https://orcid.org/0000-0002-9198-1005
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ABSTRACT
The Plurinational Constitutional Court is the final arbiter of legal disputes involving the interpretation and application of the Political Constitution of the Plurinational State of Bolivia (2009) (BC). Its role is especially important given that the BC follows a type of decolonial ‘hybrid’ constitutional model that incorporates the Indigenous concept of Vivir Bien (VB) as part of their legal paradigm. Using tools from Case Law Analysis and Critical Discourse Analysis, this article explores the Court’s judicial interpretation and application of VB and its principles to a legal dispute regarding Indigenous Peoples’ constitutional right to be consulted over government measures impacting their ancestral territories. The results indicate that the judges would foreground and background different aspects of the VB principles to support their views, resorting to their use in a hierarchical form that is not mandated in the BC. This shows a gap between formal incorporation and the practical application of the VB principles. This research informs the fields of legal studies, decolonial thought, and discourse studies.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 BC, article 196(I). Article 203 states that ‘The decisions and sentences of the Pluri-National Constitutional Court are binding and of obligatory compliance, and no subsequent ordinary appeal of them is allowed.’
2 See Dolhare (Citation2019) for a detailed explanation and exemplification of these constitutional principles. See also article 13 I-III of the BC. To find the English translation of the Constitution in the references, see: ‘Bolivia, Plurinational State of. (Citation2009).’
3 Cosmovision is defined in the Law Insider Dictionary as, ‘the conception that indigenous peoples have, both collectively and individually, of the physical and spiritual world and the environment in which they conduct their lives.’ https://www.lawinsider.com/dictionary/cosmovision. Accessed 7/12/2021.
4 Pursuant to section 203 of the BC.
5 For further discussions see, Anaya (Citation2015), Lacroix (Citation2012), and Ward (Citation2011).
6 There are 7 judges in the PCC, and they are elected by universal suffrage. See article 199 (I) of the BC.
7 This Court resolution can be found at: https://buscador.tcpbolivia.bo/_buscador/(S(zaof3ga4uuicwimtzaptkggq))/WfrJurisprudencia1.aspx
8 Unless otherwise specified, when ‘articles’ are mentioned, they refer to articles in the BC.
9 BC, article 13.
10 BC, article 30 (II) (14).
11 BC, article 30 (II) (18).
12 All data has been translated from Spanish by the first author.
13 For a definition of the Bolivian people see article 3 of the BC.
14 This communitarian aspect is exemplified by article 30 of the BC, which grants communitarian rights to indigenous peoples.
15 BC, article 9 (1).
16 Convention 169 - Concerning Indigenous and Tribal Peoples in Independent Countries of the International Labour Organization (1989), articles 7, 13 and 14 and United Nations Declaration on the Rights of Indigenous Peoples (2007), article 26.
17 BC, article 410 (II).
18 The majority maintains that indigenous peoples enjoy the following rights to their lands and territories, (a) the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired; (b) the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired; (c) States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned (MV, p. 33).
19 BC, article 30 (II) (15).
Additional information
Notes on contributors
María Itatí Dolhare
Dr. María Itatí Dolhare is a Lecturer at the TC Beirne Law School, University of Queensland. María is a legal practitioner and academic applying an interdisciplinary approach to the research of different areas of land law.
Sol Rojas-Lizana
Dr. Sol Rojas-Lizana is a Senior Lecturer at the School of Languages and Cultures, University of Queensland. Sol is a discourse analyst researching discrimination, memory and trauma through a constructionist and decolonial lens.