PhD. in Constitutional and Administrative Law
In legal theory, the law should be the vehicle for the realization of the Rule of Law; however, Bolivian institutional practice demonstrates that both concepts live in a permanent conflict. While the right embodies the system of guarantees, proportionality, and the limits to power, the law in Bolivia has been reduced to a tool of selective coercion, subordinated to the political conjuncture, to the arbitrary application by judges, prosecutors, magistrates, and to the blackmail of corporate groups. This fracture has consolidated a regime where norms abound, but arbitrariness and the exclusion of the just prevail.
In labor, bodily attachment and the supremacy of union pressure, the crudest example of the victory of a regressive law over a fundamental right is found in labor jurisdiction. In Bolivia, detention for employer debts (bodily attachment for social benefits) remains in force, a figure sustained by pre-constitutional norms of totalitarian origins such as the decree-law of the Labor Procedural Code of 1979 and shielded by unconventional constitutional jurisprudence.
This practice frontally violates Article 7.7 of the American Convention on Human Rights (Pact of San José, Costa Rica), which is part of the Bolivian constitutional block, established in Arts. 410 and 256 of the Constitution, and expressly prohibits detention for debt, with the sole exception of failure to fulfill family alimony duties. The distortion reaches the extreme that, even when the employer offers or suffers the preventive attachment of sufficient assets that fully guarantee the payment of the obligation, labor judges issue arrest warrants and send legal representatives to prison. The reason is not legal but corporate and arbitrary; the pressure of the Bolivian Workers' Central (COB) and the unions on the courts weighs more than the principle of proportionality, patrimonial right, and international human rights treaties.
In this way, the deprivation of liberty is denatured and operates as a coercive mechanism of patrimonial extortion. A profound procedural asymmetry is thus configured; while the state apparatus imposes an implacable tutelage over the private sector, it leaves the employer's rights in absolute defenselessness. This inequality becomes even more perverse when observing the double standard of the State as an employer; its own public employees lack the same labor protection and tutelage, materializing an institutionalized discrimination.
This flagrant paradox, where the norm punishes or ignores depending on who it is, reflects a purely instrumental law. In conclusion, the State watches over the rights of the workers, but who watches over the rights of the employer? This vacuum is the clearest evidence of the clash between the legislation and the absent Rule of Law.
On the other hand, the denaturalization of preventive detention in the penal sphere is a frontal contradiction, in the sense that modern procedural law and the Constitution establish that freedom is the rule and imprisonment without a conviction is a strictly exceptional measure. Nevertheless, the penal procedural law has been distorted by prosecutors, judges, and magistrates to convert preventive detention into an anticipated penalty and an instrument of persecution.
While citizens without influence or opponents of the regimes are sent to prison expeditiously under the generic argument of "risk of obstruction," actors aligned with political power or former officials implicated in millionaire embezzlements benefit from silence, alternative measures, validated chicanery, or processes that sleep indefinitely. The same procedural norm serves to lock up some and to guarantee the impunity of others.
The Penal Code sanctions the attack against the safety of transport, the impediment of the exercise of functions, and the squatting of lands. However, the validity of the law depends on who commits the crime. When corporate sectors aligned with the power of the ruling party or the opposition have blocked strategic highways for weeks, destroying the productive chain and violating the right to work and free transit of millions of people, the State renounces applying the law and almost always ends up rewarding the offenders with de facto amnesties under the label of "pacification agreements."
In contrast, any citizen protest without corporate patronage is immediately repressed with imputations. This same defenselessness occurs in the agrarian sphere; producers with legally cleared titles suffer violent takeovers of their lands without the public force executing eviction orders, subjecting private property to the force of shock groups and influence peddling in the INRA (National Institute for Agrarian Reform).
The instrumentalization of constitutional justice has meant that constitutional guarantees, created by the right to defend people against state abuse, have been hijacked to serve power. Through unfounded complaints filed before judges in remote provinces, electoral processes have been paralyzed, candidates disqualified, and magistrates' terms extended against the express text of the Constitution. Procedural formality is used to destroy legal certainty.
The sum of these distortions confirms that in Bolivia the written norm does not operate as a rational limit to power but as a weapon that is activated or deactivated according to the identity, political affiliation, or union support of those involved.
In conclusion, the daily reality in the courts demonstrates that there is no equality in the country, that we are not all equal before the law, and that we live buried under authoritarian decrees, contradictory constitutional precedents, pressures from the COB and corporate groups, and politically dictated rulings. In short, Bolivia has an excess of codes, laws, decrees, and judgments, but the Rule of Law is absent.
