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In a very busy Wednesday, Bolivia’s Plurinational Constitutional Tribunal struck down a longstanding law criminalizing “contempt” toward public officials and limited the scope of an anti-corruption law; rounding out the court’s surge into the headlines, justice Gualberto Cusi made biting comments on the government’s failure to abide by the court’s ruling on the TIPNIS consultation.
Contempt law ruled unconstitutional: The Tribunal found, in Judicial Ruling 1250/2012, that the law prohibiting contempt (“desacato” ) towards senior public officials through defamation is an unconstitutional violation of the freedom of expression. The court advised public officials that they may use civil court procedures to deal with slander, and nullified the law in its entirety. Numerous opposition figures, including the center-left Mayor of La Paz, Luis (Lucho) Revilla, and the right-wing Governor of Santa Cruz, Ruben Costas, have been indicted under this very broad statute following complaints from the governing Movement Towards Socialism party.
The “Marcelo Andrés Santa Cruz” Anti-corruption Law cannot be applied retroactively: In the first legislative session under the new Constitution, the Movement Towards Socialism supermajority wasted no time in approving a new law criminalizing corruption. The law allows for severe penalties against officials who took bribes or other compensation to change policies. It was designed to give the government room to revise contracts and licenses approved under improper influence, and to recover fortunes which had been pilfered from the government. However, it was also referred to as the “Guillotine Law” (including by the Vice President) for its ability to end the political careers of past government officials. On Wednesday, the court sharply limited this aspect, finding that the law may not be applied retroactively “when the sanction [it imposes] is more severe or the act being judged would not have constituted a crime when it was carried out.”
Gualberto Cusi speaks out on TIPNIS: The Constitutional Tribunal had already ruled on the TIPNIS consultation, insisting that any process establishing the will of the communities in the Isiboro-Sécure National Park and Indigenous Territory about the proposed Villa Tunari–San Ignacio de Moxos highway, which would cut through the region and accelerate already serious deforestation, must occur in a mutually agreed framework. Justice Gualberto Cusi—the judge who received the most votes in last year’s judicial election—denounced the current consultation process as a “disaster” that violates the indigenous inhabitants’ rights. Further, the justice suggested that the TIPNIS indigenous may need to look outside Bolivia for protection of their rights: “I believe that in Bolivia, no[, nothing can be done.] It will have to be the indigenous who appeal these acts to international tribunals. Yo creo que en Bolivia no (se puede hacer algo), tendrán que ser los indígenas quienes apelen a estos hechos en tribunales internacionales.” The most likely forum for international appeals is the Inter-American Court on Human Rights, which has been a pathbreaking forum for indigenous rights.
None of these rulings would be particularly exceptional for a high court around the world, but this particular high court is in its first year, and came out of a controversial nominating and election process which was boycotted by multiple opposition forces. For it to strike down major laws embraced by the governing party and publicly embrace human rights standards around freedom of expression, indigenous consultation, and ex post facto laws makes this something* of a Marbury v. Madison moment for the new court.
* The analogy is inexact since a Constitutional Tribunal began operation in 1999.
As the Bolivian government sat down with CONISUR in La Paz, there was a crucial missing party: the Subcentral TIPNIS, the titleholder to the collective lands that make up all of the Isiboro Sécure National Park and Indigenous Territory except for the colonized Polygon 7. The Bolivian government was unwilling to formally exclude the Subcentral and its national parent organization, CIDOB, but instead invited it to send representatives within 48 hours (CIDOB did offer to meet in Trinidad, in 20 days). The Subcentral’s absence from these negotiations is perhaps the most enigmatic aspect of the latest turn of this kaleidoscopic conflict, but it has a simple, practical explanation.
While CONISUR marchers advanced towards La Paz, the Subcentral TIPNIS and CIDOB were on their own tours through the communities of the National Park. One delegation headed by CIDOB President Adolfo Chávez travelled the Isiboro River; a second, headed by Subcentral President Fernando Vargas visited communities on the Ochoa River; and a third went along the Sécure River. Last week they made a preliminary report that 32 of the communities they visited were firmly against the proposed Cochabamba–Beni highway crossing through TIPNIS, three others supported the road, while Oromono and Ushve, located in the north section of the territory were divided on the issue. The Subcentral-CIDOB tours also are laying the groundwork for a new national march (CIDOB’s Ninth National March) in protest of the highway. Fernado Vargas reported that there are 31 communities left to visit, eight of which are in the colonized southern region.
The results so far refute claims by the MAS government that CIDOB and the Subcentral lack contact with base communities, and far surpass the government’s assertion that they represent just 20 of the 64 communities in TIPNIS. The logistical coordinator of last year’s march has also confirmed that residents of 64 communities participated in the long trek to La Paz, although some may have joined after the march’s departure from Trinidad due to organizational difficulties. The results are also consistent with radio-transmitted interviews with TIPNIS communities conducted by the Erbol community radio network following the passage of Law 222.
The logistics of this poll are also a reminder of the existing methods of transport inside of TIPNIS and of the pace required for a comprehensive consultation of its communities on anything. River transport is the predominant form of contact between TIPNIS communities, one which is adapted to the landscape and geographic placement of communities. While proponents of the interdepartmental road have suggested that access to health, education, and development will come from ending TIPNIS communities’ isolation, the road will not in fact reach most communities directly. Indeed, when the pro-road CONISUR marchers met with Evo Morales, [he rebuffed their requests for local branch roads] that will connect their communities to the highway, citing a lack of funds. Accessible health care and education require not a highway (which will also bring deforestation and increased narcotrafficking), but meaningful state investment in facilities that are accessible by the TIPNIS indigenous’ own highways, the rivers that flow through the Territory.
The following is a 6 January 2012 pronouncement by the indigenous peoples of the Isiboro Securé National Park and Indigenous Territory, of Beni, and of the lowlands as a whole, denouncing the pro-highway march, defining their relation with CONISUR, and critiquing how the march was organized. In Spanish only for now.
“Ante una difusión mal intencionada de una marcha de pueblos indígenas contra los acuerdos del TIPNIS,La Ley N’ 180 y la representación de los comunarios de los Pueblos Indígenas, las organizaciones del movimiento de las Tierras Bajas dirigidas por la CIDOB [Confederación de Pueblos Indígenas de Bolivia], e integradas por la CPEM-B [Confederación del Pueblo Etnico Mojeño–Beni]. CPIB [Confederación de Pueblos Indígenas de Beni]. CMIB [Confederación de Mujeres Indígenas de Beni]. G.C.T.s. (Gran Concejo de Tsimane). [Subcentral] TIPNIS. Sub central Sécure. hacen conocer a los ciudadanos bolivianos:”