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Cablegate: Supreme Court Selected, First Step in Democratic

This record is a partial extract of the original cable. The full text of the original cable is not available.

UNCLAS SECTION 01 OF 02 QUITO 002706

SIPDIS

SENSITIVE

E.O. 12958: N/A
TAGS: PGOV KJUS PREL EC OAS
SUBJECT: SUPREME COURT SELECTED, FIRST STEP IN DEMOCRATIC
REBUILDING

REF: QUITO 2235

1. (SBU) Summary: Achieving a major democratic milestone
and goal of the mission's democracy support strategy
(RefTel), on November 28 a new, more independent Supreme
Court was named unanimously by the special selection
committee, permitting an inauguration ceremony to take place
on November 30. The selection of the court came after tense
final negotiations and culminates a six-month selection
process mandated by Congress after the discredited former
court was disbanded in the wake of the irregular change of
government in April. The new court will immediately face
challenges to its legitimacy, since it was selected by
extra-constitutional means. The international community,
especially USG-supported OAS monitors, played a critical role
which helped the selection commission overcome its
differences. The court's first task will be to select a new
national judicial council, which in turn will nominate a
replacement Constitutional Tribunal. Doing so would fill the
current vacuum there and reconstitute a more independent
judiciary after almost a year of judicial uncertainty. End
Summary.

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What Constitution?
------------------

2. (U) The Supreme Court and Constitutional Tribunal were
dissolved (unconstitutionally) by Congress shortly after the
irregular change of government in April. Congress then
passed a law mandating a new (extra-constitutional) selection
process for the new court. This all came in the wake of an
unsuccessful last-ditch attempt by ex-president Lucio
Gutierrez to quell street protests leading to his ouster by
(unconstitutionally) disbanding the court his allies had
(unconstitutionally) packed in December, 2004.

3. (U) Lack of political support for a return to the
original (politicized) court caused Congress, the
international community (UN Rapporteur for Judicial Affairs,
the OAS, the Community of Andean National), and others to
support the new selection process imposed by Congress with
only minor modifications, despite it being
extra-constitutional. The law created a selection committee
and included a point system for qualifying candidates. It
also mandated that the court's 31 members be apportioned by
affiliation (11 to sitting members of the judiciary, 10 to
academic legal theorists, and 10 to independent lawyers), but
included an exceptional provision (Art. 17) to select the
court by simple numerical rank (top 31 of over 100 qualified
candidates) in the event of lack of consensus.

Down to the Wire
----------------

4. (U) The selection process, while relatively transparent,
was not devoid of political pressure. The selection
commission president reported receiving threats. On November
24, the commission aborted a scheduled press event to
introduce the new court, for lack of consensus over the
selection method. Political parties favored respecting the
mandate to allocate seats by affiliation, anticipating
challenges by a disgruntled judiciary, whose representatives
scored poorly on qualifying exams. OAS, UN, CAN and national
observers worked feverishly to encourage consensus inside the
commission. Time was running out on the process, since by
law, nominees needed to disclose their assets before the
inauguration ceremony scheduled for November 30. After a
readjustment of the rank order of some justices after final
reconsideration, consensus was finally achieved late on
November 28 and the commission voted unanimously in favor of
the application of Article 17, automatically naming the top
31 qualified candidates to the court.

5. (U) Of the 31 selected, only five came from the ranks of
the judiciary, 18 hail from academia, and eight came from the
ranks of independent lawyers. Three of the justices selected
had previously served on the court deposed by Congress in
December 2004. Only two of the 31 Supreme Court justices are
women.

Comment
-------

6. (SBU) Ecuador's democratic institutions were severely
strained by the irregular change of government, undermining
confidence in democracy and creating an urgency for repair.
Now selected, the new court gains legitimacy benefits from
its relatively transparent and independent selection process,
but it will face predictable challenges to its legitimacy.
To protect against constitutional challenge, some are calling
for a popular referendum to ratify the court. Given the
current stand-off between the Executive and Congress over the
government's proposed referendum, however, it is doubtful the
court will be fortified much beyond the inauguration
ceremony, to be attended by OAS SecGen Insulza and UN
Rapporteur Leandro Despouy. The Charge will represent the
Embassy.

7. (SBU) After its inauguration, the court will be severely
tested, both by the backlog of high-profile cases (including
charges pending against imprisoned ex-president Gutierrez)
and the selection of the new national judicial commission.
Once the commission helps reconstitute the Constitutional
Tribunal, Ecuador will have filled a dangerous vacuum in its
judiciary. We believe this overall effort, despite the
recourse to extra-constitutional procedures, merits
international support.

Suggested Press Guidance
------------------------

8. (U) We offer the following suggested guidance for press
inquiries:

-- We congratulate Ecuador for the re-establishment of the
Supreme Court.

-- We were proud to support OAS oversight of the selection
process.

-- A well-qualified and independent judiciary is essential
for effective democratic governance and economic
competitiveness.

-- (If asked) We do not presume to interpret Ecuador's
constitution. That is for Ecuadorian institutions to decide.
BROWN

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