CONSTITUTIONAL TRIBUNAL IN LIMBO

C O N F I D E N T I A L LA PAZ 002689 SIPDIS SIPDIS E.O. 12958: DECL: 10/04/2017 TAGS: PHUM PGOV PREL BL SUBJECT: CONSTITUTIONAL TRIBUNAL IN LIMBO REF: LA PAZ 2333 Classified By: EcoPol chief Mike Hammer for reasons 1.4 (b) and (d). - - - - Summary - - - - ¶1. (C) On October 3, the Superior Court of La Paz, ruled against the opposition-led senate's September 5 decision to "shelve" (not proceed with) impeachment proceedings against four of five constitutional tribunal magistrates, leaving the tribunal in limbo. The superior court's decision, if followed, would compel the senate to rule on the impeachment proceedings. More importantly, the four magistrates would once again be suspended, leaving the tribunal without the necessary three person quorum to function. Opposition senators state they will not abide by the superior court's decision, arguing the court does not have the constitutional authority to overturn the senate's decision. With the constitutional tribunal in limbo, the ruling Movement Toward Socialism (MAS) would find itself free to push its agenda (a new constitution and other laws) without the usual legal checks to constrain it. End Summary. - - - - - - - - - - Prelude to a Limbo - - - - - - - - - - ¶2. (U) On May 15, President Morales presented to congress impeachment charges of judicial malpractice against four of five the constitutional tribunal justices. The charges stem from the constitutional tribunal's ruling against President Morales' December 2006 interim appointment of four Supreme Court judges. The GOB argues the constitutional tribunal's interpretation of Bolivian law is purposefully incorrect. (Note: The constitutional tribunal is Bolivia's highest court on constitutional matters; the supreme court is the highest court of appeals for all other matters. End Note). ¶3. (U) Under Bolivian law 2623, enacted in 2003, which is the law that covers this case, the lower house (chamber of deputies) of congress is responsible for approving the impeachment charges, the upper house (the senate) is the body that rules on the charges. The chamber of deputies approved the charges on August 23 at an off-site session where only MAS deputies were present (reftel). (Note: Even if the opposition had been present, the MAS could have mustered the necessary simple majority. End Note). ¶4. (U) On September 5, the senate decided to "shelve" the case (not take up the case),citing an appeal that the four magistrates had made to the lower house's human rights commission. (Note: The opposition has a majority in the human rights commission. End Note). The senate's decision effectively killed the impeachment proceedings. MAS deputies responded by filing an "amparo constitucional" (a claim of unconstitutionality) against the senate's decision with the superior court. On October 3, the court sided with the lower house, essentially ordering the senate to reverse its September 5 decision. - - - - - - - - - - - - - - - - - - - - - - Reactions to the Superior Court's Decision - - - - - - - - - - - - - - - - - - - - - - ¶5. (U) Senate President Jose Villavicencio of the opposition UN party and other opposition senators responded that they would not abide by the court's decision, arguing that only the constitutional tribunal has the legal authority to annul a senate decision. PODEMOS senator Luis Vasquez called the superior court's ruling a violation of the separation of powers. Vasquez also pointed out that Justice Vice-Minister Wilfredo Vargas' presence during the court proceedings was "strange," implying his attendance was meant to influence the case. (Note: Since the executive branch was not a party to the case, it technically did not need to send representatives to sit in on the proceedings. End Note). Lower house President and MAS member, Edmundo Novillo, not surprisingly, was in favor of the decision and argued that the senate should take up the impeachment proceedings as stated in the superior court's ruling. - - - - - - - - - - - - - - - - - - - - - The View from the Constitutional Tribunal - - - - - - - - - - - - - - - - - - - - - ¶6. (C) On October 4, Emboff spoke via phone with Dr. Silvia Salame, the one magistrate who was not part of the impeachment proceedings. (Note: Responding to Emboff's comment that he could not reach the other magistrates, Salame noted that the other four magistrates have all changed their phones for fear of government wiretaps. End Note). Salame explained that the justices had not yet been officially notified of the La Paz Court's decision but that they are extremely upset and concerned. She called the decision yet another "attack" against the court. Salame noted that the justices cannot appeal the La Paz court's decision. She also mentioned that certain members of the superior court are "corrupt," implying she was not surprised that the court sided with the MAS position. Salame pleaded for the USG and the international community to respond to what she called this "egregious act against democracy." - - - - - - - - - - - - - - A Way Out of Judicial Limbo - - - - - - - - - - - - - - ¶7. (C) Opposition senators may eventually acquiesce to the court's decision, to avoid an endless limbo dance and to make sure there is a tribunal in place. Two-thirds of the senate must vote to convict or acquit the judges; without two-thirds the judges will be absolved. The MAS recognizing it cannot get a conviction in the senate will likely use stalling tactics to prevent a final vote. To break the deadlock, the opposition may end up pulling a card from the MAS playbook and call an "off-site" where it could vote to "acquit" the magistrates. While this might save the tribunal for the short-term it may find itself dancing the limbo again soon. On September 13, Potosi Prefect Mario Vierra (of the MAS) filed a new claim with congress against the entire court which could lead to an entirely new impeachment process. - - - - Comment - - - - ¶8. (C) Morales and the MAS are quite happy to have the constitutional tribunal in limbo, in fact a non-functional tribunal is likely its goal. The opposition fears that Morales' party will use this vacuum to force through a new constitution -- allowing for presidential re-election, a unicameral legislature and many other MAS concepts -- via potentially extra-constitutional mechanisms. Without the tribunal ruling on the constitutionality of the MAS' actions, clear democratic redlines will be blurred, leaving it difficult for observers to know if the redlines have actually been crossed. End Comment. GOLDBERG