Pre-selection process for high judicial authorities and judicial independence
March 14, 2024
The International Commission of Jurists (ICJ), the Latin American Federation of Magistrates (FLAM) and the Due Process of Law Foundation (DPLF) led a Fact-Finding Mission to Bolivia between 4 and 7 March this year, in order to gather information on the current process of pre-selection and election of high judicial authorities and the state of judicial independence in the country. The delegation met with the president of the Plurinational Constitutional Court, the president of the Supreme Court of Justice, two counselors of the Judicial Council, the director of the State School of Judges, a judge of the Agro-environmental Court, representatives of the Association of Judges and Magistrates of Bolivia (AMABOL), two authorities of the Legislative Assembly, the Vice-Minister of Justice, representatives of civil society organizations, journalists and experts who cooperate in the field of justice. The Mission received technical support from Fundación Construir.
Below, the international organizations that carried out the Fact-Finding Mission present the main findings and recommendations; these will be complemented in a report to be published in the coming weeks:
- With respect to the process of preselection and election of high judicial authorities that is carried out by the Plurinational Legislative Assembly by normative provision and that takes place prior to the popular election process, after repeated and prolonged suspensions over the past year, the Mission appreciates that the preselection process is moving forward in the Assembly, which allows to fulfill the constitutional mandate to renew the high judicial authorities whose constitutional term ended on December 31, 2023.
The Mission calls on the Legislative Assembly, in accordance with international standards on the selection of judicial authorities established by the International Covenant on Civil and Political Rights (Article 14), the American Convention on Human Rights (Article 8) and the documents that develop them, to ensure that the pre-selection process complies with criteria of merit, objectivity, equal representation and non-discrimination.
It also requests the Assembly to ensure that the pre-selection process is carried out with maximum transparency, publicity, and openness to citizen participation. It therefore recommends that the Assembly:
- Publish the complete curriculum vitae and files of the applicants, leaving their personal data protected and in reserve.
- Motivate and substantiate the scores given to applicants in each phase of the pre-selection process, especially during the examination phase.
- Allow national and international observers maximum access to information and participation during the phases of the pre-selection process.
- Effectively ensure gender parity and cultural diversity.
- Conduct the pre-selection process without undue delay and in compliance with the Constitution.
- With respect to the extension of the terms of office of the authorities of the Judiciary and the Constitutional Court, the Mission took note of Plurinational Constitutional Declaration 0049/2023 issued by the Plurinational Constitutional Court on December 11, 2023, by which it provided for the extension of the terms of office of those authorities. The Mission recalls that the requirement of judicial independence established in the international instruments binding the Bolivian State includes guarantees for stability in office until the mandatory retirement age or the expiration of the term of office when it exists. The Mission considers it essential to respect the constitutionally established terms of office. In this sense, it shares the concern of the United Nations Special Rapporteur on the Independence of Judges and Lawyers, Margaret Satterthwaite, that “the terms of the current incumbents have been extended indefinitely”.
- With respect to public trust in the justice system and the need for an independent and impartial judiciary, the Mission gathered information about the high level of distrust in the justice system and the difficulties faced by the Judicial Branch and individual judges to have effective guarantees to protect their independence. In this scenario, the Mission obtained information about the limited budget of the Judicial Branch (0.35% of the general budget in 2023), the existence of dozens of graduates from the State School of Judges awaiting appointment, the lack of transparency in the design of the performance evaluation carried out by the Judicial Council, among other issues. Therefore, the Mission considers that it is necessary to strengthen the independence of the judiciary, which may include advancing a judicial reform to strengthen the specific guarantees of judicial independence in the country and a modification to the constitutional mechanism established to select high judicial authorities.