WILL BOLIVIA'S CONSTITUTIONAL TRIBUNAL RISE AGAIN?

C O N F I D E N T I A L LA PAZ 000615

SIPDIS

SIPDIS

E.O. 12958: DECL: 03/19/2018
TAGS: PHUM PGOV PREL BL
SUBJECT: WILL BOLIVIA'S CONSTITUTIONAL TRIBUNAL RISE AGAIN?

Classified By: Acting EcoPol Chief Joe Relk for reasons 1.4 (b) and (d)
.

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Summary
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1. (C) President Evo Morales' Movement Towards Socialism
(MAS) party appears to have a renewed interest in Bolivia's
highest constitutional court )- after two years of harassing
the court's members with pay cuts, impeachment charges, and
threats from pro-MAS groups. Bowing to pressure, nine of the
Constitutional Tribunal's 10 magistrates have quit since
Morales took office, leaving the court without a quorum to
function. The Tribunal's remaining magistrate Dra. Silvia
Salame held a press conference March 17 to highlight the
Tribunal's importance to Bolivian democracy, emphasizing that
only the Tribunal could grant legitimacy and legality to the
competing referenda proposed by the MAS and opposition-led
lowland departments (states). Salame sent the same message
to Vice President Alvaro Garcia Linera in late February, and
also reiterated her pledge to mount an impeachment case
against him if he did not vigorously promote the appointment
of new magistrates. For months the MAS has blocked the
appointment of new magistrates, perhaps to prevent there
being a judicial body that could rule on its questionable
tactics in Congress and the Constituent Assembly. However,
according to Salame, the MAS now appears to want to
accelerate the appointment of new magistrates to the court,
hoping the new Tribunal will rule against the May 4 autonomy
referenda. End Summary.

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Background on the Constitutional Tribunal
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2. (SBU) Bolivia's Constitutional Tribunal is county's
highest court on constitutional matters, in contrast to the
Supreme Court, which is the highest court of appeals for all
other matters. The Tribunal is charged with ruling on the
legality (constitutionality) of executive and legislative
branch actions, and is also responsible for hearing
individual cases of government violations of civil rights.
Normally the Tribunal has five "titular" (full) members and
five "suplente" (alternate) members. Dra. Silvia Salame is
the last remaining magistrate on the Constitutional Tribunal.
All other members resigned, some over the across the board
50 percent salary cut Morales imposed early in his
administration, others quit after the MAS consistently
harassed the magistrates with politically motivated
impeachment charges. Pro-MAS groups have also on occasion
marched on the court and attacked its building, one time
destroying its facade with dynamite blasts. The Tribunal has
lacked a quorum (a minimum of three members) since October

2007. The court now has nearly a 2000 case backlog.

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MAS Needs the Constitutional Tribunal
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3. (U) During a March 17 press conference Dra. Silvia Salame
demanded that Congress fulfill its duties to appoint new
Constitutional Magistrates. Salame explained that only the
Tribunal has the authority to rule on the legality of
upcoming referenda )- the national referendum on the MAS
draft constitution and the departmental (state) autonomy
referenda demanded by the opposition lowland departments.
Salame stated, "If there is no Constitutional Tribunal, the
referenda in this country cannot be carried out, neither the
consultation (referendum) on the Constitution, nor the
(referenda) on autonomy." Salame met the same day with
Congress' Constitutional Commission, led by opposition
Senator Luis Vasque, to impress upon it the need for a speedy
appointment process. Vice President Alvaro Garcia Linera and
Justice Vice Minister Wilfredo Chavez have both signaled the
ruling MAS party is now prepared to move forward quickly on
appointments.


4. (C) During a March 12 meeting with poloff, Salame
explained that the MAS now wants a functioning Constitutional
Tribunal, because it needs the court to rule on the legality
(or illegality) of the departmental autonomy statutes
referenda. According to Salame, the MAS is concerned that
the opposition will use a technical administrative procedure
to argue that the Tribunal's lack of action on cases
regarding its proposed referenda constitutes a defacto "green
light" for proceeding with its May 4 referenda. The
"silencio administrativo" procedure is a rule typically
applied to the executive branch that requires a government
body to respond to a request within eight days. Under
"silencio administrativo," a lack of response constitutes
defacto approval. While Salame argues the procedure is not
applicable to cases sent to the Tribunal, she noted that
ironically only the Tribunal could rule whether the procedure
was being incorrectly applied. Salame stated she had not yet
formally acknowledged receipt of the cases, arguing she is
using them as a leverage to get Congress to appoint judges.


5. (C) Magistrate Salame also acknowledged that it is in
the MAS' best interest to re-constitute the court because the
MAS could in effect "control" the court with appointees that
are disposed to the MAS. However, she argued, that a
MAS-dominated Tribunal would not necessarily act as a MAS
rubber stamp. Salame believes that a MAS-dominated Tribunal
would be bound to follow existing Tribunal jurisprudence.


6. (C) Salame states she spoke with Vice President Alvaro
Garcia Linera at length (over two hours) February 27 about
the need for Congress to appoint new magistrates to the
Tribunal so that a quorum can be restored. She states she
emphasized the Tribunal's role in preserving Bolivian
democracy and the rule-of-law. She stressed the conversation
was very cordial and that the Vice President listened
intently. Nonetheless, she acknowledged that the Vice
President's actions in Congress the following day left her
feeling that her conversation had yielded few if any results.

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Impeachment Case Against the Vice President
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7. (C) According to Salame she explained to the Vice
President that if he did not deliver on magistrate
appointments, she would file an impeachment case against him
and the Congress' Constitutional Commission. She noted that
she would push for impeaching Garcia Linera in his capacity
as President of Congress, not in his role as the country's
Vice President, to ensure the case is tried within the
Supreme Court. Impeachment trials of executive branch
officials are handled in Congress. As the MAS holds a
majority in the lower house, an impeachment of the Vice
President in Congress would likely die a quick death.


8. (C) Salame explained that she would begin her
"impeachment campaign" March 17, but would wait until March
31 to officially file her claim to leave the Vice President
and Congress the chance to deliver on their promises to
appoint new magistrates. Nonetheless, she has started the
first phase of her campaign )- the gathering of other
litigants to her cause. On March 17 she met with the La Paz
bar association (Colegio de Abogados) and on March 18 she
traveled to Tarija to meet with its local bar association.
She acknowledges many lawyers may refrain from signing on to
the case, but thinks that many will join as the lack of a
Constitutional Tribunal directly (and negatively) impacts
their income. She acknowledged that her former Tribunal
magistrates have essentially abandoned her and the Tribunal,
having declined to support her impeachment campaign and other
efforts to save the Tribunal.

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MAS Constitution Not on the Court's Docket
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9. (C) To date, no major cases related to the MAS
constitution have been sent to the Constitutional Tribunal.
The opposition has not sent any cases regarding the
procedural and legal abnormalities surrounding the
Constituent Assembly in Sucre or Oruro for the Constitutional
Tribunal to review. (Comment: Presumably the opposition is
waiting until the Tribunal is re-constituted, before sending
over its cases. End Comment).

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Comment
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10. (C) Had the MAS wanted to move quickly on
Constitutional Tribunal appointments it could have done so
months ago. Magistrate appointments only require the
approval of two-thirds of the members of Congress present.
In contrast, the appointment of Supreme Court justices
requires the approval of two-thirds of all the members of
Congress (present or not). The MAS could have appointed
magistrates without the participation of the opposition as
long as it mustered the participation of two opposition
Senators (or their alternates) to form a Senate quorum. With
a controlling majority in the lower house, the MAS can always
form a quorum in the lower house without any opposition
participation. Given the MAS has passed legislation on
several occasions (most recently February 28) without any
opposition presence, it could have made appointments to the
Tribunal if it had wanted to. In all likelihood, the MAS
preferred not having a judicial body that could rule
unconstitutional many of its recent actions in Congress and
in the Constituent Assembly.


11. (C) Persevering democracy, the Constitutional Tribunal,
and the rule-of-law are not the MAS' primary objectives for
recently wanting to appoint new magistrates. If the MAS goes
forward with appointments, it likely wants the Tribunal to
rule against the autonomy referenda. That the MAS needs the
Tribunal as a block on the autonomy referenda is predicated
on two assumptions: that the party wishes to maintain a
veneer of legitimacy/legality as it tries to block the
referenda and that it needs a stronger legal footing if it
wishes to rely on force to prevent the May 4 referendum. End
Comment.
GOLDBERG