Abuse of Free Appointment in Bolivia

The structural problem: a mechanism used as an excuse

In multiple public entities, a simplified line of reasoning has become entrenched:

• The position is one of free appointment.
• It depends on the authority.
• Trust has ended.

Based on this, immediate dismissals are carried out without further analysis. This approach contains a fundamental flaw: it confuses the method of appointment with the actual nature of the functions performed.

Constitutional Judgment 1146/2025-S2 challenges this reasoning and requires a substantive analysis of the work actually performed.

Incorrect interpretation in public administration

A repeated practice has been to automatically equate:

• Free appointment with a position of trust.
• Position of trust with absence of labor rights.

This framework has allowed the dismissal of public servants without evaluating their actual functions. Constitutional case law rejects this interpretation and establishes that not every public servant appointed under a free appointment regime can be considered a trusted officer.

The constitutional standard: primacy of reality

The central principle developed by Constitutional Judgment 1146/2025-S2 is the primacy of reality.

This principle means that:

• The title of the position is not determinative.
• The method of appointment does not define the nature of the relationship.
• What matters are the functions actually performed.

When a public servant carries out tasks such as preparing reports, providing technical advice, or executing instructions, without decision-making authority or institutional representation, that person cannot be considered a trusted officer.

Consequences of the improper use of free appointment

The incorrect use of this mechanism has generated significant effects in the public labor sphere:

• Loss of labor rights.
• Dismissals without effective legal scrutiny.
• Lack of claims due to lack of awareness.
• Reduction of the State’s economic obligations.

These practices have created a structural problem affecting many public servants.

Changes introduced by constitutional case law

Constitutional Judgment 1146/2025-S2 introduces a new legal standard that changes the traditional analysis.

End of the automatic presumption

The mere statement that a position is one of free appointment is no longer enough to justify dismissal.

Burden of proof requirement

The public entity must prove that the public servant actually exercised functions of trust, demonstrating their level of decision-making, management, or representation.

Protection for technical public servants

When it is established that the public servant performed technical or support functions, the right to job stability and constitutional protection is recognized.

Practical impact of the new standard

The standard established by Constitutional Judgment 1146/2025-S2 makes it possible to:

• Review prior dismissals.
• Challenge dismissals carried out without a functional analysis.
• Claim unrecognized labor rights.
• Demand a real evaluation of the functions performed.

This change strengthens legal scrutiny over administrative decisions and broadens the protection of public servants.

Sectors especially affected

The effects of this practice have mainly fallen on:

• Advisors.
• Technical staff.
• Line consultants.
• Support personnel.
• Professionals linked to legislative or administrative bodies.

These profiles have frequently been classified as trusted positions without support in their actual functions.

Constitutional basis and international standards

The standard developed by Constitutional Judgment 1146/2025-S2 is grounded in the rights recognized by the Political Constitution of the State, particularly the right to work, job stability, and due process.

Likewise, it aligns with international labor protection standards promoted by the International Labour Organization, which require employment relationships to be analyzed according to their material reality.

In summary, free appointment does not constitute an unrestricted authorization to dismiss public servants without legal consequences. Constitutional Judgment 1146/2025-S2 establishes that the nature of the position must be determined based on the functions actually performed, making it possible to identify and challenge abusive practices that have affected labor rights in the public sector.