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Cablegate: Some Transparency and Mas Compromise in New

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DE RUEHLP #1948/01 1942205
ZNR UUUUU ZZH
P 132205Z JUL 07
FM AMEMBASSY LA PAZ
TO RUEHC/SECSTATE WASHDC PRIORITY 4319
INFO RUEHAC/AMEMBASSY ASUNCION 6926
RUEHBO/AMEMBASSY BOGOTA 4274
RUEHBR/AMEMBASSY BRASILIA 8162
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RUMIAAA/USCINCSO MIAMI FL
RUEHUB/USINT HAVANA 0407
RHEHNSC/NSC WASHINGTON DC
RHMFIUU/HQ USSOUTHCOM MIAMI FL

UNCLAS LA PAZ 001948

SIPDIS

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: PGOV PREL ECON PHUM BL
SUBJECT: SOME TRANSPARENCY AND MAS COMPROMISE IN NEW
SUPREME COURT APPOINTMENTS

-------
Summary
-------

1. (SBU) After nearly two months of deliberations, Bolivia's
congress successfully voted on the appointment of four new
supreme court judges in a process that while not fully
transparent, was a marked improvement over the past.
Historically the congressional approval process was opaque,
based on political deals in which the main political parties
held closed door sessions and each party negotiated for its
judicial candidates. Despite much rancor between the
Movement Towards Socialism (MAS) and PODEMOS (the main
opposition party), the two sides reached an accord and
developed a mostly transparent and merit based approval
process based on ten basic criteria as well as written and
oral exams. Civil society representatives from the USAID
supported "Citizens' Participation and Justice Network" were
allowed to observe the process. Voting began on July 10, and
after six rounds, congress reached the required two-thirds
majority for each of the new judges on July 12. To reach the
two-thirds, some back room deal-making between MAS and
PODEMOS was still necessary. The cooperation between the MAS
and PODEMOS, the inclusion of civil society observers, and
the relative transparency of the process in general is a
positive precedent for Bolivia, despite the last minute
deal-making. End Summary

-----------
The Context
-----------

2. (U) The supreme court, which is made up of twelve
justices, has been short four justices for over a year.
Throughout 2006 congress never reached the two-thirds
majority required to fill the vacancies so President Morales
filled them with interim appointments during congress'
December 2006 recess. Morales was handed a setback when the
constitutional tribunal deemed that his appointees could not
serve for more than 90 days, again leaving the supreme court
with four vacancies. (Note: In response to the constitutional
tribunal's decision, Morales instigated impeachment
proceedings against four of the five constitutional tribunal
magistrates. End Note). In the past, the congressional
approval system was based on "cuoteos" (political deals). The
main political parties held closed door sessions and each
party negotiated for its judicial candidates based more on
party loyalty than on experience or merit. Since the system
was neither transparent nor based on a nominee's particular
merit confidence in the judicial branch suffered.

------------------------------
The Initial Selection Criteria
------------------------------

3. (U) Despite much rancor within congress, including
marathon insult sessions between the MAS and the opposition,
the two sides reached an accord and developed a seemingly
transparent and mostly merit based approval process. On May
22, the parties reached an agreement to only allow candidates
from the departments of La Paz, Cochabamba, Oruro, and Tarija
as these departments had no justices on the supreme court.
While not a rule, customarily the bench is filled with a
judge from each of the nine departments. On May 30, congress
approved ten basic criteria for considering potential
nominees. To be considered eligible a nominee could not have:

1. Served as a public servant during military regimes;
2. Defended narco-traffickers in a judicial proceeding;
3. Defended the privatization of state-run companies;
4. Defended an embassy or foreign entity against the GOB;
5. Violated the rights of another person;
6. Any legal cases pending against him/her;
7. Any disciplinary sentences for serious offenses;
8. A close blood tie to a congress member or high level GOB
employee;
9. Served as a political activist; or
10. A politically affiliated position that offers a stipend.


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Making the Grade
----------------

4. (U) Congress requested information on each candidate from
four institutions as well as the general public to see how
each candidate stacked up against the ten criteria. The
national election court verified each candidate's political
activism (or lack thereof). The judicial council checked on
any pending cases against each candidate. The state
prosecutor investigated each applicant's police record.
Finally, the Judiciary's Disciplinary Committee researched
whether or not applicants had ever received disciplinary
sanctions. Congress also asked the general public to come
forward with documented accusations against any of the
candidates. Of the initial 179 candidates only 15 nominees
remained on July 3, the day in which each had to complete a
written and oral exam. Each candidate also had to deliver a
fifteen minute presentation covering three topics; his/her
view of the Bolivian justice system; the judiciary's
function; and what aspects of the system need improving.
Based upon all the aforementioned criteria each candidate was
assigned a score based on his/her merit.

---------------------------
Civil Society Participation
---------------------------

5. (SBU) Civil society representatives from the "Citizens'
Participation and Justice Network" acted as observers in the
selection process. The network, a group of over 100 Bolivian
non-governmental organizations supported by USAID through
Partners of the Americas, provided volunteers that observed
the final selection process. The network's oversight
included supervising the written and oral exams and the
ranking of the candidates. Although the GOB was initially
reluctant to grant the network access, the Congressional
Joint Constitutional and Justice Committee thanked the group
for its participation.

------------------
The Results are In
------------------

6. (U) The first round of voting started on July 10. No
candidate received the necessary 105 of 157 votes, despite an
earlier agreement by both parties to vote for the most
meritorious candidates (per the candidates' scores). An
additional five rounds followed. After the first four
rounds, congressmen from the MAS and PODEMOS got together and
forged an agreement in which they would split the four
justices, two for the MAS, two for PODEMOS. Representatives
from the National Unity (UN) and National Revolutionary
Movement (MNR) parties denounced the back room deal as a
return to the quota system of the past. (Note: It is ironic
that the MNR representatives should denounce the quota system
as the MNR was one of the primary architects of the system.
End Note). On the evening of July 12, congress reached the
necessary two-thirds votes for the four appointees. The
candidates selected by department are:

(a) La Paz -- Teofilo Tarquino Mujica, 63 years old with 36
years of legal experience, received 114 votes in the fifth
round of voting. He answered four out five questions
correctly on the written exam. Tarquino was selected over
Marlene Teran who received the highest merit score of all the
candidates.

(b) Cochabamba -- Jose Luis Baptista Morales, 74 years old
with 34 years of legal experience received 129 votes in the
fifth round of voting. Despite having the highest merit
score of the nominees from Cochabamba, he only answered one
of five questions correctly on the written exam (!).

(c) Oruro -- Angel Irusta Perez, 61 years old with 27 years
of legal experience, received 126 votes in the sixth round of
voting. Mr. Irusta answered four out five questions

correctly on the written exam. Mr. Irusta was selected over
Rodolfo Fuentes Borda who had a higher merit score.

(d) Tarija -- Hugo Suarez Calvimontes, 50 years old with 26
years of legal experience, received 120 votes in the sixth
round of voting. Mr. Suarez had the highest merit score
amongst the Tarija nominees and answered all five questions
correctly on the written exam.

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

7. (SBU) While the selection process was relatively
transparent and based on the candidate's relative merits,
some observers noted that the candidate pool overall did not
reflect the best Bolivia could offer in terms of
qualifications and expertise. Critics argue that more highly
qualified lawyers chose not to participate as candidates due
to the continuing uncertainties of the selection process and
recent threats to both the supreme and constitutional courts.
However, the improvements in the selection process may
encourage better candidates to participate in the future.

8. (SBU) The cooperation between the MAS and PODEMOS, the
inclusion of civil society observers, and the relative
transparency of the process in general is a real precedent
for Bolivia. Civil society organizations from the Citizens'
Participation and Justice Network plan to continue advocating
for transparent merit-based selection processes for justice
sector officials. Meanwhile, PODEMOS is quietly claiming a
political victory as this was the first time the MAS has had
to compromise and strike a deal with them. End Comment.
GOLDBERG

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