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