Australia and the World Past and Present

Bolivia has adopted on a novel method of appointing judges – by popular vote.

The only countries that elect judges are the United States, Switzerland and Japan – but they only do so at the local level.

It all began in 2009 with the new constitution.

There followed judicial elections in 2011 and 2017.

In 2011 the people voted to decide who would serve on the Supreme Court of Justice and the Plurinational Constitutional Court.

Supreme Court candidates have to be approved by two-thirds of the Plurinational Legislative Assembly.

This was the first time that a Latin American country had directly elected its highest judicial officers.

However, judicial candidates are not permitted to campaign.

This is probably a wise move in that it removes overt politicking from the process.

It also gets rid of the need to raise campaign funds.

What are the potential benefits of such a system?

Its proponents argue that it can lead to the ‘democratisation’ of the judiciary. In Bolivia, the judiciary has been associated with state power. Historically, it has been dominated by the higher echelons of society – by people from the cities who have had more money and better access to higher education.

The judiciary has been seen as a relatively difficult field to penetrate – especially for the indigenous population of Bolivia. It is a profession with its own complicated terminology, norms and processes. It is not the easiest world to penetrate.

Popular voting gives ordinary people more of a stake in the system and more of say on who presides in the courts.

In Bolivia, judicial candidates have to be approved by the Congress. Does this mean that they will be political lackeys of the ruling party?

If you have a system where there are two major political parties with roughly equal weight, there is a good chance that those approved will be acceptable to both sides and therefore not overtly political.

On the other hand, if the parliament is essentially one-party-dominated, there is more of a chance that approved candidates will be seen as political appointees of the ruling party.

What is the makeup of Bolivian parliament?

At the last election in 2020, the Movement for Socialism (MAS) party won 55% of the vote. It won majorities in the Chamber of Deputies and the Chamber of Senators. In absolute figures, the MAS won 75 out of 130 seats in the Chamber of Deputies and 21 out of 36 seats in the Chamber of Senators.

Therefore the MAS holds simple majorities in both chambers but not majorities of two-thirds.

Even if the candidates put forward are close to the MAS, there is no guarantee as to which individual candidates the people will choose.

The prospect of a candidate being foisted on people may provoke opposition to that candidate.

What are some of the potential negative aspects of election by popular vote?

Voting is mandatory in Bolivia.

The proportion of blank or null votes in the 2011 elections was 60% while it was 67% in 2017.

It might be argued based on these figures that the people are apathetic to the system. Another interpretation may be that they actually oppose the system.

During these elections, there can be hundreds of candidates on the ballot.

It is difficult for people to know the candidates, let alone choose between them.

Some have raised concerns that the election of judges by popular election may be open to financial manipulation.

Mexico – trying the Bolivian model

Mexico has also recently sought to introduce the Bolivian model for electing magistrates, judges and Ministers to the Supreme Court of Justice.

In Mexico magistrates have to have at least three years experience.

A Supreme Court role in Mexico lasts 9 years.

The US model

In the US, nominees for the Supreme Court are nominated by the President but must be approved by the Senate by a simple majority.

They are not elected by the popular vote of the people.

Historically Republicans and Democrats have, by and large, maintained a rough equilibrium in the Senate.

However, one party normally controls the Senate at any one time and therefore holds a simple majority.

While the founders of the US sought to have a system of checks and balances, many people have observed over time that decisions to appoint Supreme Court justices can be political. New judges often reflect the political party and philosophy of the incumbent US President. In other words, an appointee may not have been elected by the popular vote of the people, but that is no to say that the process by which they were appointed was free of political influence.

My initial reaction was to recoil at the election of judges by popular vote. In an ideal we would want our judges to judicial rather than political.

Bolivia has put in place some measures to avoid the crass politicisation of the judiciary – through prohibiting electioneering for example.

It is hard to imagine that the role of judges will not become more politicised. Bolivia is obviously willing to experiment with a different model and other countries are too as we can see from Mexico following suit.