How the Bolivian Constitutional Court Helped the Morales Regime to Break the Political Insurance of the Bolivian Constitution

—Sergio Verdugo, Professor, Universidad del Desarrollo (Chile); JSD candidate, New York University*

In a 2016 referendum, a majority of Bolivians stopped President Evo Morales from running for a fourth Presidential term by rejecting a constitutional reform aimed at eliminating the constitutional limits on reelection. The failed bill establishing the constitutional modification resembled what David Landau calls “abusive constitutionalism,”[1] as it was intended at undermining constitutional democracy using formal constitutional means. In Bolivia —unlike the Colombian case, in which the Colombian Constitutional Court declared the unconstitutionality of a constitutional amendment aiming to authorize former President Alvaro Uribe’s second reelection—[2] it was not a court, but the people, who prevented the approval of the constitutional modification allowing the President to run for reelection.

However, the Morales regime could not take “No” for an answer, and found another constitutional means to authorize Morales’ third reelection. A group of legislators from the MAS (Movement to Socialism –Morales’ party) asked the Bolivian Constitutional Court (in Spanish, Tribunal Constitucional Plurinacional –TCP) to declare the unconstitutionality of several provisions, including constitutional provisions, that limited reelection.[3] On November 28 of 2017, the TCP ruled unanimously that the constitutional and legal rules limiting the reelection of the President and other elected authorities violated constitutional political rights, using an interpretation that relied on the American Convention on Human Rights (ACHR).[4] With this ruling, President Morales’ supporters managed to change the meaning of the Constitution and, as a result, the 2016 plebiscite became irrelevant. Morales will be able to seek a fourth presidential term that will finish in 2025 (his first term initiated in 2006), and he will probably be allowed to run for an unlimited number of terms. Also, with this ruling, the TCP seems to confirm a broader regional trend among constitutional courts that have challenged Presidential term limits in recent years, such as the cases of Venezuela, Ecuador, Nicaragua and Honduras.[5] As a result, the famous Colombian case restricting Uribe’s second reelection (which has fascinated comparative constitutional law scholars) seems to be an exception in the region.

Since the Bolivian Constitution did not establish a liberal democracy nor a procedure to transition to a liberal democracy, scholars could argue that the role of the TCP was not to enforce limits on political power but, instead, to help the socialist regime implement its policies, and to provide legal legitimacy to them.[6] If this is true, then the role of the TCP should be better explained by the role that courts typically perform under authoritarian regimes,[7] and not by what we can expect from courts under democratic or transition contexts. Even though the evidence of courts helping to advance democracies during democratization processes is limited,[8] it is useful to acknowledge their expected roles if we want to evaluate their rulings. If the Bolivian Constitution included provisions that limited political power, and the TCP failed to enforce them or even ruled against them, then we can criticize the TCP, and include it in the blacklist of courts that have been unable to achieve their political ends.

I argue that the Bolivian Constitution included a political insurance that was intended to contain the Morales’ regime political power, and that the TCP helped the regime to break an essential part of that insurance. As I will explain, and despite its supposed “post-liberal” character, the 2009 Constitution included specific provisions that connect to the liberal democratic tradition and limited the political power of the dominant political coalition. These limits included, for example, the establishment of limits on reelection, a bicameral Legislative Assembly (in Spanish, Asamblea Legislativa Plurinacional), and the requirement to approve constitutional changes through a particularly rigid process. The TCP was supposed to guarantee that these restrictions were not going to be ignored or violated but, instead, helped to overcome some of these limits to political power. Since violating this limits harms the competitiveness of the Bolivian political system and the political rights of the opposition, I claim that the TCP helped to break the insurance.

The Political Insurance of the Bolivian Post-Liberal Constitution

According to the insurance theory, elaborated by Tom Ginsburg and other scholars, the reason why constitutional designers create constitutions and constitutional courts (and limit their own power by creating a court that can later review their legislation) is that a constitutional court could help them to secure their power position in the case that they lose future elections, by restraining future governments they are not sure they will be able to control.^[9] If constitutional designers think that they will remain in power, they will be more likely to implement fewer constraints. If on the contrary, constitutional designers are uncertain that they will remain in power, or they think that they will lose elections, then they have strong incentives to limit the power of elected authorities. Therefore, they can create a constitutional court, or they can also seek to establish other institutional rules that constrain the power of elected majorities, such as independent prosecutors or electoral commissions. Some scholars have reported that there are cases in which the theory fails to explain the creation of constitutional courts (or has limited explanatory power),[10]  that in some cases the theory involves a more nuanced process of enactment and implementation,[11] and that more than one causal mechanism can explain the creation of constitutional courts simultaneously or independently. However, the insurance theory still possesses significant explanatory power.[12] The evidence shows that it is likely that during the constitution-making process, politicians will enact strong judicial review when they need to bargain with competing politicians under a multilateral or bilateral negotiation.[13] This is probably because either electoral uncertainty is high, or because the interests of politicians vary from the interests of those who expect to remain in power to the ones of those who expect to lose elections. In a recent paper, Tom Ginsburg and Rosalind Dixon provided a typology of “risks” that could be prevented by the insurance of constitutions, showing that the theory does not only apply to politicians who fear losing elections, but also to politicians who fear to reduce their policy influence, future persecution, or hostile treatment.[14] Ginsburg and Dixon also add nuance to the insurance theory by acknowledging that constitution-makers could create different institutional arrangements to protect their interests. A “power-based insurance,” for example, can involve “constitutional provisions that guarantee basic norms of fair electoral competition, as well as guarantees of minimum ongoing access office.”[15]

Sometimes political insurance implies constraining the power of elected politicians to protect rights and the competitive character of the democratic system. In this case, the constitutional designers’ self-interested reasons overlap with political liberalism. I believe that in these cases the insurance theory can be used as a normative theory to evaluate the rulings of constitutional courts according to the degree to which they succeed in protecting rights and democracy. Even though scholars typically use the insurance theory as an explanatory theory, when the reasons that support the political bargaining process and the constitutional-making final draft also rest on liberal democratic ideas, those ideas could be normatively used to demand courts to enforce them. If courts fail to enforce those rules, then we can criticize them for failing to guarantee the insurance that they were supposed to secure.

Nobody claims that the 2009 Bolivian Constitution is a liberal constitution. In fact, many scholars argue that the 2009 Constitution is illiberal or post-liberal, or that it establishes a radical or participatory democracy (as opposed to a liberal democracy),[16] along with a clear ideology included by many aspirational or mission statement provisions.[17] However, because of how the constitution-making process was developed, the Constitution included some provisions that were aimed to limit the power of the Morales regime. Thus, even though the Constitution is not substantively liberal, it does contain some provisions that resemble the way in which liberal constitutions prevent the existence of a dominant hegemonic political faction by limiting the power of majorities.

It is because of these provisions that we can recognize a sort of political insurance in the 2009 Constitution. The creation of the insurance was possible because a bargaining process among competing political parties existed. The MAS could probably perceive that they were going to win the future elections if they succeeded in allowing Evo Morales to be reelected indefinitely, and the opposition could have thought that preventing Morales from being reelected made the electoral future of Bolivia more uncertain. During the constitution-making process (which started in August 2006), the MAS only had a simple majority in the constituent assembly, which was not enough to fulfill the required two-third majority to approve the Constitution.[18] The process was highly conflictual and the MAS attacked the legitimacy of the constraints over the constituent assembly.[19] After the conflict escalated in 2007, the MAS was forced to initiate negotiations with the opposition, and, after several violent episodes, it finally succeeded in reaching an agreement in 2008.[20] Because of that agreement, the Morales’ regime was able to achieve the required two-third majority of the Congress to approve the final draft and call for the referendum that was going to ratify the final version of the Constitution. Because the opposition ended up playing a significant role in the process, mainly due to the need of having the Congress approving the final constitutional text after the constituent assembly finished its work, the text was moderated,[21] and the Constitution’s last version included many modifications.[22] Unlike the Venezuelan 1999 Constitution, the Bolivian 2009 Constitution was negotiated with (and not imposed to) the opposition.[23]

This is how the initial idea of the MAS to establish unlimited Presidential terms was forced to change during the debates of the constitution-making process.[24] As a result, the 2007 draft allowed for only one immediate reelection for the President and the Vice-president, but it made an exception with Evo Morales and allowed him to run for two additional terms because his first term initiated three years before the enactment of the Constitution and the rule was not supposed to be applied retroactively to him (Disposición Transitoria Primera.III). The 2009 final draft modified this rule and allowed Morales to run for only one reelection (Disposición Transitoria Primera.II).[25]

Along with the limit on reelection, the Constitution also established that a referendum would be required to partially reform the Constitution (Article 411.II), in addition to the two-third legislative supermajority that the reform needs to achieve in the Legislative Assembly (notice that the 2007 constitutional draft only required absolute majority and a referendum). If the constitution makers intend to replace the constitution entirely, or “affect the fundamental bases, rights and guarantees, or the primacy and reform of the Constitution,” then the Constitution requires the creation of a constituent assembly that will need to approve the new constitutional text by a two-third majority (Article 411.I). The plebiscitary mechanisms of the Bolivian Constitution were partly understood as a way to constrain the power of the elected majority.[26] This is particularly true regarding the constitutional requirement to call a referendum if the Legislative Assembly intends to approve a partial constitutional reform: the Constitution cannot be modified without the consent of a majority of Bolivians.

To eliminate the constitutional restrictions on reelection, the Morales regime thus needed to either: (1) reform or replace the constitution, (2) implement an unconstitutional statute, or (3) invalidate the constitutional provisions. The role of the TCP is relevant for the three alternatives. The TCP is the organ that possesses the supreme role in interpreting the Constitution and has the exclusive power of constitutional review.[27] Although I didn’t find direct evidence of the constitution-makers aiming to introduce a straightforward and explicit insurance mechanism when they discussed the rules governing the TCP, the constitution-makers deliberatively tried to create insurance when they debated other rules (e.g., limits on reelection), and the TCP was supposed to enforce these other rules. It is logical, then, to assume that the TCP was expected to act as an insurance mechanism.

A critical problem for the insurance theory in the case of the Bolivian Constitution is that the TCP’s independence is contested, which seems to be an issue that also existed regarding analogous key judicial decision in Venezuela and Ecuador.[28] How can the insurance theory work if the institution in charge of enforcing the constitutional rules is not sufficiently independent? The seven TCP judges (and the seven substitute judges) are popularly elected, but only the Legislative Assembly gets to decide who the candidates are. The Legislative Assembly is required to approve a list of 28 candidates by a two-third majority. The judges serve for fixed terms of six non-renewable years. Although it has been argued that partisan considerations influence the appointment of the TCP judges,[29] we should notice that the two-third supermajority rule that the Legislative Assembly needs to achieve to nominate the judicial candidates limits, in theory, the ability of the MAS to only nominate judges that are identified with the socialist regime. If the TCP’s institutional design does not guarantee judicial independence in a strong sense, then the insurance of the Bolivian Constitution is a weak form of insurance. The insurance was still expected to operate, though, at least by the legislators from the opposition that gave their votes to approve the constitution.

How the Morales’ Regime Broke the Insurance Mechanism (and how the TCP helped it)

The first time the Morales regime violated the limits on reelection was in 2013, when Morales and his Vice-president were seeking a second reelection for serving a third Presidential term between 2015 and 2020. That year, the Legislative Assembly approved a piece of legislation stating that the constitutional clause allowing Morales to run for only one reelection did not count Morales’s first Presidential term, which started in 2006, before the new Constitution was approved in 2009. Thus, his second reelection was not prohibited because it was, technically, the first time that Morales was trying to be reelected under the new constitution. This interpretation violated the agreement with the opposition, which was included in the constitutional clause that explicitly rejected this interpretation (Disposición Transitoria Primera.II). The new piece of legislation changed the meaning of the Constitution without formally reforming it,[30] and the TCP should have prevented this. Instead, when asked to declare whether this piece of legislation was allowed, the TCP aligned with the interests of the regime and permitted Morales to run for a second reelection.[31]

After Evo Morales was reelected in 2014 and initiated his third Presidential term (2015-2020), his supporters started to find a way to permit Morales to run for a fourth term. Thus, in 2015, some legislators presented a bill that included a modification to the Constitution to allow Morales and his Vice-president to run again for another reelection. The TCP authorized the referendum required to approve the constitutional reform,[32] stated that the referendum question did not contradict the Constitution,[33] and allowed the constitutional reform to be approved by the ordinary partial reform procedure under Article 411.II. Although the Constitution requires that a change affecting the Constitution’s “fundamental structure [bases fundamentales], rights, duties, guarantees or the primacy or reform of the constitution”, could only be implemented after a two-third vote of a constituent assembly (Article 411.I), the TCP did not find a problem in allowing eliminating the constitutional limits on reelection through the ordinary procedure of Article 411.II.[34] However, the plan to modify the Constitution failed anyway because a 51.6% of the Bolivian voters rejected the constitutional reform by voting “No.” The mechanism aimed to limit the regime’s power to modify the Constitution succeeded in enforcing the original pact of the 2009 Constitution.

Nevertheless, and ignoring the result of the referendum, a group of MAS legislators asked the TCP to declare the unconstitutionality of the provisions that prevented the reelection of Morales and other elected officers. The TCP accepted the claim and unanimously declared that the relevant rules should not be applied. The TCP decision did not mention the 2016 referendum. In short, the TCP used Article 23 of the ACHR to create a peculiar doctrine stating that political rights demand the possibility of reelection. For making that argument, the TCP elaborated on the value of the ACHR inside the Bolivian constitutional system and used a strong version of the conventionality control doctrine.[35] Then, the TCP argued that there is a tension between political rights and the challenged provisions, and tried to solve the tension by, among other considerations, stating that the TCP should select the outcome that is more favorable for the rights involved,[36] and by identifying the original will of the constitution makers. According to the TCP, the constitutional interpretation should prefer the will of the constituent power, as reflected in the early documents enacted by the constituent assembly and its committees.[37] The TCP used the arguments given for the first drafts of the constitution, which allowed for reelection without any limitation. The debates regarding the modifications that were implemented to the initial constitutional draft of 2007 and to the final version of the 2009 Constitution were not relevant for the TCP’s interpretation strategy. That way, the TCP did not consider the agreements that the MAS regime achieved with the opposition

I will not explain here why these views are an improper interpretation of political rights under democratic theory and the available doctrines of the ACHR,[38] why the use of the conventionality control doctrine in this way is mistaken, and the problems in the decision regarding the definition of constituent power. Instead, I want to point out that the TCP not only helped to break the insurance of the Bolivian Constitution, but also that it did so deliberately. The President of the Legislative Assembly stated in his report, as quoted in the decision,[39] that the constitutional clause limiting reelection was included to make the approval of the Constitution feasible. Instead of taking into account that the 2009 Constitution exists due to the liberal elements that were included in the final version of the constitutional draft, the TCP decided to elaborate an originalist technique of interpretation that only took into account the early, MAS-driven early ideas.

As a result, the TCP helped to make the 2016 referendum irrelevant, ignored constitutional limits on reelection, and aligned the ruling with the interests of the Morales’s regime, thus sending a signal of how the TCP judges understand their role. It seems that, according to them, the TCP’s function is to find justifications to facilitate the implementation of the will of the MAS constitutional designers as opposed to the pact included in the later draft of the Bolivian Constitution.  This is how the insurance mechanisms of the Bolivian Constitution were broken.

Suggested citation: Sergio Verdugo, How the Bolivian Constitutional Court Helped the Morales Regime to Break the Political Insurance of the Bolivian Constitution, Int’l J. Const. L. Blog, Dec. 10, 2017, at: http://www.iconnectblog.com/2017/12/how-the-bolivian-constitutional-court-helped-the-morales-regime-to-break-the-political-insurance-of-the-bolivian-constitution/

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* I thank David Landau, Felipe Jiménez, Vicente Benítez and Andréa Maurieres for useful suggestions and edits on an earlier version of this comment.

[1] David Landau, “Abusive Constitutionalism,” UC Davis Law Review 47 (2013): 189–260.

[2] See a justification of this decision in Carlos Bernal, “Unconstitutional Constitutional Amendments in the Case Study of Colombia: An Analysis of the Justification and Meaning of the Constitutional Replacement Doctrine,” International Journal of Constitutional Law 11, no. 2 (2013): 339–57.

[3]The TCP was created by the 2009 Constitution promoted by President Morales and his allies, and replaced the former Constitutional Tribunal, which was dismantled by the MAS between 2006 and 2008 by forcing the former judges to resign and by not replacing the resigning judges. Andrea Castagnola and Aníbal Pérez-Liñán, “Bolivia. The Rise (and Fall) of Judicial Review,” in Courts in Latin America, ed. Gretchen Helmke and Julio Ríos-Figueroa (New York: Cambridge University Press, 2011), 299–302.

[4] TCP Sentencia Constitucional Plurinacional N° 0084/2017.

[5] See David Landau, “Presidential Term Limits in Latin America and the Limits of Transnational Constitutional Dialogue,” Law & Ethics of Human Rights Forthcoming: 12 (2018); Elena Martínez-Barahona, “Constitutional Courts and Constitutional Change: Analysing the Cases of Presidential Re-Election in Latin America,” in New Constitutionalism in Latin America. Promises and Practices, ed. Detlef Nolte and Almut Schilling-Vacaflor (New York: Routledge, 2012), 289–309.

[6] This is a plausible argument because, according to the so-called “New Latin American Constitutionalism,” sometimes the constitutions establish that judges should be popularly elected because they are not expected to be counter-majoritarian institutions. See Guillermo Lousteau H., “El Nuevo Constitucionalismo Latinoamericano,” in El Nuevo Constitucionalismo Latinoamericano, The Democracy Papers 5 (InterAmerican Institute for Democracy, 2012), 15–39.

[7] About the functions of courts under authoritarian regimes, see Tamir Moustafa and Tom Ginsburg, “The Functions of Courts in Authoritarian Politics,” in Rule by Law. The Politics of Courts in Authoritarian Regimes (New York: Cambridge University Press, 2008), 1–22.

[8] There are many examples of courts that help advancing democracy, and also examples from courts that fail in their mission or receive an authoritarian backlash. See some examples in the book by Samuel Issacharoff, Fragile Democracies. Contested Power in the Era of Constitutional Courts, Cambridge Studies in Election Law and Democracy (Cambridge University Press, 2015). On explaining the limitations of the evidence we have, see Tom Gerald Daly, The Alchemists. Questioning Our Faith in Courts as Democracy-Builders (Cambridge University Press, 2017).

[9] See Tom Ginsburg, “Economic Analysis and the Design of Constitutional Courts,” Theoretical Inquiries of Law 3 (2002): 49–85; Tom Ginsburg, Judicial Review in New Democracies. Constitutional Courts in Asian Cases (Cambridge University Press, 2003). Among other scholars that have elaborated similar theories, see e.g., J. Mark Ramseyer, “The Puzzling (In)Dependence of Courts: A Comparative Approach,” The Journal of Legal Studies 23 (1994): 721–47; Matthew Stephenson, “‘When the Devil Turns…’: The Political Foundations of Independent Judicial Review,” The Journal of Legal Studies 32 (2003): 59–89.

[10] See, for example, the cases discussed in the book edited by Pasquale Pasquino and Francesca Billi, eds., The Political Origins of Constitutional Courts. Italy, Germany, France, Poland, Canada, United Kingdom (Rome: Fondazione Adriano Olivetti, 2009).

[11] Jodi Finkel, Judicial Reform as Political Insurance. Argentina, Peru, and Mexico in the 1990s (University of Notre Dame Press, 2008).

[12] Tom Ginsburg and Mila Versteeg, “Why Do Countries Adopt Constitutional Review?,” The Journal of Law, Economics & Organization 30, no. 3 (2013): 587–622.

[13] Julio Ríos-Figueroa and Andrea Pozas-Loyo, “Enacting Constitutionalism: The Origins of Independent Judicial Institutions in Latin America,” Comparative Politics 42, no. 3 (2010): 293–311.

[14] Rosalind Dixon and Tom Ginsburg, “The Forms and Limits of Constitutions as Political Insurance,” International Journal of Constitutional Law Forthcoming: 15, no. 4 (2017).

[15] Dixon and Ginsburg.

[16] See some examples of how early scholars characterized the 2009 Constitution in Jonas Wolff, “New Constitutions and the Transformation of Democracy in Bolivia and Ecuador,” in New Constitutionalism in Latin America. Promises and Practices, ed. Detlef Nolte and Almut Schilling-Vacaflor (New York: Routledge, 2012), 184, 191, 194.

[17] Phoebe King, “Neo-Bolivarian Constitutional Design,” in Social and Political Foundations of Constitutions, ed. Denis J. Galligan and Mila Versteeg, Comparative Constitutional Law and Policy (New York: Cambridge University Press, 2013), 387–88.

[18] Osear Hassenteufel Salazar, “La Asamblea Constituyente En Bolivia,” Fides et Ratio – Revista de Difusión Cultural y Científica de La Universidad La Salle En Bolivia 1, no. 1 (2016): 78–79.

[19] David Landau, “Constitution-Making Gone Wrong,” Alabama Law Review 64 (2013): 28.

[20] Wolff, “New Constitutions and the Transformation of Democracy in Bolivia and Ecuador,” 185; Landau, “Constitution-Making Gone Wrong,” 29–31.

[21] Roberto Gargarella, Latin American Constitutionalism 1810-2010. The Engine Room of the Constitution (Oxford University Press, 2013), 194.

[22] The Congress’ delegates modified near 100 articles of the constituent assembly’s constitutional draft. Almut Schilling-Vacaflor, “Bolivia’s New Constitution: Towards Participatory Democracy and Political Pluralism,” European Review of Latin American and Caribbean Studies 90 (2011): 9.

[23] Landau, “Constitution-Making Gone Wrong,” 26.

[24] Salvador Schavelzon, El Nacimiento Del Estado Plurinacional de Bolivia. Etnografía de Una Asamblea Constituyente (La Paz: CLACSO – Plural – CEJIS – IWGIA, 2012), 366–67.

[25] Schavelzon, 249, 499. See also José A. Rivera S., “La Reelección Presidencial En El Sistema Constitucional Boliviano,” Revista Boliviana de Derecho 12 (2011): 26–27.

[26] Wolff, “New Constitutions and the Transformation of Democracy in Bolivia and Ecuador,” 194.

[27] This is the conventional interpretation of art. 196 of the Bolivian Constitution and art. 4 of the TCP Law. See, e.g., Alan E. Vargas Lima, “La Reelección Presidencial En La Jurisprudencia Del Tribunal Constitucional Plurinacional de Bolivia,” Revista Boliviana de Derecho 19 (2015): 455–56; Edgar Peña Venegas, “Aspectos de Interpretación Constitucional Ante La Nueva Constitución Política Del Estado Plurinacional de Bolivia,” Revista Boliviana de Derecho 19 (2015): 436.

[28] “Indeed, there is evidence across all three cases [Venezuela, Ecuador and Bolivia] that opponents saw the judiciary as lacking independence from the executive.” Landau, “Presidential Term Limits in Latin America and the Limits of Transnational Constitutional Dialogue.”

[29] See Marco Antonio Baldivieso Jinés, “La Independencia En La Administración de Justicia. Elección de Autoridades Judiciales En Bolivia,” Anuario de Derecho Constitucional Latinoamericano, 2012, 352–53.

[30] Vargas Lima, “La Reelección Presidencial En La Jurisprudencia Del Tribunal Constitucional Plurinacional de Bolivia,” 460, 464.

[31] TCP Declaración Constitucional Plurinacional N° 0003/2013.

[32] TCP Declaración Constitucional Plurinacional N° 0194/2015

[33] TCP Declaración Constitucional Plurinacional N° 0194/2015, at 7.

[34] Landau, “Presidential Term Limits in Latin America and the Limits of Transnational Constitutional Dialogue.”

[35] TCP Sentencia Constitucional Plurinacional N° 0084/2017, at 7, at 16-32.

[36] TCP Sentencia Constitucional Plurinacional N° 0084/2017, at 53

[37] TCP Sentencia Constitucional Plurinacional N° 0084/2017, at 59-60

[38] The decision merely cherry picked some paragraphs from the Inter-American Court of Human Rights dealing with Article 23 of the ACHR, and tried to make sense of the TCP’s outcome with the selected paragraphs that are copy/pasted in the decision and not explained nor contextualized. See TCP Sentencia Constitucional Plurinacional N° 0084/2017, at 68-74

[39] TCP Sentencia Constitucional Plurinacional N° 0084/2017, at 7