The Bolivian Legal System and Legal Research
By Mauricio Ipiña Nagel
Mauricio Ipiña Nagel is founding partner of Ipiña Nagel Abogados in La Paz, Republic of Bolivia. He specializes in Commercial Arbitration and Corporate Law. He received his JD from Universidad Católica Boliviana (1999). He holds a General LL.M. at Tulane University School of Law (2001); there he was admitted at the Editorial Board of "The Journal of American Arbitration". One year after, Mauricio became a regular student at the LL.M. in Dispute Resolution at University of Missouri-Columbia School of Law (2002). Mauricio also holds a JSM degree from Stanford Law School, where he focused his research on corporate dispute resolution. In 2002 he was accepted as intern at the International Chamber of Commerce Court of Arbitration in Paris, France.
Published December 2009
Table of Contents
Bolivia, officially the Plurinational State of Bolivia, is a country located in the center-west of South America. The official capital is Sucre, where the head office of its judicial branch is located, and the executive and legislative branches of the government are in La Paz. Until March 18, 2009, it was named Republic of Bolivia. It owes its name to the Venezuelan statesman Simón Bolívar. Bolivia is a landlocked country. It is bordered by Brazil to the north and east, Paraguay and Argentina to the south, and Chile and Peru to the west. Its geography is varied from the peaks of the Andes in the west, to the eastern lowlands situated within the Amazon Basin and the Chaco. Along with Paraguay it is one of the two landlocked countries in South America.
Bolivian President Evo Morales is the first indigenous president of a South American country. He took office in 2006, promising a democratic revolution to give more political power to the country’s indigenous majority, principally through the reform of the National Constitution. As part of this process, which came in the midst of violent turmoil and protest, the National Referendum held in January 2009 approved, after a long and contentious road, a new National Constitution. In this new Constitution, basic services such as water, gas, and electricity are considered to be human rights, as well as are education and health care.
The new constitution grants greater power to the country’s indigenous peoples. It creates a new Congress with seats reserved for Bolivian indigenous groups. Among other changes the new constitution also limits new land purchases to 5.000 hectares. Bolivia’s Constitution is the seventeenth constitutional text in its republican history. It came into force on February 7, 2009, when President Evo Morales promulgated it, after it had been approved in a referendum with a 90.24% participation. The Referendum took place on January 25, 2009 and the Constitution was approved by 61.43% of the voters, that is, 2.064.417 votes. Negatives votes, on the other hand, reached 1.296.175 votes (38.57%). Blank votes were 1.7%, and void ones reached 2.61%. Finally, on February 9, 2009 the new constitution was promulgated by President Evo Morales in an event in the city of El Alto. With the intention of adapting to the new statutes, Morales renewed his cabinet, creating the ministries of Autonomy, of Cultures, and of Transparency and the Fight against Corruption.
The new constitutional text is divided in five parts:
· First Part: Fundamental bases of the State, Rights, Duties and Guarantees.
· Second Part: Structure and Organization of the State.
· Third Part: Territorial Structure and Organization of the State.
· Fourth Part: Economic Structure and Organization of the State.
· Fifth Part: Constitutional Reform.
Each part is divided into titles and these into chapters. Some chapters also are divided into sections. All together the constitution has 411 articles.
The Constitution is Bolivia’s supreme norm. Article 1 of the Constitution states that Bolivia is constituted as a Social Unitary Government of Communitarian Plurinational Law, free, independent, sovereign, democratic, intercultural, and decentralized and with regional and indigenous autonomies. Bolivia is founded on plurality and political, economic, legal, cultural and linguistic pluralism.
The Government System is established under Article 11, which states that Bolivia acquires a democratic, participating, representative and communitarian form of government, with equal rights for men and women. There are five levels of government: the plurinational level, the independent or autonomous state level, the independent or autonomous regional level, the independent or autonomous indigenous level and the municipal level. The leaders at the territorial level are chosen by universal elections. Bolivians become eligible to vote when they reach the age of 18 years. Spanish, along with the following native and indigenous languages are official: Aymara, Araona, Baure, Bésiro, Canichana, Cavineño, Cavubaba, Chácobo, Chimán, Ese Ejja, Guaraní, Guarasu’we, Guarayu, Itonama, Leco, Machajuvaj-Kallawaya, Machineri, Maropa, Mojeño-Trinitario, Mojeño Ignaciano, Moré, Mosetén, Movina, Pacawara, Puquina, Quechua, Sirionó, Tacana, Tapiete, Toromona, Uruchipaya, Weenhayek, Yaminawa, Yuki, Yuracaré and Zamuco.
The plurinational Government and departmental governments must use at least two official languages. One of them must be Spanish, and the other will be decided taking into account the use, convenience, circumstances, needs and preferences of the population in its totality or the territory in question. The other autonomous governments must use the territory’s language; the other language must be Spanish.
The constitution names Sucre as Bolivia’s capital. La Paz is not pointed out in the text. Nevertheless, and because the Burned Palace (Executive Branch Headquarters) is in La Paz, it becomes the administrative capital de facto, whereas Sucre happens to be the official capital.
The new constitution creates, along with others changes, a new indigenous judicial system, at the same level of ordinary justice, along with a new Plurinational Constitutional Court which will have to elect new members for both systems.
The Constitution also establishes the right to autonomous and indigenous self-government, along with the official recognition of territorial organizations and institutions. It vests the indigenous communities with exclusive property rights to the forest resources of their territory.
Article 268 declares that Bolivia does not waive its undeniable right over the territory that gives it access to the Pacific Ocean and its marine space. The effective solution to the marine disagreement through pacific means and the use of the sovereignty on this territory constitute permanent objectives of the Bolivian State.
Autonomy and territorial organization
In the constitution, four levels of administration are established: departmental, regional, districts, municipal and authentic indigenous territories.
The new autonomy involves, in addition, direct election of the authorities and the right to administer natural resources. In contrast, the opposition has indicated that these reforms divide the country into 36 territories and reduce the departments’ autonomous powers.
Land and large estate administration
The new constitution prohibits large estates, and, according to the results obtained in the referendum, it will not allow the appropriation of more than five thousand hectares of land. On this matter, the text establishes the following:
“ Large estates and double records are forbidden as being contrary to the collective interests and development of the country. Large estate is defined as unproductive land possession; land that does not fulfill social economic functions; the operation of land that applies a system of servitude, semi-slavery or slavery in the labor relation, or property that exceeds the maximum surface area established by law. In no case will the maximum surface area exceed five thousand hectares. It has been established that these land limits will not be retroactive.”
The new constitution recognizes in almost 100 articles Bolivians’ rights, incorporating an unusual language that gives equal rights to Bolivian men and women. Amongst the new features, it establishes basic facilities like: water, a sewage system, electricity, domiciliary gas, a postal service and telecommunications services, establishing the responsibility of the State to provide these facilities, although some can be provided by private companies. In addition, it specifies that access to water and a sewage system are human rights, these not being open to privatization or concession.
In the new text, a social, economic and communitarian model is established, composed of government organizations, private and social cooperatives, that guarantees private initiative and the freedom of corporations. It also establishes that one of the tasks of the government organizations is to administer natural resources and their associated processes, along with those basic facilities which the constitution establishes as human rights. Concerning private investment, national investment is favored over foreign. The Constitution favors the participation of non-profit organizations in the economy.
Division of branches
The government is organized into four branches: the Executive, Legislative, Judicial and Electoral. Bolivia is organized through the separation and independence of these branches.
The head of the Executive Branch is the President (Chief of State), together with the Vice-President and Secretaries. The President and Vice-President are elected through universal vote for five year terms. Both can be reelected in a consecutive manner only once. The Presidential Cabinet (Secretaries) is appointed directly by the President.
The Autonomous Department Government is made up of a Department Assembly, with
deliberative, administrative and legislative powers. The Executive Department Branch is
managed by the Governor, elected by universal vote.
Municipal Autonomous Government is made up of a Municipal Council, with deliberative, administrative and legislative powers in a municipal region. The Executive Branch is managed by the Mayor, elected by universal vote.
The Legislative Branch (Plurinational Legislative Assembly) has two chambers: the Chamber of Deputies and the Chamber of Senators. Its power and role is to approve and to sanction laws. The Chamber of Deputies has 130 members; half are elected through direct vote and half through an indirect procedure when voting for the President, Vice-President and Senators. The 2009 Constitution creates special deputies for the indigenous settlements. The Chamber of Senators has 36 members (4 representatives for each Department). The Plurinational Legislative Assembly is presided over by the Vice-President of Bolivia.
The Judicial Branch is composed of the Supreme Court (highest instance of ordinary jurisdiction), the District and Lower Courts, and the Magistracy Council. Justice is dispensed in two jurisdictions: ordinary and indigenous. Constitutional justice is administered by the Constitutional Court.
Through Law Nº 1585 (August 12, 1994), and Law Nº 1615 (February 6, 1995), profound changes in the structure of the Judicial Branch were introduced, with the creation of new organs, these being divided as follows: The Supreme Court, the Constitutional Court, the Judiciary Council, District Courts, Civil, Commercial, Criminal, Family, Labor, Social Security, Controlled Substances, Mining Administrative and Breaches courts.
The Judicial Branch is also composed of the following, which, however, are without jurisdiction: Real Estate Registration and notaries, as well as supervising judges and civil servants of the judicial branch. The reforms to the 1994 Constitution have introduced substantial modifications in the way authorities are elected to the Judicial Branch.
Supreme Court Justices are chosen by Congress by a two-thirds vote of the total of its members. Constitutional Court Magistrates, who are five with five substitutes, just as the Advisers to the Judicature, who are four, are designated by Congress by a two-thirds vote of the total of its members.
National Agrarian Court judges (7) and District Court Judges are chosen by the members of the Supreme Court, from lists given by the Council of the Judicature. Other judges and civil servants are chosen by the District Court judges from lists given by the Council of the Judicature. These reformed enactments integrated into the judicial branch the following: The Constitutional Court, the National Council of the Judiciary as specialized organs; the first one to control constitutionality and the second to apply administrative and disciplinary functions in the judicial branch.
The creation of the Constitutional Court was not intended to replace the Supreme Court, but rather to relieve it of accumulated cases. At all events, according to article 118, the Supreme Court continues to be the most representative institution of the judicial branch. In order to give unity to the three organs, all have their headquarters in the city of Sucre.
By constitutional mandate, the Supreme Court is the maximum ordinary, contentious and contentious-administrative Court of Justice of Bolivia. Its head office is in Sucre. It is composed of twelve Justices, constituted by law. The requirements for being a Justice of the Supreme Court are established in arts. 64 and 61 of the Constitution, excluding numerals 2 and 4 of article 61: Justices must have a Bolivian law degree and have practiced the profession or practiced as a teacher of law for ten years. Justices are chosen by Congress, and they perform their functions for a ten-year term. The President of the Court, or Supreme Justice, is also President of the Council of the Judicature, and is chosen by a two-thirds vote of the members of the Supreme Court.
This is part of the Judicial Branch. It is independent and, according to Law No. 1836, exists under the Constitution. Its head office is in Sucre. It has national jurisdiction. It guarantees that all the acts, resolutions and decisions of the governed and governors are subordinated to the Constitution. It guarantees the total use of and defense of democratic order and balance in the exercise of power, as well as the total use of and respect for the rights and fundamental guarantees of the people. The Court is composed of five magistrates and five substitutes designated by the Congress for a 10 year term. Its chief authorities are the President of the Court, the President of the Constitutional Court and the Commission of Admission, which is composed of three Magistrates, who decide the admission or rejection of cases.
Council of the Judiciary
The Council of the Judiciary was created to be an administrative and disciplinary agency and disciplinary body for the judicial branch. It assumed to a great extent and in independent form powers that traditionally had pertained to the Supreme Court in the matter of finances and disciplinary issues.
The faculties or attributions of the Council of the Judicature can be classified as follows:
· Development and development policies
· Economic and financial affairs
· Human resources affairs
· Infrastructure affairs
· Disciplinary and control affairs
· Regulatory affairs, and
· Coordination and information
The Judicial Power in agrarian affairs is held by the Agrarian Judicature, in accordance with the constitutional principle of jurisdictional unity. It is independent in the exercise of its functions and is protected by the Constitution. It is the institution of Agrarian Justice Administration. It has jurisdiction over and is competent for the resolution of conflicts relating to possession and the agrarian right to property and other matters that the law establishes.
Law No. 1715 of October 18, 1996, creates the agrarian judiciary granting jurisdiction and is competent for the resolution of conflicts emerging from possession of agrarian titles to property (Art.30). The National Agrarian Court has jurisdiction and is competent throughout the country. Agrarian judges function in one or several provinces of their judicial district. Ordinary justice is not entitled to review, modify or annul its decisions.
On April 27, 1825, months before the official birth of Bolivia, the Liberator Sucre, through a decree and in tribute to the men and the women who commenced the rebellion for independence, founded the District Court of the province of Alto Peru, replacing the old Spanish Hearings.
A month later, on May 25, 1825, in front of all the community, its first members, five Justices and two Public Prosecutors, took possession in the Metropolitan Cathedral, where a solemn service was held, after officially opening the doors of the District Court.
On August 6, the Declaration of Independence was signed and Bolivia was born. Thus the new Republic already had at its birth its first constituted Court of Justice.
During one hundred and seventy five years, important changes have been made to Bolivia’s legal system. Currently, thousands of files have been transferred to the National Archives and Library of Bolivia. Recently, district courts have undertaken human and technological changes necessary in order to reform emergent legal procedures.
The natural resources are the property of the State. Article 349 states that natural resources are property of and under the direct, indivisible and inalienable dominion of Bolivians and that it will be the Government’s duty to administer these in the collective interest.
The State will recognize, respect and grant individual and collective property deeds to the land, as well as right of use and benefits from other natural resources.
With regard to hydrocarbons, their administration and the profits therewith become property of the State.
Article 359 states that hydrocarbons, in any form or state in which they occur, are the inalienable and imprescriptible property of Bolivians. The government, in the name of and representing Bolivians, exercises the property rights over all hydrocarbon production in the country and only it is authorized to carry out its marketing. The total income generated by the sale of hydrocarbons will be property of the Government.
Unlike under the previous constitution, the catholic religion loses its official character. Freedom of religion and creed is established, along with the independence of the State from the catholic religion. The Catholic Church has pointed out that this article places Bolivians’ spirituality at risk.
The text establishes the right to life, but without specifying if this applies from fertilization. The latter, according to some groups, could allow abortion to be legal.
Concerning re-elections, the constitution establishes the following: Article 169. The Presidential and Vice-Presidential term is for five years. These office-holders can be re-elected only once in a continuous manner.
The previous constitution allowed re-election but only after one presidential term. The new constitution also introduces the second round mechanism in case no candidate obtains a majority (over 50% of the votes, or over 40% with an advantage of 10% over the second nearest candidate). This second vote must be carried out within 60 days.
The new mechanism replaces the previous one, which established voting on the part of Congress to decide the winning candidate. The constitution also allows the revocation by referendum of the office of any public office holder placed under question.
The Constitution also includes the requirement of a popular referendum to approve certain significant issues, which are established in following article:
Article 258. The following will require popular approval through referendum prior to any ratification of international treaties:
1. Border issues.
2. Monetary integration.
3. Structural economic integration.
4. Transmission of institutional faculties to international organizations, within the framework of integration processes.
Article 384. The State protects the original and ancestral coca leaf as a cultural patrimony, a renewable natural resource of Bolivia’s biodiversity, and a factor of social unity. In its natural state it is not a narcotic. Its production, marketing and processing will be controlled by law.
Criminal Code of August 6, 1973 was obsolete and needed urgent modifications.
For these reasons in December 1995 the Ministry of Justice (René Blattman
Bauer) instituted a Criminal Code Reform Commission, inspired by criminal codes
of Switzerland, Austria, France, Spain, Argentina and Colombia. This also
included the Project for a Criminal Code for Central and South America.
The main objectives of this reform were to strengthen the rule of law, the protection of individual guarantees, to reinforce legal and citizen security and the anti-corruption fight. It incorporates new criminal categories to fight impunity, money laundering, drug trafficking, civil service corruption and criminal organizations (articles 7, 132, 185, 185); Judicial corruption (passive bribe of judges, prevarication). This latter eliminates elements that made difficult its application (article 173).
Redefinition of fraud and fault, criminal responsibility for members of corporations (article 14, 13).
The Bolivian Civil Code is known as the code BANZER, since it was created during the de facto Government of General Hugo BANZER SUAREZ. The Bolivian Civil Code is modeled on three legislations: the Italian, the French and the Spanish. The Code is divided into Books, Parts, Titles, Chapters, Sections, Sub-sections and Articles.
This Code was promulgated in 1975. It is divided into books as follows:
· Book I regulates personal rights and status.
· Book II regulates goods and property.
· Book III regulates obligations and contracts.
· Book IV regulates successions, inheritance, classes of succession and division of the inheritance.
· Book V regulates the practice, protection and extinction of rights.
Commercial activities in Bolivia are principally regulated by the Commercial Code. This legal measure embraces a preliminary chapter, which contains measures relating to the scope of the law, to jurisdiction and competence, to procedural law, to the concept of the businessman, to acts and operations of commerce, to non-commercial acts, to mixed-mercantile acts, to state companies and to mercantile goods.
As guiding principles in Bolivian family law, Bolivian legislation places matrimony, the family and maternity under the protection of the State. It imposes equality of rights and duties of the conjugal members of the marriage and declares that all children, without distinction of origin (marital or extramarital), have equal rights and duties regarding their parents.
The legal norms concerning the family currently codified and separated from civil law, treat the formation and organization of the family group, seek to strengthen this morally and economically, and protect it from disintegration or extinction.
The Family Code has a Preliminary Title, which regulates the legal structure of the family, family relationships, family assistance and inheritance. The First Book regulates marriage, the Second Book regulates the parental relationship, the Third book regulates parental authority and custody, and finally the Fourth Book regulates jurisdiction and family procedures.
Bolivian Primary and Secondary Legal Materials
Bolivian legal system has as its principal sources the laws, custom, doctrine and jurisprudence. Of these, law prevails as the principal one; the others mentioned being secondary sources. This remains the case, despite what is being mentioned later regarding the importance being acquired recently by jurisprudence emanating principally from the Constitutional Tribunal.
Regarding law as the
main source of Bolivian legal system let it suffice to say that this is the
collection of norms created by the public authority of a general character, mandatory
and whose fulfillment is susceptible of imposition by coercive means. Doctrine is
the body of information concerning some legal questions, organized in
systematic form by jurists or legal scholars. Custom is defined as the
permanent daily repetition of acts and forms of conduct, which arise in social
usage and which are transmitted from generation to generation; it creates what
is denominated as customary law. Finally, jurisprudence is the collection of
sentences and concurring resolutions mainly issued by the Supreme Court and the
Constitutional Tribunal. It is primarily applied in cases of legal doubt or
when a norm is ambiguous, imprecise or contradictory, or gives rise to diverse
Bolivia belongs to
the “Roman-Germanic” system of law. This, under the concept of division of
powers, the legislative branch has the power to create general legal norms and
assigns to judges the function of applying these norms in concrete cases
through their decisions. The difference between the functions of the
legislative and judicial branches may be summed up by saying that the former
creates legal norms of general efficacy, while the latter applies already
existing norms, with decision-making force solely regarding the particular
However, the changes which have recently been taken
place in the field of law and justice show us that this system has introduced
into its original postulates considerable nuances. Thus it is that this
Roman-Germanic system continues to show that it is not possible to mechanically
apply norms through the subsuming the norm under concrete case without the
interpretation the norms. This is the case of constitutional jurisprudence
proceeding from the Constitutional Tribunal, which is mandatory and binding for
administrators of justice, governors and the people. The Constitutional
Tribunal, as soon as it forsakes what is constitutionally normative, becomes
the supreme interpreter of the Constitution. The nature of this organ is what
determines that its decisions have general binding effect for public powers.
This efficacy makes it possible that the Tribunal may guarantee the sovereign
legal supremacy of the Constitution. At the present time the jurisprudence of
the Constitutional Tribunal constitutes a legal patrimony acquired by the
From what has been
said, we may state that in Bolivia primary legal materials is the law itself,
and jurisprudence of the Constitutional Tribunal and of the Supreme Court may
be seen to constitute as secondary materials.
Bolivian primary legal materials such as laws and decrees may be found at the following web pages:
The Official Gazette of Bolivia was created by law on December 17, 1956 as the official editorial organ of the state. It is charged with the publication of laws, supreme decrees, supreme resolutions and other public legal documents. Consultation of the web page is by subscription.
Development Agency of the Information Society of Bolivia: On the web page of the Development Agency of the Information Society of Bolivia, laws promulgated from 1979 to 2007 may be consulted. This state agency is charged with proposing policies, implementing strategies and coordinating actions to reduce digital breaches in the country through the use of information and communication technologies in all areas. Its principle mission is to foster relations between the government and the society through the use of suitable forms of technology. The search motor on the web page permits the use of various search criteria.
The National Congress : Similar to the previous case, the National Congress, through its web page, offers a search motor for laws from 1979 to 2007.
Vice-Presidency of the Plurinational State of Bolivia: The web page of Vice-Presidency of the Plurinational State of Bolivia contains a database with laws from 1960 up to the most recently promulgated by President Mr. Evo Morales Ayma.
A compendium of laws
from 1825 to 2009, this digital database
represents a complete collection of all the laws of Bolivia promulgated from
the 1825 until 2009. It was created first in 2007 by the initiative of the
Bolivian Vice-Presidency under the auspices of the Foundation for Support to
the Parliament and the Konrad Adenauer Foundation. In its present, second
revised and extended edition, there may now be found present Bolivian
legislation. Thanks to this contribution, the history of Bolivian legislation
from its beginnings up to the present is available in digital form, offering
rapid and convenient access to all the laws which have been promulgated. The
new version contains an advanced search engine allowing the combination of
distinct criteria, thus making its use easier. Further, this updated version
contains the New National Constitution and includes a complete collection of
decrees and resolutions.
Private initiatives (non-official)
The Bolivian Legislative Information System “SILEG” is a database where legal materials can be found approved since the foundation of the Republic. SILEG is the result of approximately 25 years of work. It represents the gathering, compilation, organizing and classification of laws, norms and texts, offering more than 100,000 legal documents since the foundation of the Republic up to our days, with a complete concordance permitting search criteria defined by the user. Annual subscription to the Bolivian Legislative Information System is required.
Derechoteca is a web services company, which in its 10 years of existence has specialized in the development of advanced web software and technical-legal consultancy concerning electronic commerce. With the intention of informing Bolivian citizens of their rights and obligations, Derechoteca has created the “Free Access to Legislative Information in Bolivia” project web site, where 18,000 legal norms can be found online. This information is updated semiannually, at no cost.
Secondary legal materials such as sentences issued by the Supreme Court and the Constitutional Tribunal may be found at the following web pages:
Poder Judicial- This is the official web page of the Bolivian judicial branch. The web page of the Supreme Court has a search engine which allows sentences issued by this organ of justice to be found concerning civil, penal and social matters. Further, it contains a database of decisions issued by the Superior District Courts as well. The search engine of the page also allows access to cases currently in process at the Supreme District Courts and the Supreme Court.
Constitutional Tribunal - The web page of the Constitutional Tribunal stands out with its jurisprudence systematized in its totality. This systematization aims, in an easy and convenient manner, to resolve the problem of locating mandatory precedent in the different branches of the law. This systematization of jurisprudence uses for its expression the “tree of jurisprudence”, a useful and efficient tool which organizes the jurisprudence of the Constitutional Tribunal, commencing from principle topics, which it terms roots, and sub-topics deriving from these branches. This application contains as thematic central criteria the different disciplines of law as pronounced upon by the Tribunal. It claims, through the ease of use offered to all users and its simplicity, to be a rapid and reliable instrument to consult and reach reliable results regarding precedents established by the Constitutional Tribunal.
The Tree of Jurisprudence on the web page of the Constitutional Tribunal is schematized under the following headings:
· Constitutional Law
· Constitutional Procedure Law
· Criminal Law
· Criminal Procedure Law
· Labor Law
· Family Law
· Administrative Law
· Municipal Law
· Commercial Law
· Social Security Law
· Tax and Customs Law
· Civil Law
Universidad Mayor de San Andrés (UMSA), (La Paz, Bolivia)
Universidad Privada Boliviana (La Paz, Bolivia)
Universidad Privada del Valle (Cochabamba, Bolivia)
Universidad Autónoma Gabriel René Moreno (UAGRM) (Santa Cruz, Bolivia)
UDABOL (Santa Cruz, Bolivia)
Universidad Loyola (La Paz, Bolivia)
Universidad Privada de Santa Cruz de la Sierra (UPSA) (Santa Cruz, Bolivia)