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Preface

Since the early 1990s, the World Bank and other multilateral development banks (MDBs), particularly the Inter-American Development Bank (IDB), have come to recognize judicial and legal reform as key to development. This recognition led to project support for judicial reform initiatives worldwide. The largest number of projects to date has been undertaken in Latin America and the Caribbean. The Lawyers Committee for Human Rights, pursuing its long-standing interest in administration of justice issues, undertook to monitor the work of the MDBs in judicial reform when these important institutions entered the field.

The Committee's first detailed examination of MDB activities in restructuring of judiciaries focused on the World Bank's first freestanding judicial reform loan, made to Venezuela in 1992.[i] The Lawyers Committee’s report on the project was followed by a conference in Caracas convened by the Lawyers Committee and Provea (Programa Venezolano de Educacion-Accion en Derechos Humanos—Venezuelan Program for Education and Action on Human Rights), which brought 21 environmental and human rights lawyers from 10 countries in Latin America together with representatives of the Venezuelan government, the World Bank, and the IDB to discuss the Banks’ approach to judicial reform. Of particular significance in Caracas was the degree of consensus among a diverse group of environmental and human rights lawyers about the needs and priorities in judicial reform.

The Lawyers Committee believes that reviewing environmental and judicial reform issues together provides a powerful lens through which to assess the Banks' judicial reform activities in Latin America. First, protection of the environment is intrinsically an area of public interest law. A judiciary’s support of or lack of concern with environmental protection sends a strong signal about how well and impartially the judiciary functions in general. Secondly, both the World Bank and the IDB manage a portfolio of environmental or natural resource projects in countries where judicial reform initiatives are under way. Good portfolio management, following a coherent strategic plan for each country, would suggest that the two types of projects be coordinated in relevant ways. Third, the twin crises of severe environmental damage and official non-enforcement of environmental law highlight the organic link between economic activity, legal reform, and the environment. Lastly, we believe that the methodology currently used in the design of the projects does not sufficiently take into account the views and experience of non-governmental users of the judicial system. To address this deficiency, we believe that a case study approach, centered on identifying problems and demands in a particular area or sector such as the environment offers an effective means for incorporating these views into the overall reform strategy.

Since the Caracas meeting, the Lawyers Committee has refined the environmental case study methodology through workshops in Paraguay[ii] and Bolivia. This paper draws on the information and conclusions developed in a workshop held in La Paz in July 1998. In that effort, we were fortunate to be able to work with League for Defense of the Environment (Liga de Defensa del Medio Ambiente—LIDEMA).

Christine Pendzich, a consultant to the Lawyers Committee, is the author of this paper. Robert O. Varenik, the Committee’s Director of Protection, and Patricia Armstrong, consultant to the Lawyers Committee on International Financial Institutions, made important contributions. It was edited by Robert O. Varenik and George Black, the Committee’s Research and Editorial Director. The Lawyers Committee is grateful for the support of the W. Alton Jones Foundation for our work in this area. Finally, we are indebted to LIDEMA for its cooperation, assistance and support throughout this effort.

Introduction

The transition from dictatorships to democracy that started in the 1980s has transformed many aspects of life in Latin America. Citizens throughout the region vote regularly in elections; the results of their votes by and large are implemented. Trade regimes and fiscal policies protective of national industry and pride—but deleterious to national incomes—have been liberalized. Investment and aggregate income in the region’s countries have risen, although troubling disparities in distribution of both income and wealth persist.

One of the most fundamental changes deriving from the transition has been a gradual and still incomplete restructuring of the relation between state institutions and citizens in the region. The public sector—primarily the executive branch, with its ubiquitous regulatory and service agencies—has undergone major scrutiny and, in many but not all countries, substantial reform. Parliaments and political parties throughout Latin America also have enacted new laws and systems to streamline their operations and put them in closer touch with constituents.

Latin American judiciaries, on the other hand, have seen little fundamental change. In terms of public interest and expenditure, reform of the courts and related institutions has trailed well behind the movements to overhaul the continent’s executive branches and legislatures. This reflects and reinforces historic tendencies in the region to ignore the judiciary and downplay its importance—precisely the attitudes that originally relegated it to its current state of neglect, inefficiency and corruption.

Both officials and outside analysts increasingly recognize, however, that the benefits of reformed relations between the executive and legislative branches and the public cannot be fully realized without concomitant changes in the judiciary. On the political side, the absence of an effective rule of law limits the extent to which the adult population can achieve full citizenship, civil and political.[iii] A country’s full political potential cannot be reached until all citizens enjoy equal rights. Lack of a fair, independent and efficient judiciary—one of the cornerstones of the rule of law—thus also impedes political development.

Economic activity also appears linked to judicial performance. Surveys have shown that both foreign and domestic investors—indeed, economic actors in general—are reluctant to enter into long-term contracts and investments in countries whose courts have little ability to resolve business disputes in a transparent and timely fashion. A lack of efficient, credible courts thus constrains a country’s overall economic growth.

Interest in reforming the judiciary has, for these reasons, slowly been rising over the past decade. Since the late 1980s, at governments of at least 20 countries in the region have launched programs designed to increase the professionalism, efficacy, and credibility of their judiciaries. A range of bilateral and multilateral donor agencies—including the United States Agency for International Development (U.S.AID), the German bilateral agency GTZ, the Inter-American Development Bank (IDB) and the World Bank—also have acknowledged the importance of reforming the judiciary and have made funds available to support the official strategies. The World Bank has emerged as a key institutional player in the judicial reform efforts underway in the region, in terms of funding as well as in developing the justification and operating framework for these activities.

This paper examines the World Bank-supported judicial reform efforts through a focus on one current Bank initiative—the Bolivia Judicial Reform Project, approved in 1995.[iv] The lessons that can be learned from the Bank’s project in Bolivia have wide applicability. Bolivia’s institutional and legal structures and problems are not unique; rather, they are shared in fundamental respects by many countries in the region. This paper will first briefly review the evolution of the Bank’s general approach to judicial reform projects, noting recent changes as well as key areas in which still more change is needed. Next, the structure of the Bolivian judiciary and reforms carried out in it since 1993 will be described, followed by a summary of the Bank’s Bolivia Judicial Reform Project, designed to support the government’s overall reform strategy. The achievements and limitations of these government-lead reforms and the Bank’s project will then be assessed. Finally, a practical methodology for broadening public participation in the design of future Bank projects is presented. This methodology has been pilot-tested in Paraguay and Bolivia. Centered on case-oriented workshops, it offers a straightforward means by which civil society actors can contribute to reform of the judiciary. Involving members of the non-governmental community in reform initiatives, as well as frontline government officials such as judges, prosecutors and clerks, will contribute to the building of essential “buy-in” for judicial reform among key sectors of civil society, while at the same time identifying reform priorities. It also provides a means to identify ways in which the Bank can coordinate objectives in judicial reform with those promoted in other projects, particularly those concerning the environment and natural resources.

A special theme of this paper is the interweaving of judicial reform and the environment. However, the methodology suggested is not dependent on the results that can be obtained by applying it to a particular area of law. Any area of law could be subjected to the same review and could yield valuable contributions. The underlying question is how to open up the judicial system to permit private citizens, through the use of “public interest” law tools, to contribute to the enforcement of laws and policies, especially where the “good” to be preserved is a collective one. Much of the World Bank’s reform effort in the judicial arena has to date focused on ways to strengthen the courts and overall judiciary so as to in turn strengthen the protection of private property and contracts, with the ultimate goal of encouraging investment. Looking at the obstacles to enforcement of one set of laws—those related to the environment—in one country—Bolivia—will provide insights into why failing to strengthen the defense of collective or “diffuse” interests weakens the prospects for contract and property defense. The environment thus will be a special prism for evaluation of the Bank’s project.

II. The World Bank and Judicial Reform in Latin America

A. Early World Bank Strategy
The World Bank recently has emerged as a key institutional protagonist in judicial reform, particularly in Latin America and the Caribbean. As of July 1999, the Bank had 11 projects under way in eight countries in the region, seven approved (totaling more than $117 million in loans) and four more in preparation (totaling $42 million in projected loans).[v] Only the IDB’s funding for judicial reform in Latin America exceeds the World Bank’s.[vi] While the Bank cannot technically initiate reform efforts, it provides important resources and guidance for the implementation of strategies led by governments. In many countries, moreover, the Bank is the single largest funder of reform measures in the sector. The Bank’s approach to judicial reform is thus an important indicator of how reform is being carried out in the region in general.

The World Bank has supported judicial reform efforts through freestanding projects since 1992. Its focal activities—that is, what it will agree to underwrite—have undergone significant change since the first project, approved for Venezuela. In early projects, the Bank focused on administrative and management reforms of the court system and judicial training. This was largely due to a narrow interpretation of the Bank’s charter, stressing distinctions between economic and non-economic elements of judicial systems. In practical terms, this meant that reform initiatives often included efforts that were essentially technocratic in nature, for example, improving infrastructure, computers, and libraries. They only very indirectly addressed the more sensitive issues of judicial independence, access to justice and related constitutional and legislative reforms. In addition, the Bank’s early approach was not an inclusive one, involving only a narrow sector of those with a stake in an effective judicial system.

This approach to reforming judicial systems drew criticism from a number of sources. One set of observers pointed out that judicial reform projects would have little long-term effect if they were undertaken in the absence of a strong consensus for change among the political leadership of a country.[vii] Others argued that the process of reforming the courts can in itself be used to generate public debate and to build political consensus and support for change. Both critiques basically called for more resources and attention to be put into addressing the politics of judicial reform.

Human rights groups furthermore noted that an approach to reform that focuses too heavily on narrowly defined economic factors overlooked at its peril the nature of the judicial system’s main “product”—justice.[viii] Proper adjudication necessarily involves affirming rights, often over other rights or interests. Neither mechanical nor asocial, justice demands a distinctly rights oriented perspective, which will at times compel judgments that are at odds with prevailing political or economic interests. Accordingly, rights advocates emphasized establishing the judiciary’s autonomy from undue influence by other political actors as a central element of any lasting reform. Rather than solely educating judges in modern tax law, Bank projects also needed to find ways to reorganize judiciaries so as to make them fully independent. Human rights groups further criticized the Bank for separating the commercial side of a judicial system from the non-commercial, including criminal, side in the design of their projects. Judicial systems, according to these critiques, need to be approached as an integrated whole, without artificial separations of the “private” aspects of the law from those that might be deemed more “public.”

B. Changes in the Strategy
Within a relatively short time, the scope of the Bank’s involvement in judicial reform has broadened. In its internal exchanges and public discourse, and to a lesser extent in its actual projects, the Bank has moved toward a more integrated approach, acknowledging the need for measures to increase judicial autonomy, combat corruption and ensure better access to judicial services for marginalized sectors of society. It also has recognized that issues not traditionally considered “economic” in nature and therefore outside the purview of Bank activities, e.g., crime and violence, warrant attention for their effects on development.[ix]

Addressing critics of the Bank’s early squeamishness about working on judicial autonomy, Bank staff have pointed out that the Bank’s mandate does not rule out consideration of these kinds of issues.[x] In fact, Bank-sponsored judicial reform projects have underwritten activities that indirectly address the issues of political autonomy and political will for reform. Several projects provide funding for the institutional strengthening of the judiciary—specifically through the creation of National Judiciary Councils—in the hopes that a stronger institution can better resist undue interference from the executive, the legislature, political parties or the military.

The Bank also has undertaken some efforts to involve a range of non-governmental actors, such as bar associations and unions of notaries, in meetings to discuss the general outlines and strategy of its judicial reform projects. Such initiatives represent an important effort to include a broader cross-section of society than just the top political leadership in the project, but in practice the outreach often has been limited. The meetings appear intended primarily to inform invited participants about the government’s and Bank’s intentions to undertake a particular project whose goals and activities have already been defined, rather than to consult on whether and how judicial reform should be attempted. In addition, as will be further discussed below, the range of participants in such meetings usually has been limited to groups with a vested interest in the judicial system in its current form. Groups such as indigenous confederations, public interest law groups, or environmental groups, who represent important users of the court system, have by and large not been invited to Bank-sponsored meetings on prospective judicial reform projects. Indeed, many such groups do not even know a project is underway once it has begun.

Perhaps most telling, despite the changes in both the scope and design process of Bank projects in this area, is the fact that few if any of the projects financed to date has managed to generate sustained momentum for in-depth reform of a judicial sector. The Bank continues to emphasize restructuring the upper echelons of the judicial system, centering on reforms of the Supreme Courts, Ministries of Justice and National Judiciary Councils. While the measures funded are unquestionably necessary and important, they reflect a “top-down” approach that emphasizes the needs of service providers rather than the system users. This will not be enough to motivate thorough and enduring change.

The Bank’s evolving approach still does not adequately address the issue of how to achieve judicial autonomy from undue political influence. Institutional strengthening of the judiciary, whether it means provision of computers and specialized software for case management in courts, better buildings for the courts, or improved capabilities for strategic planning for the judiciary, will not in itself eliminate corruption or the ability of outside influences to direct cases toward a preferred resolution. Creation of strong national judiciary councils can help with the often intractable problem of an overburdened, inefficient and ineffective Supreme Court. However, the success of the Council in the end rests on the professionalism and impartiality of its members. This in turn depends on the politics of the process used to select Council members. Without a clear consensus in the Congress and the Executive Branch about the need for an independent council, best efforts to create one through project guidelines will fail. And training judges in ethics without working to mitigate the heavily corrupting influences of their work environment is an effort doomed to failure. Changes at the top may not affect the daily obstacles faced by system participants at the trench level.

The World Bank’s efforts in judicial reform may be falling short of their full potential for a third reason as well. In countries where the Bank is financing restructuring of the judiciary, it often fails to coordinate efforts in this area with projects it simultaneously is funding in related areas. The potential losses of this lack of coordination are evident from an examination of the Bank’s failure to coordinate efforts in judicial reform with its extensive programs on the environment. The Bank has underwritten major projects designed to strengthen environmental laws, fortify government agencies in charge of environmental management and bolster the information base for making resource management decisions in many countries. In almost all cases, however, it has failed to take into account how the weakness of the courts hampers effective environmental management. Weak judiciaries, as it happens, are a major reason why enforcement of environmental laws remains poor—the Achilles’ heel of resource management throughout the Americas.

The Bank’s current funding for judicial reform in Bolivia[xi] illustrates these points. The Bank’s design and implementation process for the Bolivia judicial reform project has not, by and large, been open to anyone other than a narrow range of government officials. As a result, the project has missed an important chance to launch a broad-based social debate on the kinds of reforms needed and how they should be carried out. Knowledge of and interest in judicial reform remain low in the country. Virtually no independent monitoring of the project’s effectiveness has been carried out. Overall, while potentially crucial changes—such as establishment of a Constitutional Tribunal and a National Judiciary Council—have been carried out, these do not appear to have engaged the public imagination or altered citizens’ relation with the judiciary in any basic way. While it is evident that reform will need to extend over a period of years, and to be effective, engage ever broader segments of Bolivian society, there are no coherent plans for developing the participation aspects of the loan.

In addition, the Bolivia project provides a particularly clear example of the Bank’s failure to coordinate its efforts in the judicial reform area with important projects underway in other sectors of Bolivian public policy. While the Bank’s judicial reform project in Bolivia seeks to strengthen the overall efficacy of judicial institutions, another project is supporting the creation of a special land court.[xii] The two projects were developed at the same time, but the task managers did not coordinate their work, much less analyze whether their efforts clashed.

Thus, problems remain both with the theory behind the Bank’s current projects and with their implementation. The Bank’s efforts at participation have not gone far enough, and appear unlikely to generate the level of public attention that would compel political leaders to allow deeper inroads towards true judicial independence. Moreover, the Bank’s efforts in judicial reform continue to focus substantively on more circumscribed commercial goals, and, in terms of method, on the realignment of costs and benefits needed in order to make the judiciary more efficient and market friendly.

The costs of underestimating the need for broad political support for judicial reform are evident in the record of the Bank’s projects, in Bolivia and elsewhere. One after another, projects have run into difficulties because of key entities—notably Supreme Courts, but also executive branches, bar associations, and even notaries—have not been constrained to carry out needed reforms. In other cases, reform has succeeded in effecting striking changes in the judiciary’s efficiency, but a lack of public awareness of the project meant that prevailing negative views of the court system have remained unchanged.

One key to correcting the imbalance in the Bank’s judicial reform efforts lies in broader participation in the design, implementation, and evaluation of the projects.[xiii] The benefits of such an approach are many. First, Bank projects need to be designed from a clear understanding that the judicial system’s integrity (real or perceived) will, if breached in one area, be critically wounded overall by observers of the system. In other words, system integrity is more unitary than a collection of discrete functions, and selectively reformed portions are not likely to prosper if other areas are left to deteriorate. This is particularly true if the most dysfunctional areas are among those best known to the public, as in the case of the criminal justice system. As a corollary, Bank projects need to give increased attention to providing citizens with incentives and low-cost tools for using their country’s judicial system. Second, the experience and perspective of the users of the judicial system, often represented by non-governmental organizations (NGOs) and public interest lawyers, can make a valuable contribution to the identification of reform needs and priorities in project design. Third, as judicial reform is necessarily a long-term process, it requires sustained and broad political support to succeed. Users of the system—the recipients of judicial services—are an important long-term source of such support. Finally, if judicial reform is to contribute to improving the basic relation between State and citizens in a country, the reform process should, fairly early on, provide citizens with a greater sense of ownership in and control over their judicial system. A sense that the courts, prosecutors and administrative law system can promote an individual’s welfare—even when the person lacks money or political clout—will in turn raise the citizenry’s interest in monitoring reforms already under way, as well as their interest in promoting new ones. Given the secular distrust of the judiciary in Latin America, awakening civil society’s interest in reform is difficult. There are, however, few alternatives if meaningful change is sought.

The recent history of judicial reform in Bolivia illustrates the problems in the Bank’s approach noted above and suggests how a more balanced and participatory approach might generate both political will and concrete ideas for reform. Subsequent sections of this paper will first provide a snapshot of the structure, condition and recent changes in the Bolivian judiciary. The role and performance of the World Bank’s ongoing judicial reform assistance in Bolivia will then be assessed in that context. Specific recommendations for changes to the Bank project will follow, with a detailed illustration—based on recent Bolivian experience—of how these recommendations can be carried out.

III. The Bolivian Judiciary

A. Status and Recent Reforms by the Bolivian Government

Bolivia’s constitution divides the country’s government into three branches—executive, legislative, and judicial—with co-equal and mutually balancing powers. As even the most casual studies of Bolivian politics make clear, however, the Executive branch, including the presidency and the military, dominate political life in the country. Bolivia’s Congress, when not simply overshadowed by the Executive, has generally been ineffective due to squabbling among an array of shifting factions. The judiciary has long been the weakest of the three branches, widely viewed as just a tool that the Executive, the political parties and the military, freely employ to achieve their private or partisan goals.

The Bolivian judiciary’s shortcomings are numerous, deeply rooted, and profound. Lack of political independence is a major problem. Between 1950 and 1982, the judges on the Supreme Court were changed 17 times.[xiv] Once in office, both lower and upper court justices are widely viewed as corrupt, swayed by political and financial pressures. Litigation costs are prohibitive, and generally viewed as necessarily including bribes. Many judges lack minimum qualifications to exercise their duties and very few undergo any continuing education to keep pace with changes in jurisprudence. The judiciary lacks a clear system for evaluating judicial performance, for rewarding good court and case management or for sanctioning poor discharge of duties. Studies of the time to case disposition show inordinate delays in getting cases resolved, with some delays exceeding by years the statutory limits laid out in the codes of civil and penal procedure.

Of greater concern is that only a minority of the country’s population actually enjoys meaningful access to judicial services. The reality for most Bolivians, and especially those living in rural areas, is that the nearest court is located miles away and the costs of reaching it, much less hiring a lawyer and filing a case, place the judicial system effectively out of reach. Bolivia’s many indigenous communities to this day resolve virtually all misdemeanor level cases through their traditional, culturally specific legal systems.

As a result of these myriad problems, the average Bolivian avoids contact with the judiciary, viewing it as a last resort for resolution of cases that one side feels it has the political clout or money to win anyway. This avoidance of the court system extends to companies as well as to private individuals. A recent survey of the business community in Bolivia found that lack of judicial and legal guarantees for property rights and contract enforcement is a significant obstacle to investment by both domestic and international sources.[xv]

Since 1993, Bolivian authorities have undertaken a noteworthy effort to address these problems and to convert the judiciary into a more independent, transparent and efficient branch of government. While much work remains to be done, their efforts provide important lessons for reform efforts more generally. The Sanchez de Losada government’s reform effort began with passage of a Law of Judicial Organization in 1993 that set up new procedures for appointment of Supreme Court Justices. It also called for creation of specialized courts with jurisdiction in social security, labor, mining, and tax matters. Several months later, the same government introduced reforms to the Bolivian Constitution that provided for creation of a National Judiciary Council, a Constitutional Tribunal and a Ministry of Justice. In September 1993, the government established the country’s first Ministry of Justice to coordinate judicial matters between the Executive and the Judiciary. The Ministry of Justice, together with the Supreme Court and other relevant government agencies, reached agreement with the World Bank on funding for a series of additional steps towards comprehensive judicial reform.

In addition to the initiatives supported by the World Bank project, which will be discussed in more detail below, the Sanchez de Losada government and its successor Banzer administration have forged ahead with a array of important additional judicial reform measures. An independent office of the Public Defender was created and started work in April 1998. With partial funding from bilateral donors, the government also has undertaken to revise several major and long-neglected codes of law, including the commercial code, the code of administrative procedures and the code of civil procedure. A new code of civil procedure has been prepared and currently is under consideration by the Bolivian Congress. The Congress similarly is reviewing a new administrative law code (a potentially significant area for environmental enforcement). A draft revised civil code has been developed and is being distributed to stakeholders for review and discussion. Once these new bodies of law have been set in place, the Ministry of Justice also plans to review and possibly revise the laws on consumer rights and protections, the code on minors and on family law.[xvi]

One of the key undertakings in the judicial reform process has been an effort to overhaul the antiquated Bolivian code of criminal procedures. With funding from U.S.AID and the German bilateral aid agency GTZ, the government has produced a draft revised Code of Criminal Procedures that radically alters the theoretical base and the practice of criminal defense in the country. Some of the principles underlying the proposed criminal code include: the democratization of justice through use of juries; a changed view of and role for victims of crimes; the simplification of processes, largely to reduce costs and delays but also to ensure greater transparency of the proceedings and accountability by the parties; and stronger defense of constitutional guarantees for defendants.[xvii]

One of the draft code’s other central changes is to introduce oral argument as standard procedure in criminal cases. This change would imply a shift from what is generally termed an “inquisitorial” system to an accusatorial one, with a concomitant major reduction in the power of Bolivian judges, who currently conduct investigations and then rule in all cases brought before a court. Defense lawyers, who until now have been marginal in judicial proceedings, would be asked to assume a much more active and important role. And for the first time in Bolivia, the defense and the prosecution would have opportunities to confront each other in court, whereas before all phases of trial were captured only in documents whose flow and distribution the judges and court secretaries controlled. Often, defendants never got to see the charges lodged against them nor the supporting evidence. If passed by Congress and implemented by the courts, the new code would dramatically alter the course of criminal proceedings in the country.

One other reform implemented by the Ministry of Justice under the Sanchez de Losada government provides a telling glimpse into the current state of the Bolivian judicial system and a clue to the types of reforms that can make a difference in both the short and the long run. Under its first Minister, the newly established Ministry of Justice decided to address the problem of debt servitude plaguing Bolivia.[xviii] According to Ministry and outside studies, as of the early 1990s, 91% of the prisoners languishing in Bolivian jails were being held without sentencing, one of the highest proportions of pre-trial detainees in the hemisphere. Many of these remained in prison well beyond the maximum term to which they would have been subject if they had been found guilty of the charges brought against them. One of the main reasons they remained in jail was because they could not pay the damages for injury they were accused of having caused. They were being held in jail until they could pay, clearly making it more difficult or impossible for them to pay. Worse still, another reason for the high rate of detention without sentencing was because many parties in a lawsuit could not pay their lawyer’s fees. In such cases, lawyers were bringing lawsuits against their own clients and having them held in jail until they could pay. This practice constitutes a systemic violation of the international law prohibition on imprisonment for debt.[xix]

To address this no-win situation, the Ministry introduced the Law Abolishing Imprisonment for Financial Causes (Ley de Abolicion de Apremio Corporal por Obligaciones Patrimoniales), which abolished debt servitude. A related piece of legislation, the Sworn Bond Law (Ley de Fianza Juratoria), provides that low-income individuals accused of crimes could be absolved of having to post a bond while awaiting their trial. Prior to passage of this law, persons unable to post bond were held in jail during the sometimes lengthy periods before their cases were brought to trial. Once passed, the Sworn Bond Law allowed the immediate release of 130 prisoners. The law abolishing debt servitude released at least 100 more people who had been languishing in jail.[xx]

These initiatives initially met strong opposition but eventually were passed. One of the groups opposing the change early on was the bar association, which argued that without this punitive measure Bolivians simply wouldn’t pay damages. On the other hand, because many of the prisoners who benefited from this were from the country’s lower income groups, the measure won for the Ministry substantial popular support. In fact, according to the Minister, this law was the single most popular measure passed under his administration.[xxi]

Implementation of these measures by the Banzer administration has not, however, been rigorous. Some studies indicate that the Bolivian judiciary is applying these laws only partially or inappropriately. The Sworn Bond Law, for example, states that accused individuals may be exempted from posting bond if their income is very low. Judges reportedly have ordered accused persons to present a range of documents—including statements certifying that they do not own real estate or a car, do not have a bank account, and do not file income tax returns—in order to establish their low income status and eligibility for the bail exemption. Poor people, however, may well lack the money needed to pay the notarial and other fees needed to obtain such certificates. Their poverty thus is used to disqualify them from a benefit they were meant to receive precisely because of their indigent status.

The lessons from Bolivia’s recent efforts to abolish debt servitude are both clear and noteworthy:

· In order to spark popular interest in and backing for judicial reform, it is important that the reforms address day-to-day problems faced by ordinary Bolivians.

· Measures that make a difference to ordinary Bolivians in a tangible and immediate way arguably are as important as the broader structural issues of revamping the Supreme Court and establishing a National Judiciary Council.

· Measures to address high-level reforms are vital and can make a difference in the long run. However, as current events in Bolivia suggest, they can be derailed or undermined if civil society groups aren’t monitoring implementation and demanding transparency and accountability from the government and Congress in reform efforts.

· And, in the long run, successive governments may have little interest in carrying out reforms that effectively strengthen the judiciary’s autonomy unless there is strong public demand. The necessary public demand will only arise if an active and organized segment of Bolivians feel that judicial reform can benefit them directly.

B. World Bank-Supported Reform Efforts
In April 1995, the World Bank’s board approved a loan of US$11 million (as part of a $12.8 million project) in “support for the first phase of a comprehensive Judicial Reform Program.”[xxii] The Bank’s project description noted that “[i]nstitutional reforms under the program would benefit the justice system as a whole, but specific interventions would focus exclusively on civil justice.”[xxiii] The project provides support for creation of a National Judiciary Council, designed to take over administrative responsibilities of the judicial sector—including management of the sector budget and overseeing the recruitment, nomination, evaluation and, as needed, sanctioning of judges—from an overburdened Supreme Court. A non-partisan Council would help to ensure the judiciary achieves a greater measure of political autonomy. A clear statement of a code of ethics, with effective enforcement of it afterwards, would also contribute in important ways to improving the sector’s autonomy. A strong Judiciary Council also could help ensure that individual judges retain autonomy of action relative to possible pressures from other parts of the judiciary.

The Supreme Court shared implementation responsibility for the project with the Ministry of Justice. The project underwrote limited institutional strengthening for both entities, particularly to enhance the strategic planning and management capabilities of the judiciary. Beyond that, the project assigns the Ministry of Justice responsibility for carrying out changes to the legal and institutional framework in which the judiciary operates, while the Supreme Court was charged with developing and implementing important changes in the day-to-day operations of the court and of judges. The project is slated to end in September 1999.

The Ministry of Justice was responsible for the smaller component of the loan, amounting to US$2.8 million, and has met a number of key goals. It developed and fostered passage of key pieces of legislation needed to anchor the reforms. The new laws included implementing legislation for the National Judiciary Council and the Constitutional Tribunal, formally established under the 1993 Constitution. The Ministry successfully developed both these pieces of legislation and obtained their approval by Congress. Bolivia’s new National Judiciary Council formally launched its work in April 1998. As one of its early activities, the Council prepared and presented to Congress a list of candidates for the new Constitutional Tribunal. The Tribunal is scheduled to begin its work in June 1999. The Ministry also drafted a new code of civil procedure, a new administrative law code and the new civil law code. As mentioned earlier, as of January 1999, the first two laws have already been submitted to the Bolivian Congress, while the third is under review by relevant stakeholder groups. The Ministry was also responsible for designing and implementing improved alternative dispute resolution systems, to help reduce case loads as well as to improve access to dispute resolution services for marginalized social groups.

A small but noteworthy Ministry of Justice sub-component of the project focused on analyzing the traditional judicial systems used by several of Bolivia’s indigenous communities. Regional NGOs with experience with indigenous communities were contracted to carry out the studies. The studies were undertaken in recognition of the fact that large sectors of Bolivian society—in particular, indigenous groups—lack access to the national justice system. In addition to the lack of access to “formal” justice, indigenous law persists, because the populations often prefer to use traditional forms of justice to resolve conflicts within the communities or between neighboring communities of the same ethnic background. The national legal system lacks legitimacy for these groups; their traditional systems may actually work better for them because the local systems enjoy greater moral and cultural resonance within the native communities and because they are seen to produce more tangible and effective results. After completion of 10 initial studies, a committee has begun to develop proposals to validate aspects of traditional indigenous law within the national legal system. This component of the project, if carried forward, offers a groundbreaking opportunity to integrate different legal traditions in a way that should strengthen the overall legitimacy of the justice system. It also could potentially greatly improve access to justice at the community level for groups that have long been left outside the bounds of any effective formal means of conflict management.

The larger component of the Bank-funded project (US$7.8 million) was under the direction of the Supreme Court. The tasks delegated to the Court are critically related to the potential reduction of corruption within the judiciary and the improvement of judges’ abilities to implement modern courtroom administration procedures. In general, the Supreme Court accepted the project—and specifically the establishment and operation of a Project Coordination Unit—but its performance was disappointing, as it offered virtually no active support for project activities. Once the National Judiciary Council began its operations in 1998, it became the official project counterpart and took over supervision of the project components originally assigned to the Court. While the change in implementation responsibilities raised hopes for improved performance, concerns continue to exist.

One of the first tasks of the Supreme Court was to issue guidelines for judges for managing civil proceedings, as well as guidelines for the average duration of judicial proceedings. The work was not completed by the deadline of late 1995 and was eventually incorporated into the new code of civil procedure developed by the Ministry of Justice that is currently under consideration by Congress. The Supreme Court was also in charge of developing training programs for judges regarding procedural changes in the civil and criminal codes, and providing support for the implementation of these changes. Finally, the Supreme Court was in charge of developing a system for improved recruitment, performance evaluation, and promotion of judges. A number of training programs had been held by the end of 1998.

The delay of the crucial Supreme Court components of the project may stem from resistance from the Supreme Court and others. Many of the changes under the project—particularly the creation and implementation of the Constitutional Tribunal and the National Judiciary Council and the new system for recruiting and evaluating judges—remove authority and resources from the Supreme Court’s control. The Bank’s project on judicial reform in Bolivia, like those in other countries, thus ran into the cardinal problem of how to ensure continuing political will for reform among the key institutions involved.

Notwithstanding the serious delays in implementation, the project has supported important changes to the overall judicial framework and has helped set in place measures that may significantly improve the judiciary’s professionalism and autonomy. However, project performance has fallen short in terms of building public interest in and support for the reforms. It has to date been carried out largely out of sight of the public, including even major non-governmental organizations with a strong interest in the workings and impartiality of the judicial system. Most troubling, there are no planned activities for broadening awareness of and support for reform.

The World Bank has initiated discussions with the government of Bolivia regarding a second loan to support judicial reform, which could provide up to US$20 million for additional activities. Project identification is underway. Areas of possible focus include the development of a clear career track for judges and continuing work on the integration of indigenous law systems with national law. The preparation of the second project offers an opportunity to rectify the participation shortcomings of the first.

C. Achievements and Limits of the Recent Reform Efforts
Two successive Bolivian governments, supported by multilateral and bilateral funders, have undertaken important and necessary steps towards reform of the country’s historically discredited and marginalized judiciary. Nonetheless, the integrity and continuity of reform efforts—and therefore their ultimate effectiveness—remain in doubt. If the selection of the magistrates for the new Constitutional Tribunal and the key National Judiciary Council has been manipulated so that politically trustworthy and/or poorly qualified justices have been named to the new posts, even the creation of the new governing bodies will not promote the intended greater efficiency or autonomy within the Bolivian judiciary. Nor will they develop the confidence in the judicial system that will promote economic activity or protect the rights of all who come before them. Overall, virtually every one of the reforms taken to modernize the Bolivian judiciary can still be rendered ineffective without adequate commitment and vigorous monitoring.

The key element of reform missing so far in both Bolivian government and World Bank strategies is widespread public involvement and building of a strong sense of citizen ownership in an effective and accessible judicial system. The general public has by and large been left out of the design and implementation, much less the evaluation of the measures taken. As the Bolivian case suggests, even the most well considered and appropriate “top-down” changes can founder if some form of on-going, long-term system for monitoring and correction is not set in place. And, as the measure abolishing debt servitude strongly suggests, adoption of reforms that directly improve the welfare of the general public will elicit an important degree of public interest in and support for continued meaningful change.

IV. A New Approach for Bank-Supported Judicial Reform Initiatives

A fairly straightforward and inexpensive set of exchanges can provide concrete ideas for how civil society can be brought into the design and monitoring of governmental judicial reform strategies. The methodology centers on convening small groups of NGOs, potential or actual litigants, attorneys, judges, and other government officials to analyze specific areas of “public law” and how it is developed, or not, in the courts. The workshops serve several purposes simultaneously. First, they can encourage affected actors—those who “use” the legal system to focus on the reform of institutions as well as that of laws as a means of strengthening rights protection, preserving the environment, protecting consumers, checking corruption, etc. With appropriate follow-up, this initial opportunity to focus on the role of the judiciary in enforcement can be turned into a long-term concern with the integrity of judicial reform in general. Secondly, the workshops provide a “user’s” view of the judicial system, offering a useful complement to the top-down, Supreme Court-led reforms that dominate current thinking about judicial reform in most countries in the region. Finally, and not least in importance, the workshops focus on reform initiatives that can strengthen the defense of public interests in a given country. This spotlight on “public law” issues is crucial in providing balance to the continued private law emphasis of most judicial reform efforts in Latin America today. Each of these points will be elaborated on below.

NGOs—and perhaps particularly human rights and environmental groups—have an important perspective on judicial reform in Latin America. The substantive issues that are central to their work typically affect groups whose rights and interests are poorly served by the formal legal system and who lack the means and opportunity to obtain adequate non-judicial redress (such as through private arbitration). In many cases, their work brings them into contact with governmental actors who encounter serious obstacles to their own attempts to enforce the law. The result of this is a practical sense of how the day-to-day, front-line “users” of the legal system view the need for improvement. A more systematic effort to identify these needs, through the experience of such users, can serve as an important complement to the project designs that characterize Bank efforts in this area.

A further advantage of drawing non-governmental actors into judicial reform projects is that they can support the enforcement of public interest law, thereby strengthening enforcement in general. The problem of adequate legal enforcement of public law is in many respects analogous to the question of how to best preserve and ensure “public” goods. This, in turn, has often been posed in terms of a strategic choice; whether the issue is combating official corruption, or enforcing environmental regulations, a central inquiry has been whether public (i.e. governmental) or private (through citizen action) enforcement is most effective. Whatever the path chosen, the administration of justice plays an important role in making it work. However, the difficulties are compounded where, as in many of the nations in which the Bank is working, the justice system has not demonstrated its capacity to be effective. What types of judicial and legal reforms are likely to make the law an effective vehicle for protecting such societal rights and interests?

Of course, public and private enforcement are by no means mutually exclusive. Both are needed, though the potential of each will vary from nation to nation, depending on the relative strengths of various echelons of the judicial system, administrative agencies, and civil society. To be sufficiently responsive to the needs and potential in each country, judicial reform initiatives must be founded upon a model that contemplates both strengthening the primary State institutions and enhancing the means and incentives for private actors to play a complementary role. The World Bank has already taken significant strides in the first area. Efforts to strengthen lead institutions such as a Supreme Court or judicial council, and to enhance court administration —all activities underwritten by recent Bank projects—important, particularly to the extent they can promote important system values such as judicial autonomy and independence.

However, this approach has significant practical limitations. Judiciaries are fundamentally passive actors; their reach cannot exceed what is brought before them. Nor do judiciaries alone constitute the “justice system,” which, properly understood, comprise the continuum of legal system actors, including the affected parties, the bar, administrative and prosecutorial agencies, and the courts. A complementary "bottom-up" approach will be particularly important where public law matters are concerned, since the current arrangements in most countries provide no incentives, or often negative incentives, for private actors to shoulder some of the burden of ensuring that law is respected. Two examples illustrate the need for such an approach:

· In Bolivia, a large number of governmental officials, private lawyers, or non-governmental organizations consulted could name only a handful of examples of litigation brought to enforce existing environmental laws. (One case identified involved a violation of environmental law which led to a wrongful death, and the tort claim, rather than the environmental violation, formed the basis of the action.) The many obstacles to using the court system in this area have simply precluded enforcement by private actors.

· In Paraguay, the chief of the national Controller's Office's environmental division, which is responsible for oversight of governmental agencies, concurred with private lawyers that neither existing environmental laws nor the Court of Claims' “contentious administrative procedure” (procedimiento contencioso-administrativo) were useful against even the patently corrupt or ineffective agencies. Administrative practice required that the target agency first exhaust its internal review procedures. According to the Controller, these initial reviews are rarely, if ever, completed, making it effectively impossible to commence the contentious-administrative action. Thus, the primary judicial mechanism for ensuring appropriate exercise of administrative authority has been rendered all but academic in an area of national importance.

· In Peru, the bureaucratic and legal tangle made famous in Hernando de Soto’s study of forming and operating legally registered businesses[xxiv] offered a practical explanation of the burgeoning informal business sector and a concomitantly depleted commercial tax base. The analysis and suggested reforms derived from a “street-level” look at obstacles facing small business formation.

The above situations and many others like them will persist even if judicial reforms succeed in strengthening the institutional capacity of Supreme Courts and Judicial Councils. Particularly in areas of diffuse or collective rights or goods, for example, more will be needed. Reforms must also encourage the public and the legal community to push for better and expanded application of law. Contributions of NGO “users” to the planning and design of reform initiatives can easily generate other examples and articulate some conclusions.

Workshops that the Lawyers Committee has helped organize to date under this methodology convened mid-level judicial or prosecutorial officials; private attorneys with some familiarity with public law issues; representatives of community groups, NGO representatives; “case officers” in regulatory and oversight agencies; and as observers, legislators. The workshop focus has been intentionally “case”-based, i.e., they are organized around presentation and discussion of actual situations that are covered, at least theoretically, by existing substantive law, and regarding which administrative or judicial actions would at first blush, seem obvious avenues for redress. Where such actions have been commenced, participants are debriefed as to the difficulties and successes; if they have not begun, questions are posed to determine why the affected parties decided against or failed to pursue legal action.

This approach can identify needed institutional, normative, administrative, informational/educational and budgetary reforms. Many governments would be unable to sustain initiatives in every area at once (and it would probably be unwise to try) and the World Bank would probably not underwrite efforts in all areas. However, even articulating a reform agenda for enhancing access to justice and the vibrancy of the legal machinery would contribute significantly to an area in which relatively little groundwork has been done. The methodology described is equally useful for private law areas, such as judicial enforcement of individual land titles or commercial contracts, which present fewer complications than collective rights issues. Lastly, as noted above, this approach offers the additional benefit of promoting pro-reform constituencies. If the Bank were to address its efforts to the institutional problems that people experience directly, the reform would likely seem more immediate and worthwhile, and more likely to merit their support.

Recent Lawyers Committee efforts have focused on discrete areas, including the environment, land titling, and indigenous rights. It is important to note, however, that the approach is not sector dependent, for two reasons. First, any area of law or policy can be subjected to the same review. Inappropriate bias in favor of one sector's concerns can be guarded against, for example, by verifying reform ideas across a representative sampling of sectors. Second, users' needs across different areas of law will tend to coincide. For instance, standing requirements, rules regarding collective actions, and administrative procedures are likely to emerge as candidates for reform in discussions of environmental as well as commercial law. Lastly, this inquiry is not fundamentally about individual public policy sectors, but rather about how best to promote use of legal mechanisms to enforce the laws and policies that have been promulgated.

Initiatives of this sort could easily be incorporated into the development process of Bank-supported judicial reform projects. Analogous efforts already exist among Bank initiatives. As noted earlier, in Bolivia, a subcomponent of the Bank's judicial reform loan has financed studies of how to incorporate indigenous law and custom into the formal legal framework; follow-up support will assist the government's efforts at implementation. A portion of the Peru judicial reform loan was earmarked for projects designed to enhance greater access to justice.[xxv] Similarly, project designs could incorporate efforts (whether studies, seminars, or other means) to determine the needs of system users, and to evaluate the various remedial strategies.

The first round of workshops organized under this perspective has focused on environmental lawsuits and have been co-sponsored by local environmental groups. In many countries of Latin America, environmental laws have undergone a particularly rapid evolution and advance during the past decade. Enforcement of the new laws is strikingly deficient, however, creating a sharp contrast between the up-to-date provisions of the law and the great inadequacies of their enforcement. Weak judicial systems are one factor contributing to poor enforcement, but their drag on implementation has been relatively little recognized or analyzed. This situation makes environmental groups strong potential allies for the human rights and other public interest communities in an effort to strengthen the attention to public law by judicial systems. The Lawyers Committee’s experience in Venezuela, where environmental groups joined the human rights community in calling for similar changes to the government’s and World Bank’s plans for reform of the judiciary, confirmed the potential of a strategic alliance between different sectors of the public interest community.

V. Environmental Case Analyses: NEW Directions for Judicial Reform in Bolivia

In July 1998, the Lawyers Committee and the La Paz-based League for Defense of the Environment (Liga de Defensa del Medio Ambiente—LIDEMA) organized a workshop on “The Enforcement of Environmental Laws in the Framework of Judicial Reform in Bolivia.” Workshop participants included representatives of an array of Bolivian environmental and human rights groups; the Vice-Minister of Justice; legislators from the Natural Resources and the Constitutional Commissions of the Bolivian House of Deputies; representatives of the Environmental Unit of the General Comptroller’s Office; and representatives of the superintendencies (regulatory agencies) for forestry and mining.

Using case studies of legal actions brought or attempted to be brought to enforce environmental laws, the workshop sought to identify obstacles to such enforcement from a public interest perspective, and to demonstrate the linkages between effective, independent, and impartial judicial systems and protection of the environment. A summary of the cases analyzed is set out below, together with suggestions for a reform agenda.

The Bolivia workshop followed a model first developed by Lawyers Committee, working with Sobrevivencia, the Paraguayan affiliate of Friends of the Earth, at a workshop in December 1997.[xxvi] As in Paraguay, organizers of the Bolivian workshop found themselves facing a dearth of cases to analyze for suggestions for judicial reform, because almost no environmental group in Bolivia currently turns to the judicial system for redress of violations of environmental laws. This strong reluctance to use the judicial system clearly constitutes a major impediment to the use of the courts to protect and promote the environment and requires further analysis in order to understand the kinds of reforms necessary to make public interest law in general and environmental law in particular an effective weapon for the defense of collective interests. Accordingly, this paper also assesses the key factors for the generalized avoidance of the courts from an environmental perspective and suggests some reform ideas to reverse this state of affairs.

In the rare instances that Bolivian groups do decide on legal action against a violator of environmental laws, they have turned to administrative venues more readily than to the regular courts. Government agencies charged with regulation and enforcement of environmental and other laws are also important participants in administrative fora. Administrative actions, however, can be derailed or delayed as often as lawsuits brought before the regular courts, as the result of political considerations, special interests or even unclear administrative procedures. These factors together place the administrative law system in the spotlight as an important target for reform consideration as well. The cases described below illustrate these concerns.

A. The Pilon Lajas Biosphere Reserve and Indigenous Territory

Case History[xxvii]

The Pilon Lajas Biosphere Reserve and Indigenous Territory is an area of 400,000 hectares located in the center of Bolivia, straddling the boundary between the province or department of La Paz and the department of Beni. Created by executive decree in 1992, the reserve area encompasses a very high degree of biodiversity in flora and fauna. It also forms part of a “biological corridor” that includes additional protected areas in Bolivia and Peru. The reserve is simultaneously a nationally recognized indigenous territory, managed by a committee of representatives of the local communities and ethnic groups resident in the area.

In mid-1996, in response to allegations by local residents of illegal logging activities taking place in the reserve, the Bolivian Ministry of Sustainable Development asked all lumber companies operating within the reserve’s boundaries to submit to the Ministry documentation legalizing their operations in order to ascertain that logging contracts were in order. Only two companies complied with the Ministry’s request. The case study presented at the July workshop described the legal actions taken against one of these companies, El Pino.

Review of the documentation supplied by El Pino’s representatives revealed several serious irregularities in the contract that the company was relying upon to legitimate its logging activities in Pilon Lajas. First, the decree establishing the reserve as a protected area (D.S. 23.110/1992) had prohibited the granting of any new concessions in the territory as of the date of the protected area’s creation in 1992. Second, an executive order mandating an “Environmental Moratorium” (Pausa Ecologica), which came into effect in 1991, required companies with existing concessions in protected areas to apply to work in the area within 60 days of the regulation’s effective date. El Pino did not sign a new concession for logging in Pilon Lajas until 1995, suggesting that they also had not presented the request for renewal of the concession until several years after the required deadline. Notwithstanding, the La Paz Center for Forestry Development (Centro de Desarrollo Forestal) issued the contract. In addition, under the terms of the executive order, while new concessions were to be approved both by the National Secretariat for Agriculture and Ranching and the Ministry of Sustainable Development, the latter never approved El Pino’s concession in Pilon Lajas. Finally, examination of the concession that El Pino received for logging in Pilon Lajas revealed a major discrepancy between the written and graphic specification of the area for which El Pino had logging rights. The narrative description of the territory to be logged specified an area one degree north of the area in which El Pino actually was working, in a region outside the boundaries of the reserve and in the department of Beni. A map issued by the Bolivian Military Geographic Institute was annexed to the contract and showed the area to be exploited as one degree to the south, within the protected area and in La Paz department.

Based on these irregularities and on allegations of illegal activity reported by local authorities in Pilon, in July 1996, the Secretariat of Natural Resources and the Prefecture of La Paz initiated an action before the Public Ministry (public prosecutor’s office) claiming that the El Pino company was conducting illegal timber cutting in Pilon Lajas. The Public Ministry ordered an on-site inspection of the company’s activities in the reserve and found that the company, in violation of the terms of its contract, was using heavy equipment to carry out logging in the reserve. Several months after the inspection team visited the site, the Public Ministry issued a report on the matter and thereafter issued an order stopping all work by El Pino in the Pilon Lajas biosphere reserve. The same order sequestered two tractors that had been found in the logging area and that local defendants claimed were being used in the illegal logging activities.

The Public Ministry’s prosecutors then presented a case to a judge, lodging charges against El Pino under Articles 106 and 109 of the General Environmental Law (Law 1333 of 1992) and Article 223 of the Penal Code. Article 106 of the General Environmental Law provides sanctions for destruction or damage to public goods; Article 109 of the same law provides fines for unauthorized logging, with higher sanctions specified for unauthorized logging in protected areas or reserves. Article 223 of the Penal similarly sets a penalty of up to six years of prison for destruction of or damage to public property. In addition, the Ministry’s case argued that El Pino was violating Article 37 of the executive order that established the “Environmental Moratorium,” which required an application for work within 60 days of its issuance. Finally, the Ministry called for investigation of the former directors of the Center for Forestry Development under Articles 153 and 154 of the Criminal Code for issuance of the irregular contract to El Pino.

Shortly thereafter, the judge handling the case accepted the charges under Article 223 of the Penal Code, but dismissed the charges under the Environmental Law. This judicial decision made the case a strictly criminal matter, with no reference to any possible special characteristics of environmental damages that may have occurred. When a third party—the owner of the two tractors sequestered under the Public Ministry’s order—presented an appeal to the same judge requesting release of the tractors, the judge granted his request, ruling that they were immaterial to the criminal charges. This was reportedly the end of the judge’s action on the criminal charges brought against El Pino. By the time the case was settled under administrative channels two years later, the judge had undertaken no investigation into the charges against El Pino nor any against the former directors of the Center for Forestry Development.

At the time that the initial criminal charges were being brought against El Pino in 1996, the administrative channels with jurisdiction over the case were in flux. At that time, the Secretariat of Natural Resources had administrative authority over the case, but Bolivia had just passed a new Forestry Law (Law No. 1700 of July 12, 1996), which transferred authority to a newly mandated and autonomous Forestry Superintendency which would act as a regulatory body. However, as implementing regulations creating the Superintendency had not yet been issued, the Secretary of Natural Resources acted as an interim Forestry Superintendency. When the new regulations were issued in December 1996, the case moved to the jurisdiction of the newly-established Forestry Superintendency. Its head had formerly been in charge of the case at the Natural Resources Secretariat.

While the Forestry Superintendency’s responsibilities were still being handled by the Secretariat for Natural Resources, the interim Superintendency cancelled El Pino’s concession in Pilon Lajas and formed a technical commission to assess the damages done in the protected area. Commission members inspected the logging area under dispute and issued their conclusions in a public meeting. They confirmed extensive damage to the reserve in the logging area and recommended an assessment of $500,000 in fines and damages for the resulting environmental harm (including road building and use of dynamite), as well as restitution for the commercially valuable trees already cut. Based on the commission’s conclusions and recommendations, the interim Superintendency issued a second decree requiring El Pino to pay damages.

Ten months later, in a move that surprised many observers and the parties in the case, the newly constituted permanent Superintendency issued a new decree retracting the cancellation of the concession by the interim Superintendency. The primary justification for this action was an asserted lack of authority of the interim Superintendency to invalidate logging contracts. Several other grounds were also stated. The legal department of the new Superintendency maintained that the administrative action against El Pino had been brought while the judicial criminal case was still pending, leading to an inadmissible overlap in the two actions. The Superintendency also noted that the remedy in the original action against the company set a highly undesirable precedent when it permitted El Pino the ability to remove and sell cut timber still on site of the disputed logging area, and use the proceeds to cover the fines and damages. In addition, the Superintendency stated that the second decree had used unclear and potentially erroneous criteria for assessing the environmental damages. It thus wanted to avoid potential future legal action on claims that in underestimating the environmental damages, the Superintendency had not met its obligations and let El Pino escape paying the cost of damage to public property. Finally, the permanent Superintendency cited the fact that the earlier ruling had been based in part on Forestry Law regulations which were not yet in force and therefore were inappropriately applied in this case.

El Pino’s directors used the Superintendency’s third (retracting) decree as the basis for a new petition in the criminal case, claiming that there were now no grounds for the criminal charges. Soon thereafter, in March 1998, the Ministry of Sustainable Development reached a negotiated settlement with the officers of El Pino. However, the Ministry almost immediately backed out of this settlement, claiming it had been badly advised about what the terms should be. In April 1998, the Ministry and the company reached a second settlement, which required the company to pay for approximately 80% of the damages originally imposed in the interim Superintendency’s decree on fines and damages. The settlement also contained an agreement to end the criminal case.

The judge in the criminal case subsequently issued a ruling holding that there was a lack of evidence for indictment and exonerating the accused. As noted earlier, the judge had not in fact yet initiated the investigative stage of the proceedings in the case.

Case Analysis

The Pilon Lajas case followed a protracted and confusing course, which ultimately did not correct environmental harm that several laws and decrees for defense of the environment are intended to prevent. The case illustrates a number of weaknesses in legislative instruments. For example: the country’s General Environmental Law, passed in 1992, remains weak, with only partial regulations issued by 1996. One estimate suggests that as much as 45% of the law is already irrelevant, because several of the governmental agencies with responsibilities under the law have never been created or have been eliminated since 1992.[xxviii] There is no law specifically regulating the management of biological diversity. Finally, the various laws, statutes, and decrees covering protected areas are often mutually conflicting or outright contradictory. Bolivian environmental groups and authorities are by and large well aware of these shortcomings in the legislation. Indeed, the usual response by these groups to problems in defending environmental interests in Bolivia has been to try to rewrite the laws in order to strengthen them.

Weaknesses in administrative implementation of environmental law were also evident in the Pilon Lajas case. For example, there is a lack of clear guidelines or procedures for assessing environmental damages. One of the reasons cited by the permanent Superintendency’s legal department for retracting the decrees on the case issued by the interim Superintendency was that the procedures or criteria for assessment of environmental damages were not clear in the regulatory agency’s second decree in the case. The development of a more detailed methodology or guidelines for assessing environmental damages, which can also be used by judges and prosecutors, would make for a smoother path for future cases.

The weaknesses in the judicial system that are illustrated in the Pilon Lajas case are also striking, and significantly contribute to the difficulties of successfully redressing environmental problems in the country. Many of these concerns also apply to the protection of other areas of public interest. The most obvious problems include the following:

Absence of a mechanism to ensure that judges act in a timely fashion in handling a case. Over a two-year period, the judge handling the criminal charges in the Pilon Lajas case never opened an investigation into the charges. As noted above, the criminal charges were finally set aside as part of the negotiated settlement between the Ministry of Sustainable Development and the company. In addition, the judge never pursued the Public Ministry’s request to investigate the actions of the directors of the La Paz Center for Forestry Development in granting a logging contract to El Pino under dubious circumstances.

A need for a stronger government Controller, vested with the authority to bring actions against government agencies that may not be carrying out legal obligations in a timely or appropriate manner. A number of government agencies in the case failed to comply with their legal mandates. This not only resulted in the non-enforcement of important environmental laws, but also undermined the willingness of average Bolivians to obey them as well. For example, while the Public Ministry in the end played a major role in the case, it took more than six months to issue the report of the team sent to the Pilon Lajas reserve to carry out the on-site inspection of damages caused by El Pino logging in the area. During that period, there was no legal impediment to the company continuing illegal activities in the reserve. Moreover, the La Paz Center for Forestry Development issued a highly irregular contract to El Pino in the first place, but its directors never were investigated or suffered any sanctions as a result of the case. Finally, the Forestry Superintendency reinstatement of El Pino’s contract, given its irregularities in substance and means of approval, was questionable, and appears to be inconsistent with a number of provisions of environmental regulations.

The Controller’s Office of the Bolivian government is responsible for oversight of governmental agencies. To its credit, the office has an environmental unit that was established in 1996. However, due to constrained resources, the unit of five professional staff have decided as a matter of strategy to limit its work to the review of systems and procedures for handling environmental and natural resources matters. This does not permit a review of particular cases. Without strengthening of the office, both in terms of human and infrastructure resources, it is not in a position to monitor effectively other arms of government.

Judges lack familiarity with even basic environmental laws. A survey conducted in the mid-1990s by the president of the Environmental Commission of the Bolivian National Bar Association found that 85% of judges and prosecutors in the country were not familiar with even the most basic provisions of the General Environmental Law of 1992.[xxix] The ruling by the judge in the Pilon Lajas case that violates Articles 106 and 109 of the General Environmental Law strongly suggests that the judge was not familiar with these laws or simply was not comfortable applying relatively new legal provisions without precedents in similar cases.

More than one analysis of the judiciary in Bolivia has noted the average judge’s lack of case preparation and the need for continuing education in new areas of legislation. In addition, some have suggested that many judges view environmental law as a fad that is likely to pass in a few years. Judicial training is an area often supported by the World Bank and it is a component of its project in Bolivia. Training in environmental and public interest law in general would constitute a useful new component of the training regime. In addition, it might be useful to consider the creation of a special judicial chamber to hear environmental cases. This would permit special training to be given to a smaller number of judges. Advantages of a special court should, however, be carefully weighed against the risk of fragmenting the judiciary.

Prosecutors’ lack of familiarity with environmental laws and related principles. Private environmental lawyers associated with the case noted that a major effort had to be made, when pursuing the enforcement of environmental laws in the Pilon Lajas reserve, to educate members of the Public Ministry on fundamental environmental principles such as the biodiversity of the reserve and how El Pino’s logging activities there might be damaging the environment. Prosecutors’ lack of knowledge of a subject matter within their mandate—in this case, what constitutes environmental damage—clearly undermines their ability to enforce the law and carry out sound natural resource management. Thus, training for prosecutors in environmental laws and principles is as important as training of judges. Creation of a special unit devoted to environmental matters within the Ministry would also be worth considering.

Lack of means by which private individuals or entities can support governmental enforcement activities in defense of the environment. As noted above, the Prefecture of La Paz and the Secretariat of Natural Resources brought the charges against El Pino. Several other parties – notably the indigenous communities with title to the territory of the reserve – would conceivably have strong cases against the logging company. However, private entities were not able to play a direct role in either the judicial or administrative cases. Bolivian legislation is very weak in this regard.

A number of reforms could contribute to the ability of groups or individuals to support the enforcement of environmental laws. For example, allowing environmental groups or directly affected individuals the right to bring or join legal enforcement actions or to press the eovernment to meet its obligations would be very useful. Close attention should also be given to ensure that the cost of legal actions is not excessive, particularly for those of limited means, thereby making it easier for environmental NGOs to bring supporting civil cases on behalf of individuals or groups who suffer material damage from violation of an environmental law. Additional reforms could permit NGO participation in lawsuits through the filing of amicus curiae briefs in support of the government.

B. Pollution of the Pirai River

Case History[xxx]

The Pirai River is a major waterway flowing through Santa Cruz department in eastern Bolivia. Since 1988, environmental groups in the department have been denouncing massive fish kills in the river, apparently due to a significant reduction in dissolved oxygen as a result of the discharge of effluents from several large sugar mills located along the banks of the river. In 1988, in response to persistent reports of fish kills, the departmental Center for Forestry Development (Centro de Desarrollo Forestal—CDF), which is charged with oversight of natural resources in the province, imposed a US$40,000 fine on the UNAGRO sugar mill for discharge of illegal effluents into the river. The sugar company appealed the fine up to the Bolivian Supreme Court, which declared the CDF’s action unconstitutional and dismissed the fine.

In May 1994, again in response to repeated reports of extensive fish kills, the prosecutor’s office in Santa Cruz district brought a case before a judge requesting investigation of the possible role of the sugar mills in causing the environmental damage. The judge organized a commission that carried out visual and aerial inspections of the damage. The inspections confirmed that large numbers of dead fish could easily be seen along several kilometers of the riverbanks, and that the river waters were visibly darkened around the sites where the sugar mills were discharging effluents into the river. In July, the director of the regional CFD officially reported to the national Secretary on Agriculture and Ranching that approximately 60 tons of dead or dying fish were found along the inspected stretch of the Pirai River.

Also in July, the Environment and Natural Resources Commission of the Bolivian House of Deputies issued a report on the extent and causes of the fish kills along the Pirai River. The Commission recommended that all facilities that discharge effluents into the river be required to comply strictly with prevailing environmental norms. In addition, it directed the Ministry of Sustainable Development to carry out annual inspections of all the activities with environmental consequences carried out by facilities located along with river. Finally, the Commission ordered the Ministry of Defense to clean up a seven-kilometer stretch of the river.

The legal action against the sugar mills started in August 1994, with charges brought against the legal representatives of the UNAGRO, GUABIRA and Santa Cecilia sugar factories. The case based its charges on Articles 216 and 220 of the Criminal Code. Charges were also filed against the director of the regional CFD for negligence with public property under Article 154 of the Criminal Code. On August 18, the presiding judge in the matter ruled that the General Environmental Law could not be invoked in the case because Articles 79, 80 and 117 of the law had not yet been implemented. Articles 79 and 80 call for standards to be set for pollution of all media; Article 117 calls for the regulations to the law to be issued.

A series of depositions and presentations by representatives of the accused sugar companies followed during the end of 1994. All denied responsibility by their facility for the fish kills, citing measures taken to retain and recycle effluents on-site or efforts made to treat the biodegradable effluents before they left the factory property. However, in November, the prosecution presented the court with a series of technical reports on the treatment systems of the defendant installations. The reports were prepared by an outside specialist and technical experts from the Ministry of Sustainable Development. The reports found poorly maintained, non-existent or substandard facilities for water treatment at each of the three sugar mills.

It was not until August 1996 that the presiding judge in the case issued a ruling. He absolved all of the accused sugar mills of the charges brought against them. To date, no other party has been held responsible, in part or in whole, for the fish kills along the river which continue.

Case Analysis

It is possible that the judge’s ruling in the Pirai River pollution case may have been based on a lack of unambiguous evidence that the sugar mills were in fact the direct cause of the fish kills observed at various locations along the river. Nevertheless, the most striking aspect of the overall case is that after years of widely confirmed and extensive fish kills along the river, no one has been held responsible for the environmental damage and the problem continues. In addition, no government agency seems to be consistently monitoring the situation or carrying out audits of possibly polluting facilities situated along the riverbanks. And, although the fish kills have been widely reported in the press in Santa Cruz over the years, not even the most active environmental watchdog groups in the region have undertaken to bring a lawsuit against anyone to stop the pollution. Several petitions urging action have been filed with administrative agencies in charge of natural resource management in Santa Cruz department, but environmental NGOs by and large feel that filing a lawsuit in regular court would be too costly, with little expectation of a positive return.

The case suggests the need for a number of legislative and institutional changes. On the legislative front, clearly the General Environmental Law needs to be updated and additional regulations issued. Standards for ambient and point source air and water quality need to be developed and implemented. Environmental and natural resource protection agencies at the national and regional levels need to be strengthened and provided with environmental education. And again, as in the Pilon Lajas case, strong incentives for the government agencies with current responsibility to carry out their jobs need to be instituted.

The following judicial reforms also would improve the chances for a fair hearing on environmental issues in Bolivian courts:

Need for further exploration of means and incentives for private actors, including public interest groups, to participate in environmental enforcement to enhance their ability to play a complementary and constructive role. Despite two Articles (No. 100 and No. 102) of the General Environmental Law allowing any party to bring a lawsuit against a violator of an environmental norm, virtually no one brings lawsuits on environmental matters. Thus, the law, including its standing provisions, has not been tested, so it is not clear if it discourages private involvement. The dearth of litigation is evidence that few organizations believe that they will receive a fair hearing of their concerns. There is thus a need to examine the conditions that encourage or discourage the involvement of private actors in efforts to ensure that laws to protect the environmental are enforced.

Effective enforcement of a “polluter pays” principle relevant to all costs in a legal case. The costs of starting, much less bringing to completion a lawsuit in Bolivia are prohibitive for all but the wealthiest groups. In fact, until recently, if a non-governmental organization brought a lawsuit and lost it, its own lawyers might be expected to ask a judge to send the NGO directors to jail if they couldn’t pay the lawyer’s fees. A more equitable system that does not effectively prohibit legitimate legal actions must be devised. Some provision needs to be made for all costs associated with a lawsuit to be covered by the defendant if found guilty.

New and/or strengthened tools for private groups to use in obliging government officials to carry out their duties in environmental enforcement. Here again, strengthening of the Controller’s office and/or the Public Ministry would be key. Additional tools might include citizen action provisions such as the accion de tutela and accion publica currently in use in Colombia.

C. Bolivia’s Administrative Law System

The administrative law system theoretically offers a first avenue for enforcing environmental laws in Bolivia. However, as the two cases described above suggest, it rarely is an effective enforcement mechanism. The administrative system seems to be poorly structured, with a general lack of clarity about what the procedures are for bringing and pursuing a complaint. And in practice, the handling of complaints usually seems to get bogged down in politics or incompetence.

Accounts of how the administrative system is theoretically supposed to work are garbled and confusing, indicating a lack of knowledge about it even among environmental law specialists. By one account, each administrative agency—e.g., the Superintendent of Energy and the Forestry Superintendent—has its own system of administrative law and its own procedures.[xxxi] However, even agency lawyers are unable to articulate the appropriate procedures for a given type of claim or complaint. Other sources (from the Ministry of Justice and from U.S.AID) claim that Bolivian law does lay out a single code for administrative procedures. The extant code may, however, be the SAFCO system that guides government agencies’ management of their budget, personnel matters, and other administrative issues, rather than covering handling of complaints from the public of inadequate enforcement of laws.

The presence or absence of clear procedures on the books, however, seems largely a moot point since the administrative law system does not work as a means of enforcing laws. This suggests the need for comprehensive strategies rather than the compartmentalized ones favored in many reform initiatives, including those supported by the World Bank. As mentioned earlier, the few watchdog groups that have brought complaints against polluters before the appropriate regulating agencies generally have seen their case disappear into a black hole of bureaucratic inaction. In some cases, agency administrators under one government do not want to enforce laws passed by their predecessors from a rival party. In other cases, special interests such as large logging or mining companies have enough clout to block actions brought against their activities. Virtually no instances of infraction of environmental laws have been stopped through administrative means in Bolivia.

Despite the poor record of performance, administrative avenues do still seem to be more credible to Bolivians than the courts. The Association for Ecological Action (Asociacion para la Accion Ecologica) does file complaints against polluters with the prefecture’s secretary for the environment. While reforming the administrative law system certainly seems like a daunting task, it at least might be something that people in Bolivia can get interested in more easily than in reforming the court system. This suggests that changes to the structure and operation of the administrative law system should receive more attention than they currently do in discussions of judicial reform in Bolivia in general.

VI. Summary and Conclusions

The workshop generated a number of suggestions, some concrete and some in need of further exploration, to strengthen the prospects for defense of the environment in Bolivia. Many of the measures would also improve defense of the public interest more generally. Among the key recommendations are the following:

· Training for judges and prosecutors on environmental principles in general and on the provisions of Bolivian environmental laws in particular.

· Consideration of the establishment of a special court, with specialized judges, with jurisdiction over environmental cases.

· Strengthened Environmental Unit in the Controller’s Office and consideration of the creation of an environmental unit with the Public Ministry.

· Stronger incentives (or sanctions) for judges to act in a timely fashion in handling a case.

· Implementation of the provisions of the General Environmental Law and the Law of Public Participation that provide citizen action instruments in defense of the environment.

· New and/or strengthened tools for private groups to use in obliging government officials to carry out their duties in environmental enforcement.

· Development of clear guidelines or procedures for assessing environmental damages.

· Effective enforcement of a “polluter pays” principle covering all costs in a legal case.

These preliminary ideas need to be prioritized and refined through additional research and consultation with civil society organizations. Nonetheless, a clear outcome of the workshop was to spark interest among a range of groups in the potential that judicial reform holds for strengthening the enforcement of environmental laws in Bolivia. This process of citizen involvement must be fostered to ensure the long-term continuity of the judicial reform efforts underway in Bolivia.

Our focus on issues related to one particular area of interest—the protection of the environment—in fact underscores the importance of assessing the context in which judicial strengthening efforts occur. Among other things, the case studies demonstrate the centrality of the need for judicial autonomy from undue influence by other political actors. The contributions of private users of the courts to their reform cannot be effective unless the courts more generally are able to resist pressure and interference from other parts of government or the allures of corruption.

The Lawyers Committee-LIDEMA workshop was a modest example of a process that seeks to contribute the experience and perspective of one group of users (or potential users) of the judicial system in Bolivia to a better understanding of what is needed to strengthen that system. A focus on the relationship between environmental concerns and the judicial system is particularly informative and valuable. The discussions addressed a wide variety of needs— institutional, administrative, informational, educational, budgetary, and normative—related to judicial reform. Most of the problems identified are germane and important to the needs of other public interest users, as well as the business community. In tackling the tough task of judicial reform, this information and perspective are essential and need to be solicited in a systematic way. The World Bank, as well as other multilateral and bilateral donors, would benefit from applying this methodology in the planning and design of judicial reform projects.

The timing is right for a new approach to complement the efforts of the Bolivian government and its donors, including the World Bank. The Bank-financed initial project ended in late 1999, and a “second generation” project is slated for review and approval in April. In addition, a “Dialogue for New Justice,” to be held this month, offers an opportunity for government officials, judicial reform donors, and others to reflect in a constructive fashion on the limitations of a narrowly cast, top-down approach.

The process of reform must meet three criteria if it is to maximize its chances for success.

· First, it needs to convince Bolivians, who are cynical about their legal system and skeptical about the prospects for meaningful reform, that the effort is serious, likely to be sustained, and will, over time, produce concrete improvements in their lives. This means both that the system will treat them fairly when they find themselves involuntarily in contact with the courts, and that the courts will come to represent an effective alternative for redress when a problem arises, particularly if the problem (such as pollution) affects the many rather than simply the individual. In this context our insistence that making “public interest law” effective is a key challenge for judicial reform gains urgency: in numerous ways, from the degradation of both rural and urban environments to political and economic corruption, Bolivian citizens are denied full enjoyment of many collective, or “public,” rights. The political system has not protected these rights, and of greater relevance to this discussion, neither has the legal system. The quality of life for many in Bolivia will improve significantly only when effective means—and law is undoubtedly one—are developed to obligate the government, economic actors, and citizens generally to act in a manner consistent with the rights and interests of society.

· Second, judicial reform needs to engage important sectors (the legal community, organized groups within the public, key government officials, credible non-governmental organizations, academic experts) in an effort to identify both early priorities and follow-up plans for addressing secondary issues.

· Lastly, once the process has begun, it needs to be demonstrably receptive to additional input, including in particular, feedback about steps taken so far, and capable of utilizing this information to complement or modify existing initiatives.

The World Bank and the Bolivian government have taken the important step of acknowledging that much more work needs to be done in this reform area, and that success will require an opening to other actors. The challenge for both is to carry this forward in practice, and to do so with an emphasis on openness, flexibility, and an appreciation of the obstacles that have too often prevented Bolivians from viewing the legal system as a place where rights as well as interests may be vindicated.

Endnotes

[i]Lawyers Committee for Human Rights and Programa Venezolano de Educación-Acción en Derechos Humanos (Provea), Halfway to Reform: The World Bank and the Venezuelan Justice System (New York: 1996) [hereinafter Halfway to Reform].

[ii] See Lawyers Committee for Human Rights, IFIs, Judicial Reform and the Environment – A Preliminary Assessment: Environmental Enforcement in Paraguay (New York: 1998) [hereinafter Environmental Enforcement in Paraguay].

[iii] Guillermo O’Donnell, “Polyarchies and the (Un)Rule of Law in Latin America,” in Juan E. Mendez, et al., eds., The (Un)Rule of Law and the Underprivileged in Latin America (1999).

[iv] Judicial Reform Project, Credit No. 2705, approved April 1995.

[v]Lawyers Committee compilation as of July 1999 of publicly announced World Bank judicial and legal reform projects. An approved $22.5 million project in Peru is included in the total loan amount, but it was subsequently cancelled.

[vi]The IDB currently has approved or proposed projects in 17 countries, 14 of which have been approved (amounting to more than $186 million in loans), with 6 more in preparation (amounting to nearly $189 million in estimated loans). Lawyers Committee compilation of publicly announced IDB judicial and legal reform projects, July 1999.

[vii]Richard E. Messick, “Judicial Reform: A Survey of the Issues,” (mimeo) (World Bank, Washington, DC: August 29, 1997), at 13-16.

[viii] See generally, Halfway to Reform, supra note 1.

[ix] See, e.g., Robert L. Ayres, Crime and Violence as Development Issues in Latin America, World Bank Latin American and Caribbean Studies Viewpoints (World Bank: 1998), at 21-22. Criminal justice systems are also factors in the Bank’s efforts to combat corruption. The World Bank, Helping Countries Combat Corruption—The Role of the World Bank, (PREM, 1997), at 43-44.

[x]Letter from Douglas A. Webb to Lawyers Committee for Human Rights, July 11, 1996, printed in Halfway to Reform, Appendix B, supra note 1.

[xi] In fact, the initial Bank-financed judicial reform project in Bolivia came to a close in September 1999. A second loan is in preparation, and is expected to be presented to the Bank’s Board for approval in April 2000.

[xii] National Land Administration Project, Credit No. 2742, approved June 1995. A general perception—shared, it appears by the Bank’s task manager on land use—that contentious issues like land rights would be more effectively addressed via means other than the judiciary—not known for its impartiality or effectiveness—may have contributed to the lack of coordination. Bolivian observers are highly skeptical of the notion that the massive conflicts and confusion surrounding land titles can be resolved without judicial intervention.

[xiii] Halfway to Reform, supra note 1; Environmental Enforcement in Paraguay, supra note 2.

[xiv] Staff Appraisal Report, at 4.

[xv] Id., at 2.

[xvi] Lawyers Committee interview with Vice-Minister of Justice, Juan Chahin, July 1998.

[xvii] Presentation by Reinaldo Umana, criminal code reform consultant to U.S.AID, at LCHR-LIDEMA workshop, July 14, 1998.

[xviii]Lawyers Committee interview with Rene Blattman, former Minister of Justice, February 1998.

[xix] International Covenant on Civil and Political Rights, Art.11; American Convention on Human Rights, Art.7.

[xx]Alvaro Infante de la Torre, “La Ley de Fianza Juratoria y la Retardacion de Justicia,” in CEJIS, Primer Articulo, enero/abril, 1997 pp. 64-67 (Santa Cruz).

[xxi] Lawyers Committee interview with René Blattman, former Minister of Justice, February 1998.

[xxii] Staff Appraisal Report, at 15.

[xxiii] Id.

[xxiv] Hernando de Soto, The Other Path (1989), at 131-187.

[xxv] Judicial Reform Project, Project ID Number PE-PA-40107, approved December 1997. This loan was cancelled in September 1998 at the request of the Peruvian government.

[xxvi]See Environmental Enforcement in Paraguay, supra note 2.

[xxvii] The description of the case regarding the Pilon Lajas Biosphere Reserve and Indigenous Territory is drawn from a presentation at the Workshop made by Carola Hurtado of SAMARENA, an environmental consulting group in La Paz.

[xxviii]Presentation of Mr. Frederich Heinrich, president of the Environmental Commission of the Bolivian National Bar Association at the LCHR-LIDEMA workshop, July 14, 1998.

[xxix] Lawyers Committee interview with Mr. Frederich Heinrich, La Paz, February 1998.

[xxx]The description of the case regarding the Pirai River is drawn from a presentation at the Workshop made by Frederich Heinrich, president of the Environmental Commission of the Bolivian National Bar Association.

[xxxi] Lawyers Committee interview with Cristina Guzman Bibolini, Legal Department of the Forest Superintendency; La Paz, February 1998.