The Constitution of 2009

It can be argued that any type of rule emanating from the 2009 constitution is fundamentally problematic. Yet, to assess why the constitutional structures fail to produce a stable political system that settles societal disagreement peacefully, the following question must be asked: who does what for whom? The tradition of constitutionalism, as previously outlined, has produced considerations over a number of substantive matters. A fundamental one is the problematic splintering of society in identity-based groupings. Despite the rhetorical wording of the new Constitution Preamble and articles on integration and unity of peoples, the recognition of identity-based groupings and the principles of unity do not become fully engaged in soothing deliberative processes. This, in turn, leads to a reduced or hindered authentic democratic participation, especially in the context of an immature political system and dysfunctional political parties. This results in the cooptation of these identity-based groups by charismatic leaders which vie against each other in what appears as strict popularity contests in order to reach the over-mighty presidency: an institution overburdened by tasks yet unrestricted in its power. Whereas the innovative character that some of these arrangements carry is laudable, their implementation is significantly limited by the structural issues at hand. The rest of this section discusses the roles of constitutional actors, their aims and duties.

Citizens as addressees

Starting with the last part of the question - ‘For whom?’ - it is necessary to specify who is the addressee of the constitutional order. Primarily, that is the subject of a constitution, and thus the addressees are the Bolivian citizenry. In this regard, Article 3 of the Constitution determines that ‘the Bolivian nation is composed by the totality of Bolivians, the nations and indigenous [...] peoples [...]’. Furthermore,

Article 141 determines that Bolivian nationality is acquired by birth or naturalization. The problem is that the differentiation of legal citizens and indigenous peoples brings into question whether the applicability of the constitution is different for those who are not members of indigenous groups or so on, but are merely Bolivians.

This issue arises from Artitcle 1 St.l whereby the Bolivian State is constituted as a ‘Unitary Social State of Plurinational Communitarian Law’ (Estado Unitario Social de Derecho Plurinacional Comunitario) that is free, independent, sovereign, democratic, intercultural, decentralized and with autonomies. Bolivia is founded on plurality and on political, economic, juridical, cultural and linguistic pluralism in the integration process of the country. Traditionally democracy is understood to be the rule of the people by the people, but this principle turns complex when ‘the people’ consists of a plurality of peoples with different rights in the same polity. The Plurinational State counts with not only citizens but also ‘precolonial nations and indigenous peoples’, as stated in Article 2. Furthermore, the 2009 Constitution also encompasses these groups’ autonomous self-determination and autonomous regions, as well as principles of pluralism and interculturalism that operate in parallel to governing through law. This turns the constitution to merely a (but not the} will of the people, as the government is then not only bound to the legislation emanating from the political processes within the framework of the constitution but coexists with parallel expressions of the will of the people. This complicated premise for the determination of who makes up the State is still being debated in the application of a plural and diverse set of rights. Furthermore, even though Article 410 provides that the Constitution is the supreme law of Bolivia and enjoys supremacy before any other normative, Article 190 allows nations and native indigenous rural peoples to exercise jurisdiction and apply their own principles, cultural values, norms and procedures. If there is a plurality of addressees who can pursue distinct goals within the State with distinct structures and procedures, unity is questionable at best and requires a fair understanding and practice of legal pluralism.

Jorge Lazarte (2015) argues that indigenous collective rights have historic legitimacy and should be protected and defended; yet such recognition does not suppose a merger between the State and collectives. The State does not become what it distinguishes nor can it be used politically to create an indigenous power project, as had happened in the past with workers and the proletariat ruling proposals. In this regard, in Article 3 the Bolivian Nation is constituted by indigenous nations and groups (again among others) together with the non-qualifying totality of all remaining Bolivian ‘people’. This concept of plurality, especially from a progressive point of view, can be seen as a positive codification and recognition of a diverse society at face value. Salvador Shavelson (2018) praises the relevance of the plurinational model emphasizing that it results from a postcolonial and experimental constitutionalism, which following a crisis of liberal democracy brings a ‘demodiversity’ that combines diverse expressions of democracy. The author stresses that people should retain the constituent power and its strength should not be taken by the constituted power.

Without ignoring its progressive attempt (and perhaps achievement), it is necessary to recognize that such plurality of ‘the people’ at the constitutional level runs the risk of evolving into a multiclass system in which a majority of citizens are excluded from the privileges granted to specially singled-out groups. This model, whereby different groups have different access to statehood, and where they may even construct their own statehood within the new plurinational State, could generate inequality before the law. In consequence, it has been argued that the omission of vast majorities for not belonging to singled-out groups is not compatible with a consistent system of rule of law (Lazarte 2015).

Constitutional procedures

Considering the Constitution’s preamble, the ‘how?’ part of the questions referring to the means of rule, is also problematic. Preambles are often the introduction which sets the ideological tone for reading the legal text. The one at hand is quite telling. In it, colonialism is set next to republicanism and neoliberalism. Here the issue is how to construe the meaning of the following articles that are to form the basis for a stable democracy. Stable democratic principles are, however, inherently liberal and ultimately republican. The preamble, however, puts liberalism and republicanism as evils to be vanquished or condemned, just as colonialism. This is an openly political statement of purpose. Whereby liberalism conveys to the individual the freedom to self-determination within the protection and restraints of the rule of law, and republicanism simply encapsulates the principle of changing governments as opposed to monarchical succession, the drafters of the document seem to have had other evils in mind, or regretful memories from the past when leaving these principles behind for the constitution of the new plurinational State. The constructive wording comes when it also proposes to take the historic challenge to build a ‘Unified Social State of Plurinational Communitarian law’, which includes and

The 2009 Constitution in the Bolivian pendulum 21 articulates the goal of advancing toward a democratic, productive and peaceful Bolivia, committed to the full development and free determination of the people.

This intricate rhetoric has led to an inherent awkwardness in the constitution of the governmental organs, with contradictions and malfunctioning as the result. To illustrate ‘how' these organs (mis)rule, 1 shall analyze a few features of the legislative process and the judicial system.

The legislative process

A structural flaw of the State envisioned in the 2009 Constitution is the way in which the legislative branch is constituted and works. Legislative branches are the ones that take care of the 'what', the body of law, i.e. the measures that have been taken to rule. Legislative power is where the rule of law meets the political representation of society. Legislators, elected by the people, discuss new laws, abrogate them or change them. Since laws are the basis upon the executive acts legitimately, they are the ultimate 'what'.

In the first chapter of the second part of the Constitution the outlined structure of the Legislative focuses primarily on the position, rights and duties of the members of the chambers (Article 146-158), delineating its functioning only in three articles (Article 159-162). But a more poignant issue is found in Article 163. Here the initiative right for proposing legislation to the Legislative Assembly is given to basically everyone. Citizens, the parliamentarians themselves, the Executive organ, the Supreme Tribunal (in matter of judicial initiatives) and the autonomous governments can all initiate legislation. This wide range of sources of legislative initiative should provide for a more democratic debate and a more democratic deliberation of alternatives over concerns, bill projects and objectives. Unfortunately, the Bolivian legislative tradition, even before the new 2009 constitution, shows a different picture, one in which legislation approval is mostly associated with the Executive organ dictums. Disseminated sources of the legislative initiative also serve to undermine the power of fractions and the role of political parties as vehicles of consensus building. The legitimacy of elected members of the Legislative Assembly is certainly undisputed but it is, on its own, insufficient to provide good governance. As Pierre Rosanvallon (2009) explains, legitimacy in democracy comprises impartiality, reflexivity and proximity of actors and institutions. These virtues have historically not been characteristic of the Bolivian Legislative.

Traditionally the voting practice by the majority of legislators of the ruling party has provided undisputed backing to the executive. This practice of unconditional support in the Congress of the Republic has also continued after the promulgation of the new constitution, into the Plurinational Assembly. The MAS-IPSP party had a majority in both chambers throughout its rule. It even gained two-thirds of the bench at the 2009 and 2014 elections, obtaining the qualified majority needed for specific proceedings, such as presidential impeachment, ministerial interpellations or constitutional amendment procedures. This majority was mostly used in favor of the party’s aims and rarely any dissent came from the representatives, rendering this branch of the State rather toothless during this period of time.

Adding to the weakness of the legislative branch is the expediency by which it can pass legislation. The passing of budgets is exemplary in this regard. Article 158.11 foresees the process by which the budget is to be passed. It sets a timeframe of 60 days after the executive presents its draft, after which, if it has not yet been approved, the project will be passed automatically. Considering that budgeting is one of the most fundamental of State duties, the lack of debate with which the executive can push for its draft to be passed is problematic, to say the least.

Another example of the weakness of the legislative branch is how it has failed to promote checks and balances by means of its right to interpellate cabinet ministers, as normed by Article 158 inc. 18. With a two-thirds majority, the Legislative Assembly can oust a minister following his or her censure. Yet in the last legislative periods under the MAS government, despite several interpellations made by opposition members of the Assembly, no minister was censured from the government by the MAS legislative majority. On the contrary, the ministers left with motions of approval, which has sown distrust and doubt, casting in a very bad light the independence and effective representation of constituencies by members of the Assembly. As a recent mockery, undermining the value of the Constitution and in open contempt of the Legislative Assembly, interim president Ànez restored three censured ministers (Erbol 2020).

Article 159, 12 provides that the lower chamber submits to the president shortlisted candidates for the appointment as heads of economic and social agencies and other positions in which the State participates by absolute majority. This provision of coordination between two powers is not effective either, as the positions are generally directly appointed by the president with the addition of ‘interim’, circumventing the parliamentary majority participation in their appointment.

This dysfunction between the organs of public power which according to article 12 of the Constitution are independent, separate and must coordinate and cooperate to fulfill their power, underlies the tendency to accumulate some circumstantially convenient attributions to the presidency. This lack of coordination between the legislative and the executive powers became even more evident in the recent transitional government. Perhaps the most explicit example is that of the ascension of Jeanine Ânez to the presidency in November 2019. The Constitution in its Article 161, 3. provides that the legislative chambers meet in a joint Assembly to admit or deny the resignation of the [resident or Vice-president of the State. This rule was omitted when the second Vice-president of the Senate, Jeanine Ânez, proclaimed herself president of the State in a session without a quorum and sheltered by officers of the Armed forces who imposed the presidential symbols on her. The Plurinational Constitutional Court issued a curious ‘statement’ endorsing this behavior with unsound arguments, violating the basic procedure that a Court must honor, i.e. a pronouncement must follow a process and not political urgency (El Universo 2019).

The judicial system

The next part of the question is the ‘who does what’, which is a simple way of asking who is the ruler and how do they rule. In a democracy, the ruler is ‘the people’, but obviously not directly. States have organs which administer power - mostly divided into three branches of government: the judicative, legislative, and executive. These for their part, are often chosen directly or indirectly by the people to rule on their behalf. The exercise to pinpoint exactly how and who rules in Bolivia reveals severe constitutional complexities.

The Bolivian judiciary is partitioned into the following jurisdictions: the ordinary jurisdiction headed by the Supreme Justice Tribunal, the agro-environmental jurisdiction headed by the Agro-environmental tribunal, the Rural, Native Indigenous Jurisdiction encompassing various legal systems and constitutional jurisdiction headed by the Constitutional Tribunal. This specific ailment of overlapping jurisdictions derives from the massive catalogue of rights that characterizes the 2009 Constitution. A unique aspect and so vast in scope, the catalogue is in itself a rich branch for analysis.3 In an attempt at brevity, it can cautiously be summarized as a catalogue that seeks to delineate all the possible rights that could surge in the interactions of human beings with the State and with each other, insofar as the effects of the said interaction can be adjudicated, or somehow affected by the State. This maximalist catalogue of rights underlies the extensive overlap of jurisdictions that renders the judicial system inaccessible or ineffective. By its mere presence in the constitutional text, virtually every grievance can fall under the various jurisdictions available but ultimately under the Constitutional Court, creating the overlap which effectively undermines its role as the ultimate arbiter. Therefore, in the current Bolivian system, the ultimate judicial ‘who’ is missing.

A comprehensive analysis of the judiciary would probably indicate the flaws of the constitutional design and its inadequate performance in delivering independent, reliable and expeditious justice to the people. After 11 years since the Constitution’s renewal, the judicial system remains one of the main challenges pending review and reform (Orias and Idacochea 2020). I will briefly address three issues brought by the Constitution that call for special attention: legal pluralism, popular election of magistrates and judicial review of the constitution.

According to Article 1 of the Constitution, Bolivia is founded on plurality and on political, economic, juridical, cultural and linguistic pluralism. This concept brought ‘legal pluralism’ into a judicial system traditionally framed as unitary and centralized. The debate in Bolivia on the virtues or defects of this new founding principle has begun with inconveniences, and it will be prolonged as the transformation of a social, cultural, political and legal culture founded on traditional centralism and legal monism will not be easily achieved. It is not simple to admit that ‘law’ can have definitions so different from those that arise from liberal constitutionalism in the State. Nor will it be easy to preserve the plurality of the other systems or rights, without the risk of making these systems official and centralizing them through State recognition. As an example, in 2010 a demarcation law was enacted in order to define the limits of the jurisdiction for the indigenous justice system. The Constitutional Tribunal has expanded the 2010 Law’s understanding through decisions that provide for an ample and progressive interpretation of the indigenous jurisdictions in order to assure their standing, recognition of pluractionality and the self-determination of indigenous, native and peasant people as a binding precedent (Tribunal Constitucional Plurinacional de Bolivia 2013).

The Constituent Assembly opted for the popular election of the magistrates as the best mechanism to guarantee their independence in the jurisdictional function. This modality is provided for in Article 182, 188 and 198 of the Constitution. After two elections, since it was enacted, the election of magistrates continues to be subject to severe criticism for its contradictory effect of turning judges into a sort of representative political authority. Voters connected the elected judges to the political majority at the Legislative Assembly that approved the

The 2009 Constitution in the Bolivian pendulum 25 shortlisted candidates, a majority that was held by the MAS-IPSP ruling party in both instances. This contradicts the liberal principle of independence of the judiciary, where judges do not represent anyone and should resolve their cases only according to the law (not to the opinion of their voters). Arguably, the appointment of judges should require a more precise scrutiny of the candidates than the current ballot popularity. Ultimately, the legitimacy that arises from the good performance of the judicial function is more important than the legitimacy of the origin of the mandate, as this is what, in the last analysis, will guarantee the true independence of judicial tribunals.

In the constitutional amendment process in the late 90s, Bolivia created a specialized Constitutional Court for judicial review and interpretation of the Constitution. The current Constitution in Article 196 provides for the establishment of the Plurinational Constitutional Court to assure the supremacy of the Constitution, to exercise constitutional control, and to safeguard constitutional rights and guarantees. This court has contributed importantly to the strengthening of the rule of law. Nonetheless, the institution has also been a victim of political instability and its destructive effects that rendered it inoperative in critical times, for example, during the constituent assembly or while issuing doubtful decisions regarding the reelection of authorities of the Executive office or their self-proclamation in office.

The Constitutional Court faces convolutions related to the nature and extent of the judicial review and interpretation of the Constitution. Its design followed flawed adaptations of foreign, mostly European, concentrated models. As a court in charge of ensuring the primacy of the Constitution through defense actions, it exerts a broad and diverse jurisdiction by reviewing cases generated in lower courts of all natures, becoming an ultimate space for judicial remedy. This broad scope of cases reaching the Constitutional Tribunal has created conflicts with other tribunals regarding the diverse understandings of precedents and their binding nature. Procedures and consultations on the constitutionality of legislative initiatives or executive orders have also become a space for delaying or blocking political disputes. Lacking a compulsory self-restraint statute, the Court cannot derive matters to other courts or public agencies to concentrate on strictly constitutional issues. As J.S. Elias (2011) argues, judicial review of constitutionality involves the displacement of the legislative majorities by the judicial majorities and it can be as fallible as that of other collective bodies but of less legitimacy from the democratic point of view. These and other ideas are being and should be debated to optimize such an important jurisdiction in Bolivia.

 
Source