CONSTITUTIONAL PROVISIONS ON JUDICIAL SECTOR

C O N F I D E N T I A L QUITO 001010 SIPDIS E.O. 12958: DECL: 10/27/2028 TAGS: PGOV PHUM KDEM EC SUBJECT: CONSTITUTIONAL PROVISIONS ON JUDICIAL SECTOR REF: QUITO 692 Classified By: Ambassador Heather M. Hodges for reasons 1.4 (b) and (d) ¶1. (C) Summary: Ecuador's new constitution makes some improvements in the judicial sector that have the potential to improve the delivery of justice. However, the articles on the judicial sector contain many inconsistencies and gaps, which will have to be resolved by the passage of legislation. In the short term, the dispensation of justice is likely to suffer if the system is flooded with initial cases. Furthermore, serious questions remain about the transitional process, both in terms of fairness and timeliness. The Supreme Court justices resigned effective October 24 rather than be subject to a lottery to select justices of an interim court. In a surprise move, the Constitutional Tribunal proclaimed itself the Constitutional Court, with the powers granted under the new constitution. End Summary. ¶2. (SBU) Ecuadorians of every political persuasion argued prior to and during the Constituent Assembly that judicial reform was an area of high importance in drafting a new constitution. Title Four of the constitution, entitled "The Judicial Function and Indigenous Justice," includes a number of changes with regard to judicial structure. Other sections of the constitution and the transition regime also contain articles affecting the judicial sector. AND JUSTICE FOR ALL? ¶3. (SBU) The new constitution's articles on the justice sector mirror to a large extent the language found in the current 1998 constitution and precepts adopted by other countries in the region. However, the scope of the judicial sector has been expanded to include the Prosecutor General's office and the Public Notary System. The Supreme Court, renamed the National Court of Justice, no longer has the last word on cases (see para. 11 below). Judges on the National Court of Justice will be appointed by the Judicial Council based on merit from names submitted by various branches of government. Greater responsibility has been handed to justices of the peace. ¶4. (C) The judicial structure in the new constitution reflects several changes that may be improvements. It recognizes the Public Defense System as a constitutional body, expands its authorities, and guarantees funding for it. Justice and Human Rights Minister Gustavo Jalkh commented that the Public Defense System should be just as strong as the Prosecutor General's Office. The constitution also helps strengthen the professional career track of judicial employees. ¶5. (C) Experts have expressed concern about the constitution in terms of implementation. The language describing the various judicial institutions is often contradictory. The ways in which heads of courts are chosen are not clear. NGOs, universities, and other non-profit groups that provide services such as mediation and representation of indigent clients are concerned about the requirement that their services be accredited by the Public Defense System. Judges will be term limited, something many of them have bitterly opposed; one legal expert told us he feared this would mean that judges maintain their law practices in order to have a business to return to once their judicial term is up. RECOGNITION OF HUMAN RIGHTS ¶6. (C) One policy change in the new constitution that human rights groups have been demanding for some time is that police and military personnel be subject, in most cases, to civil tribunals, not military courts. The constitution also normalizes habeas corpus procedures by authorizing provincial courts to grant habeas corpus instead of mayors. At the same time, however, it expands the definition of habeas corpus to include review of protection of the life and integrity of detained persons, an expansion that may clog the system with habeas corpus requests. ¶7. (C) Trafficking in persons and other crimes against women have been further criminalized, to the delight of NGO and civil rights leaders. Fundacion Amauta Director Carlos Martinez told us that "TIP prosecutions, and perhaps more importantly, the protection of TIP victims will improve under the new system." ¶8. (SBU) In addition to semantically giving indigenous justice equal standing in the name of Title Four (Judicial Function and Indigenous Justice),the constitution now guarantees that indigenous justice decisions will be respected by public institutions and authorities. Indigenous justice may be applied to resolve internal conflicts and must comply with the constitution and international human rights norms. POWERFUL BUT OVERSTRETCHED CONSTITUTIONAL COURT ¶9. (C) The section of the constitution dealing with the Constitutional Court is considerably longer than in the 1998 constitution. Some experts feel that many of the articles are overly complicated. The most significant changes are in two key areas: A) the mechanisms for accessing the Constitutional Court, and B) the powers and composition of the Constitutional Court. ¶10. (C) Regarding access to the Constitutional Court, "any person, group, community or nationality" may file a complaint at any time. Complaints are to be received 24 hours a day, seven days a week, which raises questions about who will receive these complaints and even more importantly, whether this will create a structure that will overwhelm the courts with cases. The new constitution also makes it easier for citizens to file Constitutional Court claims by eliminating the need for written documents and representation by counsel, which could also spur a deluge of cases that could overwhelm the new court system. ¶11. (C) An additional potential Pandora's box is that the constitution requires no filter for cases, in contrast to current practice where cases are heard by lower courts first. Under the constitution, complaints can automatically be filed with the Constitutional Court. Furthermore, the expansion of constitutional rights granted in Title Two of the constitution, while positive in terms of human rights, could lead to massive case overload and court paralysis. The Constitutional Court also gains the power to judge, in specified circumstances, the validity of the basis of National Assembly actions to impeach the president and presidential action to dissolve the National Assembly. ¶12. (C) The Constitutional Court remains a nine-member panel, but the justices would serve nine year terms instead of four year terms, with one third of the court replaced every three years and no chance of reappointment. This decreases the opportunity for one presidential administration to dominate the court. Constitutional Court justices can not be impeached by those who appointed them, but can be impeached by a majority vote of the court itself. Critics contend that this could cause fractionalization of the court and the removal of those who hold a minority opinion. The selection process for the justices, by a commission comprised of representatives of all branches of government and on the basis of merit, appears less politicized. Critics counter that the Executive would end up controlling the appointments. Under the 1998 constitution, Constitutional Tribunal justices were appointed by the Congress from a list of names submitted by the President, Supreme Court, and Congress. ¶13. (SBU) Assessments of the new Constitutional Court structure vary widely. Angel Rubio, President of the National Federation of Judicial Workers, stated in an interview that "the new Constitutional Court will guarantee that all citizens' rights are respected." Leading legal scholar Rosendo Lopez lamented that "the Constitutional Court has vast, comprehensive powers, including the dissolution of congress." TRANSITION...ALWAYS A CHALLENGE ¶14. (SBU) The constitution and transition regime spell out transitory dispositions within the justice sector. Ten days after the proclamation of a referendum victory, the terms of the Supreme Court justices end. A lottery is to be used to determine which 21 of the current 31 Supreme Court justices remain temporarily in a "caretaker" court until new National Court justices are selected by the new Judicial Council. The current Constitutional Tribunal justices, in contrast, are to remain in place until the new Constitutional Court is appointed. The constitution gives the interim legislative commission only four months for enactment of the laws on the judicial function. ¶15. (C) Reaction to the transitory dispositions has been highly critical, particularly among the sitting judges. The current Supreme Court justices have decided unanimously not to accept seats assigned by lottery in the new National Court. Supreme Court Justice Jose Ramon Jimenez Carbo told us that "it is clear that the Supreme Court plenary does not accept this sui generis mechanism which is outside any type of logic. We are falling into a situation of complete absence of the rule of law." Jimenez also said that the justices taped a public service announcement pointing out the flaws in the constitution, but CONARTEL, the government agency which authorizes all government broadcast statements, did not approve it. ¶16. (SBU) The government has refused to negotiate with the Supreme Court judges on this issue. It remains unclear who will replace the judges that stepped down on October 24. At least in the short term, this puts Ecuador back in the situation it experienced in 2005 when it had no Supreme Court. ¶17. (C) For its part, the Constitutional Tribunal already in place on October 20 proclaimed itself the Constitutional Court, with all powers granted under the new constitution. NGO Citizen Participation executive director Ruth Hidalgo told us she considered this move illegal, but not surprising. Under the transition regime, the former Constitutional Tribunal was supposed to continue to exercise its role until the Constitutional Court was selected, not self-proclaim itself the Constitutional Court. Critics suspect that this action may serve the Correa government's purposes and win the endorsement of the Correa-controlled legislative commission. COMMENT ¶18. (C) While the constitution contains several important reforms, many key laws, structures, and regulations remain to be enacted. The inconsistencies and gaps in the constitutional articles on the judicial sector, together with the open door to take all cases to the Constitutional Court, will likely produce a myriad of legal, structural and logistical problems, resulting in even greater delays in delivery of justice in the short term than is already the case. As for judicial independence, the constitution is a mixed bag. While some safeguards have been included, for example, to insulate the highest courts from political interference, the Correa administration and its allies will have a one-time chance to control judicial appointments as these new institutions are created. In short, an efficient and independent judicial system does not appear to be on the immediate horizon. HODGES