, from among the eligible candidates, those that will be placed on the ballot. To date, has there been any change announcing at least the aim that this selection not be politically motivated?
Selecting the best
How to select the best candidates is the challenge of every process for the appointment of judges at any level, especially the members of the highest bodies of the justice system. To that end, before the Legislative Assembly adopted the Regulations for these judicial elections, twenty-five civil society organizations offered seven contributions in April designed to ensure that the 2017 election process would be substantially better than the previous one.
However, the Assembly missed the opportunity to introduce truly significant changes. Among other aspects:
- It maintained the generality of the requirement to “have honestly and ethically performed judicial duties, practiced the profession of law, or taught at the university level,” which is met with a simple affidavit;
- It did not include a profile for the position of high court judge that highlights features such as integrity and independence throughout the candidate’s professional career, as well as a demonstrated commitment to human rights and democratic values;
- It provided that a grade of 56% was sufficient for inclusion on the final list of candidates selected for consideration by the Assembly, which clearly is not geared toward selecting the best ones;
- It continued to assign a marginal role to civil society, by failing to open effective channels for gathering background information and opinions about the applicants.
On the other hand, the new Regulations included the Bolivian university system in the process by having academic professionals assist at the résumé review and written evaluation phases. Although it was not specified who would be in charge of grading the written tests, this academic presence was a positive response to the public demand that the candidate selection process not depend exclusively on a political authority. The introduction of a technical screening mechanism was therefore seen as a fairly significant improvement. In addition, the regulatory changes established broad access and greater openness in the entire process.
Toward a potential repeat
An amendment to the Electoral System Act, passed for this process, addresses one of the critiques of the 2011 process: voters’ lack of knowledge about the candidates. In that election, the barring of candidates’ access to the media—restricting them to brief, officially programmed spaces—probably contributed to the massive number of blank or voided ballots. The regulatory change now allows for interviews and statements, provided that “the principle of equal conditions for all applicants is observed.” At the time of this writing, the Supreme Electoral Court was drafting a regulation, the content and application of which will define the scope of the reform in the months to come.
Nevertheless, the changes in the screening Regulations—introduced in late June, after the elections for two of the highest judicial bodies were called off—tell us that there will likely be a repeat of the previous election. In particular, the diminished role of the Bolivian university system is a matter of concern. The number of university representatives is reduced from eight to four. Their responsibility to prepare the questions for the written evaluation, according to the most recent regulatory amendment, is shared with the political representatives who make up the joint Constitution Committee in the Legislative Assembly. Responsibility for grading the exams remains unspecified. Finally, the representatives of the university system lose their status as observers at the interview phase, which they had been given in the text of the regulations approved in April.
These elements indicate that the political aspect is given priority over any other criteria, as it was in the 2011 electoral process. This is not surprising. Other justice system reform processes in Latin America have shown that political actors resist giving up a decision-making role in the appointment of judges—especially to the high courts. The price of this reluctance is also known: the justice system lacks legitimacy in the eyes of the public, which for good reason identifies it with establishment authorities, and does not see in it the impartiality that the work of administering justice requires.
In view of this reality, the only available weapon is the vigilance of civil society. This oversight must be designed to publicly call attention to the price politicians must pay before the electorate for their actions. In the case of Bolivia, civil society was an active presence making its demands heard in the 2011 process. Now, based on the lessons learned, civil society organizations have improved their capacity to follow the course of judicial elections attentively and professionally. Together as the Citizens’ Coordinating Committee for Justice System Monitoring twenty-five organizations are making joint efforts to monitor and evaluate what is happening. Their observations and interventions will be key to ensuring that this process for selecting new judicial authorities is not a simple repeat of the first one.
 See: Luis Pásara, Judicial Elections in Bolivia: An Unprecedented Event, Washington, D.C.: Due Process of Law Foundation, Fundación Construir, 2014.
 Úrsula Indacochea & Ramiro Orías, Garantías para una justicia independiente en Bolivia y el
 Up to 40 points are awarded for the candidate’s merits, and 30 points are allocated to the 60-question written test of knowledge. Applicants who receive a total score of at least 36 points continue on to the next phase. Hypothetically, then, someone who obtains zero points on the knowledge assessment but 36 of the 40 points on the merits evaluation could still be in the running.