Constitutional Reform Process - The Judiciary Altered

UNCLAS SANTO DOMINGO 000009 SENSITIVE SIPDIS E.O. 12958: N/A TAGS: PGOV KJUS KDEM PHUM DR SUBJECT: Constitutional Reform Process - The Judiciary Altered REF: A) 08 SDO 1608, B) SDO 51, C) SDO 315, D) 08SDO1959 SUMMARY ¶1. (U) The GODR's constitutional reform process, ongoing now for more than a year (reftel A) reveals much about the relative powers of various actors including the President, political parties, the judiciary, civil society, the Catholic Church and Dominicans in general. The independence and powers of the judiciary and organs connected to the rule of law have been the subject of particularly vigorous discussions (reftels B-C),and the new constitution to be promulgated on 01/26/10, contains reforms that arguably could strengthen or weaken the independence and authority of the Judicial Branch. The major innovations include the creation of a new Constitutional Tribunal, increased powers to name and review high-level judges for the politicized National Judicial Council, expansion of the President's authority to name Assistant Attorney-Generals, and a constitutional mandate for the Legal Assistance program and the Public Defender's Office. Civil society organizations, as well as the Embassy, will closely monitor the implementation of the new constitution. End Summary. CONSTITUTIONAL TRIBUNAL ¶2. (SBU) The main change to the judicial system is the creation of a Constitutional Tribunal. The Tribunal was vociferously opposed by Supreme Court Chief Justice Jorge Subero Isa, who argued it will undermine judicial independence, create judicial chaos by opening up for review all prior Supreme Court decisions on constitutional matters, and cause trial delays as defendants raise constitutional objections that could result in the suspension of trials until Constitutional Tribunal rulings can be obtained. The two major civil society organizations, Participacion Ciudadana (PC) and the Institutionality and Justice Foundation (FINJUS),however, both supported the establishment of a Constitutional Tribunal, holding that it would create an independent arbiter of the constitution and speed up consideration of constitutional issues, noting that similar institutions are prevalent in European and Latin American countries. (COMMENT: PC and FINJUS directors have also hinted to Emboffs that their support for the Constitutional Tribunal stems from their loss of confidence in the Supreme Court's freedom from political influence, as a result of that court's decision in the Sunland case (Ref D). In that ruling, the high court held that only the Presidents of the Senate and Chamber of Deputies had standing to challenge the government's entering into a commercial loan agreement without congressional authorization. Since the heads of both houses of Congress were members of the ruling Dominican Liberation Party (PLD),such objections were, of course, never made. END COMMENT.) ¶3. (U) The Constitutional Tribunal is to be composed of 13 judges who will review the constitutionality of laws and decrees upon the request of the President, one third of the Senate or Chamber of Deputies, or "of whatever person has a legitimate and legally protected interest," per Article 185. This phrase enshrines the Supreme Court ruling in the Sunland case that found that plaintiffs lacked standing. Some observers - particularly those who objected to the Sunland decision - feel this language is too restrictive, but whether it blocks or permits ordinary citizens or civil society organizations from suing to protect their rights has yet to be seen. Interestingly, the "Public Defender" (Ombudsman) is not listed as one who can bring constitutional challenges under Article 185, which as a practical matter undercuts the ombudsman's function to "safeguard fundamental rights [and those] established in this Constitution," per Article 191. ¶4. (U) Potential judges for the Constitutional Tribunal must meet the criteria for being a Supreme Court justice and both sets of judges will be selected by the National Judicial Council (CNM - see paragraphs 8-11, below, for details). The Tribunal's judges will serve non-renewable mandates for nine years, and the composition of the court will be "gradually renewed every three years" (i.e., about one-fourth of the Tribunal will be changed every three years). ¶5. (U) The Constitutional Tribunal will also have the power to review the constitutionality of treaties before they are ratified, as well as to resolve conflicts between "public powers" upon the request of one branch of government. Ordinary laws may subsequently determine what other kinds of cases the Tribunal may hear (per Article 185(4)). Article 186 provides that dissenting judges may have "their reasoning" recognized ("given value") in decisions taken by the Constitutional Tribunal. (COMMENT: This suggests that dissenting opinions will be published; in the French civil law system - from which the Dominican is derived - dissenting opinions have traditionally not/not been allowed or publicized. END COMMENT) ¶6. (U) Art. 184 provides that Tribunal decisions will constitute precedents that must be followed by other courts. The current constitution does not contain a similar provision with respect to Supreme Court decisions and, as a result, such decisions do not constitute binding precedents for lower courts on constitutional issues. (COMMENT: This reform promises to be an important development. The DR has a civil law system, in which judicial decisions are derived from interpretation of statutes, not prior case law. The constitutional mandate that Constitutional Tribunal rulings shall serve as precedent adds the common law system's consideration of case law, which should help standardize the application of constitutional rights in lower court judicial decisions. END COMMENT.) ¶7. (U) Art. 277 provides that the Constitutional Tribunal cannot review final decisions of the Supreme Court that were handed down before the Tribunal's establishment. This measure was included in response to Supreme Court Chief Justice Subero's concern of a "judicial train wreck" should the Tribunal be authorized to reconsider prior Supreme Court Rulings. (COMMENT: Apparently the way this will work is that the Tribunal may alter the substance of prior Supreme Court rulings on constitutional questions, but these new constitutional interpretations will not apply to those cases previously decided by the Supreme Court, but only to those cases that come up for decision after the Tribunal's creation. END COMMENT). THE NATIONAL JUDICIAL COUNCIL ¶8. (U) The new constitution significantly expands the powers of the National Judicial Council (CNM),while also reinforcing the political character of its composition. Under the existing Constitution, the CNM's role is limited to selecting Supreme Court Judges and naming the Chief Justice and his two deputies. Once the reforms are promulgated, however, pursuant to Art. 179, the CNM will also select the 13 Constitutional Tribunal judges and the three-to-five Superior Electoral Tribunal members, as well as review the performance of Supreme Court judges every seven years to determine whether they should be reappointed for an additional seven year period. In addition, the new constitution establishes an age limit of 75 for Supreme Court Justices (Article 151(2)), which means that the CNM will pick four new Justices in early 2010, and another two before the end of the year (in total, six of the current 16 Justices will be replaced this year). ¶9. (U) The new constitution will also alter the composition of the CNM. Under the existing constitution, it consists of seven members: the President, the presidents of the Senate and Chamber of Deputies, one additional senator and one additional Deputy who are not members of the same party as the presidents of each chamber, the Supreme Court Chief Justice and another Justice. Currently, the ruling PLD party controls the CNM, as the President and the heads of both congressional chambers are PLD members, while the two other legislators are members of the PLD's Social Christian Reformist Party (PRSC) allies. Consequently, the revision of the CNM's membership became a major political issue, as the opposition Revolutionary Dominican Party (PRD),in large part conditioned its acceptance of the new constitution on a provision stating that the additional senator and deputy come from the second largest party in each chamber, in other words from the PRD. This was incorporated in Article 178 over the opposition of the PRSC. ¶10. (U) Article 178 also provides for the addition of the Attorney General (AG) to the CNM, increasing the membership of that body to eight. NGO Participacion Ciudadana has confidently asserted that the inclusion of the AG was the PLD's price for agreeing to give the PRD two seats on the Council, as this will continue to guarantee the ruling party a blocking plurality of four members (the AG is a PLD stalwart),rounded out by the two Supreme Court justices and two PRD legislators . ¶11. (SBU) COMMENT: The CNM is and will continue to be a body overwhelmingly dominated by politicians. As a result, there is concern that it will prioritize political considerations over judicial qualifications in selecting members of the Constitutional Tribunal, Supreme Court and Supreme Electoral Tribunal, as well as in reviewing the performance of Supreme Court justices. This concern is heightened by the absence in the new constitution of detailed criteria for making these decisions. President Fernandez's original constitutional reform proposal posited appointing a representative of civil society and three appellate court judges to the CNM, but this idea did not prosper. By way of comparison, Peru's equivalent of the CNM is non-politicized, as it consists of a Supreme Court justice, a senior prosecutor, a public law school rector, a private law school rector, a bar association representative and two representatives from other professional organizations, and criteria for its work are established. END COMMENT. PUBLIC MINISTRY APPOINTMENTS ¶12. (U) The current constitution is silent on how Assistant Attorney Generals (AAG) are to be named, although existing legislation provides that all are to be named by the President with advice from the AG. When the text of the new Constitution passed its first reading in August 2009, the President's discretion to name AAG's was reduced to one-fourth, but in the final approved version (Article 171),the President designates half. (COMMENT: The limitation on the President's authority to name AAGs is expected to ensure that at least half of future AAGs come from the ranks of career prosecutors. END COMMENT) OMBUDSMAN ¶13. (U) Article 176 provides constitutional recognition of the "administrative and functional autonomy" of the Legal Assistance services program. The chief Public Defender (or Ombudsman),and Assistant Public Defenders will be selected by the Senate from a short list presented by the Chamber of Deputies, under Article 190. Although the human rights ombudsman position has gone unfilled for years, the Public Defense system, established in 2003, has grown to include over 300 public defenders, judicial investigators, social workers and administrative personnel. It operates in the main judicial districts of the country and the quality of the Public Defenders' work has been recognized within and outside the judicial sector. (COMMENT: The requirement under Article 177 that public defenders also "protect the rights of the victim" could create conflicts-of-interest and/or complicate the role of public defenders. END COMMENT) NATIONAL JUDICIAL SCHOOL ¶14. (U) The National Judicial School (ENJ) is also mentioned in the new constitution, under Article 150. This institution has been functioning for some 10 years and has established a reputation as a rather cutting-edge institution for training would-be judges and providing continuing legal education to sitting judges. Currently, a lower-court judge moves "up" as vacancies emerge, while new magistrates leaving the ENJ are sent to fill the lower ranks of the judiciary. Article 150 of the new Constitution provides that anyone wishing to be a judge must pass a competitive exam to enter the ENJ and then satisfactorily complete the ENJ's program, with the exception of appointees to the Supreme Court (who can be veteran attorneys and/or law professors). CIVIL SOCIETY'S ROLE ¶15. (U) Civil society organizations, particularly the USAID-supported Participacion Ciudadana and FINJUS, have been involved in the debate over the new constitution from the beginning. FINJUS published a study in the early months of 2009 containing numerous observations and recommendations, while Participacion Ciudadana spoke out, particularly when it seemed that certain "diffuse" rights were endangered (such as public access to the beaches). More recently, in December, FINJUS hosted a workshop focused on the new, stronger National Judicial Council (CNM). Panelists at the meeting agreed that civil society must carefully monitor and try to participate in the process by which the CNM selects and evaluates judges to help ensure that professional, not political standards are applied. ¶16. (U) The panelists at this workshop cautioned that detailed criteria governing the CNM's selection and review of judges are lacking . For example, Art. 181 addresses the review of Supreme Court justices' performance, but only states that the National Judicial Council may, "decide the pertinence of separating a (Supreme Court) judge from his duty," although such a decision must be "based on the grounds of the law that (will) regulate(s) this matter." Since the new constitution defers this matter to subsequent legislation, the FINJUS panelists expressed their determination to stay involved in the process of drafting and enacting such legislation to lobby for proper criteria. COMMENT ¶17. (SBU) It appears that the new constitution's impact on the judicial system will be positive. The establishment of a Constitutional Tribunal could advance the development of constitutional rights and of a body of binding constitutional case law in the DR. The expansion of the National Judicial Council's authority is not in and of itself worrisome, but the continued political character of three-quarters of its membership certainly is. Civil society's continued engagement in the debate and passage of implementing legislation is essential to ensure that purely political considerations are not the only voices heard. Embassy will continue to monitor developments closely. END COMMENT. Lambert