SUPREME COURT HALTED, JUDICIARY DISMANTLED

C O N F I D E N T I A L LA PAZ 000715

SIPDIS

E.O. 12958: DECL: 05/14/2019
TAGS: PGOV PREL KDEM PHUM PINR ENVR ASEC BL
SUBJECT: SUPREME COURT HALTED, JUDICIARY DISMANTLED

REF: A. LA PAZ 469

B. 08 LA PAZ 2464

Classified By: A/EcoPol Chief Joe Relk for reasons
1.4 (b, d)


1. (C) Summary: The Bolivian Congress' lower house narrowly
voted on May 14 to impeach Supreme Court President Eddy
Fernandez, and the opposition-controlled Senate will begin a
"trial of responsibilities" within two weeks. The ruling
Movement Toward Socialism (MAS) party's main charge against
Fernandez is "retardation of justice" (delay) in the case
against former President Gonzalo "Goni" Sanchez de Lozada.
Ironically, the impeachment process requires Fernandez'
immediate suspension, which will prevent the Supreme Court
from reaching a quorum and further delay the Goni case.
Supreme Court Alternate Justice Bernardo Wayar said this was
not a serendipitous result, suggesting ex-Goni ministers paid
MAS leadership to push for Fernandez's suspension, as the
case is now nearing its three-year "termination" date. Under
such an arrangement, the MAS would do away with judicial
oversight of MAS actions while bolstering their campaign war
chests for upcoming December elections, and Fernandez would
be the scapegoat. With Fernandez's suspension, the Supreme
Court, the Constitutional Tribunal, and the Judicial Council
are now all essentially defunct. Even if the Senate rejects
Fernandez's impeachment, the MAS will label the Supreme Court
as "corrupt" and campaign against it in the elections. And
as they did with the Constitutional Tribunal, the MAS is
likely to keep up the pressure -- there are
government-sponsored cases pending against six of the eight
court justices. End Summary.

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Behind the Fernandez Attack
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2. (U) Continuing its months-long campaign to impeach Supreme
Court President Eddy Fernandez (Reftel A),the ruling
Movement Toward Socialism (MAS) party-controlled lower house
of Congress voted May 14 to open impeachment proceedings
against him in the opposition-controlled Senate. Proceedings
are to begin within ten days. With Fernandez's automatic
suspension, the twelve-member Supreme Court is reduced to
seven members, one fewer than needed for a quorum.


3. (C) According to Supreme Court Alternate Justice Bernardo
Wayar, the reasoning behind the MAS prosecution of Fernandez
does not start and end with his supposed impeding of justice.
In a conversation with Poloff, Wayar said if the goal is to
speed justice, then MAS efforts to unseat Fernandez do not
make sense. One of the main charges against Fernandez is
that he tried to recuse himself from the Goni case in an
attempt to slow it down to the point where the case would
reach a three-year termination point. (Note: According to
Bolivian law, trials may not last longer than three years
without a sentence, and cannot be re-tried. End note.)
However, as Wayar notes, the impeachment proceedings have
resulted in Fernandez's immediate suspension and potential
resignation, which would only slow the case more. Further,
with charges against six of the eight justices, Fernandez is
not the only MAS target. Instead, this is part of a broader
MAS attack on the entire judiciary.


4. (C) Regarding case specifics, Wayar went on to explain
(and news media have also reported) that Fernandez did try to
recuse himself from the case because his sister was part of
the defense team for one of Goni's ex-ministers, and he felt
his participation could raise charges of nepotism. In
response, according to leading local daily La Razon, Defense
Minister Walker San Miguel said that Fernandez planted his
sister on the defense team as an excuse to get out of the
case and slow it down. Wayar labeled this charge
"ridiculous."


5. (C) According to Wayar, the goal of the MAS is not to "get
Goni," but rather to dismantle all pieces of past regimes as
part of the "revolutionary change process." He also
postulated a potential connection between the ex-ministers
who are currently being tried and current high-level MAS
members, specifically citing Presidency Minister Juan Ramon
Quintana, Government Minister Alfredo Rada, and San Miguel.
Noting the need for MAS campaign funds for the upcoming
December 6 elections, Wayar said he would not be surprised if
the ex-ministers paid handsomely to have the MAS prosecute
Fernandez. Under such a scenario, Fernandez's resignation
would lead to a paralyzed Supreme Court and give the MAS free
rein to operate without any judicial check on their
decisions, while the ex-ministers would escape prosecution,
with Fernandez the convenient scapegoat.

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Next Steps: Senate Trial
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6. (C) In another sign of the political nature of the
prosecution, the MAS-controlled lower house of Congress took
eleven hours to assemble a majority quorum of 66 members (out
of 130 total). In the end, all 62 votes for Fernandez's
impeachment were cast by MAS party members. The MAS
persuaded four opposition members to be present for the
quorum roll call, even though these members surely knew their
presence guaranteed Fernandez's selection for impeachment.


7. (C) The Senate will now hold a "trial of responsibilities"
within two weeks. Although the Senate is
opposition-controlled, a decision against impeachment cannot
be considered a foregone conclusion, as the MAS will try to
recruit or pressure outlying opposition members to their side
(as they have done successfully in past key votes).

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Three Courts Now Defunct
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8. (C) President Morales and members of the MAS party have
attacked the judiciary consistently since taking office. In
March 2006 Morales and Vice President Alvaro Garcia Linera
claimed the Supreme Court ruled in favor of Lloyd Airlines
after receiving bribes. In April 2006, Morales argued that
"certain sacred cows of judiciary" do not wish to "go along
with the government's policies of change." At opening of the
2007 judicial year, Morales denounced the entire system as
corrupt and "smelling of dollars", then called all supreme
court justices that he did not appoint "relics of past
governments."


9. (C) Two other parts of the judicial branch, the
Constitutional Tribunal and the Judicial Council, are already
essentially defunct. The MAS used a campaign of
intimidation, salary cuts, and similar impeachment
proceedings to reduce the Constitutional Tribunal from ten
members to only one, where it has remained since the end of
2007 (Reftel B). The Constitutional Tribunal now has a
backlog of more than 4,000 cases. The Judicial Council is in
a similar situation, with only one out of five members (and
three needed for a quorum),a backlog of over 100
disciplinary cases, and a case pending against the sole
remaining member initiated by the MAS-controlled lower house
of Congress. Finally, the Attorney General-equivalent, Mario
Uribe, also has a case pending in the lower house. MAS
Senator Ricardo Diaz has said that according to the new
constitution, no new justices can be appointed to either
court until the new Plurinational Assembly is seated and
passes a law regarding judicial appointments, which will not
occur until sometime in 2010.

- - - -
Comment
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10. (C) Although post finds Wayar's supposition of payoffs
between past and current administration members potentially
far-fetched, his overall point that the MAS is trying to
eliminate the judiciary as a check on their power is
supported by three years of government-supported intimidation
tactics aimed at the Constitutional Tribunal and Judicial
Council. With Goni now residing in the U.S., his trial may
be more useful for creating a scapegoat (Fernandez) or
another government foil generally (the Supreme Court),even
as the MAS dismantles the last functioning part of the
judicial branch. End comment.
URS