FERNANDEZ'S PRIORITY: A NEW CONSTITUTION

UNCLAS SANTO DOMINGO 001608 SENSITIVE SIPDIS STATE FOR WHA/CAR E.O. 12958: N/A TAGS: PGOV PHUM ECON DR SUBJECT: FERNANDEZ'S PRIORITY: A NEW CONSTITUTION REF: 06 SANTO DOMINGO 3521 ¶1. (SBU) Summary: On September 18, President Fernandez delivered his long-promised draft of a new constitution to the Congress. With the goal of a "democratic revolution," Fernandez proposes changes to the judiciary, presidential re-election, electoral system, nationality, and many other areas. While the most attention has been paid to the amendment on presidential re-election, which could potentially allow Fernandez to stay in office until 2020, the changes to the judiciary are perhaps the most far-reaching. There is widespread support for constitutional reform, if not for the specific changes proposed or the process for approving the amendments. We do not expect this process to cause the political upheaval that constitutional change has in Bolivia and Ecuador; however, Fernandez does face a challenge in obtaining consensus on the new charter, including from within his own PLD party. End summary. New Constitution -------------- ¶2. (SBU) Fernandez launched "constitutional reform," as the process is known here, in November 2006 with a major speech and series of public consultations on what changes were needed to the charter (Reftel). The President argues that the current constitution does not adequately address the issues of civil rights, electoral supervision, presidential prerogatives, and judicial review. He asserts that in the worst of cases, it would not bar the return of dictatorship. By mid-2007, the process fell from public view as the proposed amendments began to be drafted and the presidential election of May 2008 approached. The new draft has 254 articles, almost double that of the 1966 charter. ¶3. (SBU) PRESIDENTIAL RE-ELECTION: By one count, the Dominican Republic has modified or rewritten its constitution on 32 occasions since independence. Controversy over presidential re-election has been a recurring theme, with the majority of the 32 modifications addressing that issue. The three main political parties here have switched positions on the issue repeatedly to suit the desires of their sitting presidents. In 1994, the PRSC supported re-election, but ultimately succumbed to the efforts of the PLD and PRD to ban the practice. In 2002, the PRD pushed through an amendment permitting re-election against the opposition of the PRSC and PLD. And in during the 2008 election, it was the PLD's turn to promote re-election, as Fernandez justified running for a second term against the wishes of the PRSC and PRD. ¶4. (SBU) Fernandez now proposes to allow presidents to run for more than two terms, provided that they leave office for four years before again seeking the presidency. Since Fernandez will have served eight years in office by 2012, the amendment would appear to require him to step down at that time. However, several commentators -- including a respected NGO leader (publicly) and at least one PLD minister (privately) -- have raised the possibility that Fernandez will promote an interpretation of the new constitution as applying only to future terms. Such an interpretation would allow the President to stay in office until 2020 and would likely be strongly opposed by senior leaders in the PLD concerned about the action's impact on Dominican democracy, as well as on their own prospects for seeking the presidency. Fernandez's chief rival within the party, former Chief of Staff Danilo Medina, is particularly strong in the Congress, which must approve the new constitution by a two-thirds vote. (Note: The PLD holds the required majority in the Senate, but not the House. For additional votes, the President is courting the PRSC party, whose Secretary-General accompanied Fernandez when the draft charter was presented to Congress.) ¶5. (SBU) JUDICIAL SYSTEM: The draft constitution includes a series of changes to the judiciary, including expanded powers to the Council of Magistrates, seven-year terms and performance evaluation for Supreme Court justices, a new constitutional chamber for the Supreme Court, an independent Administrative Court, and a requirement that appeals court judges be career officers. There is widespread support here for a "second wave" of legal reforms to complement the modest, but important, gains made since a judicial reform effort was launched in 1994. As for the specific amendments proposed by Fernandez, most legal scholars and other commentators have yet to make detailed comments. USAID LES describe the draft changes as holding a good deal of promise, but requiring a number of clarifications before they can be fully assessed. Post will follow this debate closely, given the importance of law enforcement issues here and the significant assistance that USAID has provided to the Dominican legal sector for the past 11 years. While the changes to the judiciary have been the most debated, a second area of particular concern is the possible affect on the Public Ministry's career law and independence from the Executive Branch. ¶6. (SBU) ELECTORAL SYSTEM: The Dominican electoral system has improved considerably since the fraudulent 1994 election. Fernandez proposes to strengthen the system further by creating an Electoral Prosecutor and Superior Electoral Court to handle violations and legal challenges. Such a change would permit the existing Central Elections Board (JCE) to focus on the administration of elections and, by eliminating the JCE's contentious chamber, would remove the current acrimony between the Board's complex administrative, contentious, and plenary bodies. In addition, the new constitution would require presidential and congressional/municipal elections to be held at the same time, instead of the current system in which they are offset by two years (both serve four-year terms). (Note: This is a positive change: It would reduce the nearly constant campaigning here, thereby reducing campaign spending and allowing office-holders to focus on governing.) ¶7. (SBU) NATIONALITY: A proposed amendment would deny Dominican nationality to children born in the country to illegal immigrants. This change, which would affect the large Haitian and Haitian-Dominican communities, would simply make constitutional an interpretation of the migration law which has already been upheld by the Supreme Court. Nevertheless, the denial of nationality to persons born here is major political issue since it is strongly opposed by Haitian-Dominicans. Some Dominicans have also spoken out against the practice, partly because programs to provide alternative documentation have not been successful to-date. In addition, while many affected individuals are eligible for Haitian citizenship, some do not want it (because they consider themselves Dominican) or cannot obtain it because of bureaucratic hurdles -- leaving them functionally stateless. Another proposed amendment has some positive potential in that it grants citizenship to persons born to stateless parents; however, it would be of little use if government authorities refute the parents' claim of statelessness. A third amendment states that public education shall be provided to persons legally residing in the country, raising the concern that illegal immigrants -- who are currently permitted to study through the eighth grade -- will be turned away from schools completely. ¶8. (SBU) OTHER AMENDMENTS: Additional proposed changes to the constitution of note include: -- Formation of a National Security Council; -- An increase in House of Representatives seats from 154 to a range of 175-250, including new seats to represent the Dominicans diaspora overseas (the Senate would also gain seats for the diaspora); and -- Creation of a mechanism for public referendum. Reactions -------------- ¶9. (SBU) Given the length and complexity of the draft constitution, opposition parties and civil society are only beginning to make substantive comments on the proposed charter. Former President Hipolito Mejia, of the PRD party, has argued that now is not the right time for a major political project such as constitutional change, given the need to respond to the international financial crisis. Other PRD leaders are pressing for the draft document to be considered by a constituent assembly instead of the sitting congress. Several prominent civil society leaders also support the constituent assembly idea. Indeed, some have argued, including the President of the Autonomous University of Santo Domingo, that the so-called reform is actually unconstitutional, as it is so extensive that it is actually a new constitution, which, under the current constitution, requires a constituent assembly. However, Fernandez has shown little inclination to accept the proposal. Civil society has also commented that several articles could increase what they consider to be already excessive presidential power vis-a-vis other branches of government. Finally, NGOs have taken the lead in raising the possibility that Fernandez will seek to stay in office beyond 2012 and are calling for the new constitution to explicitly state that terms already served when the charter is approved will apply towards term limits. Process -------------- ¶10. (U) In addition to the constituent assembly issue, there have also been differences regarding the process for approving the new constitution. After submitting the draft to Congress, Fernandez launched the "Forum for Constitutional Reform," a series of public dialogues. The President skillfully secured the support of two influential, politically independent Dominicans to help run the dialogues, Monsignor Agripino Nunez Collado (a university rector) and Servio Tulios Castanos (Executive Vice-President of the NGO FINJUS). Many leaders in Congress, where the charter will eventually be voted on, consider the Forum an encroachment on their prerogatives. Senate President Reinaldo Pared Perez -- who is also the Secretary-General of Fernandez's PLD party -- seized on a remark by Castanos, saying that the NGO leader had disrespected the Congress by implying that legislators needed advice on complex constitutional issues. Neney Cabrera, of the PRD, noted that civil society and others could just as easily express their views of the draft constitution to the Congress as they could to the Forum. Comment -------------- ¶11. (SBU) Given the need for more Presidential action to address the multiple socioeconomic problems of the Dominican Republic, it is difficult for American observers to understand why Fernandez would choose a new constitution as a priority. Of course he is not alone among Latin American leaders in viewing constitutional change as a panacea. We suspect that, as a former law professor, Fernandez enjoys this issue far more than the challenges of corruption, the electricity sector, education system, and other issues where enacting reform carries significant political costs. The timing of the international financial crisis is bad luck for the President, who already had to postpone constitutional reform for over a year during the election campaign. Post has so far refrained from public comment on the new charter. However, as analysis of the document by constitutional scholars and civil society continues, we will keep on eye on key areas of U.S. interest. These include the judicial system, where we have 11 years of USAID investment to protect, and presidential re-election, where an overt attempt by the President to remain in office for 16 years would raise serious questions about the democracy. At the moment, Fernandez says he wants a system where the President cannot "perpetuate himself in power." We'll see. (U) Please visit us at http://www.state.sgov.gov/p/wha/santodomingo/ FANNIN