Identifier
Created
Classification
Origin
08LAPAZ2464
2008-11-19 18:12:00
CONFIDENTIAL
Embassy La Paz
Cable title:  

BOLIVIA: MAS CONTINUES PURGE OF JUDICIARY

Tags:  PGOV ECON KDEM PREL PHUM PINR ENVR BL 
pdf how-to read a cable
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C O N F I D E N T I A L LA PAZ 002464 

SIPDIS

E.O. 12958: DECL: 10/30/2018
TAGS: PGOV ECON KDEM PREL PHUM PINR ENVR BL
SUBJECT: BOLIVIA: MAS CONTINUES PURGE OF JUDICIARY

REF: A. 07 LA PAZ 688

B. 07 LA PAZ 3258

C. 07 LA PAZ 1467

Classified By: EcoPol Chief Mike Hammer for reasons 1.4 (b)
and (d)

C O N F I D E N T I A L LA PAZ 002464

SIPDIS

E.O. 12958: DECL: 10/30/2018
TAGS: PGOV ECON KDEM PREL PHUM PINR ENVR BL
SUBJECT: BOLIVIA: MAS CONTINUES PURGE OF JUDICIARY

REF: A. 07 LA PAZ 688

B. 07 LA PAZ 3258

C. 07 LA PAZ 1467

Classified By: EcoPol Chief Mike Hammer for reasons 1.4 (b)
and (d)


1. (C) Summary: Bolivian President Evo Morales and his
ruling Movement Toward Socialism (MAS) party are moving
aggressively once again to bring to heel dissident members of
the country's judiciary, including the Supreme Court, and to
install new justices more amenable to the MAS vision. Recent
comments by Bolivian Vice-President Garcia Linera that "most
members" of the judiciary in Bolivia are corrupt have raised
opposition fears of a movement against the Supreme Court
reminiscent of the 2007 dismantling of the Constitutional
Tribunal. The MAS plans to elect at least twelve new members
of the judiciary to fill current vacancies, including nine
members of the Constitutional Tribunal, a Supreme Court
justice, and two members of the National Electoral Court.
The Morales administration's antipathy toward the Supreme
Court has been stoked by rulings that attempted to end the
ongoing detention of ex-Pando Prefect (governor) Leopoldo
Fernandez in a La Paz prison, and transfer him instead to
Sucre for impeachment hearings. Government Minister Alfredo
Rada defied the court order and, in a counter-attack, brought
charges against two Supreme Court justices for "attempting to
aid a fugitive." The MAS has similarly pressured the
country's Attorney General, Mario Uribe, to stop supporting
the Supreme Court's decision. Uribe now appears to have
abdicated his role as prosecutor, giving power to the
Congress (read: the MAS) to conduct the investigation. The
Vice-President has further upped the ante, calling for
"reform and transformation" of the judiciary and asserting
that any failure by members of the judiciary to toe the MAS
party line is "proof of their corruption." An opposition
contact tells us that Morales and the MAS are determined to
get their way, first by asking nicely, then by discreetly
threatening family members, and finally by planting
accusations in the press and/or opening public

investigations. This recipe follows exactly the pattern used
in 2007 to dislodge opposition members of the Constitutional
Tribunal. End summary.

- - - - - - - - - - - - - - - - - - - - - - -
2007: MAS destroys the Constitutional Tribunal
- - - - - - - - - - - - - - - - - - - - - - -


2. (SBU) The Bolivian judiciary is comprised of three main
elements: the Constitutional Tribunal, the Supreme Court, and
the National Electoral Court. (A fourth group, the Judicial
Council, acts as an oversight body.) The Constitutional
Tribunal is Bolivia's highest court on constitutional
matters, and the Supreme Court is the highest court of
appeals for all other matters. The National Electoral Court
rules on all matters related to elections.


3. (C) In 2007, President Morales and his ruling MAS party
effectively dismantled the Constitutional Tribunal, which has
not recovered since then. In 2008, it appears they may be
ready to follow a similar path against the Supreme Court. Of
the three judicial institutions, the Constitutional Tribunal
is considered the most fragile because, according to a former
Tribunal magistrate, it serves as "the brake on excessive
power in the Executive branch." (Reftel A) By early 2007,
President Morales and the ruling MAS party had become hostile
toward the Tribunal, which they saw as opposing their change
agenda. In response, the MAS developed a multi-pronged
strategy to shut it down: the Tribunal members' salaries were
cut in half; Morales accused them of being corrupt and
protecting narco-traffickers (without presenting proof of
either); the MAS allegedly had the members pressured with
threatening phone calls; Morales encouraged a protest by MAS
supporters (where marchers exploded dynamite at the door of
the Tribunal building, destroying its facade and badly
injuring a police officer); and in May 2007 the Congress
opened impeachment proceedings against four magistrates.
(Reftel B) Although the impeachment proceedings failed, the
overall strategy worked. By the end of 2007, following a
series of resignations (many coerced),the Tribunal was
reduced from ten members (including five alternates) to one,
rendering it unable to reach a quorum of three and
effectively defunct. The Tribunal now has a three-year
backlog of cases (and growing),according to a recent report
in leading daily La Razon. More importantly, it is unable to
rule directly on the constitutionality of measures taken by
the Morales administration.

- - - - - - - - - - - - - - - - - - - - - - - - - - -
Pando Ruling Re-Triggers MAS' Ire Toward Supreme Court
- - - - - - - - - - - - - - - - - - - - - - - - - - -


4. (SBU) Morales' antipathy toward the Supreme Court is also
not new. In April 2006, he argued that "certain sacred cows
of the judiciary" do not wish to "go along with the
government's policies of change." In October 2006, he called
the Supreme court a "relic of the colonial state." At the
opening of the 2007 judicial year, Morales denounced the
entire system as corrupt and "smelling of dollars." As they
did with the Constitutional Tribunal, the Morales'
administration publicly pressured the justices, urging them
to change their recalcitrant ways and follow the MAS program
of change. Morales cut the justices' salaries in half.
(Note: While the Bolivian government cut the salaries of all
government employees, Constitutional Tribunal magistrates and
Supreme Court justices felt the cuts were being done to
pressure them to resign. End note.) On May 21, 2007, Supreme
Court magistrate Juan Gonzales Ossio resigned, citing
pressure and "the constant questioning of the judiciary." On
December 5, 2007, the Congress passed impeachment charges
against another of the justices, which failed but kept the
magistrate, Rosario Canedo, suspended until the Senate acted
to reinstate her on April 10.


5. (SBU) Since the attempted impeachment of Canedo, the
political storms surrounding the Supreme Court had abated
somewhat. However, a series of recent Supreme Court rulings
regarding the imprisonment of ex-Pando Prefect (Governor)
Leopoldo Fernandez has started another round of pressure
tactics from the MAS. As part of the state of siege declared
in Pando, the Bolivian government confined Fernandez in a La
Paz jail and opened criminal proceedings against him for
allegedly directing the September 11 killings in Pando. At
roughly the same time, the prosecutor's office in Sucre,
headed by Attorney General Mario Uribe, opened a separate
impeachment case against Fernandez for abuse of his powers as
a Prefect. The Supreme Court reviewed the two cases and
decided that as a Prefect, Fernandez could not be legally
tried in normal criminal proceedings in La Paz, but should
instead be moved to Sucre, the judicial capital of Bolivia,
for impeachment hearings. The Judicial Council, acting in
its oversight capacity, reprimanded the La Paz judge that
accepted the criminal case against Fernandez, stating that
the judge should have known the case would require
impeachment hearings and that La Paz would not be the correct
jurisdiction.


6. (SBU) However, MAS Government Minister Alfredo Rada
publicly disagreed with the decision to move Fernandez. He
criticized the judgments and refused to release Fernandez
from the La Paz prison, where MAS-affiliated social groups
were keeping a round-the-clock vigil. In response, the
Supreme Court affirmed its stance, and gave a second deadline
to move Fernandez to Sucre for impeachment proceedings, which
was also ingored. On November 5, Vice-Minister Wilfredo
Chavez, in conjunction with Rada and Defense Minister Walker
San Miguel, opened a complaint and investigation against
Supreme Court Justices Jose Luis Baptista and Angel Irusta
for "aiding a fugitive" from the law when they "had no
competency in the case." At the same time, the government
publicly denounced the head of the Judicial Council for
criticizing the La Paz judge who accepted the criminal case
against Fernandez. Then, after repeatedly and publicly
stating his support for the Court's verdict to move the case
to Sucre, Attorney General Uribe released a letter correcting
himself and stating his new belief that the MAS-controlled
Congressional commission should investigate Fernandez'
crimes, not the prosecutor's office. Uribe's reversal came
after a the same commission opened proceedings against him to
investigate his potential "undue influence" in the Fernandez
case. PODEMOS Senator Luis Vasquez called the MAS' use of
Congressional investigations into Uribe and seven other
members of the judiciary "a coup d'etat against the judicial
branch."


7. (SBU) On November 10, Vice-President Garcia Linera took
his turn in denouncing the judiciary, stating that "a
majority of the members of the judicial system" are corrupt
and calling for its "reform and transformation." Garcia went
on to say that the desire of judges to defend the court was
proof of their "corruption and chicanery." He added that,
"the Government has a clear role in defending the 'State of
the Law,' its judgment." In a response reported by leading
daily La Razon, Supreme Court Chief Justice Eddy Fernandez
called the Vice-President's comments an indication of the
government's intent "to behead the leadership of the judicial
branch in the same way they did with the Constitutional
Tribunal." Fernandez remarked that there is always conflict
between government powers, and requested that the executive
branch respect the independence of the others.

- - - - - - - - - - - - - - - - -
Stacking the Courts with MASistas
- - - - - - - - - - - - - - - - -


8. (C) At the same time as they are pressuring the existing
members of the judiciary, the Morales government is preparing
to fill vacancies in all three wings of the judiciary. The
MAS plans to elect at least twelve new members, including
nine members of the Constitutional Tribunal, a Supreme Court
justice, and two members of the five-member National
Electoral Court. Past Tribunal and Supreme Court
appointments have been blocked by the Senate, which the
opposition controls. However, the MAS may feel the
opposition's current state of disarray, plus the recent
compromise on the text of the draft Constitution (which a
majority of the opposition ultimately supported),will give
it the strength it needs to push through new nominations.
There is also debate as to whether the new vacancies would be
filled for their full terms (up to ten years in the case of
the Constitutional Tribunal and the Supreme Court) or for
just two years until the new Constitution is projected to
take effect. The MAS has come out in support of interim
appointments, while PODEMOS leadership is divided. Senator
Carlos Boerth supports a transition period, while Senator
Luis Vasquez has insisted that any new appointments follow
the current Constitution, as it is the only one in effect and
does not allow for interim appointments.


9. (C) The Electoral Court, in addition to missing two
members, is faced with the pending expiration of Court
Vice-President Jeronimo Pinheiro's term in office, which ends
in December. Without Pinheiro or the appointment of two new
Court members, the Electoral Court would be unable to certify
the legitimacy of the January 25 constitutional referendum.
The MAS introduced legislation on November 18 to extend the
tenure of both Pinheiro and Court member Amalia Oporto
through January 2010. Vice-President Garcia Linera has taken
a harder line, promising to convoke the Congress immediately
to fill all pending vacancies across the judiciary. (Note:
While the Senate has in the past blocked appointments, Garcia
Linera's aggressive stance likely signals a willingness to
use whatever tools are necessary to work a deal, from the
usual political "carrots" to "sticks" that could include
surrounding the Congress with MAS-affiliated protestors. End
note.) PODEMOS Senator Vasquez reacted strongly against the
proposed extension of tenure, saying the MAS was acting
unconstitutionally by working to get around the Congress'
duty to elect Court members. Once passed in the lower house,
the legislation would go to the Senate, where it would have
to be acted on within 15 days or go to a vote of the full
Congress (where it would require only a simple majority to
E
pass).


10. (C) PODEMOS legal adviser Carlos Goitea, who was in talks
leading to both the Oruro version of the proposed
Constitution and the newer compromise version announced
October 22, told PolOff the MAS is determined to get its way,
first by asking nicely, then by discreetly threatening family
members, and finally by planting accusations in the press
and/or opening public investigations. "If they cannot get
you to kneel, they will force you out," he said. This recipe
follows exactly the pattern used in 2007 to derail the
Constitutional Tribunal, and appears to jibe with the current
public investigations of the two Supreme Court justices and
Attorney General Uribe.


- - - -
Comment
- - - -


11. (C) It appears that from a MAS point of view, the only
thing better than a defunct judiciary (i.e. the
Constitutional Tribunal) is a compliant judiciary. To that
end, the MAS is attempting to reconstitute the Tribunal with
a large majority of MAS supporters and pressure the Supreme
Court and the Attorney General to toe the MAS party line.
Furthermore, the statements by the Vice-President and
government ministers reflect a kind of revolutionary
"group-think." Any judgments that do not agree with
revolutionary thinking are either ignored (i.e. Rada's
dismissal of two Supreme Court deadlines to transfer
Fernandez) or actively dismissed as belonging to a "corrupt
past" (i.e. Garcia Linera's comments about the Supreme Court
justices). The imprisonment of ex-Prefect Fernandez is the
first time in Bolivian history a Prefect has been held in a
jail without formal charges, and his incarceration continues
despite clear legal guidelines to the contrary. These
actions show how ready the MAS leadership is to act according
to their own internal vision of what the law "should be,"
instead of hewing to democratically-approved laws that might
otherwise interfere with their actions. Our contacts are
also speaking of more pressure on the National Electoral
Court, particularly on Court President Jose Luis Exeni, to
support the MAS in the upcoming review of the voter rolls.
The message seems clear: in today's Bolivia, the law is
subordinate to the revolution, and not the other way around.
URS