THE PLURINATIONAL CONSTITUTIONAL COURT AS A NEGATIVE LEGISLATOR AND THE PRINCIPLE OF GENDER PARITY

Days ago, the country reacted with astonishment to a political interference by the judiciary: The Plurinational Constitutional Court (TCP) determined, based on Plurinational Constitutional Sentence No. 040/25 of August 11, 2025, that, starting with the next elections, presidential candidates must incorporate the principle of parity, meaning they must include a woman, either as president or vice president; if the presidential candidate is male, his vice president must be a woman….

Initially, the resolution could be supported by arguing that gender parity must be ensured at various levels; in this case, gender parity would be ensured in the presidential and vice presidential candidacies. But let's not forget that this sentence is a failure on an abstract unconstitutionality claim filed in April of this year by Representative Felix Huaytari, whose ultimate goal was to delay the August 2025 electoral process.

Now, our State Political Constitution, establishes in Article 167 the conditions that candidates must meet. It states that to be a candidate for these positions, only the general conditions for access to public service must be met: be thirty years old by the day of the election, and have resided permanently in the country for at least five years immediately prior to the election. That is, it does not address the candidate's gender.

For its part, the specific law on the matter, Law No. 026 of the Electoral Regime, also does not specify requirements related to gender parity for presidential and vice presidential candidates. However, it does so for candidates for the Plurinational Legislative Assembly, and it does not come from a resolution of the T.C.P. In short: Bolivian regulations do not address the gender of presidential and vice presidential candidates.

The Constitutional Court is an original creation of the Austrian jurist Hans Kelsen, in response to the question: Who should be the guardian of the Constitution? This article aims to highlight the premise and essential aspect that the Plurinational Constitutional Court proclaims: a "negative legislator." It is not a new court of justice because it does not resolve ordinary cases; it exists only to ensure compliance with the principle of constitutional supremacy, that is, that no rule or resolution conflicts with the content of the Constitution, since this is what gives validity to the rest of the legal system. Nor is it just any legislative branch, like the Plurinational Legislative Assembly, because, as already noted, its role is to ensure that new rules do not conflict with the Constitution. However, at no time can it rule, regulate, or incorporate new behaviors or procedures, and it is precisely for this reason that it was called a "negative legislator."

In addition to the above, Law No. 027 - Law of the Plurinational Constitutional Court, in its article 4 Paragraph III states: "The Plurinational Constitutional Court, in its role as guardian of the Political Constitution of the State, is the supreme interpreter of the Fundamental Law, without prejudice to the interpretative power of the Plurinational Legislative Assembly as the body that holds popular sovereignty." Consequently, the power of the T.C.P. is only to protect the content of the constitutional text and interpret it; not to issue new regulations or modify them, in this case, new requirements or conditions to aspire to public office, incurring in an excess of its functions and exceeding its functions and usurping the normative production functions of the Plurinational Legislative Assembly. This is based on a strictly legal analysis of the overreach of the Court, whose mandate has been extended without legal grounds, without incurring in a evaluative analysis (positive-negative) of the failure.

Plurinational Constitutional Sentence No. 040/25, dated August 11, 2025, is nothing more than an obstacle to subsequent presidential elections, where gender will now be a determining factor, diminishing the importance of the technical and political abilities and aptitudes of those who will or wish to elect political parties and political groups. This ruling, primarily, is a profoundly negative precedent in terms of constitutional justice, as it serves as a precedent for the denaturalization of the Plurinational Constitutional Court, as it ceases to be a negative legislator (protecting the supremacy of the Constitution and constitutional oversight) and begins to rule based on sentences. It also sets a new precedent for the process of the impact of justice on politics and how the courts are being instrumentalized to impact national politics.

In conclusion, if the guardian of the Constitution begins to legislate, representative democracy will be unprotected, and a government of magistrates will begin.

José Hugo Antelo Eguez

Litigation and Corporate Lawyer