CONSTITUTIONAL REFORM - JUDICIARY IN PLAY,

C O N F I D E N T I A L SANTO DOMINGO 000315

SIPDIS

STATE FOR WHA/CAR, DRL, INL FOR FPALMIERI, RLEVENTHAL,
KBROWN

E.O. 12958: DECL: 03/14/2019
TAGS: PGOV KJUS KCOR PREL DR
SUBJECT: CONSTITUTIONAL REFORM - JUDICIARY IN PLAY,
PRESIDENTIAL POWERS ASCENDANT

REF: SDO 51

Classified By: Charge D'Affaires Roland Bullen for Reasons 1.4(b) and (
d).


1. (C) Summary: Although the President's 2/27 Independence
Day speech ran for two hours, regarding constitutional
reforms he noted merely that the government's proposed
changes will "strengthen" the judiciary. It is far from
clear that that will be the case, given the analysis of
FINJUS, a major rule of law NGO, and of others. A key
question is whether a "constitutional chamber" will be added
to the system. If so, its form and powers must be clearly
defined. As noted, reftel, the outcome of this and some
seemingly technical issues may affect the health of Dominican
democracy for years to come, especially if other planned
reforms strengthen the Executive Branch further. End Summary.


Many Voices at AmCham
--------------


2. (SBU) At a January meeting of the American Chamber of
Commerce (AmCham) in Santo Domingo, several perspectives on
the President's proposed reforms were heard. While the DR
Ambassador to the U.S. put a positive spin on suggested
reforms, the head of FINJUS (one of the most important rule
of law NGOs) expressed grave concerns. FINJUS does support a
key presidential idea: the creation of a constitutional
"chamber" of some sort. However, he denounced the reforms
overall as internally inconsistent and hardly worthy of being
considered "a draft." The head of AmCham stated his
opposition to the "dismemberment" of the judiciary.
Remarkably, the Chairman of the Senate Judicial and Human
Rights Committee, a high ranking official from within
Fernandez's own party, also expressed concerns before the
AmCham, especially about the need to maintain adequate checks
and balances in the Dominican constitutional system.
Discussions with some businessmen at the AmCham luncheon
revealed that they are tired of having to deal with
corruption in the DR and oppose reforms that might undermine
the country's already weak rule of law.


FINJUS Promotes Checks and Balances
--------------


3. (C) The head of FINJUS, Servio Tulio Castanos, expanded on
his critiques and FINJUS' ideas for constitutional reform on
March 5, during a meeting with Embassy officials, including
the Charge. Castanos began by saying that there are
significant "political divisions" in the Dominican Republic
over the idea of a "constitutional chamber" - called a "sala
constitucional" in the draft reform presented by the
President. Castanos added that while the word "sala" (or
"chamber") is used, the proposal really constitutes what
might more accurately be called a "court" or "tribunal."


4. (C) FINJUS believes that a "Constitutional Tribunal" that
is "independent of the Judicial power" should be created.
According to the NGO, this would better "consolidate the
democratic system" of the DR. Supreme Court President Subero
Isa, however, opposes the creation of a separate body,
fearing it will be expensive and staffed by politically
connected persons, not career judges. He has floated the
idea of placing the "sala" within the current court's
structure, thus effectively creating a constitutional chamber
within that court. Castanos opined that it would have been
better had Subero
Isa not proposed this idea, which FINJUS believes would make
things worse. If the "extra-branch" entity envisaged by
FINJUS cannot be properly created, then FINJUS believes it
better to leave the situation as it now is (i.e., with a
Supreme Court that handles all types of cases, without a

specialized constitutional court or chamber). FINJUS holds
that the appointment problem would be solved by having all
Constitutional Tribunal members selected by the National
Council of Magistrates.


5. (C) In addition to the judiciary's fate, another key
questionis congressional oversight - long a weakness in th
DR. Shortly after the AmCham event, FINJUS pubished an
editorial calling for Ministers of the abinet to be
confirmed by the legislature, just as in the United States.
If adopted, this could strengthen checks and balances in the
Dominican system. Yet the current proposed reforms would
weaken the Dominican congress. In view of this, Castanos
would prefer not changing the current imperfect constitution
for something worse.


Comment
--------------


6. (C) Comment: We were struck by the strong concerns voiced
by FINJUS and the Senate committee chair from the President's
own party, both of whom are respected and powerful actors
here. It is clear that Fernandez has some negotiating to do.
The FINJUS proposal does contain some ambiguities, despite
being clearly well intentioned and well thought out. As
written, it suggests that their "Constitutional Tribunal"
would decide constitutional issues after these have been
raised in litigation (as in the United States). However, the
mechanism for getting such issues before that tribunal is
not spelled out, nor are criteria by which the National
Council of Magistrates would select qualified members of such
a new body. Nor does this proposal seem to take into
consideration the weakness of the legislative branch - which,
Castanos said, should be the "key power" - vis a vis the
executive in the DR. Under such circumstances, which
resemble those in France, it is unclear why FINJUS did not
suggest creation of a constitutional court able to review the
constitutionality of laws before they are passed (as in
France),perhaps along with a Supreme Court - if not ordinary
courts - empowered to decide whether a law had been
constitutionally applied in practice. Nor is it obvious how a
constitutional court could really be an "extra judicial" body.


7. (C) Comment continued: The passing reference to judicial
reform by the President on February 27 may be a sign that he
understands that much needs to be sorted out. Yet USAID notes
that the DR Congress seems to be missing a great opportunity
to overhaul the balance of powers and strengthen the
legislative branch, and Castanos opined that just 20 percent
of legislators are engaged or capable enough to participate
meaningfully in the constitutional reform process.
Certainly, the government's proposal would enhance
presidential powers: Reelection of presidents for two terms,
with the possibility of subsequent re-elections after sitting
out a term (thus potentially giving Fernandez four
consecutive terms and more thereafter); presidents will be
able to name an unlimited number of "sub-secretaries" to
ministries (thus clearing the way for unbridled clientelism);
and members of the DR Congress will be less empowered to
exercise oversight of the national budget. All the more
reason, then, for the Dominican Republic to get the structure
and powers of the judicial branch right.
BULLEN