GOVERNMENT INSTITUTIONS STRUGGLE TO ACCOMMODATE

UNCLAS QUITO 000602 SENSITIVE SIPDIS E.O. 12958: N/A TAGS: PGOV PREL EC SUBJECT: GOVERNMENT INSTITUTIONS STRUGGLE TO ACCOMMODATE NEW CONSTITUTION REF: A. QUITO 1010 ¶B. QUITO 437 ¶C. QUITO 467 ¶D. QUITO 329 ¶E. QUITO 308 ¶F. QUITO 513 ¶1. (SBU) Summary: Four of the five branches of government set forth in the October 2008 constitution currently exist only in interim form, with the result that power has shifted to the one branch that enjoys continuity, the Executive. The first phase of the constitutionally mandated transformation of government institutions was carried out in a rush by the government-dominated Legislative Commission. The independence and impartiality of the transitional institutions have been questioned. The process overall has consolidated President Correa's power and his plans to implement fully his citizen revolution. End Summary. LEGISLATIVE COMMISSION -------------- ¶2. (U) The interim Legislative and Oversight Commission was created on October 25, 2008, by decision of the former Constituent Assembly, and its 76 members are a subset of that Assembly. 46 of those members belong to President Correa's Proud and Sovereign Fatherland (PAIS) movement, giving them complete control. Delays beyond what was expected in holding the April 26 elections and the proclamation of their results have extended the tenure of the Legislative Commission, thereby allowing it to pass more legislation with long-lasting impact. ¶3. (U) As of July 10, the Legislative Commission approved 25 laws, including important regulations pertaining to the justice system, social security, and mining. The constitution required that only five of these laws be enacted: the electoral law, the law on food sovereignty, the law regulating the Citizen Participation and Social Control Council, the law governing the judiciary, and the law regulating the judiciary council. So far, the Legislative Commission has shied away from any oversight role, dismissing three requests to investigate and/or have a political trial of cabinet members. ¶4. (U) An example of a controversial law that the Legislative Commission chose to act on is the one governing the activities and procedures of the legislature, which was passed on July 8. The opposition sustains that this law should be written by the National Assembly, which was elected on April 26, once it is installed. The opposition's contention is that PAIS wants to avoid legislative oversight of the executive function by approving this law in the Legislative Commission, where it has a majority. In a conversation with us, PAIS Assembly member Betty Amores defended the initiative: "We want to leave everything ready so that the new Assembly can start working right away." THE JUDICIARY -------------- ¶5. (U) The 2008 constitution's instructions on how to establish interim judicial institutions were not implemented (Ref A). The former Constitutional Tribunal declared itself the new more powerful Constitutional Court shortly after the 2008 constitution went into effect. A majority of the former Supreme Court justices refused to comply with a lottery mechanism to appoint members of the interim National Court of Justice, and after a month of institutional vacuum, the Constitutional Court decided to appoint former Supreme Court justices not favored by the lottery and former associate Supreme Court justices in the order of their merit-based rankings. The 21 seats on the Court were filled in this manner on December 2, 2008. ¶6. (U) The constitution establishes different mechanisms for the appointment of permanent judicial authorities. Once the new authorities in the Executive, Legislative, and Transparency branches of government are in place, they will appoint two delegates each to a commission tasked with appointing the nine Constitutional Court justices, who will subsequently be replaced by thirds every three years. As for the National Court of Justice, its 21 members will be appointed by the Judiciary Council and one third of them will be replaced every three years. The nine Judiciary Council members will be appointed by the Council of Citizen Participation and Social Control. ¶7. (SBU) The 2008 constitution does not directly grant the Executive more power to control the Judiciary. It does, however, open the door for it if the implementing laws and regulations provide the government with the control over the newly created Transparency and Social Control branch of government, which is key in the appointment of judiciary institutions (such as the Judiciary Council and the Constitutional Court). ¶8. (U) Two of the pieces of legislation passed by the Legislative Commission, a reform to the criminal procedures law and the organic law governing the judiciary, have encountered resistance and generated confusion among the judicial community and the general public. One of the main complaints of judicial actors (prosecutors, lawyers, judges, etc.) is that they were not involved in the drafting process and that as a result some aspects of these laws do not make sense. For example, the number of possible hearings in criminal procedures was raised from 16 to 29, thus slowing down the administration of justice. The press extensively covered the confusion these laws caused for the judicial sector and the public. For example, one of the new provisions requires victims of theft worth less than $654 to file a complaint with police stations instead of the prosecutor's office, which have led many to feel unprotected. PAIS Assembly member Maria Paula Romo defended the reform, arguing that based on the new law robbers who did not use violence to commit the crime could be sanctioned with returning the stolen goods ) in her view, a very effective way to compensate the victim. Additionally, the fact that the 2008 constitution placed the Prosecutor's General Office and the Ombudsman under the Judiciary -albeit as 'autonomous' institutions - has generated further criticism. The press coverage of the reforms was one of the factors that triggered president Correa's launch of a crusade to attempt to prove the press wrong (Ref B). TRANSPARENCY AND SOCIAL CONTROL -------------- ¶9. (U) The Transparency and Social Control branch of government is composed of the Citizen Participation and Social Control Council, the Ombudsman, the General Comptroller, and the other oversight institutions (currently there are three, for banks, companies, and telecommunications). The 2008 constitution tasked these institutions with oversight, transparency, the national anticorruption plan, and promotion of citizen participation. ¶10. (U) Following a highly controversial selection process, the members of the interim Citizen Participation and Social Control Council were officially inaugurated on January 26. According to the 2008 constitution, their job is to draft a bill to govern the Council's organization and activities in the future and to organize the commissions of citizens to appoint around 16 new oversight authorities (Ref C). The interim Council submitted to the Legislative Commission the bill it was tasked to draft on May 20, and is in the process of organizing the citizen commissions. ¶11. (SBU) Given a gap in the constitution's rules for the institutional transition, the self-proclaimed Constitutional Court ruled that the interim Council also would have to appoint the members of the new National Electoral Council, the Social Security Institute Board (representing those participating in the system),and the civil society representatives on the newly created Food Sovereignty Council. Council member Roxana Silva told us on May 29 that she expected that the interim Council would continue to work for at least two more months. ¶12. (SBU) Commentators fear that too much power is concentrated in the Transparency and Social Control branch of government. Fundamentally, it has taken away from Congress the power to appoint oversight authorities and many fear that the procedures regulating citizen participation will be arranged to favor the Executive's control over them. Xavier Buendia, Democratic Left Party secretary general, told PolCouns that he feared that the government would be in a position to restrict property rights through citizen commissions in the future. Those aligned with the government disagree. For example, in a public speech held on May 29, PAIS Legislative Commission member Virgilio Hernandez stated that the Council was just a "small back office" within the new institutional framework. THE ELECTORAL INSTITUTIONS -------------- ¶13. (U) The 2008 constitution created two electoral institutions to replace the former Supreme Electoral Tribunal. The National Electoral Council is tasked with administering the elections, and the Electoral Disputes Tribunal is charged with resolving electoral disputes. In accordance with the transition regime, the interim members of both institutions were chosen on October 24, 2008, by the government-controlled Constituent Assembly. ¶14. (U) Many commentators have criticized the April and June elections for lack of transparency and delays, and some political actors have disputed the electoral results alleging that there was fraud (Ref D and E). The complaints filed before the Electoral Disputes Tribunal against inappropriate campaign spending by PAIS were not upheld, which resulted in allegations that the electoral authorities, who were appointed by the PAIS-dominated Constituent Assembly, sided with the government. To its credit, the interim National Electoral Council did impose some discipline, such as forbidding use of PAIS slogans in government advertising and forcing Correa to cancel his April 25 radio address (which would have been the day before the elections). Some of the interim electoral authorities, have expressed their desire to stay at their jobs after the interim appointment expires. However, National Electoral Council president Omar Simon told PolCouns that he considered it unethical to remain given that the National Electoral Council will appoint the Citizen Participation and Social Control Council, which will then be in charge of the process to select the new National Electoral Council. THE EXECUTIVE -------------- ¶15. (U) Even the one branch of government not reorganized or established under the 2008 constitution has undergone changes. Since his reelection on April 26, President Correa has made nine cabinet changes, which respond to Correa's desire to consolidate his power by bringing in cabinet members who would help him expand his support base. During his June 13 radio/TV address, Correa stated: "We are clear that we have to transform this huge political capital that we have, which was ratified on April 26, into mobilization and organizational capacity." Correa's new four-year term will officially begin on August 10 and, in accordance with the 2008 constitution, will end on May 24, 2013. ¶16. (SBU) The electoral win appears to give Correa enough strength to overlook binding legal provisions when he chooses to do so and to speed up implementation of his government plan. For example, Correa issued a decree on June 16 creating the National Secretary of Intelligence, which restructures intelligence agencies in such a way that provides more control to the executive and less autonomy to the armed forces. This new agency stands outside of the national security law currently in force, but the government is confident that the Legislative Commission will soon approve new legislation in line with the presidential decree (Ref F). ¶17. (U) An administrative re-organization is also being considered by the government. The national planning agency, SENPLADES, is putting together a plan for organizing national government services in seven regions. The plan is in its preliminary state, yet it has already caused controversy among cities that are competing to become regional capitals ) notably, Guayaquil was not to be the capital of the region that comprises Guayas, Los Rios, Santa Elena, and Bolivar provinces. COMMENT -------------- ¶18. (SBU) Many questions about the future shape of institutions and the independence of the various branches of government remain unanswered, but developments so far are not reassuring. Correa's electoral victory has fuelled his belief that he and PAIS embody the changes demanded by Ecuadorians. The interim, PAIS-dominated legislature's rush to enact many fundamental laws before the new National Assembly members can take their seats raises doubts that the Correa administration is willing to promote debate and seek consensus on the new institutional order. HODGES