The Bolivian Legal Framework
by Gonzalo Dávila Maceda
Gonzalo Dávila Maceda is founding partner of Reynolds & Asociados Sociedad Civil - Estudio de Abogados in La Paz, Plurinational State of Bolivia. Gonzalo is a legal practitioner with postgraduates in business administration and in Oil & Gas Law. He obtained his LLB at the Bolivian Catholic University’s Law School in 1997 and his Diploma in Petroleum Law in 2000 as a Chevening scholar at the Centre for Energy Petroleum and Mineral Law and Policy (CEPMLP) at the University of Dundee. For more than 15 years h e focused his experience in Civil Law, Commercial Law, Competition Law, Regulatory Law, Administrative Law, Environmental Law, Petroleum Law, Electricity Law and Telecommunications Law having acquired that experience working for almost 9 years as senior legal advisor for the Bolivian Hydrocarbons Regulator and from his later experience in the private counseling field for more than 8 years. He worked as intern at the Swiss Competition Commission in Bern-Switzerland. He has participated in the drafting of legislation in the oil and gas sector. He is member of the La Paz Bar Association since 1997. He lectures in several universities in La Paz. He speaks Spanish, English and French.
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Table of Contents
2.1.3. The Position over Religion
2.1.4. Main Principles
2.1.5. The Government System
2.1.6. Fundamental Rights
2.1.7. Jurisdictional Guaranties
2.1.8. Mechanisms of Defense
2.2.1. The Legislative Branch
2.2.2. The Executive Branch
2.2.3. The Judicial Branch
188.8.131.52. The Ordinary Jurisdiction
184.108.40.206. The Agro-Environmental Jurisdiction
220.127.116.11. The Indigenous Jurisdiction
18.104.22.168. The Constitutional Justice
22.214.171.124. The Council of the Magistracy
2.2.4. Electoral Branch
2.2.5. Functions of Control
2.2.6. Defense of the Society
2.2.7. Defense of the State
2.2.8. Bolivian Army and Police
2.4.1. General Economics Aspects
2.4.2. Environment Policies
126.96.36.199. Coca Leaves
188.8.131.52. Hierarchy of Norms
184.108.40.206. Constitutional Reform
2.6. Final Disposition
3.1. Criminal Law
3.2. Commercial Law
3.3. Labor Law
3.4. Environmental Law
3.11. The Defense of the State
4.3. Other Useful Links
With the assumption to the Bolivian presidential power by mister Evo Morales Ayma (the first indigenous president) in 2006 and with it the enactment of the New Political Constitution on February 7 2009, Bolivia has reborn as a new country with a totally new legal, political and economic framework originated in the emergence of the popular power based in an indigenous and socialistic conception, leaving in the past and for the history its side as “Republic of Bolivia” with which it was structured since its independence by Simon Bolivar in 1825. Therefore, since 2009, its official name is “Plurinational State of Bolivia”.
Considering that since 2009 the Bolivian legal framework is defined by its new Political Constitutional Text as the Law of Laws it is of high importance to describe its structure and explain the different political guidelines defined by it in various key topics.
The new Constitution has 411 articles distributed in the following five big parts:
First Part: Fundamental basis of the State, Rights, Duties and Guarantees.
Second Part: Functional 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: Legal Hierarchy and Constitutional Reform.
Each part is divided into titles and these into chapters. Some chapters also are divided into sections.
As of Article 1 of the Constitution, Bolivia is constituted as a Social Unitary State of Communitarian Plurinational Law, free, independent, sovereign, democratic, intercultural, and decentralized and with several autonomies. Bolivia is founded on plurality and political, economic, legal, cultural and linguistic pluralism within an integral process of the country. Article 6 states that the official capital is “Sucre”, and approves as the Bolivian official symbols the tricolor (red, yellow and green) flag; the national hymn, the coat of arms, the indigenous flag ( wiphala ); the Bolivian flowers ( kantuta and Patuju ).
Following that conception of pluralism, article 3 states that the Bolivian nation is integrated by the totality of masculine and feminine Bolivians, the indigenous nations and people, as well as the intercultural communities and afro Bolivians. As a consequence of that, the recognized official languages a part from Spanish are “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” which are the native and indigenous languages recognized in Bolivia. The plurinational central government and the departmental ones must use at least two official languages, one of them being the Spanish. The other autonomous governments must use their territory’s language.
2.1.3. The Position over Religion
The new constitutional text guarantees the freedom of religion emphasizing the State independence from the religion.
2.1.4. Main Principles
Article 8 states from one side that the State assumes and promotes as ethical principles for the plural society the following: Don’t be lazy; don’t be a liar; don’t be a thief; The Well Living; Harmonious Live and the Noble Way. From the other side the article says that the State sustains itself over the values of Unity; Equality; Inclusion; Dignity; Liberty; Solidarity; Reciprocity; Respect; Harmony; Transparency; Equilibrium; Responsibility; Common Welfare; Social Justice; and the Distribution and Redistribution of Products and Social goods for the Well Living.
2.1.5. The Government System
Over the objectives of a just and harmonic society without discrimination neither exploitation, guarantying the responsible and planned utilization of natural resources through their sustainable development, article 11 states that Bolivia adopts a democratic form of government, with equivalence of conditions between men and women. That democracy is to be exercised through the direct and participative form (through the referendum; the legislative citizen initiative, the revocation of mandate, the assembly, the city council meeting and previous consultancy); through the representative form (Implying the election of representatives through a universal, direct and secret vote); and through the communitarian form (Implying the election of indigenous representatives according to their own proceedings).
The State Public Power is composed (as established in article 12) by the Legislative, the Executive, the Judicial and the Electoral powers. Sucre is the seat of the head office of the judicial one, while La Paz remains the facto the seat of the Legislative; Executive and Electoral powers.
2.1.6. Fundamental Rights
The new constitution puts lot of emphasis in the Bolivians’ fundamental rights (almost one hundred articles), highlighting that the recognized rights are to be exercised by Bolivians or foreigners (while being in the Bolivian territory) without distinction or discrimination of any kind. However, the wording along the constitutional text leads to confusion, because it highlights certain rights of women and indigenous people giving the impression of distinctions among Bolivians.
Amongst the several rights recognized, the State is given the obligation to guarantee the alimentary security, the access to welfare and the access to housing. As well, the Constitution establishes the responsibility of the State to provide the facilities of water, a sewage system, electricity, domiciliary gas, a postal service and telecommunications, although allowing the possibility for private companies to provide some of those facilities. In addition, the Constitutional Text gives the quality of human rights to water access and to sewage system access emphasizing that, these facilities are not open to privatization or concession.
Among the other recognized rights, the Constitutional text develops in specific chapters the civil and politic ones; the indigenous ones and the social and economic ones, recognizing among them, the rights to the environment, to welfare, to social security, to work (giving special constitutional protection to workers as they are considered the principal productive force of the society, establishing that labor rights are not attachable nor subject to prescription). As well it recognizes the right to private property (always that it accomplish a social function), the rights of the childhood and youth as well as the family rights, the rights of the old aged people and incapacitated ones, the rights of the people subject to privation of liberty and the user and consumer rights.
One important chapter belonging to the title of fundamental rights is the one referred to the right of education (giving to the State the financial responsibility for guarantying it and establishing as its objective the integral formation of a person. The education should be oriented to the development of individual and collective as well as physical and intellectual competences; and to the preservation and protection of the environment, the biodiversity and the territory for the “Well Living”. Education is mandatory until obtaining the high school diploma. Education is mainly public but the private one is as well accepted, giving to parents the right to choose the convenient education for their children. Finally the Constitution regulates the superior education, recognizing both public and private universities).
The final rights recognized by the Constitution are the right of diversity of cultures (which constitute the essential basis of the State.); the right to the development of science, technology and investigation, (giving the State the responsibility of assuring them); the right of practicing sports and exercising; the right of communication and of information (assuring the freedom of opinion)
2.1.7. Jurisdictional Guaranties
In this chapter the Constitution assures the rights of due process, of defense and of a plural, prompt, free, opportune, and transparent justice while recognizing the presumption of innocence.
2.1.8. Mechanisms of Defense
For securing the protection of all the rights recognized, constitutional mechanisms of defense are implemented. Thus the Habeas Corpus Action (for protecting the right of freedom); the Action of Defense (for the protection of most of the recognized rights when they cannot be adequately and promptly protected by other procedural means.); The Action for the Protection of Privacy (Habeas Data), the Action of Accomplishment (in case of breach of legal dispositions by public officials); The Popular Action (for the protection of collective rights related with the patrimony, the space, the public security, the environment and others of same nature); and finally The Unconstitutional Action.
As said before, the Bolivian Public Power is organized and structured the Legislative, Executive, Judicial and Electoral branches. The organization of the State is based on the independence, separation, coordination and cooperation of them.
Personified by the Plurinational Legislative Assembly is formed by two chambers: the Chamber of Deputies (the lower chamber) and the Chamber of Senators (the upper chamber). The Assembly is the unique body empowered to approve and to sanction the State laws. The Chamber of Deputies is composed by 130 members, from whom in a circumscription basis; half are elected through direct vote and half when voting for the President, Vice-President and Senators. The Chamber of Senators is composed by 36 members at a reason of 4 senators for Department being elected through direct vote. As stated in articles 153 and 155, the head of the Plurinational Legislative Assembly is the Vice-President of Bolivia and sessions are opened every 6 of August. All congressmen are elected for a five years period, with the possibility of only one continuous re-election.
2.2.2. The Executive Branch
This organ is composed by the President of the State, the Vice-President and the Ministers. The President and Vice-President are elected through direct vote. The candidates obtaining the 50% plus one vote from the valid votes or at least 40% with a difference of 10% over the second one are to be proclaimed President and Vice-President for a five year period with the possibility of only one continuous re-election. Ministers (the Presidential Cabinet) are appointed directly by the President and are responsible of serving the Political Constitution in their respective cabinets, being responsible of their adopted administrative acts.
2.2.3. The Judicial Branch
This organ is divided in the Ordinary Jurisdiction, the Agro-environmental Jurisdiction and the ordinary Indigenous Jurisdiction. All three have equal hierarchy. However the Constitution recognizes the military jurisdiction as an especial one, entitled to acknowledge and decide over the military crimes.
The ordinary jurisdiction is composed by the Supreme Tribunal of Justice (highest instance), the District Tribunals of Justice, the Courts of Decision and the lower judges. The Supreme Tribunal of Justice as the maximum ordinary, contentious and contentious-administrative Court of Justice of Bolivia is organized into specialized halls and is composed by Ministers of Justice who are elected (for a period of 6 years) by universal vote (simple majority) from a group of candidates selected by the legislative power. This position is to be executed in an exclusive way. Its head office is located in Sucre.
The agro-environmental jurisdiction is formed by the Agro-environmental Tribunal (highest instance) and the Agro-environmental judges. Ministers of Justice have to have a specialization in the agrarian and environmental areas. They are elected for the same period and in the same way that the ones of the Supreme Tribunal of Justice. The Agro-environmental Tribunal has the task to organize the Agro-environmental lower courts and to appoint the judges from lists given by the Council of the Magistracy.
The indigenous jurisdiction is applied to juridical relations or facts executed or which effects are produced within the area of an indigenous village. Justice is applied by the indigenous people own authorities. The Indigenous Jurisdiction has to be regulated by a jurisdictional demarcation law that will as well regulate the mechanisms of cooperation and coordination with the other recognized jurisdictions.
The constitutional justice is administered by the Plurinational Constitutional Tribunal who has the responsibility to assure that all the acts, resolutions and decisions of the governed and governors are subordinated to the Constitution. It controls the respect for constitutional rights and guarantees. In its interpretative function, it has to apply the constituent will according with its documents, acts and resolutions. The Tribunal is composed of Ministers of Justice elected under the same characteristics than the members of the Supreme Tribunal of Justice.
220.127.116.11. The Council of the Magistracy
The council of the magistracy as part of the judicial Organ is the responsible body of the disciplinary regime of all recognized jurisdictions. At the same time it is responsible of the administrative and financial management. Their members are to be elected for a six year period, by universal vote from a group of candidates selected by the legislative power. The electoral process is organized by the electoral power.
According to article 205 of the Constitution, the Plurinational Electoral Organ is composed of The Supreme Electoral Tribunal (highest instance composed of seven members, which six are elected by the Plurinational Legislative Assembly and one is elected by the President of the State); The District Electoral Tribunals; The Electoral Courts; The Suffrage Jury and The Electoral Notaries.
The Supreme Electoral Tribunal is responsible for the organization, administration and execution of all electoral processes. It manages as well the Civil Registry and the Electoral Census.
The administrative control of public institutions and other institutions, in which the State has economical interests, is performed by the State Accounts General Examiner Office. According to article 213 of the Constitution, this office is empowered for determining presumptions of administrative, executive, civil or criminal responsibility. The head of this office is elected by the Plurinational Legislative Assembly for a six year period.
Within the functional structure of the State, the defense of the Society is delegated both to the Ombudsman Office and to the Justice Department. From one side the Ombudsman is charged to veil for the promotion, diffusion and accomplishment of the Human Rights established in the Constitutional text and other legal instruments. This office has functional, administrative and financial autonomy . The Ombudsman is totally independent from the four branches of the State however is appointed by the Plurinational Legislative Assembly for a six year period. From the other side, the Justice Department will defend the general interests of the society and will exert the public criminal action. This office has as well functional, administrative and financial autonomy. The head of this office is the Attorney General. However the office has as well district attorneys and lower ones.
The defense of the Bolivian State is delegated to the General State Attorney Office. Its head is the General State Attorney who is appointed by the President of the State. His principal duty is to defend judicially or extra judicially the State interests.
The armed forces are constituted by three forces (infantry; air and navy). According to article 243 of the Constitution, the army has the fundamental mission of defending and preserving the State independence, security and stability, its honor and the country’s sovereignty. The army does not deliberate and is subject to the military laws and regulations. The armed forces depend upon the President of the State and receive his orders through the Minister of Defense and through the Chief Commander.
The Bolivian Police has the mission of the society defense and the preservation of the public order in all the Bolivian territory. The Police Forces depend upon the President of the State and receive his orders through the Minister of Government.
The Constitution, establishes that Bolivia is organized into four levels of administration: districts, provincial, municipal and indigenous territories, leaving to the “Autonomies and Decentralization Law” the regulation of the procedure to elaborate the autonomic statutes and organic charts as well as the coordination between the different levels of autonomies (The autonomy involves, direct election of the authorities, the right to manage economic resources and the legislative, and executive management.)
The District Autonomy 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.
The Regional Autonomy is formed of various municipal territories or provinces with geographical continuity sharing culture, language, history economy and ecosystems. It is made up of a regional assembly.
The Municipal Autonomy 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 Indigenous Autonomy consists in the self-government as the expression of the freedom of determination of Indigenous People. The self-government is to be performed with its own rules, authorities and proceedings but respecting the constitution.
The relation between the four autonomies has to consider the following four kinds of competences:
The privative ones, (reserved only for the central level of the State.)
The exclusive ones, (one level of the government has the legislative, regulatory and executive faculties but can delegate o transfer the last two.)
The concurrent ones (the legislative faculty corresponds to the central level of the State and the other levels exert simultaneously the regulatory and the executive ones)
The shared ones (subject to a basic legislation issued by the Plurinational legislative Assembly but the regulation and the execution correspond to the autonomous territorial entities.)
2.4.1. General Economic Aspects
The Constitution establishes that the Bolivian economic model is plural and is oriented to improve the quality of life and the “Well Living” of all Bolivians. The plural economy is constituted by the communitarian, public, private and social cooperative forms of economic organization.
According to the constitutional text the maximum value of the State is the human being therefore it has to ensure its development through the equitable redistribution of the economic surplus.
Whilst Private initiative is recognized, for the benefit of the economic and social development, and freedom of business is guaranteed through the State regulation, according to article 311, the plural economy lies in the following aspects:
· The State exerts the integral direction of the economic development.
· Natural resources are owned by Bolivian people and are to be administrated by the State.
· The Industrialization of natural resources is important to avoid the dependency of the export of prime material.
· The State intervention in all the productive chain of strategic sectors, looking for guarantying its supply to all Bolivians.
· The respect to the private initiative and the legal certainty.
In that context, article 312 states for one side that any economic activity shall contribute to strengthen the economic sovereignty of the country. From the other side it states that private accumulation of economical power that menaces the economic sovereignty of the State is forbidden. Finally it establishes that all forms of economical organization are obliged to generate labor, to contribute to the reduction of discrimination and poverty and to protect the environment.
Therefore, in order to eliminate poverty and social and economical exclusion for the achievement of the “Well Living” article 313 says that the economic organization has to aim to:
· The generation of the social product respecting individual and indigenous rights.
· The production, distribution and fair redistribution of wealth.
· The reduction of inequalities of access to productive resources.
· The reduction of regional inequalities.
· The industrial productive development of natural resources.
Finally, the constitutional text forbids private monopoly and oligopoly as well as other form of association that pretend the control and the exclusivity of production and commercialization of goods and services.
Within the economic part the constitutional text inserts the important issue of the environment, establishing that the State and population have the duty of preserving, protecting and profiting of natural resources and biodiversity in a sustainable manner. It states as well that people has the right to be consulted and informed over the decisions that could affect the environmental quality.
According to article 345, environmental policies are based on:
· The planned and participative administration.
· The application of systems for evaluating the environmental impact and for controlling the environmental quality in all the productive activities of goods and services using or affecting natural resources and the environment.
· The responsibility (criminal, civil and administrative) for the performance of any activity producing environment damages caused by the breach of environmental regulations. In that order, the constitutional text declares the responsibility for all historical environmental damages and the imprescriptibility of environmental crimes.
Declaring that all natural resources are strategic and of public interest for the development of the country, according to article 349, natural resources are the property of the Bolivian people and correspond to the State their administration with a collective interest perspective.
The State will recognize, respect and grant individual and collective property rights over the land, as well as the rights of use and development for the other natural resources. However article 351 states that the State (through public, cooperative or communitarian entities) will assume the control and direction over the activities of exploration, production, industrialization, transport and commerce of all strategic natural resources, allowing the possibility to hire (for those purposes) private companies and to constitute mixed companies (through association agreements for the development of natural resources), ensuring not only the reinvestment of the economic profits in the country but the payment of taxes and royalties when intervening in the development of natural resources.
18.104.22.168 . Hydrocarbons
With regard to hydrocarbons, Article 359 states that hydrocarbons, in any form or state in which they occur, are of the inalienable and imprescriptible property of Bolivians. The government, on behalf of Bolivians, exercises the property rights over all hydrocarbon production in the country and it is the unique authorized to carry out its marketing. The total income generated by the sale of hydrocarbons will be property of the Government.
22.214.171.124 . Mining
With regard to mining, article 369 states that the State will be responsible for all the mineralogical wealth located on the soil and subsoil and its application will be regulated by law. The State, the private and the cooperative industries are recognized as productive actors.
126.96.36.199 . Water
According to article 373, water (as a non renewable resource) constitutes a fundamental right for life and the State has to give priority to its social use, denying the possibility of being subject to private property, being only subject to a regime of licenses and authorizations.
The constitution introduces an entire article dedicated to the coca leaf, regulating its protection by the State as a cultural patrimony, a renewable natural resource of Bolivia’s biodiversity, and a factor of social unity. Additionally it says that in its natural state the coca leaf is not a narcotic. However its production, marketing and processing will be controlled by law.
The fifth part of the Constitution establishes the following Norms order of application:
- Political Constitution
- International Treaties
- National Laws; Autonomic Statutes; District, Municipal and Indigenous Legislation
- Decrees, Regulations, and Other Resolutions Issued by Institutions of the Executive Organs.
With regards to this issue article 411 states that any total reform to the Constitution has to implemented through a Constituent Assembly activated by the popular will manifested through a referendum, whilst the partial reform can be initiated by means of popular initiative with the signatures of at least 20% of the electorate or by the Plurinational Legislative Assembly through a law of constitutional reform approved by 2/3 of the total present members. As well the partial reform will need a referendum approval.
Finally the Constitution expressly abolishes the former Constitution approved in 1967 as well as its modifications. With that the Bolivian legal framework acquired a particular characteristic: from February 2009 the new Plurinational State of Bolivia had to start its legal life with a new constitutional regime but without legal dispositions deriving from it and therefore, even thought the former constitutional regime was abolished, the Plurinational State had to apply (in a long transition period which has not finished yet and in all the aspects not contrary to the new Constitution) the laws approved while the former Constitution was into effect in order to fulfill the imminent lack of legislation, until the approval of new legislation derived from the new constitutional text, task that that year it has being accomplished progressively in all the legal subjects.
3. The Bolivian Legal Situation – Period 2009 - 2013
From that moment and progressively, new legislation has been approved in many subjects in order to adjust the legal framework to the guidelines of the constitutional text and therefore replacing the legislation derived from the 1967 Constitution. However the principal legal subjects are still regulated by antique Codes that do not derive from the 2009 Constitution. Therefore after the approval of the new Constitutional text, the Bolivian legal situation in the principal subjects is as follows.
This subject is still regulated by the Criminal Code of 1972 with its various reforms approved that had the objectives to strengthen the rule of law, the protection of individual guarantees, to reinforce legal and citizen security and the anti-corruption fight, incorporating new criminal categories to fight impunity, money laundering, drug trafficking, civil service corruption and criminal organizations, Judicial corruption, redefinition of fraud and fault, criminal responsibility for members of corporations. In 2010, through the Supreme Decree 667 of October 8, an Ordered Text of the Penal Code has been approved, with the purpose of inserting in one sole text all the criminal conducts described in the laws that regulate other subjects and that were not in the Penal Code. However, after the approval of the 2009 Constitution other laws related with criminal law and Human Rights have been approved. That is the case of the following:
· Law No. 04 of 31-03-2010 for the fight against corruption, illegal enrichment and fortunes investigation.
· Law No 44 of 8-10-2010 for prosecuting of the President, Vice-President and Head Authorities of High Tribunals.
· Law No. 45 of 8-10-2010 against racism and all forms of discrimination.
· Law No. 54 of 8-11-2010 for the legal protection of children and adolescents.
· Law No. 243 of 28-05-2012 against the harassment and political violence towards women.
· Law No. 263 of 31-07-2012 against people slave trade.
· Law No. 348 of 9-3-2013 Integral Law for assuring to women a life without violence.
· Law No. 463 of 19-12-2013 Law of the Plurinational Service of Public Defense, that regulates the public criminal defense of accused and prosecuted persons in order to guaranty the right of defense and the access to justice to people without economic resources.
· Law No. 464 of 19-12-2013 Law of the Plurinational Service of the Victims Assistance in order to guaranty the right of defense and the access to justice to people being victim of a crime and without economic resources.
In this area, the Bolivian Civil Code promulgated in 1975 during the de facto Government of General Hugo Banzer Suarez is still regulating the civil relations in Bolivia. This Code address the regulation of personal rights and status; goods and property; obligations and contracts; successions, inheritance, classes of succession and division of the inheritance; and the practice, protection and extinction of rights. Civil proceedings where regulated by the Civil Procedural Code promulgated in 1976 as well during the Government of General Banzer Suarez. However, through Law 439 of 19-11-2013, a new Procedural Civil Code was approved. The new code tries to introduce modernity, dynamism, efficiency to judicial civil proceedings. Among the new characteristics we can find the process succession; celerity; oral proceeding; introduction of principles of Administrative Law such as material truth. The Code is being applied partially and its total effects are entering into force in August 6 2014.
Commercial activities in Bolivia are still regulated by the Commercial Code which is as well a Banzer Code. The Code addresses the regulation of commercial obligations; the Registry of Commerce; the assistants in commerce; commercial companies in general: mercantile goods; the sale of securities and other things; the distinct types of securities titles, such as the letter of exchange, promissory notes, the check, vouchers or debentures, to the study of the securities market, the stock market and other intermediaries; commercial contracts; special procedures, mediation and arbitration, antitrust law and bankruptcy.
Notwithstanding, and according to the social conception of the economy introduced by the Constitutional text of 2009, many national companies have been created by means of recent legal dispositions. That is the case of “CARTONBOL” (the State Carton Company); “LACTEOSBOL” (the State Dairy company); “PAPELBOL” (The State Paper Company); “ECEBOL” (The State Cement Company); “EBA” (The State Almond Company); “AZUCARBOL” (The State Sugar Company) in 2010; “ENATEX” (The State Textiles Company); The Construction Company of the Army; The Strategic Company for the Production of Fertilizers; The Strategic Company for the Production of Seeds; in 2011; and the Karachipampa Metallurgical Company in 2013. The implementation of those companies was delegated to the Service for the Development of Productive Public Companies created through Supreme Decree No. 590 of 4-8-2010.
From other side, between 2009 and 2013 the State has nationalized companies in charge of strategic sectors such as the electricity one with the nationalization of companies in charge of the production, transmission and distribution of electricity; other nationalized sectors are the cement, mining, hydrocarbons, and the airports management and the airplanes fuel supply.
Finally in this area, two laws are important to be mentioned:
· Law No. 356 of 11-04-2013 General Law for Cooperatives regulating the constitution, the organization, the development, the supervision, the control, the incentives and the protection of the cooperatives system of the State aimed to the promotion of productive activities and administration of services that contribute to the economic and social development of the country. According to the law a cooperative is understood as an association without profit purposes, founded in the joint work executed in order to satisfy in an autonomous manner the productive and services needs.
· Supreme Decree No.1754 of 7-10-2013 for the constitution of social companies of private purpose. This law gives to workers of a private company the possibility in certain cases (like in case of bankruptcy or in case of inactivity of a company) to take charge of it.
In this period, this sector has been one of the most favored. Although the General Labor Law of 1939 with its various amendments made trough the time is still regulating labor relations in Bolivia, since 2009, many legal dispositions have been enacted in favor of workers. That is the case of:
· The Supreme Decree 12 of 19-02-2009 which states the immobility of workers becoming parents;
· The Supreme Decree 107 of 01-05-2009 which protects the labor relationship in the main activities of a company.
· The Supreme Decree 108 of 01-05-2009 which obliges employers to supply workers with the adequate working clothes and personal protection equipment.
· The Supreme Decree 110 of 01-05-2009 which protects the payment of the indemnification for time of services to people working more than 90 days.
· The Supreme Decree 228 of 9-9-2009 that creates the Mandatory Employers Registry.
· The Supreme Decree 495 of 01-05-2010 by which workers and not longer employers are given the faculty of defining whether accepting his dismissal whether asking for his reincorporation.
· The Supreme Decree 521 of 26-05-2010 that forbids evading labor relations in the main activities of the employer.
· The Supreme Decree 522 of 26-05-2010 that gives workers the possibility of asking for the benefits without the necessity of finishing the labor relationship.
In this area through Law No. 65 of 10-12-2010 has been enacted the Law of Pensions, with the objective of establishing the integral administration of pensions for workers. The law changed as well the Private Pension Funds that were charged of managing the workers contributions for retirement by the Public Organ of Long Term Social Security.
Finally it has to be mentioned as well that between 2009 and 2013, the amount of the minimum salary has increased from 647 Bolivianos to 1200 Bolivianos by means of Supreme Decrees issued each year.
This subject is still regulated by the Bolivian Environmental Law No. 1333 of 27-04-1992 and its subsequent regulations. Notwithstanding the year of its approval, the Law is in general congruent with the guidelines over the environment protection established in the new Constitution. However as the new Constitutional text grants a big importance to the environment, many legal dispositions have been enacted since 2009. The most important are:
· The Supreme Decree 443 of 10-03-2010 which creates the Forestation and Re-Forestation National Program aiming to preserve Bolivian biodiversity and to minimize the effects of climate change.
· The Supreme Decree 71 of 21-12-2010 that recognizes the rights of the “Mother Earth” that in its category of juridical person is conceived as a dynamic and alive system formed by the indivisible community of all life systems and alive beings that are interrelated, interdependent and complemented, that share a common destiny.
· The Law No. 300 of 15-10-2012 named “The Framework Law of Mother Earth and Integral Development for the well living” enacted with the objective of establishing the vision and fundamentals of the integral development in harmony and equilibrium with Mother Earth for the “Well Living”, ensuring the resilience capacity of its components and life systems, recovering and strengthening the local and ancient knowledge. According to the Law 300 the integral development lies over the following basis: a) The knowledge of feeding; b) The promotion of sustainable consuming habits; c) The non contaminating production process and d) A preservation Policy. Although the Law of 2012 seems to be similar to the environmental law of 1992, the first one did not abolish the second.
3.6. Telecom, Transport and Electricity
In this period these tree sectors received important regulations. That is the case of the enactment of the General Law of Telecommunications, Technologies of Information and Communication through Law No. 164 of 8-8-2011, with the constitutional objective of ensuring the equitable distribution and the efficient use of the radio electric spectrum. Other important aspects in this sector were the creation through Supreme Decree 423 of 10-02-2010 of the Space Bolivian Agency in charge of implementing the Tupak Katari Satellite in order to give Bolivians telecom sovereignty, and the creation through Supreme Decree 78 of 15-04-2009 of the State Television Company named “Bolivia TV”, which is the official public network.
From other side, in the transport sector, the General Transport Law was enacted by means of Law No. 165 of 16-8 2011, with the objective of regulating the technical, economic, social and organic aspects of the air, land, rail and water transport based in a integral transport system.
Finally and besides the nationalization of all the productive chain in the electricity sector, through Law No. 290 of 20-09-2012, the national necessity and priority for the installation and supply of electricity for the use and profit of countryside communities was declared, in order to give them access to electricity services.
In the sector of Health in 2013 was enacted the Rendering of Integral Health Services Law No. 475 of 30-12-2013 with the object of regulating the integral attention as well as the financial protection in health of people without health insurance and having less than 5 years old or more than 60; pregnant women and incapacitated persons in order to ensure equal access to health to people of scarce economic resources.
In the educational sector, the Law of Education No. 70 of 20-12-2010 was approved, regulating the Bolivian education that has to be: non colonialist; anti imperialist; transformer of economical and social structures; communitarian; democratic; universal; plural; laic; intra cultural; inter cultural; plurilingual and scientific.
In the social sector, various legal dispositions have been approved. That is the case of:
· Law No. 144 of 26-06-2011 for the Agro Communitarian Productive Revolution in order to achieve the sovereignty in the food supply, for the “Well Living”
· Law No. 223 of 02-03-2012, named the General Law for Incapacitated People.
· Law No. 247 of 05-06-2012 for regularizing proprietary rights over urban real state destined to habitation.
· Law No. 251 of 20-06-2012 for the protection of refugees.
· Law. No. 264 of 31-07-2012 approving the Citizen Security National System Law.
· Law No. 269 of 02-08-2012 approving the General Law of Linguistic Rights and Policies.
· Law no. 306 of 08-11-2012 approving the Law of Artisan Promotion and Development.
· Law No. 338 of 26-01-2013 Law of Indigenous Economic Organizations for the Integration of the Sustainable Familiar Agriculture.
· Law No. 341 of 05-02-2013 of Participation and Social Control, aiming to strengthen the democracy in the Public Management.
· Law No. 342 of 05-02-2013 named the Youth Law with the objective of assuring to youth the exercise of their civil, politic, economic, social and cultural rights so they could achieve an integral development in equitable, inclusive and fair conditions for the well living.
· Law No. 369 of 01-05-2013 for the Elder Adults aiming to regulate the Rights, guaranties and duties of persons older than 60 so they could have a worthy old age.
· Law No. 453 of 04-12-2013 approving the General Law for Users and Consumers.
In the banking sector through Law No. 331 of 27-12-2012, the “Banco Union S.A.” was appointed as the Public Banking Entity with the purpose of centralizing the financial operations and services of all the public administration.
As well through Law No. 393 of 21-08-2013 was enacted the Law of Financial Services with the objective of regulating: a) the financial intermediation activities; b) the financial services supply; c) the organization of financial entities; d) the protection of financial consumers and e) the participation of the State as the guide of the financial system surveying the universality of the financial services and orienting its performance to the development of the social and economic policies of the State.
3.9 . Judicial
This is the sector who mostly felt the transition period originated after the enactment of the Constitution.
Indeed, Law No. 3 of 13-2-2010 declared the temporality of work for all judicial institutions belonging to the Republic. Those were supposed to last until the 1-1-2011 in order to be replaced by the new ones created by the new Constitution. However the former judicial institutions last effectively until the 2-1-2012 according to Law 212 of 23-12-2011. And it is from 3-1-2012 that the new judicial institutions start working under the new legal framework.
From other side through Laws 25 and 27 of 24-06-2010 and 6-7-2010 respectively were approved the Law of the Judicial Organ and the Law of the Plurinational Constitutional Tribunal regulating their structure and competences.
As well the Law of Jurisdictional Demarcation has been approved through Law 73 of 29-12-2010, aiming to regulate the limits of the indigenous jurisdiction, establishing the coordination mechanisms between it and the ordinary jurisdiction.
It is important to say that Law 212 of 23-12-2011 established the free access to justice eliminating the payment of all forms and securities.
Finally it is important to mention the enactment of the Code of Constitutional Proceedings by means of Law 254 of 5-7-2012, aiming to regulate constitutional processes before the Plurinational Constitutional Tribunal and the constitutional defense actions before the judicature.
3.10. Immigration and Tourism
In this sector, Law No. 370 of 08-05-2013 approved the Immigration Law aiming to regulate the entrance, the transit, the stay and the exit of persons within the State territory assuring them their rights according to the constitution and to the international human rights treaties.
From other side Law No. 292 of 25-09-2012 was enacted as the General Law for Tourism “Bolivia awaits You”, aiming to the promotion of both the internal tourism (in order to reaffirm the Bolivian identity) and the receptive one (in order to show the country and to revalue the natural and cultural Bolivian patrimony.)
3.11 . International
In this sector was enacted the Law for Treaties Celebration No.401 of 18-09-2013. It establishes the proceeding for the celebration of international treaties. Two kinds of treaties are recognized:
· The formal ones which need to be ratified by the Legislative Organ previous to entering into force. This kind of treaties can be celebrated in the subjects of communitarian Law; Human Rights; Territory Limits; Monetary Integration; Economic Integration; transfer of competences to International Organs.
· The abbreviated ones that are related to the exclusive competences of the Executive Branch and therefore they do not need to be ratified by the Legislative Organ to enter into force.
Finally this law establishes that the dispute resolution involving Bolivia has to be subject to the Bolivian laws and jurisdiction.
Through Law 64 of 5-12-2010 was created the State Attorney General Office as the institution that has the mission of defending the interests of the Plurinational State of Bolivia. The attorney General is appointed by the President for a period of 6 years.
4. Bolivian Primary and Secondary Legal Materials
The Bolivian legal system has as its principal sources:
· The laws, understood as the mandatory rules of conduct created by the public authority of a general character (Plurinational Legislative Assembly), and whose fulfillment is susceptible of imposition by coercive means.
· Custom, defined as the permanent daily and uniform repetition of acts and forms of conduct, which arise in social usage and which are transmitted from generation to generation.
· Jurisprudence defined as the collection of uniformed decisions issued by the Supreme Tribunal of Justice and the Plurinational Constitutional Tribunal.
· Doctrine defined as all the studies and knowledge made by jurists or legal scholars organized in systematic form concerning some legal questions.
4.1. Primary Legal Materials
In Bolivia primary legal materials are composed of laws and decrees that may be found at the following official web pages:
- The Official Gazette of the Plurinational State of Bolivia is the official editorial organ of the state. It is in charge of the publication of laws, supreme decrees, supreme resolutions and other public legal documents. Consultation of the web page is free.
- Vice-Presidency of the Plurinational State of Bolivia: As the head of the Plurinational Legislative Assembly its web page contains a link to complete database named Legal Information System of the State (SILEP for its name in Spanish) were more than 13000 legal dispositions can be found. Consultation of the web page is free.
- Chamber of Deputies: Its web page has a link to laws were we can find the already enacted laws; the sanctioned Laws; the approved Laws and the Laws that are in treatment. Other useful official link is the Chamber of Senators . Consultation of the web page is free.
4.2 . Secondary Legal Materials
Secondary legal materials such as decisions issued by the Supreme Tribunal of Justice and the Plurinational Constitutional Tribunal may be found at the following web pages:
· Judicial Bolivian Organ : This is the official web page of the Bolivian judicial branch. This page will lead the visitor to the web pages of the different judicial bodies.
· Supreme Tribunal of Justice : The web page of the Supreme Tribunal has a search engine which allows sentences issued by this organ of justice to be found concerning civil, penal and social matters. The jurisprudence is systematized in what is called the “tree of jurisprudence”, useful tool which organizes the jurisprudence, by specific topics and subtopics.
· Plurinational Constitutional Tribunal: The web page of the Constitutional Tribunal shows a systematized jurisprudence easy to find either by number of decision or by content. As well we can find the list of the declared unconstitutional legal dispositions.
4.3. Other Useful Links
The web page of the Plurinational State of Bolivia : It is the official site of the Plurinational State of Bolivia. It has a complete list of useful links. Visitors will fin the links to institutions of the Executive branch (Presidency; vice presidency, Ministries; an others); as well as links to the Legislative, Judicial and Electoral Branches. It has as well a complete reference to private and public universities in Bolivia. The web page offers a complete list of links with State Agencies, State Companies, Bolivian Newspapers, TV networks, radios, statistics, Police, Municipal institutions, and tourism information. Finally the web page offers a direct link with the Official Gazette which has a law search engine. The Consultation of the web page is highly recommended and is free.