OAS Should Condemn Threat to Judicial Independence
Bolivia’s President Evo Morales speaks during a press conference about judicial elections at the presidential palace, in La Paz, Bolivia, Monday Dec. 4, 2017.
© 2017 AP Photo/Juan Karita
(New York, April 29, 2019) – Bolivian authorities have arbitrarily dismissed almost 100 judges since 2017, seriously undermining judicial independence in the country, Human Rights Watch said today. The Organization of American States (OAS) should convene a meeting of its Permanent Council to address ongoing justice system changes in Boliviathat are weakening the rule of law.
Bolivia’s Magistrates Council, the body that appoints and dismisses judges, has arbitrarily dismissed dozens of judges, most recently in March 2019. The dismissed judges received a memorandum “thanking” them for their work and telling them to leave their offices that day. The memorandums do not indicate the cause for their dismissal, nor were the judges given an opportunity to challenge their dismissals before they were fired.
“There is a reason international law provides that judges should not be fired as if they were any other public official,” said José Miguel Vivanco, Americas director at Human Rights Watch. “The OAS member states should remind Bolivian authorities that judicial independence, including guarantees protecting judges from arbitrary removal, is a key component of any rights-respecting democracy.”
President Evo Morales has repeatedly rejected judicial independence as a key component of democracy. In October 2018, for example, he said that judicial independence was a “doctrine of North America,” meaning the United States, and of “capitalism.”
Human Rights Watch interviewed 8 judges who were removed from office, as well as a lawyer who represents 20 judges who brought complaints to the Inter-American Commission on Human Rights after their dismissal. Human Rights Watch also reviewed nine dismissal memorandums the judges were given and a 2017 resolution by the Magistrates Council dismissing 88 judges. All the memos had identical text “thanking” the judges for their work and do not indicate the grounds for dismissal. The 2017 resolution says that the Bolivian judiciary “needs new judges” and that current judges are “transitory” and can be immediately removed.
A 2010 law provided that judges appointed before the 2009 Constitution would retrospectively be deemed temporary, although at the time they were judges with tenure. A 2011 law allowed the Magistrates Council to appoint “provisional” judges until a school to train potential judges was established. In a hearing before the Inter-American Commission on Human Rights in September 2018, Bolivian officials said that only 163 of the country’s 1,200 judges – roughly 13 percent – had tenure or permanent positions.
One of the dismissal memorandums Human Rights Watch reviewed was sent to a judge in February 2019. The judge told Human Rights Watch that he was appointed in 2003 – first as a family law judge and later as a civil law judge – and that when he was appointed it was a permanent position. But then authorities “came up with the idea that all the positions were transitory,” he said. “Having a transitory position is a way of extortion; if you don’t behave properly, you can receive a dismissal letter tomorrow, since you are just transitory. Every time you rule on a case, you need to think about who will be affected.”
Under the 2009 Bolivian Constitution, the three-member Magistrates Council is part of the judicial branch with the mandate to appoint and dismiss judges, but with no guarantees of independence. Two current members are former officials of Morales’ administration, including the president of the council, Gonzalo Alcón Aliaga, who was the commander of the Navy from December 2013 through December 2014. The third member has not worked for the Morales administration, but has been an adviser to several municipalities governed by mayors of Morales’ party, the Movement Toward Socialism.
The members of the council were elected by popular vote in December 2017. Voters choose from a list created by the Plurinational Assembly, the Bolivian legislature, where the Morales administration has a two-thirds majority. The list consisted of 10 candidates, 6 of whom had worked for the Morales administration. While the directive regulating the process said that the assembly should select candidates based on their experience as lawyers, lawmakers also had substantial discretion to rank the candidates, based on interviews.
The dismissals are part of a broader justice reform initiated in 2016, led by a nine-member commission that has broad powers, including “controlling” the appointment of new judges and taking “other actions necessary” to reform the judiciary. Five of the commission’s members are either Morales supporters in the Assembly or government officials he appointed.
The OAS Democratic Charter provides that the “separation of powers and independence of the branches of government” are “essential elements” of “representative democracy.” The charter recognizes that “representative democracy is indispensable for the stability, peace, and development of the region, and that one of the purposes of the OAS is to promote and consolidate representative democracy.” The Permanent Council of the OAS, composed of the country’s ambassadors to the organization, can convene extraordinary meetings at the request of the rotating presidency of the council (currently, the United States), the organization’s secretary general, or any state party.
Bolivia is also party to several human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights, that require it to safeguard the independence and impartiality of its judiciary. The United Nations Human Rights Committee, which oversees compliance with the ICCPR, has reminded governments that the right to an independent and impartial judiciary is an absolute right, not subject to any exception.
In its general comment on the right, it affirmed that “the requirement of independence refers, in particular, to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure until a mandatory retirement age or the expiry of their term of office, where such exist.” The committee explicitly said that “judges may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the constitution or the law.”
The Inter-American Court of Human Rights, which interprets the American Convention, has said that judges lacking permanent tenureshould benefit from the same conditions of removal as those with permanent tenure. It also noted that “the authority in charge of the procedure to remove a judge must behave impartially and allow the judge to exercise the right of defense.” The court has also said that states should ensure that “provisional appointments” are the “exception, rather than the rule.”
“That President Morales’ allies have arbitrarily dismissed dozens of judges as whimsically as he dismisses the importance of judicial independence should be a wake-up call for OAS member states,” Vivanco said. “When people in Bolivia can no longer expect judicial independence, then all their rights are at risk.”