Justice to President
Justice to Change
A couple of years ago, after visiting Egypt and Tunisia in a mission to promote a greater freedom of speech and better democracy, and then attending the presidential succession in Honduras, I realized that in Bolivia, some years earlier, in 2005, an acute political crisis had been successfully overcome in peace, without violence, and under the Constitution. Not too long ago, change of this kind was typically undertaken by the military and with foreign meddling. By contrast, the current fragile democracy has been preserved intact for the last 25 years, which is the longest democratic period of the republican history. During this time, a whole generation has been committed to a system that still needs to undergo significant changes.
Yet, democratic efforts are slowly bearing fruit in Bolivia. Bolivia has now elected a legitimate government that incorporates large population sectors that were traditionally excluded in the past. In January 2009, the current government held a Constituent Assembly and approved a new Constitution that begins a process of intense structural changes aimed at producing better stability, a sustainable balance with pluralism, and the ability to meet both old and new expectations. This new Constitution goes beyond the old republican molds and keeps the relation of an active constituent power with the power holders in a lively manner in order to make government transparent, understand it, and solve any deficiencies that might have existed during its conception.
One of the most troubling (and encouraging at the same time) aspects of this process relates to the rule of law and justice, to the thoughtful consideration of how legitimate are the authorities responsible for their development and fulfillment, and to the relation between power and legality, as those who hold power to develop and enforce the laws tend to do so either in a “custom-made” manner, or apply them in a discretionary manner for their own benefit, as part of a centralist and dominant juridical culture.
The new Constitution defines a new complex concept for Bolivia: “Unitarian Social State of Plurinational Communitarian Rule of Law, free, independent, sovereign, democratic, intercultural, decentralized and with autonomies,” based on political, economic, juridical, cultural and linguistic pluralism within the country’s process of integration. It also pays exceptionally strong attention to the existence of the indigenous originary peasant nations and peoples and their ancestral dominion over their territories, granting their free determination.
The introduction of legal pluralism as a principle on which the new State of “Social Unitarian Rule of Communitarian Plurinational Law” is based, provides a new conception of the law and of legal instruments that interact with the Constitution and other regulatory instruments. Legal pluralism means the possibility of intersecting, combining and interrelating legal orders in order to produce a new way of understanding a plural and complex society that intends to restore the rights of the peasant, native and indigenous peoples in the framework of a constitutional policy. This initiative inaugurates a new transition period of Bolivian institutions and its legal system, including the legal instruments thereof (such as the Constitution and the laws). This may take many years of complex reforms, and the main obstacle to be solved might be the cultural one.
I myself have had to grapple with many of the issues that the new Constitution takes on.
In 2005, I had been working at the Supreme Court for more than six years and then as Chief Justice for about a year. This was a time of extraordinary achievements, hearing and solving law cases, and at the same time, promoting structural changes in order to open new spaces for justice, so that people could feel well served and the meaning of “justice” could be better understood in a country with prevailing poverty and inequality. A conservative juridical culture and the political instability were notorious obstacles to these aims.
Suddenly on Sunday June 9, 2005, the uncertain presidential succession in the midst of increasing social and political unrest led to a crisis. A couple of years earlier, the popular discontent over the administration of Sánchez de Lozada had produced his resignation and eventual departure from the country. Vice President Carlos Mesa became President, but resigned before completing a second year in office in the midst of increasingly ungovernable scenarios. The presidential succession was then opened to the leaders of the Congress, but, as their representative capacity had been severely compromised, both leaders resigned the succession and turned to the last possible successor: the President of the Supreme Court of Justice.
On the evening of June 9, I became the 64th President of Bolivia. The President of the Senate called me to say that I had to appear in the House of Liberty, the old colonial chapel where the Declaration of Independence of Bolivia had been signed in 1825, as the Congress had decided to accept the resignations of both congressional leaders, calling on me to assume the presidential office until the next elections. I soon found myself taking the oath and delivering a message to the nation. I did it recalling that I was assuming these new responsibilities as a Judge of the Republic and invoked the common purpose of strengthening democracy with the participation of all Bolivians. From that moment on, my daily routine changed severely. In the wee hours of the next day, when I got back home, my children were getting ready to go to school, and they were surprised to see around them the security personnel, many journalists, and neighbors who woke up with a new president.
It turned out that to form and lead a government as a Judge/President was not an easy job, as I did not have a party or political allies, so the transition was not pleasant. I soon learned that the “loneliness of power” was going to be a close companion from then on. My first actions in government were of an emergency nature and aimed at demobilizing the armed forces and dialoguing with the social and political movements, which gradually accepted that an independent administration was best fitted to ensure the next elections. However, the presidential responsibilities were not just limited to organizing the presidential elections, but also to exercise all the powers of the executive branch. Some of them were quite complex, including passage of a new hydrocarbon act, which included tax hikes; its resulting income distribution produced both domestic benefits and legal claims from the multinationals.
At the same time, a difficult equation of political and social agendas had to be negotiated within the legal framework. The traditional political parties were in crisis and tried to reverse a process of changes that seemed inevitable. Eventually, after arduous efforts, we reached some critical commitments: thus, elections would take place for president, vice president and congressional representatives; parliament members agreed to resign two years before the end of their terms; a Constituent Assembly would be held; a referendum on departmental autonomies would also take place; and governors would be elected by popular vote. All of these agreements demanded a great deal of effort to frame the appropriate legal amendments and interpretation of the Constitution.
General elections took place in December 2005, when an unprecedented number of voters, of more than 80% those registered, cast their ballots.. The people elected Evo Morales as the president and Alvaro García as the Vice President by an absolute majority of votes and, for the first time, the governors of the nine departments of the country were elected as well. A day after President Morales took office in January 2006, I returned to the Supreme Court with many lessons learned and much satisfaction. The judicial branch had gained a prominent role in the effective application of the principle of checks and balances to solve the constitutional crisis, and I also had been able to drive some of the measures intended to improve the justice system.
On the other hand, I also experienced the effects of the real politik, as my term in the judiciary was shortened due to my resignation in March 2006. A group of judges from the Supreme Court objected to the legality of my return claiming that, by accepting the presidency, I had waived my position as a judge. Criminal charges were filed against me for treason, espionage and other charges that had been filed during the electoral campaign as a result of an obscure operation conducted in September 2005, while I was attending a summit in Brasilia, by Bolivian army officers to remove 28 Chinese missiles (manpads) to the United States, so that they could be deactivated, with the assistance of the American military mission in Bolivia. This clandestine operation produced a diplomatic protest against the U.S. mission. In those days, the search for security bordered on paranoia and the fight against terrorism could defy the respect for the law, the conventions and the people’s rights. After five years, I am still waiting to be heard by the Attorney General. The actions taken, information from Wikileaks and other testimonies still are not valued, and neither Bolivian nor the U.S. governments are willing to clarify the situation. (A Wikileak cable revealed that the Bolivian government requested that the United States withdraw the clause about missiles from the bilateral agenda.) The lawsuit filed against me is like my shadow; it follows me everywhere. Yet, apart from my personal story, I feel that democratic efforts are bearing fruit.
Yes, there are challenges. The political tensions caused by ideological differences, exclusion, inequality and poverty are still putting the democratic coexistence to test. However, it is possible to think that the democratic system will continue to be the essential factor to guarantee the completion of the desired changes in peace and with a higher tolerance and freedom, and, ideally, with greater justice too.
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